# Petition — Michael v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1079%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1032

## Text

Supreme Cou T
sie rp ourt, U. SB A
Pid E D

OCT 11 1979

‘Miia nonin ia ts
IN THE [mice DAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

79-598

MURRAY H. MICHAEL,
Petitioner,

vs.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT

TANYA M. PLAUT

112 South Lake Avenue
Orlando, Florida 32801
Telephone: (305) 423-2100

Attorney for Petitioner

INDEX

Page

Petition for Writ of Certiorari

to the United States Circuit

Court of Appeals for the

eR ee 1
ee ee ee ee Sr
ee ee ee ee ee ee ee 2
Questions Presented ...... 2
Bteeweee BNVOLVOG «.« 2« « 2 «© ec 2
(Cir Gi'E So 5 6 6 5 6 « « oud

Reasons For Granting This Writ . 4-8

ee ae ee ee ee 8
Certificate Of Service ..... 9
Certificate of Attorney .... 10
APPENDIX:

Opinion of the United States Court
of Appeals, Third Circuit, United
States v. Michael, No. 78-2545
oer. es eis s.¢.e« « -al-3

Judgment of the United States Court
of Appeals, Third Circuit, United
States v. Michael, No. 78-2545
ee ee ee ee |

Judgment of the United States Dis-
trict Court for District of New
Jersey, United States v. Michael,
No. CR 77-00455(Nov., 1978)... a5

ii | iii

INDEX CONTINUED INDEX CONTINUED
APPENDIX CONTINUED: Page CASES CONTINUED: Pace
Statutes Involved ........ a6-8 United States v. Dansker, 537

F.aG@ @0 {ora Cit. 2956) . 2's « 6
Redacted Indictment, United States
v. Michael, No. CR 77-00455 ... a9-44 United States v. Knox Coal Co., 347
Figo ae £308 Cit. i965) s «a we 8
Jury Request No. 15 .. 5s « « « -« a45
United States v. Tornabene, 222
Excerpt of Trial Transcript ... a46 F.26 875 (326 Cir. 1955)... . 5

Certificate Of Service ..... a47 United States v. Weitzel, 246 U.S.
533 (1918) ie ae ae ere
TABLE OF CASES AND STATUTES CITED
Williams v. North Carolina, 317

CASES: Wis Oe? CeO SS eke on“ 8k. aE
Benton v. Maryland, 395 U.S. 784, STATUTES:
(2968) « « « 6 ow oe we ee C8 7

CS a A a oe a ee ee ie
Cramer v. United States, 325 U.S.

iA, Bie Saeeee .& se 6 ce «ek 6 ae. Gawees. 6 Ore * ee a ae Se
LaFont v. United States, No. 78- CRS Ae oe ee ee oe ae eee.
5930 ee ae ee ay ae eg eee ee 4, 7 SG, Be Ge Fa
Levy v. United States, No. 78- Cee ee oe): a ere ee ee

5855 ae ter kes Me ees et ee oe ee ae 4, 7
au U.8,C,. § A250 (a). 6 10 eh es es 2

Perrin v. United States, No. 78-
959 . . ° ° ° . ° ° ° ° 7 ° 4, 7

Pinkerton v. United States, 328
3.8. Gee tives, 4°54 © & es 3, 6

Stromberg v. California, 283 U.S.
359 (1931) e - e * e ° * e ° ° 6

United States v. Britton, 108 U.S.
ie 4a sone tee a 8

Ow

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1979

No.

MURRAY H. MICHAEL,
Petitioner,

vs.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE THIRD CIRCUIT

To the Honorable, the Chief Justice and
Associate Justices of the Supreme
Court of the United States.

Murray H. Michael, the petitioner
herein, prays that a writ of certiorari
issue to review the judgment of the
United States Court of Appeals for the
Third Circuit entered in the above-
entitled case on August 17, 1979.

OPINIONS BELOW

The opinion of the United States
Court of Appeals, Third Circuit is un-
reported and is included in the Appen-
dix hereto, infra, pages al-3.

The judgment of the United States Cir-
cuit Court of Appeals, Third Circuit,
is included in the Appendix hereto,
infra, page a4. The judgment of the
United States District Court for New

2

Jersey is included in the Appendix here-
to, infra, page a5.

JURISDICTION
The judgment of the Ccurt of Appeals

sought to be reviewed was entered on
August 17, 1979. A petition for re-

hearing was denied on September 12, 1979.

The jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the District Court erred
in instructing the jury that the peti-
tioner could be convicted as a principal
of violating 18 U.S.C. § 656.

2. Whether the Court of Appeals
abused its discretion by invoking the
concurrent sentence rule.

3. Whether the conspiratorial ob-
jective alleged by the respondent set
forth a criminal misapplication of bank
funds.

STATUTES INVOLVED

18 U.S.C. § 2 (App. 6).

i8 U.8.€. § 372 Capp. 6).

18 U.S.C. § 656 (App. 7).

18 U.S.C. § 1952 (App. 8).

3
STATEMENT

Following a jury trial in the United
States District Court for the District
of New Jersey, petitioner was convicted
on all counts of a seventeen count
indictment (App. 9-44). These seventeen
counts involved three different crimes,
more particularly described as follows:

(a) COUNT 1: This single count
charged the petitioner with conspiracy
to misapply bank funds in violation of
18 U.S.C. § 371 (App. 9-15).

(b) COUNTS 2-14: These thirteen
counts charged the petitioner with aid-
ing and abetting a bank officer in the
misapplication of bank funds in viola-
tion of 18 U.S.C. §§ 656 and 2 (App. 16-
41).

(c) COUNTS 15-17: These final three
counts charged the petitioner with cross-
ing state lines with intent to commit
commercial bribery in violation of the
Travel Act, 18 U.S.C. § 1952 (App. 42-44).

At the close of all the evidence, the
District Court, under the authority of
Pinkerton v. United States, 328 U.S.

640 (1946), gave the jury a "derivative
liability" instruction, thereby allow-
ing the jury to convict the petitioner
of violating 18 U.S.C. § 656 as a
principal.

The petitioner was sentenced to
seventeen concurrent five-year terms of
imprisonment (App. 5). The Court of
Appeals affirmed the petitioner's

4

conviction on Count 1, the conspiracy
count, and Counts 2-14, the thirteen
aiding and abetting misapplication of
bank funds counts (App. 1-3).

With regard to Counts 15-17, the Travel
Act convictions, the Court of Appeals
invoked the concurrent sentence rule
and refused to pass upon these three
convictions (App. 2-3). The issue
involved in these three Travel Act
counts, i.e., whether commercial brib-
ery is proscribed by the Travel Act,
is presently before this Court on
certiorari in the cases of Perrin v.
United States, No. 78-959; Levy v.
United States, No. 78-5855; and LaFont
v. United States, No. 78-5930.

REASONS FOR GRANTING THIS WRIT

1. The petitioner, who is not now,
nor has he ever been, a bank officer,
was charged in Counts 2-14 of the re-
dacted indictment with aiding and abet-
ting a bank officer in the misapplica-
tion of bank funds in violation of 18
u.S.C. § 656 (App. 16-41). By its
terms, 18 U.S.C. § 656 may only be vio-
lated by the following individuals:

. . . an officer, director, agent
or employee of, or connected in
any capacity with any Federal
Reserve bank, member bank,
national bank or insured bank,

or a receiver of a national

bank, or any agent or employee

of the receiver, or a Federal
Reserve Agent, or an agent or
employee of a Federal Reserve

.—_ eA

— -—-

5

Agent or of the Board of
Governors of the Federal
Reserve System...
(App. 7).

A non-bank officer may be validly con-
victed of conspiring to violate 18 U.S.
C. § 656 and/or aiates and abetting
the violation of 18 U.S.C. § 656, but
this Court and the United States Circuit
Court of Appeals for the Third Circuit
have held that only a bank officer may
be validly convicted of violating 18
U.S.C. § 656 as a principal. United
States v. Weitzel, 246 U.S. 533 (1918)
and United States v. Tornabene, 222
F.2d 875 (3rd Cir. 1955).

Nonetheless, in the instant case, the
trial court gave the jury an instruction
which allowed the petitioner to be con-
victed of violating 18 U.S.C. § 656 as

a principal. This instruction was as
follows:

If you find that the conspiracy
alleged in Count 1 has been proven,
and you find that in furtherance
of that conspiracy any co-conspira-
tor committed one or more of the sub-
stantive crimes charged in Counts
2-14, then you may find the defen-
dant, Murray H. Michael, guilty of
those substantive crimes even if
he did not commit them directly.
This is so because a conspiracy
can be viewed as a partnership
in crime and each partner is re-
sponsible for the criminal acts
of his co-conspirators which were
committed in furtherance of the
conspiracy (App. 45).

6

It is not unusual for this instruction
to be given in multi-count indictments
which contain a conspiracy count alleg-
ing that the defendants conspired to
commit certain substantive crimes which
are also charged in other counts of the
same indictment. The instruction orig-
inated in Pinkerton v. United States,
328 U.S. 640 (1946), and is based

upon the premise that the acts of one
conspirator committed in furtherance of
the conspiracy are the acts of all
conspirators. However, in the instant
case, the substantive offenses which the
conspirators allegedly conspired to
commit are violations of 18 U.S.C.

§ 656, which may only be violated by a
bank officer. Thus, the petitioner may
have been convicted of a crime which it
is legally impossible for him to commit.
After deliberations, the jury foreman
Simply stated: "Your Honor, we have
found the Defendant guilty on all seven-
teen charges" (App. 46). Thus, the re-
cord of this case does not reveal wheth-
er the petitioner was validly convicted
of violating 18 U.S.C. § 656 as an

aider and abettor or invalidly convicted
as a principal. This Court and the
United States Circuit Court of Appeals
for the Third Circuit have ruled that

a verdict must be set aside where it is
supportable on one ground but not on
another, and it is impossible to tell
which ground the jury selected.
Stromberg v. California, 283 U.S. 359,
367-8 (1931); Cramer v. United States,
325 U.S. 1, 36 n.45 (1945); United
States v. Dansker, 537 F.2d 40, 51

7

(3rd Cir. 1956); and Williams v. North
Carolina, 317 U.S. 287, 291-2 (1942).
Accordingly, this Court should grant
petitioner's writ in order to decide the
important federal question of whether
a non-bank officer may be convicted of
violating 18 U.S.C. § 656 under the
derivative liability doctrine.

2. As stated above, the Court of
Appeals affirmed the petitioner's con-
victions of the single conspiracy count
and the thirteen aiding and abetting
misapplication of bank funds counts,
but invoked the concurrent sentence
rule and refused to pass upon Counts 15-
17, the Travel Act counts (App. 1-3).
Although the invocation of the concur-
rent sentence rule is a matter of dis-
cretion with appellate courts, this
Court has stated that a review of con-
victions is always desirable where
“adverse collateral consequences" may
flow from an unreviewed conviction.
Benton v. Mar,land, 395 U.S. 784, 790
(1969).

The issue raised by petitioner in the
three Travel Act counts, i.e., whether
commercial bribery is proscribed by the
Travel Act, is presently being consider-
ed by this Court in Perrin v. United
States, No. 78-959; Levy v. United
States, No. 78-5855; and LaFont v.
United States, No. 78-5930. Thus, the
likelihood of adverse collateral effects
flowing from the petitioner's three un-
reviewed Travel Act convictions is cer-
tainly a possibility since this Court
may well rule that commercial bribery

8

is not proscribed by the Travel Act.
Accordingly, the Court of Appeals, know-
ing that the issue raised by petitioner
was already before this Court on certio-
rari, abused its discretion in invoking
the concurrent sentence rule and refus-
ing to pass upon the petitioner's three
counts of Travel Act convictions.

3. The conspiratorial objective
alleged by the government in Count l,
the conspiracy count, does not set forth
a criminal misapplication of bank funds
except insofar as it tracks the statu-
tory language of 18 U.S.C. § 656. This
Court and the United States Circuit
Court of Appeals for the Third Circuit
have stated that a factual description
of the conspiratorial objective of a
given conspiracy is not satisfied mere-
ly by tracking the statutory language.
United States v. Britton, 108 U.S. 199
(1883) and United States v. Knox Coal
Co., 347 F.2d 33 (3rd Cir. 1965).

Thus, this portion of the decision
sought to be reviewed is in conflict
with decisions of this Court and the
Third Circuit Court of Appeals.

CONCLUSION

In view of the vital importance of
the question of federal law presented
ana the other considerations set forth
above, it is respectfully submitted
that this petition for writ of certio-
rari be granted.

Respectfully submitted,

TANYA M. PLAUT

112 South Lake Avenue
Orlando, Florida 32801
Telephone: (305) 423-2100

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th
day of October, 1979, copies of this
Petition for Writ of Certiorari were
mailed, air mail postage prepaid to the
Solicitor General, Department of Justice,
Washington, D.C. 20530. I further
certify that all parties required to be
served have been served.

TANYA M. PLAUT

10
CERTIFICATE OF ATTORNEY

I, TANYA M. PLAUT, hereby certify
that I am a member of the Bar of the
United States Suvreme Court in good
standing and was admitted to practice
by the Court on November 6, 1972.

TANYA M. PLAUT
Attorney

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1079%3A1. Public record. Not legal advice.