Opposition — Mandel v. En Banc Court of Appeals for the Fourth Circuit
Supreme Court brief1980
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ATHY
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PELED
Nos, 79-1028, 79-1029 and 79-1090 | 0%. 22 ‘1980
In the Supreme Court of the RM OE
OCTOBER TERM, 1979 |
MARVIN MANDEL, ET AL., PETITIONERS
Vv.
EN BANC COURT OF APPEALS FOR THE
FOURTH CIRCUIT, ET AL.
MARVIN MANDEL, ET AL., PETITIONERS
Vv. ;
UNITED STATES OF AMERICA
HARRY W. Ropcers, IIIT and ERNEST N. Cory, JR.,
PETITIONERS
Vv.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF MANDAMUS AND
A WRIT OF CERTIORARI TO THE UNITED. STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT —
BRIEF FOR THE UNITED STATES IN OPPOSITION
WADE H. McCRrEE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ROBERT J. ERICKSON
JOHN F, DEPUE
Attorneys 3
Department of Justice —
Washington, D.C. 20530
INDEX
Page
Opinions below 2
Jurisdiction - 2
Questions presented 2
Statement 3
Argument 15
Conclusion 51
CITATIONS
Cases:
Adickes v. S.H. Kress & Co., 398 U.S.
144 38
Biggers v. Tennessee, 390 U.S. 404 ____. 23
Blockburger v. United States, 284 U.S.
299 . : 38
Bulluck v. Washington, 468 F.2d 1096 __ 19
Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663 40, 41
California v. Green, 399 U.S. 149 -_._......- 46
Carmichael vy. Eberle, 177 U.S. 63 _... 19
Cupp v. Naughten, 414 U.S. 141 _...___- 25
Drake Bakeries Inc. v. Local 50, Ameri-
can Bakery & Confectionery Workers,
294 F.2d 399, aff’d on other grounds,
370 U.S. 254 17, 20
Durant v. Essex Co., 74 U.S. (7 Wall.)
107 20
Durland v. United States, 161 U.S. 306 _ 29
Farrand Optical Co. v. United States, 317
F.2d 875 17, 18
Goldsmith-Grant v. United States, 254
U.S. 505 41
I
Cases—Continued Page
Iannelli v. United States, 420 U.S. 770 — 38
ITO Corp. of Baltimore v. Benefits Review
Board, 548 F.2d 908, cert. denied, 433
U.S. 908 __.17, 22-23
Kimes v. United States, 516 F.2d 377 _. 17, 23
Lacy v. United States, cert. denied, 439
U.S. 832 50
Moody v. Albemarle Paper Co., 417 U.S.
622 16
One Plymouth Sedan v. Pennsylvania, 380
U.S. 693 41
Pereira v. United States, 347 U.S. 1. 25, 33
Perez-Vega v. United States, cert. denied,
424 U.S. 970 _. 50
Shaffer v. Heitner, 483 U.S. 186 _______. 41
Shushan v. United States, 117 F.2d 110,
cert. denied, 313 U.S. 574 31
United States v. Acosta, 509 F.2d 539,
cert. denied, 423 U.S. 891 17
United States v. Aleman, 609 F.2d 298,
petition for cert. pending, No. 79-1009 _ 35
United States v. Bagley, 5387 F.2d 162,
cert. denied, 429 U.S. 1075 43
United States v. Barrett, 505 F.2d 1091,
cert. denied, 421 U.S. 964 30
United States v. Bayer, 331 USS. 582........ 26-27
United States v. Brown, 411 F.2d 930 ___ 50
United States v. Brown, 540 F.2d 364___. 30, 31
United States v. Bush, 522 F.2d 641, cert.
denied, 424 U.S. 977 25, 30
United States v. Campanale, 518 F.2d 352,
cert. denied, 423 U.S. 1050 35, 36
United States v. Carlson, 547 F.2d 1346,
cert. denied, 431 U.S. 914 43, 48
Cases—Continued Page
United States v. Chovanec, 467 F.Supp.
41 35
United States v. Clavey, 578 F.2d 1219,
cert. denied, 439 U.S. 954 17, 19, 22
United States v. Culbert, 435 U.S. 371 _ 35, 37
United States v. Davis, 571 F.2d 1354___ 48
United States v. Dyba, 554 F.2d 417, cert.
denied, 484 U.S. 830 50
United States v. Edwards, 458 F.2d 875,
cert. denied, 401 U.S. 891 30
United States v. Feinberg, 585 F.2d 1004,
cert. denied, 429 U.S. 929 32
United States v. Fioravanti, 412 F.2d 407,
cert. denied, 396 U.S. 837 50
Onited States v. Flawman, 495 F.2d 344,
cert. denied, 419 U.S. 1031 32
United States v. Forsythe, 560 F.2d 1127. 35
United States v. Friedman, 593 F.2d 109.. 48, 45
United States v. Garner, 574 F.2d 1141,
cert. denied, 489 U.S. 936 43
United States v. Geders, 566 F.2d 1227,
aff’d on rehearing, 585 F.2d 1308, cert.
denied, 441 U.S. 922 16
United States v. George, 477 F.2d 508,_
cert. denied, 414 U.S. 827 31
United States v. Gutierrez-Barron, 602
WRG TBE cc. 19, 21, 22
United States v. Haldeman, 559 F.2d 31,
cert. denied, 431 U.S. 933 27
United States v. Holmes, 537 F.2d 227 __ 17
United States v. Honea, 556 F.2d 90¢___. 27
IV
Cases—Continued Page
United States v. Huber, 603 F.2d 387,
petition for cert. pending, No. 79-896 ... 41, 42
United States v. Iaconetti, 406 F. Supp.
554, aff’d, 540 F.2d 574, cert. denied,
429 U.S. 1041 45, 46
United States v. Keane, 522 F.2d 534,
cert. denied, 424 U.S. 976 30, 33
United States v. Leslie, 542 F.2d 285. 45, 46
United States v. L’Hoste, 609 F.2d 796 _. 25, 41
United States v. Lovasco, 481 U.S. 783 __. 38
United States v. Lyon, 567 F.2d 777, cert.
denied, 435 U.S. 918 __- 48
United States v. McPartlin, 595 F.2d 1321,
cert. denied, No. 78-1751 (Oct. 1, 1979) -. 45
United States v. Medico, 559 F.2d 309 ___. 45, 48
United States v. Mirabile, 503 F.2d 1065,
cert. denied, 420 U.S. 973 __... 32
United States v. Newson, 531 F.2d 979 __. 28
United States v. Oates, 560 F.2d 45... 48
United States v. Park, 421 U.S. 568 __.25, 26, 29
United States v. Rabbitt, 583 F.2d 1014,
cert. denied, 439 U.S. 1116 31
United States v. Reid, 5383 F.2d 1255 33
United States v. Rubin, 559 F.2d 975___ 40
United States v. Ruffin, 575 F.2d 346. 48
United States v. Solano, 605 F.2d 1141,
cert. denied, No. 79-5541 (Jan. 7,
1980) 38
United States v. States, 488 F.2d 761,
cert. denied, 417 U.S. 909 29, 30
United States v. Swiderski, 593 F.2d 1246,
cert. denied, 441 U.S. 933 eee
United States v. Thomas, 449 F.2d 1177 .. 51
United States v. Vignola, 464 F.Supp.
1091 35
V
Cases—Continued Page
United States v. Walden, 464 F.2d 1015,
cert. denied, 409 U.S. 867 pean 17, 23
United States v. Ward, 552 F.2d 1080,
cert. denied, 484 U.S. 850 43
United States v. West, 574 F.2d 1131___ 43
Western Pacific R.R. Corp. v. Western
Pacific R.R., 348 U.S. 247 -..W............... 16, 21
Constitution, statutes, and rules:
United States-Constitution:
Art. III, See. 3 ‘s 39
Fifth Amendment, Double Jeopardy
Clause 37
Eighth Amendment 41
Pub. L. No. 91-452, 84 Stat. 922:
Section 1, 84 Stat. 922, 18 U.S.C. 1961
note 36-37
Section 904, 84 Stat. 947, 18 U.S.C.
1961 note 37
RS 8 Sk AREER is as aa ee EON 40
UM hci oe 3
ee re ce 2, 3, 31, 32
18 U.S.C. 1961, et seq. cae 3, 34
18 U.S.C. 1961 (1) os . 36
18 U.S.C. 1962 ___ ms 3
Bee RR BRE OOD. sccm cones ncsccinitieacaclecsbcnneose 35, 36
18 U.S.C. 1962(c) _.. : ise 35, 36
18 U.S.C. 1963 a a _..8, 39, 40
Ree Aaa OD 4, 40
18 U.S.C. 3563 ie 39
ee Ce UE 4¢
Mr NT ce 40
28 U.S.C. 46 2,15
VI
Constitution, statutes and rules—Continued Page
28 U.S.C. 46(c) 16
28 U.S.C. 2255 39
49 U.S.C. 781-782 41
Fed. R. App. P. 35(a) 19
Fed. R. Crim. P. 35 39
Fed. R. Evid. 803 (24) 3, 42, 43, 47, 48
Fed. R. Evid. 804(b) (5) 43
Miscellaneous:
116 Cong. Rec. 35302 (1970) 37
116 Cong. Rec. 35343-35344 (1970) ____. 37
77 Harv. L. Rev. 767 (1964) 17
S. Rep. No. 91-617, 91st Cong., 1st Sess.
(1969) 40
United States Court of Appeals for the
Seventh Circuit, Practitioner’s Hamnd-
book for Appeals (1979) 22
4 Weinstein’s Evidence (1975) 43, 48
In the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1028
MARVIN MANDEL, ET AL., PETITIONERS
Vv.
EN BANC COURT OF APPEALS FOR THE
FOURTH CIRCUIT, ET AL.
No. 79-1029
MARVIN MANDEL, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
No. 79-1030
HARRY W. RopGErs, III and ERNEST N. Cory, JR.,
PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF MANDAMUS AND
A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
(1)
2
OPINIONS BELOW
The panel decision (Pet. App. 17a-88a)* is re-
ported at 591 F.2d 1347. The order of the en banc
court (Pet. App. 7a-15a) is reported at 602 F.2d
653. The order denying a further rehearing en banc
by an enlarged court (Pet. App. la-5a) is reported
at 609 F.2d 1076.
JURISDICTION.
The judgment of the en banc court was entered on
July 20, 1979. The petition for rehearing was denied
on November 1, 1979. On November 20, 1979, the
Chief Justice extended the time for filing the peti-
tions for a writ of certiorari to and including De-
cember 31, 1979, and the petitions were filed on that
date. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether affirmance of judgments of conviction
by an equally divided en banc court of appeals, follow-
ing xeversal of the judgments by a panel, violates the
en banc statute, 28 U.S.C. 46.
2. Whether the trial court improperly instructed
the jury on the elements of mail fraud.
3. Whether petitioners’ prosecution for mail fraud
constituted an impermissible extension of the federal
mail fraud statute, 18 U.S.C. 1341.
1“Pet, App.” refers to the appendix to the petition in No.
79-1029.
4, Whether the RICO statute, 18 U.S.C. 1961 et
seq., applies only to persons involved in organized
crime.
5. Whether the forfeiture sanction of 18 U.S.C.
1963 constitutes an impermissible forfeiture of estate.
6. Whether the trial, judge improperly admitted
hearsay testimony under Fed. R. Evid. 803(24).
7. Whether the trial judge’s Allen instruction was
improper.
STATEMENT
1. Following a jury retrial,’ petitioner Mandel,
then Governor of the State of Maryland, petitioners
W. Dale Hess, Harry W. Rodgers, William A. Rodgers,
and Irvin Kovens, all Maryland businessmen, and peti-
tioner Ernest N. Cory, a Maryland attorney, were con- |
victed in the United States District Court for the
District of Maryland on 15 counts of mail fraud, in
violation of 18 U.S.C. 2 and 1341, and on one count of
racketeering, in violation of 18 U.S.C. 1962. Mandel
2 Petitioners’ first trial was aborted because publicity con-
cerning certain jury tampering activities reached the jury.
See United States v. Mandel, 431 F.Supp. 90, 95 (D. Md.
1977). The circumstances surrounding the mistrial are not
pertinent to the issues presented here.
* Petitioners were indicted as principals and aiders and
abetters on 20 counts of mail fraud (Counts 1-20 of the
indictment). In various combinations, petitioners were also
indicted on four counts of racketeering (Counts 21-24 of the
indictment). Prior to trial, the court dismissed one racke-
teering count (Count 22). The jury acquitted petitioners of
three mail fraud counts (Counts 5, 6, and 14). After trial,
the court entered judgments of acquittal on two mail fraud
courts and one racketeering count (Counts 19, 20 and 28).
4
was sentenced to four years’ imprisonment. Hess,
Harry Rodgers and Kovens were sentenced to four
years’ imprisonment and fined $40,000. William
Rodgers was sentenced to 20 months’ imprisonment and
fined $40,000. Cory was sentenced to 18 months’ im-
prisonment. In addition, pursuant to 18 U.S.C. 1963
(a), Hess, Kovens, the Rodgers brothers and Cory were
ordered to forfeit ownership interests in Southern
Maryland Agricultural Association, Inc., the cor-
porate owner of the Marlboro and Bowie racetracks.
The en banc court of appeals affirmed (Pet. App. 6a).
2. The substance of the mail fraud alleged in the
indictment was that beginning in early 1969, and
continuing until the date of the filing of the indict-
ment, petitioners devised a scheme to defraud the citi-
zens of Maryland through bribery, misrepresentation
and the concealment of material facts, and there-
after used the mails to facilitate the scheme (Pet.
App. 19a). In particular, the indictment charged
that between 1972 and 1975, petitioners concealed
from the Maryland General Assembly and the State
Racing Commission the identities of the true owners
of Marlboro Racetrack, causing the legislators and
the Racing Commission to make decisions beneficial
to them; that in his capacity as governor, petitioner
Mandel received bribes from the other petitioners in
return for his assistance in obtaining legislation
favorable to the Marlboro Racetrack; and that Man-
del, without revealing his business involvements with
the other petitioners, permitted and approved the
award of various benefits to business entities in
5
which they held financial interests. United States v.
Mandel, 415 F. Supp. 997, 1004 (D. Md. 1976) (or-
der denying motion to dismiss indictment).
a. The government’s evidence showed that in Feb-
ruary 1971 the owners of the Marlboro Racetrack
(who at that time did not include petitioners) con-
tracted with the owners of Hagerstown Racetrack for
the transfer to Marlboro of 18 racing days allotted
to Hagerstown. Since the horse racing business is
regulated by the State of Maryland, the proposed
transfer of racing days required the approval of the
state legislature. In April 1971, the Maryland Gen-
eral Assembly passed House Bill 1128, which au-
thorized the transfer of racing days to Marlboro.
However, after receiving advice that the bill was
unconstitutional, Mandel vetoed it (Pet. App. 21a-
22a).
Following this veto, the owners of Marlboro sold
the racetrack to a group of undisclosed clients, rep-
resented by petitioner Cory. The group consisted of
petitioners Hess, the Rodgers brothers and Irving
Schwartz, a longtime business associate of Kovens
(Pet. App. 22a). Schwartz, the only purchaser whose
identity was known to the sellers, was in fact a front
man for Kovens, who secretly provided much of the
funding for the purchase (Pet. App. 22a; Tr. 4065,
4069, 4077-4081, 4085-4086, 4094-4095, 6057-6059,
6061, 6065, 6551-6552, 6637-6663, 6667-6675) .*
* Unless otherwise noted, “Tr.” refers to the transcript of
petitioners’ second trial. “App.” refers to the joint appendix
filed in the court of appeals.
6
Shortly after the purchase was consummated, the
purchasing group, still withholding their identities
from the Maryland Racing Commission, chose Eugene
Casey to represent liimself as the new owner of Marl-
boro (Tr. 4318-4319, 4323). Casey publicly an-
nounced his purchase of Marlboro on January 1,
1972. A week later, Casey and Cory sent a letter to
the Maryland General Assembly advising of Casey’s
recent acquisition of Marlboro and requesting that
Mandel’s veto of House Bill 1128 be overriden (Pet.
App. 22a; Tr. 4420-4422).
While there was no direct evidence that petitioner
Mandel knew the identity of Marlboro’s new owners,
there was strong circumstantial evidence of his
knowledge, including his intense interest in Maryland
racing and his close personal relationships with sev-
eral of the purchasers (Tr. 1705-1716, 8271-8275,
8609-8610, 8629-8631, 8678-8691). In addition, the
day before the Marlboro sale was consummated, ten
separate telephone calls were placed from Mandel’s
office to the office of the insurance agency owned by
the Rodgers brothers (Tr. 9200). The evidence
showed that immediately after the purchase of Marl-
boro by the other petitioners, Mandel lent his personal
support to two pieces of legislation highly beneficial
to the racetrack, including House Bill 1128, which he
had previously vetoed. During the process of de-
liberating and voting on whether Mandel’s veto of
House Bill 1128 should be overriden, Mandel’s aides
conspicuously failed to lobby in support of his veto as
they normally did. State Senate members openly
discussed the Governor’s lack of support for his own
7
veto. Moreover, Mandel’s chief legislative spokes-
man, Senator Roy Staten, told several of his senate
colleagues that Mandel would like his veto of House
Bill 1128 overriden or would not object to an over-
ride (Tr. 4843; Pet. App. 23a, 79a-80a). Against
this background, on January 12, 1972, the General
Assembly overrode the governor’s veto of House Bill
1128 by a broad margin, with most of Mandel’s sup-
porters in the majority (Pet. App. 79a).
Two months later, the Mandel administration in-
troduced in the Maryland legislature a bill that would
consolidate Maryland racetracks and, in so doing, pro-
vide substantial benefits to the owners of Marlboro
(Pet. App. 23a). In singling out Marlboro for special
treatment, the bill went considerably beyond pre-
vious consolidation efforts. The Mandel Administra-
tion worked hard for the bill’s passage, and Mandel
personally lobbied legislators to support it (Tr. 4633-
4639, 4878, 5051, 5318-5324, 5609, 5682, 5779, 5895-
5903, 7621). The consolidation bill was embroiled in
controversy from the start because of the large wind-
fall it provided to Marlboro and because of persistent
rumors concerning the identities of Marlboro’s true
owners. In view of this, the Senate Finance Com-
mittee requested the State Racing Commission to de-
termine the true identities of the track’s new owners.
Responding to a specific Commission inquiry, Cory
concealed the identities of Hess, Kovens and the
Rodgers brothers as the beneficial owners (Tr. 4652-
4655). Kovens also sent a telegram to the finance
committee denying any involvement with Marlboro
(Tr. 5889-5390). Although the consolidation bill was
passed by the Senate and the House of Delegates in
an amended form still highly favorable to Martboro,
it was finally defeated on the last night of the legis-
lative session (Tr. 5030-5036; Pet. App. 24a). Ten
state senators later testified that knowledge of the
identities of the undisclosed owners, as well as Man-
del’s relationship with them, would have been directly
relevant to their deliberations both on the racetrack
consolidation bill and on their vote to override the
veto of House Bill 1128 (Tr. 5077-5078, 5624-5627,
5685-5687, 5780-5783).
b. At the same time that Hess, the Rodgers
brothers and Kovens secretly purchased Marlboro
(December 1971), Hess and the Rodgers brothers
secretly conveyed to Mandel a 15% interest in
Ray’s Point, Inc., a 200 acre parcel of highly desir-
able real estate on Maryland’s eastern shore. That
interest, which was worth approximately $45,000,
was given to Mandel for a total consideration of
$150. Unlike all but one of the others, Mandel was
not obligated on the mortgage (Pet. App. 26a; Tr.
1873-1875, 1892, 1898, 2123).° Documents formaliz-
5 The objective of the Ray’s Point venture was to develop
the waterfront real estate and sell individual lots at a sub-
stantial profit (Tr. 1771-1778, 1874). Harry Rodgers testi-
fied that the venture was designed to yield to each participant
a profit of at least $35,000 (Tr. 10132-10133). Hess explained
to another Ray’s Point partner, Nathan Cohen, that he and
the Rodgers brothers “take care of” Mandel in various ways,
including allowing him to participate in business ventures
without his name appearing in any public record (Tr. 1883-
1884).
ing this arrangement were drafted during the early
months of 1972, while the legislature was consider-
ing legislation beneficial to Marlboro. Although the
original corporate minutes listed the names of all the
shareholders, William Rodgers ordered the prepara-
tion of revised minutes omitting the name of Mandel.
In addition, Mandel’s partieipation in the venture was
concealed from bank officials and other persons deal-
ing with the Ray’s Point venture, as well as from
the general public (Tr. 1898-1906, 1785, 2120, 2123;
Pet. App. 26a).
In March 1972, Hess became a 9% partner. in
another venture, Security Investment Company, a
real estate partnership in which the Rodgers brothers
also had an interest. The partnership leased two of-
fice buildings to the Social Security Administration
for more than $1.3 million annually (Tr. 2290, 2291,
2295, 2298, 2301-2302, 2418; Pet. App. 26a). While
the racetrack consolidation bill was pending, Hess se-
cretly assigned to Mandel a 4% interest in Security
Investment, keeping 5% for himself. Although the as-
signment was formalized in May 1972, Mandel knew
before then that he would receive the assignment,
which was valued at approximately $140,000 (Pet.
App. 26a-27a; Tr. 2337, 2426, 2686-2688, 2692-2693,
8515-8516, 8524-8525). Beginning in May 1972, Hess
sent Mandel monthly income checks stemming from
his interest in Security Investment (Tr. 2522-2527).
Mandel reported these sums on his tax returns as
10
“dividends” and later as “legal fees” (Tr. 2818, 2843,
2875-2876) .°
In addition to receiving interests in these two real
estate ventures, Mandel received other lavish gratui-
ties from the other petitioners during the period en-
compassed by the indictment, including several thou-
sand dollars worth of clothing (Tr. 3036-3039,
3238),’ and jewelry costing nearly $8,000 for his
wife (Tr. 3999, 3405) and son (Tr. 3441-3445, 3457-
3458). On one occasion, Hess paid for a $3,300 dia-
mond ring for Mandel’s son with cash delivered to the
jeweler at a New York airport in a paper bag (Tr.
3446-3455). Mandel and his family also received
* Mandel and Hess agreed that Mandel should report these
monthly payments as part of an attorney’s fee Hess owed
Mandel. Accordingly, Mandel reported these funds on his
1978 tax return as “fees” (Tr. 2843). Hess also told an
accountant preparing his income tax return that monies paid
by him to Mandel were legal fees (Tr. 2552, 2559; Pet. App.
27a). To substantiate this claim, Hess directed his secretary
in 1974 to prepare a letter asserting that he owed a $15,000
legal fee to Mandel. The letter was falsely dated March 22,
1968, and was typed on a typewriter Hess had used during
1966 in order to make it appear as if it had been executed
prior to Mandel’s assumption of office as governor (Tr. 2682-
2686). A copy of the letter was then sent to the accountant
to substantiate a legal fee deduction. Hess also directed his
secretary to rewrite his 1972 and 1978 cash disbursement
journals and check stubs by substituting the term “legal fees”
for the original “Sec. Inv.” on entries describing disburse-
ments to Mandel (Tr. 2665, 2676).
T In one instance, the clothing was paid for by checks drawn
on the Charlestown Racetrack, which was principally owned
by Kovens; the track’s records described the purchases as
. uniforms for the track security guards (Tr. 3209, 3281-3291,
3317-3325, 3846-3361; Pet. App. 25a).
11
travel and vacations at a Florida resort paid for by
Harry Rodgers (Tr. 3036-3040, 3237-3238). In ad-
dition, Kovens provided over $100,000 worth of bonds
with which to finance Mandel’s 1973 property settle-
ment following his divorce (Tr. 3859, 3936, 3941).
Over $40,000 needed for alimony payments was also
made available to Mandel hy Hess and Harry Rodgers
through a chain of four “middlemen” who wrote
checks to one another. The last individual in the
chain, who signed a check made payable to the gov-
enor of Maryland, was a motorcycle salesman who
had never met Mandel (Tr. 3551-3558, 3570-3573,
3733-3743, 8801-8807).
ce. After the consolidation bill failed to pass in the
General Assembly, the petitioners who secretly owned
Marlboro continued to conceal their interests from the
Maryland Racing Commission. Thus, Cory and Harry
Rodgers assembled a group of ‘front men whose names
were submitted by Cory in a July 1972 letter to the
Commission as those of the new stockholders. In
fact, the named individuals were mere nominees who
possessed no ownership interest in the track (Tr.
6431-6435, 6440-6444, 6615-6616; Gov. Exh. 12 (App.
2927)). Prior to appearing before the State Rac-
ing Commission, Cory also removed a page from
the Marlboro stock book that showed the actual
ownership of the shares (Tr. 6610-6611). Finally,
to complete the deception, he provided the same false
information to an official of the Thoroughbred Rac-
ing Protective Bureau, to the publisher of a Mary-
land racing magazine, and to a State Assistant At-
12
torney General (Tr. 5215-5222, 5399-5408, 6092-6093,
6265-6266; App. 2924, 2930, 2972-2974). With a
total lack of accurate information, the Maryland
Racing Commission thereafter granted Marlboro a
series of benefits, including the award of choice rac-
ing dates, which furthered the economic interests of
Hess, the Rodgers brothers, Kovens and Cory (Tr.
6134-6163).
In December 1972, the owners of Marlboro con-
sidered the advisability of merging with Bowie Race-
track, a larger, more successful enterprise (Tr.
6876). Hess and the Rodgers brothers were informed
by their attorney that full disclosure of Marlboro’s
actual ownership should be made to the Racing Com-
mission in the course of effecting the merger. Hess
and the Rodgers brothers decided to consult with
Mandel to determine whether such disclosure should
be made. Hess later reported that Mandel vigorously
opposed disclosure—that “Mandel has scotched com-
ing clean” about the true ownership of Marlboro (Tr.
6938, 6942, 6954-6957).
On December 28, 1972, the Marlboro and Bowie
tracks were merged (Pet. App. 24a). Instead of re-
vealing the true ownership interests in the enterprise,
the stock of Marlboro and the assets of Bowie were
transferred to a newly-chartered corporation, South-
ern Maryland Agricultural Association, Inc., with
the former owners of Marlboro receiving 30% of
the stock in the new company (Pet. App. 24a-25a).
Hess and the Rodgers brothers then ostensibly trans-
_ ferred their interest to Cory by use of an agreement
13
that included a non-recourse note. Under the terms
of the transfer, the stock would revert to Hess and
the Rodgers brothers if Cory were unable to pay the
$630,000 purchase price within five years (Tr. 6977-
6979; Pet. App. 25a). In a report furnished in re-
sponse to a Racing Commission request regarding
ownership of the Marlboro-Bowie entity, Cory was
lisited as the owner of the portion of the enterprise
formerly owned by Hess and the Rodgers brothers
(Tr. 6159-6160). Schwartz and Casey also testified
before the Senate Finance Committee that they were
the true owners of Marlboro and that Hess and
Kovens had never been owners of the track. In the
aftermath of these false representations, the Mary-
land legislature authorized the transfer of Marlboro’s
racing days to Bowie. This substantially achieved the
results sought in the 1972 consolide .on bill and re-
sulted in large profits for the still undisclosed owners
of the merged Marlboro-Bowie entity (Tr. 5071-5073,
5622, 6157).
In February 1975, the day after a meeting with
an Assistant United States Attorney investigating the
Marlboro racetrack, Cory notified the secretary of the
merged entity of the ownership interests retained by
Hess and the Rodgers brothers. This disclosure also
appeared as a footnote to an annual audit report
concerning Maryland racetracks. During a series of
press conferences, Mandel denied knowing prior to
publication of the audit that his friends possessed an
ownership interest in Marlboro (Tr. 7169-7209,
8007).
14
8. A panel of the court of appeals reversed pe-
titioners’ convictions, with one judge dissenting. The
panel held that the trial court’s charge to the jury
was deficient because it failed to give a bribery in-
struction in connection with the mail fraud counts
and failed expressly to instruct that Mandel could
not be convicted of mail fraud on a misrepresentation
theory unless the jury found that he knew that the
other petitioners were the true owners of Marlboro
Racetrack (Pet. App. 42a-45a). The panel also held
that testimony by several state senators, which re-
-peated statements by out-of-court declarants concern-
ing Mandel’s views on racetrack legislation, was in-
admissible hearsay (Pet. App. 48a-53a).°
After issuance of the panel decision, the govern-
ment filed a petition for rehearing with a suggestion
for rehearing en banc. On April 16, 1979, a ma-
jority of the judges eligible to vote granted that re-
quest, ordering that “the above cases will be reheard
at the June 1979 Session” (79-1028 Pet. 10 n.3). On
suly 20, 1979, a six-judge en banc court affirmed
petitioners’ convictions by equal division with the fol-
lowing order (Pet. App. 7a) :
The judgments of conviction are affirmed by
an equally divided court.
A majority of the members of the en banc
court would affirm the judgments of conviction
against all of the contentions of the appellants
® The panel majority also held that it was error for the
court to admit certain pertions of the Maryland Code of
Ethics as circumstantial proof of Mandel’s intent to defraud’,
(Pet. App. 46a).
15
except the claim of error in the charge to the
jury which was the point upon which there was
equal division.
The judgment of the en banc court stated that “[i]t
is * * * ordered and adjudged by this Court that the
judgment of the said District Court appealed from,
in this cause, be, and the same is hereby, affirmed”
(Pet. App. 6a).
After the seating of two newly appointed judges,
petitioners filed a “Petition for Rehearing with Sug-
gestion for Rehearing Before A Fully Constituted
Court in Banc.” The court of appeals, this time com-
posed of eight voting members, denied the motion by
equal division (Pet. App. la-5a).
ARGUMENT
1. In the petitions for mandamus (79-1028 Pet.
14-30) and certiorari (79-1029 Pet. 18-20; 79-1030
Pet. 14-19), petitioners contend that the en banc
statute, 28 U.S.C. 46, requires concurrence by a
majority of participating judges to render a judg-
ment inconsistent with a panel decision, and thus that
the effect of the equal division of the en banc court
in this case was not to affirm the trial court’s judg-
ment but to affirm the reversal of that judgment by
the panel. This claim is without merit. The law on
this subject is well settled, and there is no need for
review by this Court.
At the outset, we note that the text of the en banc
statute lends no support to petitioners’ argument. The
statute simply provides that “[c]ases and contro-
versies shall be heard and determined by a court or
16
division of not more than three judges, wnless a hear-
ing or rehearing before the court in bane is ordered
by a majority of the circuit judges of the circuit who
are in regular active service.” 28 U.S.C. 46(c)
(emphasis supplied). Thus, the statute specifies only
the vote necessary for making the threshold deter-
mination whether to rehear a case en banc.® The
statute does not prescribe the number of votes ulti-
mately required to effect affirmance of the judgment
of an inferior court by an en banc court. As this
Court recently noted, “voting on the merits of an in
bane case is quite different from voting whether to
rehear a case in banc, which is essentially a policy
decision of judicial administration.” Moody v. Al-
bemarle Paper Co., 417 U.S. 622, 627 (1974) (em-
phasis in original) ; see also Western Pacific R.R. Corp.
v. Western Pacific R.R., 345 U.S. 247, 261-262 (1953).
Indeed, while a majority vote is necessary to grant
rehearing en banc, it is well settled that, once this
determination has been made by the requisite vote,
equal division by the en banc court, following a panel
decision, results in affirmance of the judgment of the
district court as a matter of law. See, e.g., United
States v. Geders, 585 F.2d 1308, 13805-1306 (5th
Cir. 1978), cert. denied, 441 U.S. 922 (1979);
® The statute was satisfied in all respects in this case be-
cause a majority of the active members of the court eligible
to vote cast their votes to rehear the case en banc. See 79-1028
Pet. 10 n.8.
In Geders, the panel reversed the judgment of convic-
tion of the district court. A majority of the active members
of the court of appeals subsequently voted to rehear the case
17
United States v. Clavey, 578 F.2d 1219 (7th Cir.),
cert. denied, 489 U.S. 954 (1978); Farrand Optical
Co. v. United States, 317 F.2d 875, 885-886 (2d Cir.
1962); Drake Bakeries, Inc. v. Local 50, American
Bakery & Confectionery Workers, 294 F.2d 399, 400
(2d Cir. 1961), aff’d on other grounds, 370 U.S. 254
(1962);"* Kimes v. United States, 516 F.2d 377,
378 (4th Cir. 1975); United States v. Acosta, 509
F.2d 539 (5th Cir.), cert. denied, 423 U.S. 891 (1975) ;
United States v. Walden, 464 F.2d 1015, 1016 (4th
Cir.), cert. denied, 409 U.S. 867 (1972); ITO Corp.
of Baltimore v. Benefits Review Board, 542 F.2d
903, 905 (4th Cir. 1976), cert. denied, 433 U.S.
908 (1977) ; United States v. Holmes, 537 F.2d 227,
228 (5th Cir. 1976).
en banc with no explicit vacation of the panel decision. 566
F.2d 1227, 1235. Sitting en banc, the court subsequently held:
“the court en banc is evenly divided; therefore, the judgment
of conviction of the district court is affirmed by operation of
law.” 585 F.2d at 1305-1306.
1 Petitioners incorrectly attempt to distinguish Drake
Bakeries by arguing that in order “[t]o effectuate an affirm-
ance of the district court’s order, one of the three judges who
voted to reverse the district court changed his vote to pro-
duce a 4-2 vote te withdraw the panel decision” (79-1028
Pet. 27 n.8). However, the court was evenly divided on the
merits of the issue. Four of the six members agreed that the
tie vote resulted in affirmance of the decision of the district
court. 294 F.2d at 400. One of the two dissenters, Judge
Friendly, apparently later changed his view concerning the
effect of a tie vote. See Farrand Optical Co. v. United States,
supra, 317 F.2d at 886; 77 Harv. L. Rev. 767, 768 & n.7 (1964)
(“the full bench supplants the panel for the purpose of
rehearing the appeal”).
18
This consistently recognized principle is, moreover,
a manifestly sensible and proper rule. Once the full
court has undertaken to rehear the case, it would be
irrational to ascribe greater weight to the vote of
some members of the court than to others, simply by
virtue of the fortuity of their assignment to the origi-
nal panel. An equal division of the en banc court of
appeals means that a majority of the judges to have
passed upon the issue (including the district judge)
were in agreement with the ruling from which the
appeal was taken. In such circumstances, that ruling
should be upheld.
Petitioners nonetheless contend (79-1028 Pet. 26-29)
that this principle is inapplicable here because the en
banc court never expressly vacated the intervening
panel decision. That argument is also insubstantial.
The determination by a majority of the members of
the court to rehear the case en banc itself vacated the
panel decision. As Judge Waterman explained in
Farrand Optical Co. v. United Siates, supra, 317
F.2d at 886 (dissenting on other grounds) (emphasis
supplied) : |
It is obvious that when a court of appeals in
any case determined by a panel grants a rehear-
ing of the case before the court sitting in banc,
the full bench of its judges supplants the panel,
i.e, “court or division” of three judges, that
first heard and determined the controversy. So
I agree with my colleagues that an in banc court
does not sit as an appellate court of review over
its own panels. If such were so, the result
19
reached here by the panel would not have been
disturbed.
See also United States v. Gutierrez-Barron, 602 F.2d
722, 723 (5th Cir. 1979); United States v. Clavey,
supra.” Petitioners suggestion that the en banc court
is reviewing the judgment of the panel and not that
of the district court is in fact inconsistent with the
terms of Fed. R. App. P. 35(a), which states that
“Ta] majority of the circuit judges * * * may order
that an appeal or other proceeding be heard or re-
12 There is no merit to petitioners’ assertion (79-1028 Pet.
24; 79-1030 Pet. 15-16) that the per curiam order in Bulluck v.
Washington, 468 F.2d 1096, 1122 (D.C. Cir. 1972), conflicts
with the foregoing decisions. In Bulluck, the district court
dismissed the complaint..A panel of the court of appeals
affirmed. The court subsequently granted rehearing en banc.
The vote of thé en banc court was evenly divided. So di-
vided, the court concluded that it could not disturb the “judg-
ment of affirmance.” Thus, the evenly divided court effectively
affirmed both the district court and the panel. That situation
is plainly different from the situation here, where the panel
reversed the district court. The court in Bulluck was not faced
with the question presented in this case whether an equal
division of the en banc court results in an affirmance of the —
district court or of the panel’s reversal of the district court.
If such a question were raised in the District of Columbia
Circuit in a future case, there is no reason to infer that the
court would reject the consistent line of authority summarized
above, which requires affirmance of the district court’s de-
cision.
Petitioners’ reliance (79-1028 Pet. 24) upon this Court’s
decision in Carmichael v. Eberle, 177 U.S. 63 (1900), co
support their claim that equal division on the merits is tanta-
mount to denial of a rehearing is misplaced. In Carmichael,
unlike the instant case, a majority of. the judges failed to
concur in the threshold question whether a rehearing should
be granted. Id. at 65-66.
i
20
heard by the court of appeals in banc” (emphasis
supplied). Since it was petitioners’ appeal and not
the government’s rehearing petition that was being
reheard, it was petitioners who had to command a
majority of the en banc court to prevail. Indeed,
while the en banc court here was equally divided on
the merits of one issue, there is no question that the
court was other than unanimous in the view that its
equal division resulted in an affirmance of the judg-
ment of the district court. See also Drake Bakeries,
Inc. v. Local 50, American Bakery & Confectionery
Workers, supra, 294 F.2d at 400.”
Nor is a different result required because the
Fourth Circuit has not promulgated a rule prescrib-
ing the effect of a decision rendered by an equally
divided en banc court. Although this Court has re-
18 As previously noted, a majority of the court of appeals
voted to “rehear the case” en banc. The entire court subse-
quently subscribed to an order and judgment providing ex-
pressly that the decision of the district court was affirmed.
In these circumstances, the failure of the majority to state
that the panel decision was “vacated” when it voted to rehear
the case cannot have significance. The entire court has held
that the panel decision is su and the district: court
judgment reinstated. |
As this Court noted in Durant v. Essex Co., 74 U.S. (7
Wall.) 107, 118 (1869), “[t]he statement which always
accompanies a judgment in such case, that it is rendered
“by a divided court, is only intended te show that there was a
division among the judges upon the questions of law or fact
involved, not that there was any disagreement as to the
judgment to be entered upon such division. * * * [T]he judg-
ment is as conclusive and binding in every respect upon the
parties as if rendered upon the concurrence of all the judges
upon every question involved in the case.”
21
quired the promulgation of procedural rules neces-
sary to apprise litigants of how to invoke the court’s
en banc jurisdiction (Western Pacific R.R. Corp. v.
Western Pacific R.R., supra, 345 U.S. at 261-262, 267-
268), there is no requirement that a rule specify the
legal effect of an en banc decision vis-a-vis an earlier
panel decision. This is a matter of judicial administra-
tion governed by the case law summarized above and
does not implicate the rights of litigants in petitioning
for en banc review. Hence, the adoption of rules is
not essential.”
Petitioners’ argument is not aided merely because
some circuits have discussed in court publications the
effect of granting rehearing on a preceding panel
decision. Rather than announcing rules on this sub-
ject, the various court publications upon which peti-
tioners rely (79-1028 Pet. 26 n.6)° merely recognize
the prevailing practice in the circuit. Moreover, the
practice recognized in these publications is no dif-
fent from that which governed here. For example in
United States v. Gutierrez-Barron, supra, the Fifth .
Circuit acknowledged that. its local Rule 17° (effec-
14 Contrary to petitioners’ assertion, an explanatory rule is
not necessary to caution “judges of those circuits to vote
for rehearing only in those cases in which they determine
* * * that the panel judgment must be set aside” (79-1028
Pet. 26-27). As this Court explained in Western Pacific R.R.
Corp. V. Western Pacific R.R., supra, 345 U.S. at 262-263:
The three judges who decide an appeal may be satisfied
as to the correctness of their decision. Yet, upon reflec-
tion, after fully hearing an appeal, they may come to
believe that the case is of such significance to the full
court that it deserves the attention of the full court.
22
tive October 20, 1979), which provides that “the effect
of granting a rehearing en banc is to vacate the previ-
ous opinion and judgment of this court”, simply “codi-
fifed] * * * longstanding practice” (602 F.2d at 723).
Likewise, the Seventh Circuit’s Practitioner’s Hand-
book for Appeals (1979) does not purport to promul-
gate a procedural rule at all, but simply explains the
well established doctrine that “[t]he order granting
rehearing in banc vacates the panel decision so that
if the court in banc should be equally divided, the judg-
ment of the district. court and not the judgment of the
panel will be affirmed.” Id. at 48. This pronounce-
ment is merely a codification of prior practice in the
Seventh Circuit. See United States v. Clavey, supra.
Petitioners can hardly claim prejudice from the
Fourth Circuit’s failure to publish its internal operat-
ing procedures.* The en banc court’s affirmance of
the district court’s judgment comported. with the well
established practice in the Fourth Circuit. See /70
14 There is no merit to petitioners’ suggestion (79-1028
. Pet. 12; 79-1029 Pet. 19) that the decision of the en banc
court considered only the claims raised in the government’s
rehearing petition and did not encompass the other questions
presented to the panel. As petitioners acknowledge (79-1028
Pet. 12), the order of the en banc court states unequivocally
that “‘[a] majority of the members of the en bane court
would affirm the judgments of conviction against all of the
contentions of the appellants’ except the claim of error in the
charge to the jury which was the point upon which there
was equal division” (Pet. App. 79a) (emphasis supplied).
Nothing in the court’s order suggests that, contrary to this
plain language, it encompassed less than all the issues origi-
nally presented in the appeal to the panel.
23
Corp. of Baltimore v. Benefits Review Board, supra;
Kimes v. United States, supra; United States v.
Walden, supra."
2. At trial, petitioners requested the trial judge
to instruct the jury that, in order to return convic-
tions on the mail fraud counts, it was necessary to
find that Mandel had been bribed in return for aiding
legislation favorable to racetrack interests (79-1029
Pet. 26; App. 106, 122, 253-254).'7 Although the
trial judge thoroughly explained the concept of “brib-
ery” in connection with the portion of his instruction
16 To the extent that petitioners are contending that it is
inappropriate to uphold a criminal conviction when the affirm-
ing court is evenly divided, we note that this Court has
recognized the propriety of reaching that result. See, e.g.,
Biggers v. Tennessee, 890),U.S. 404 (1968) (conviction and
20 year prison sentence affirmed by equally divided court).
17 Mandel’s proffered jury instruction exemplifies the charge
petitioners sought with Eeepeck to bribery (App. 106; em-
phasis supplied) :
The indictment in this case dives that the Defendant
Mandel schemed to defraud the citizens of the State of
their right to his conscientious, loyal, faithful, disintér-
ested and unbiased services as Governor. * * * Unless
you find, beyond a reasonable doubt, that the Defendant
Mandel accepted interests in the two business ventures
which I have named, Ray’s Point, Inc. and Security
Investment Company, as bribes for aiding and assisting
legislation and legislative matters financially beneficial
to Marlboro, you may not find that the Defendant Mandel
participated in a scheme to defraud the citizens of the
State of their right to his conscientious, loyal, faithful,
disinterested and unbiased services.
24
dealing with the racketeering counts,” he declined
to repeat the bribery definition in connection with
the mail fraud counts. In addition, Mandel proffered
an instruction stating that, in order to convict him
of mail fraud, it was necessary for the jury to find
that he had actual knowledge that his co-defendants
were the beneficial owners of the Marlboro Racetrack.
Instead of instructing in these precise terms, the court
charged that Mandel could not be convicted ot this
offense unless he had knowingly participated in the
scheme to defraud alleged in the indictment (Tr.
11489, 11490, 11492). Petitioners contend (79-1029
Pet. 20-23, 26-27; 79-1030 Pet. 26-30) that the trial
court erred in refusing their proffered instructions
regarding the mail fraud counts and in failing to
repeat the definition of bribery in connection with
the mail fraud counts... ~
a. Petitioners’ contention (79-1029 Pet. 21; 79-
1030 Pet..27-30) that the trial judge erred in failing
to give a bribery instruction in connection with the
mail fraud counts is without merit and does not
Warrant further review. Bribery is not an éssential
18 Counts 21 and 23 of the indictment (App. 79, 83) alleged
that petitioners engaged in racketeering activities, inter alia,
. through violations of the Maryland bribery statutes (Count
21 para. 4(b), Count 23, para. 4(b)).
”
25
element of the offense of mail fraud, even when the
fraud involves abuse of a position of public trust.
See generally United States v. Bush, 522 F.2d 641,
651-653 (7th Cir. 1975), cert. denied, 424 U.S. 977
(1976); Pereira v. United States, 347 US. 1, 8
(1954) (“The elements of the offense of mail fraud
under 18 U.S.C. (Supp. V) § 1841 are (1) a scheme
to defraud, and (2) the mailing of a letter, etc., for
the purpose of executing the scheme”). As petitioners
concede (79-1029 Pet. 21, 28), the indictment al-
ternatively alleged that petitioners violated the mail
fraud statute through misrepresentations and conceal-
ment as well as through bribery (App. 53). Thus,
because petitioners’ proffered jury instruction (see
note 17, supra) required the jury to find bribery
beyond a reasonable doubt in order to return convic-
tions on the mail fraud counts; it was clearly erro-
neous and properly rejected. “‘A trial judge is under
no obligation to give a requested instruction that mis-
states the law * * * or has been covered adequately
by other instructions.” United States v. L’Hoste,
609 F.2d 796, 805 (5th Cir. 1980) ; see United- States
v. Park, 421 U.S. 658, 674-675 (1975); Cupp v.
Naughten, 414 U.S. 141, 146-147 (1973).*
19 Petitioners claim (79-1029 Pet. 26) that the government
took inconsistent positions with respect to bribery under the
mail fraud counts. More specifically, they claim that through-
out the trial the prosecution emphasized bribery in connection
with those ceunts but at the conclusion of the trial abandoned
the bribery theory. This contention misdescribes the govern-
ment’s position. The government simply sought to make clear
during the hearing on instructions and the jury argument
26
At all events, the trial judge’s instruction, when
considered in its entirety (United States v. Park,
supra, 421 U.S. at 674-675), provided an adequate defi-
nition of bribery to the extent that the jury may have
found part of the fraud to consist of secret bribery.
Thus, the trial judge fully explained the term bribery
in connection with the racketeering counts and elabo-
rated upon the necessity of receiving a gift, benefit,
or favor as a quid pro quo for favorable official acts
(Tr. 11502-11507).” As this Court held in United
that, while its theory on these counts included bribery as one
of the ways in which the fraud was committed, finding brib-
ery in violation of state law was not essential to returning a
mail fraud conviction (Tr. 11256-11257, 11882). The govern-
ment clearly did not abandon the bribery theory. When the
government presented a summary of its theory of the case to
the court to facilitate jury instructions, it expressly stated
that its theory encompassed receipt of rewards by Mandel in
anticipation of and in return for various Official acts. That
theory was clearly explained by the court to the jury (Tr.
11527). . eka
* Portions of the court’s instruction are set out in the
opinion of the dissenting panel member (Pet. App. 68a-70a).
The court’s charge described the government’s bribery theory
in connection with both the mail fraud and racketeering
counts of the indictment. The court explained that the in-
dictment alleged that the defendants had devised a scheme
to defraud the citizens of the State of Maryland of their right
to honest government “free from bribery” (Tr. 11478-11474).
The court also described the specific benefits that allegedly
flowed to petitioner Mandel in exchange for official acts (Tr.
11475-11481). When the court summarized the government’s
theory under the mail fraud counts of the indictment, it again
referred to petitioners’ alleged involvement in bribery (Tr.
11525-11528; see also id. at 11530-11531, 11584). As previ-
ously noted, the term “bribery” was fully and accurately de-
fined by the trial judge when he discussed the racketeering
27
States v. Bayer, 331 U.S. 582, 536 (1947), once an
instruction is properly given its repetition is a matter
residing within the discretion of the court. See
United States v. Haldeman, 559 F.2d 31, 115 (D.C.
Cir. 1976), cert. denied, 431 U.S. 933 (1977) ; United
States v. Honea, 556 F.2d 906, 908 (8th Cir. 1977).
This is especially true when the government offers the
same evidence to prove more than one offense in a
multi-count indictment. In the present case, “proof
of the same gifts to Mandel * * * and the same
favors he bestowed” was relied upon “to prove both
the mail fraud counts and the racketeering counts”
(Pet. App. 70a-71a).”
counts of the indictment (Tr. 11502-11507). Significantly,
petitioners’ counsel argued at length to the jury that bribery
was central to the government’s case and that the govern-
ment had failed to prove bribery (Tr. 11060-11061, 11066,
11120-11121, 11270, 11339-11340, 113848).--Under these cir-
cumstances, petitioners can hardly contend that the bribery
issue was not fairly presented to the jury, that the concept
was inadequately defined, or that the theories of defense
counsel and the prosecutor were not clearly set forth.
21 While not claiming insufficiency of the PR -acbwel Sassy
Rodgers contends (79-1030 Pet. 26-27) that failure to define
bribery in connection with the mail fraud counts was preju-
dicial in his case because there was little evidence that he
gave Mandel benefits in exchange for assistance on racetrack
legislation. This assessment of the evidence is erroneous. To
the contrary, the evidence showed that Harry Rodgers, his
brother and Hess secretly transferred to Mandel an interest
in the Ray’s Point real estate venture almost contemporane-
ously with the legislature’s consideration of the veto override
and the introduction by the administration of the consolida-
tion bill (see pages 8-9, supra; Pet. App. 25a-26a). Addi-
tionally, as Rodgers concedes (Pet. 7-8 n.10), the evidence also
28
b. The court’s instruction also adequately conveyed
Mandel’s defense theory that he lacked actual knowl-
edge of his co-defendants’ interests in Marlboro Race-
track and thus lacked specific intent to defraud. .
There is, of course, no requirement that the jury be
charged in the precise language urged by the defense.
See, ¢.g., United States v. Newson, 531 F.2d 979, 983
(10th Cir. 1976). Here, the court specifically and
repeatedly instructed that a scheme to defraud re-
quires proof beyond a reasonable doubt of “inten-
tional use of false or fraudulent representations.”
The judge further explained that the purpose of
requiring knowing misconduct “is to ensure that no
one will be convicted for an act done because of mis-
take, or accident, or other innocent reason” (Tr.
11489-11492; Pet. App. 7la). Moreoyer, in describ-
ing the government’s theory of the case,-the’ court _
instructed that the government must prove that
“the six Defendants all knowingly entered with one
another inte a scheme to defraud,” and “that Mandel
knowingly promoted the interests of his friends’’
(Tr. 11525-11527; Pet. App..71a). Finally, in giving
instructions concerning petitioners’ theory of the case,
the court carefully described Mandel’s defense that
he knew nothing about the actual ownership interests
showed that during the 1972 legislative session he purchased
clothing and jewelry for Mandel. The close proximity be-
tween these gifts and efforts by the administration to secure
passage of legislation favorable to Marlboro Race Track—
as well as the secrecy with which the transfers were effected
—clearly permitted the inference that the gifts were, in fact,
bribes.
29
of Marlboro during the 1972 legislative session (Tr.
11530-11531) .”
In sum, “viewed as a whole and in the context of
the trial” (United States v. Park, supra, 421 U.S. at
675), the charge was sufficient to submit Mandel’s
theory of defense to the jury.
3. Petitioners also claim (79-1029 Pet. 28-29; 79-
1030 Pet. 19-26) that, to the extent that the govern-
ment relied on a theory of fraudulent concealment,
the reach of the federal mail fraud statute was im-
permissibly extended here. Specifically, they contend
that concealment of the identity of the owners of the
racetrack was not prohibited by state law, and ac-
cordingly that their conduct could not be a part of a
scheme to defraud and, hence, could not form the
basis for a federal mail fraud_ prosecution. This
claim was properly rejected by both the panel and the
en banc court (Pet. App. 36a-42a).
It is axiomatic that “the concept of fraud in
§ 1341 is to be construed very broadly * * *. [and
that] any kind or species of scheme or artifice to
defraud is punishable in the national courts,-if and
whenever for the purpose of executing that scheme
the postal establishment is used.” United States v.
States, 488 F.2d 761, 764 (8th Cir. 1973), cert.
denied, 417 U.S. 909 (1974), citing Durland v. United
States, 161 U.S. 306 (1896). So too, it is clear that
application of the statute does not depend on whether
the particular fraudulent scheme constitutes a vio-
22The court’s instruction is described in the dissenting
opinion of the panel (Pet. App. 72a).
30
lation of some other state or federal law. See, ¢.g.,
United States v. Brown, 540 F.2d 364, 374 n.7 (8th
Cir. 1976); United States v. Bush, supra, 522 F.2d
at 646 n.6; United States v. States, supra, 488 F.2d
at 767; United States v. Edwards, 458 F.2d 875, 880
(5th Cir.), cert. denied, 409 U.S. 891 (1970) ; United
States v. Keane, 522 F.2d 534,544 (7th Cir. 1975),
cert. denied, 424 U.S. 976 (1976).
As the panel noted (Pet. App. 40a), there are two
ways in which concealment from or misrepresentation
to government bodies constitutes fraud under the mail
fraud statute. First, fraud exists if a public official
fails to disclose his own personal interest in a matter
about which he must take official action and thereby
deprives the public of their right, to honest, faithful,
and disinterested government. As the court held in
United States v. Keane, supra, 522 F.2d at 546:
It is clear * * * that one who breaches the public
trust-by actively concealing a personal financial
interest from the public and from a public body
charged with the responsibility of passing judg-
ment on matters directly affecting that financial
interest, and on which he serves and in which he
participates in the formulation of the collective
judgment of that body, pursuant to his official
_ duties, may be prosecuted for mail fraud.
Accord, United States v. Brown, supra, 540 F.2d at
375; United States v. Bush, supra, 522 F.2d at 652;
United States v. Barrett, 505 F.2d 1091, 1104 (7th
Cir. 1974), cert. denied, 421 U.S. 964 (1975). See
.
,
31
also United States v. George, 477 F.2d 508, 512-515
(7th Cir.), cert. denied, 414 U.S. 827 (1978);
Shushan v. United States, 117 F.2d 110, 115 (5th
Cir.), cert. denied, 3138 U.S. 574 (1941). Thus, the
fraudulent scheme needed to support a mail fraud
conviction can be found in Mandel’s failure to dis-
close the fact that he was receiving substantial per-
sonal benefits from those who would profit by the
racetrack legislation that he wgs actively supporting
in the course of his official duties.”
Alternatively, there is a “scheme or artifice to de-
fraud” within the meaning of Section 1341 when any
person receives a benefit by action of a public body
28 Contrary to. petitioners’ assertion (79-1029 Pet. 28; 79-
1080 Pet. 24), United States Vv. Rabbitt, 588 F.2d 1014 (8th
Cir. 1978), cert. denied, 489 U.S..1116 (1979), is inapposite.
There the defendant, a state legislator, introduced members
of an architectural firm who sought state construction con-
tracts to state officials involved in the selection process. For
this service, she received a retainer. from the firm. In revers- ~
“ing a mail fraud conviction that resulted from this conduct, |
the court held, inter alia, that Rabbitt did not in his official
capacity control the award of state contracts to architects.
“There is no evidence that Rabbitt failed to carry out the
duties and responsibilities of the legislative office for the sake
of the [architectural firm]” Jd. at 1026. In so holding, the
Rabbitt court distinguished its earlier decision in United
States v. Brown, supra, where “the conduct deemed fraudu-
lent deprived the public * * * of its right to honest and fair
dealing in the conduct of the officer in question” (583 F.2d
at 1025 & n.20). Here, the introduction and support of
legislation was squarely within the ambit of Mandel’s official
duties as Governor of the State of Maryland. Accordingly,
the rationale of the Rabbitt case is inapplicable.
32
as a result of misrepresentation or deliberate conceal-
ment. As the panel noted (Pet. App. 41a):
[T]he scheme to defraud can in such a case be
said to encompass not only the receipt of the
illicit benefit, but also the deprivation of the
public of the right to have its officials act on
other than false information.
See, ¢.g., United States v. Feinberg, 535 F.2d 1004,
1008-1009 (7th Cir.), cert. denied, 429 U.S. 929
(1976); United States v. Mirabile, 503 F.2d 1065,
1066-1067 (8th Cir. 1974), cert. denied, 420 U.S.
973 (1975) ; United States v. Flaxman, 495 F.2d 344,
346-349 (7th Cir.), cert. denied, 419 U.S. 1031
(1974). Thus, the concealment and misrepresenta-
tion by Cory and other petitioners (acting as princi-
pals and aiders and abettors) concerning the identi-
ties of the actual owners of Marlboro and Bowie
Racetrack in order to obtain benefits from the legis-
lature and the State Racing Commission also fell
within the prohibition of the mail fraud statute.
Petitioners Cory and Harry Rodgers nonetheless
argue (79-1030 Pet. 21) that because the legislature
and the State Racing Commission had previously
condoned the practice of submitting the names of
nominees in reporting racetrack ownership, and no
law or regulation expressly required disclosure of
actual ownership interests, their specific and repeated.
misrepresentations to the Commission were not fraud-
ulent under Section 1341. Besides being factually un-
founded (see pages 33-34, infra), this contention is
nothing more than a claim that the fraud was not in
33
violation of any specific state law and that, in any
event, the information would not have been important
to the state authorities. However, neither of these
grounds constitutes a defense to a mail fraud charge.
See the cases cited on page 30, supra. See also United
States v. Reid, 533 F.2d 1255, 1261 & n.24 (D.C. Cir.
1976) (collecting cases) (no need to prove reliance
or injury); United States v. Keane, supra, 522 F.2d
at 544-545. The gravamen of mail fraud is simply
the formulation of a scheme to defraud and use of
the mails in furtherance of the scheme. See, ¢.g.,
Pereira v. United States, supra, 347 U.S. at 8.
While we agree that an innocent or negligent mis-
representation is not a violation of the statute, the
trial judge’s.instructions fully assured.that petitioners
could not be convicted unless their misrepresentations
were accompanied by the requisite fraudulent intent.
Thus, the judge instructed that, while submission of
false information to public officials may fall with-
in the ambit*of the mail fraud statuté, such con-
duct is only an offense if it is part of a scheme to
defraud that involves “intentional use of false * * *
representations for the purpose of gaining a valuable
undue advantage or working some injury” to others
(Tr. 11488-11489). Thus, there is no possibility that
petitioners were convicted for making innocent omis-
sions in good faith reliance on the perceived policies
of the Commission or the absence of specific disclosure
regulations.
Moreover, the evidence establishes that Cory in-
tentionally concealed the identities of the owners of
34
the racetrack enterprise and that the false informa-
tion he provided the Racing Commission did in fact
affect the Commission’s deliberations. For example,
in response to official inquiries concerning the identity
of the beneficial owners of 175,000 shares of race-
track stock that Cory held as attorney, Cory sub-
mitted a letter to the ‘‘ommission that concealed the
ownership interests of Hess, William Rodgers, Harry
Rodgers and Kovens (Tr. 6135, 6139-6140; Govt.
Exh. 12 (App. 2927) ). A Racing Commissioner testi-
fied that knowledge of the controlling interests in the
racetrack enterprise was essential to proper execu-
tion of his duties and that, in making decisions con-
cerning the Marlboro enterprise, he relied upon the
false information provided by Cory (Tr. 6139, 6142-
6144, 6153-6154). Hence, there is no merit to Cory’s
claim that the concealment was inconsequential.”
4a. Petitioners further contend (79-1029 Pet. 29-
32) that Congress intended to limit application of
the Racketeer Influenced & Corrupt Organizations
Act, 18 U.S.C. 1961 et seg., to persons shown to be
professional racketeers or involved in organized crime,
and that in the absence of proof that they were such
persons, they were improperly convicted under the
* Racing Commissioner Jackson testified that he was quite
interested in learning who the true owners of the track were
(Tr. 6185, 9868). Here, of course, the evidence showed not
only that petitioners concealed their identities by use of a
nominee, but also that they affirmatively misrepresented the
relevant facts after repeated specific requests for truthful
' information.
35
statute.* This contention, which has been rejected
by every court to have considered it, is without
merit.” It is essentially the same as the claim re-
jected by this Court in United States v. Culbert, 435
U.S. 371 (1978), in the context of the Hobbs Act.
While the stated purpose of the Organized Crime
Act, of which the RICO statute is a part, is to eradi-
cate organized crime, the statute does not require
proof that the defendant is connected with organized
crime. United States v. Aleman, 609 F.2d 298, 304
(7th Cir. 1979), petition for cert. pending, No. 79-
1009. It is the defendant’s behavior, not his status,
that is determinative. See, e.g., United States v.
Swiderski, 593 F.2d 1246, 1249 (D.C. Cir. 1978),
cert. denied, 441 U.S. 933 (1979): United States v.
25 Mandel was convicted on Count 21, which alleged that
ne “directly and indirectly, acquired and maintained an in-
terest in and control of the Security Investment Company
through a ‘pattern of racketeering activity,’ including mail
fraud and bribery,” in violation of 18 U.S.C. 1962(b). The
remaining petitioners were convicted on Count 24, which ©
alleged that they “conducted and participated, directly and
indirectly, in the conduct of the affairs of the Marlboro Race
Track through a ‘pattern of racketeering activity’, includ-
ing mail fraud,” in violation of 18 U.S.C. 1962(c). App. 31, 37.
26 See United States v. Aleman, 609 F.2d 298, 302-305 (7th
Cir. 1979), petition for cert. pending, No. 79-1009; United
States v. Campanale, 518 F.2d 352, 368-364 (9th Cir. 1975),
cert. denied, 428 U.S. 1650 (1976) ; United States v. Chovanec,
467 F. Supp. 41, 44-45 (S.D. N.Y. 1979) ; United States v. Vig-
nola, 464 F. Supp. 1091, 1096 (E.D. Pa. 1979) ; United States
v. Mandel, supra, 415 F. Supp. at 1018. See also United
States v. Forsythe, 560 F.2d 1127, 1185-1186 (8d Cir. 1977).
36
Campanale, 518 F.2d 352, 363-364 (9th Cir. 1975),
cert. denied, 423 U.S. 1050 (1976). Thus, on its
face Section 1962(b) punishes anyone who, through
a “pattern of racketeering activity,” maintains an
interest in or control over any enterprise engaged in
interstate commerce. Similarly, Section 1962(c) pro-
hibits anyone from conducting the affairs of an enter-
prise engaged in interstate commerce through a “pat-
tern of racketeering activity.” In turn, “racketeering
activity” is defined to include the violation of a num-
ber of state and federal criminal statutes, including
the federal mail fraud statute. See Section 1961(1).
In short, Congress has enacted a comprehensive statu-
tory scheme designed to punish “any person” who en-
gages in a pattern of proscribed racketeering activity.
Nothing. on the face of the statute suggests that, in
addition to these requirements, its application is
limited to persons engaged in organized crime. See
United States v. Campanale, supra, 518 F.2d at 364.
Although recourse to legislative history is unneces-
sary since the statute clearly defines the conduct it
prohibits, it is equally apparent that the statute’s
drafters intended to punish “any person” falling
within the statutory prohibition regardless of ‘whether
the person was affiliated with organized crime. While
Congress’ primary concern in enacting the statute
was to prevent the corruption of business enterprises
by organized crime (see Congressional Statement of
Findings and Purpose, Pub. L. No. 91-452, Section 1,
37
84 Stat. 922, 18 U.S.C. 1961 note), Congress also made
it clear that the statute “shall be liberally construed
to effectuate its remedial purposes” (Pub. L, No. 91-
452, Section 904, 84 Stat. 947, 18 U.S.C. 1961 note).
In keeping with its desire to promote the liberal ap-
plication of the statute, Congress flatly rejected sug-
gestions that a definition of organized crime be added
to the statute (see 116 Cong. Rec. 35343-35344
(1970)) in order to provide the Attorney General
maximum flexibility in effectuating its broad objec-
tives (id. at 35302 (remarks of Rep. Celler)). Con-
gress’ actions offer convincing evidence that it did not
intend that a connection with organized crime be dem-
onstrated as a prerequisite to conviction. United
States v. Mandel, supra, 415 F. Supp. at 1019.”
b. Petitioners also argue (79-1029 Pet. 32-33)
that imposition of multiple punishments * for viola-
tion of the RICO statute and the commission of
predicate offenses is impermissible under the Double
Jeopardy Clause. However, petitioners did not raise
this point in the court of appeals. Accordingly, they
27 Indeed, if Congress had intended that membership in
organized crime be an element under the racketeering statute,
it certainly would have defined “organized crime.” Without a
definition, “the highly subjective and prejudicial connotations
of that term[], would simply render the statute unenforce-
able, a result plainly not in the contemplation of Congress.”
United States v. Mandel, swpra, 415 F. Supp. at 1018; see also
United States v. Culbert, supra, 435 U.S. at 374.
28 While petitioners’ prison sentences were concurrent, those
petitioners who were fined received separate fines on the mail
fraud and racketeering counts (Sentencing Tr. 120, 128-129,
136-137, 161, 168).
38
are barred from pursuing it now in this Court.
United States v. Lovasco, 431 U.S. 783, 788-789 n.7
(1977); Adickes v. S.H. Kress & Co., 398 U.S. 144,
147 n.2 (1970).
This issue resembles that currently before the
Court in Whalen v. United States, No. 78-5471
(argued Nov. 27-28, 1979), which concerns the per-
missibility of consecutive sentences for felony murder
and for a rape that constituted the predicate offense
upon which the felony murder conviction was based.
Here, as in Whalen, the offenses appear to be separate
under the test of Blockburger v. United States, 284
U.S. 299 (1932), since the compound offense (conduct
of an enterprise by racketeering or felony murder)
and the predicate offenses (various specified felonies
such as mail fraud or rape) each contain unique ele-
ments not shared by the other; at the same time,
with the RICO statute as with felony murder, proof
of the compound felony requires proof of the commis-
sion of one or more of a specified class of predicate
offenses. See United States v. Solano, 605 F.2d 1141,
1144-1145 (9th Cir. 1979), cert. denied, No. 79-5541
(Jan. 7, 1980) ; see also Iannelli v. United States, 420
U.S. 770, 785 n.17 (1975).
Regardless of the disposition of Whalen, however,
there is no occasion for this Court to address the issue
in the present case or to hold the case for Whalen, in
view of the failure of petitioners to raise the issue
below. Petitioners will not be remediless if review
is denied here but Whalen is decided in a manner
that lends force to their contentions, since petitioners
39
would be free at any time to move in the district
court under Fed. R. Crim. P. 35 or 28 U.S.C. 2255
to correct their sentence if it is indeed illegal.”
5. Petitioners also assert (79-1029 Pet. 33-37)
that the forfeiture of their ownership interests in
Marlboro Racetrack pursuant to 18 U.S.C. 1963
(Count 24)” constituted a forfeiture of estate pro-
hibited by the Constitution “ and federal statute (18
U.S.C. 3563). The contention is insubstantial.
2°'We note that, even if the government’s contentions were
to be rejected in Whalen, it by no means follows that peti-
tioner’s sentences are defective. In Whalen, the felony murder
conviction was based upon a single underlying felony; on
the facts of the case, therefore, the proof of that felony was
in a sense necessary to sustain the felony murder charge.
Here, by contrast, while only two acts of racketeering are
statutorily required to sustain a RICO charge, far more than
two were in fact charged and proved. The impact of this
distinction in the particular circumstances of this case would
plainly be a matter best addressed in the first instance by the
district court.
3°18 U.S.C. 1963 provides in pertinent part:
(a) Whoever violates any provision of section 1962 of
this chapter * * * shall forfeit to the United States (1)
any interest he has acquired or maintained in violation of
section 1962, and (2) any interest in * * * or property
* * * of any kind affording a source of influence over,
any enterprise which he has established operated, con-
trolled, conducted, or participated in the conduct of, in
violation of section 1962.
$1 United States Constitution, Art. III, Sec. 8, provides in
part:
The Congress shall have Power to declare the Punish-
ment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the
Life of the Person attainted.
40
The common law doctrine of forfeiture of estate
required forfeiture to the sovereign of all the de-
fendant’s estate and chattels upon conviction of trea-
son and certain other felonies. Calero-Toledo v. Pear-
son Yacht Leasing Co., 416 U.S. 663, 682 (1974).
By contrast, as the Senate Committee on the Judiciary
noted in explaining Section 1963, “the concept of for-
feiture as a criminal penalty [is] limited * * * in
Section 1963(a) to one’s interest in the enterprise
which is the subject of the specific offense involved
here, and [does] not extend[] to any other property
of the convicted offender * * *.” S. Rep. No. 91-617,
91st Cong., 1st Sess. 80 (1969). The Committee em-
phasized that the purpose of the forfeiture statute
was to divest persons engaged in organized criminal
activity of their interests in organizations acquired
or operated by racketeering methods. Id. at 79-80.
See United States v. Rubin, 559 F.2d 975, 991-992
(5th Cir. 1977) .”
As petitioners acknowledge (79-1029 Pet. 34), there
is nothing novel about forfeiture statutes directed at
such objectives. Following enactment of the Consti-
tution, statutes providing for in rem forfeiture of
property were enacted to reach many types of prop-
erty used in the conduct of criminal enterprises. See,
e.g., 15 U.S.C. 6; 21 U.S.C. 824(f); 26 U.S.C. 7301;
82 Thus, this case does not involve the issue discussed by
petitioners (79-1029 Pet. 36) whether due process proscribes
forfeiture of property that has not been used in any criminal
activity. Indeed, petitioners do not even suggest that there
was an insufficient nexus between Marlboro Racetrack and
the criminal activity alleged in the indictment.
stmt em et a
41
49 U.S.C. 781-782. Because the object of in rem forfei-
ture proceedings is to penalize the commission of an
offense against the law, such proceedings are quasi-
| criminal in character. One Plymouth Sedan v. Penn-
sylvania, 380 U.S. 698, 700 (1965). This Court has
repeatedly upheld application of such in rem forfei-
ture statutes even when, unlike the present case, they
impose a penalty on an owner of property who has
not used the property for criminal purposes. See,
e.g., Calero-Toledo v. Pearson Yacht Leasing Co.,
supra, 416 U.S. at 683; Goldsmith-Grant v. United
States, 254 U.S. 505, 510-513 (1921).
It is immaterial that RICO imposes a forfeiture
directly upon the offender following his conviction,
rather than in a separate in rem proceeding brought
against the offending property. Insofar as both pro-
cedures are designed to penalize the commission of
an offense and result in forfeiture of property related
to the criminal enterprise, “there is no substantial
difference between an in’ rem proceeding and a for-
feiture proceeding brought directly against the own-
er.” United States v. Huber, 603 F.2d 387, 397 (2d
Cir. 1979), petition for cert. pending, No. 79-896;
see also United States v. L’Hoste, supra, 609 F.2d at
813 n.15; cf. Shaffer v. Heitner, 483 U.S. 186, 207
& n.22 (1977).
There is no substance to petitioners’ claims (79-
1029 Pet. 36-37) that application of the RICO for-
feiture statute constitutes cruel and unusual punish-
ment. In rejecting an identical Eighth Amendment
42
claim, the court held in United States v. Huber, supra,
603 F.2d at 397:
We do not say that no forfeiture sanction may
ever be so harsh as to violate the Eighth Amend-
ment. But at least where the provision for for-
feiture is keyed to the magnitude of defendant’s
criminal enterprise, as it is in RICO, the punish-
ment is at least in some rough way proportional
to the crime.
6. Although not admissible under any specific ex-
ception to the hearsay rule, the trial judge admitted
into evidence the hearsay statements of several state
senators regarding Mandel’s views on the veto over-
ride. The trial judge admitted these statements
pursuant to the residual exception to the hearsay
rule contained in Fed. R. Evid. 803(24).* Peti-
tioners contend (79-1029 Pet. 37-40) that these
evidentiary rulings constitute an improper dilution of
88 Senators Crawford and Thomas ‘testified that’ they had
short discussions with Senator Roy Staten, Mandel’s chief
spokesman in the Senate, immediately prior to the override
vote and that Staten stated that Mandel would like the veto
overridden or that Mandel would not object to an override
(Pet. App. 80a; Tr. 4842-4843, 5248-5249). In addition,
Senator Lapides testified that he based his conclusion that
Mandel wanted the veto overridden on his knowledge of the
change in track ownership and a conversation he had with
Senator Mitchell (Tr. 5002-5008). Finally, Senator Coollahan
testified that, based upon a conversation with other unidenti-
fied senators, he felt Mandel did not care about an override
of his veto (Tr. 5670-5677).
43
the hearsay rule. However, Rule 803(24) plainly
allows the introduction of declarations that do not fall
within other specific exceptions to the hearsay rule if
there are “equivalent circumstantial guarantees of
trustworthiness” and if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more proba-
tive on the point for which it is offered than
any other evidence which the proponent can pro-
cure through reasonable efforts; and (C) the
general purposes of these rules and the interests
of justice will best be served by admission of the
statement into evidence.
The trial court did not abuse its discretion under these
standards. See, e.g., United States v. Friedman, 593
F.2d 109, 118-119 (9th Cir. 1979); United States v.
Bagley, 587 F.2d 162, 166-167 (5th Cir. 1976), cert.
denied, 429 U.S. 1075 (1977).
a. It is well recognized that extrinsic corroborative
evidence is sufficient to satisfy the “trustworthiness”
requirement of Rule 803(24). See United States v.
Garner, 574 F.2d 1141, 1144-1146 (4th Cir.), cert.
denied, 4389 U.S. 9386 (1978); Uzited States v.
West, 574 F.2d 1181, 1134-1135 (4th Cir. 1978);
United States v. Ward, 552 F.2d 1080, 1083 (5th
Cir.), cert. denied, 434 U.S. 856 (1977).% In the
84 These cases involved the admission of declarations under
Fed. R. Evid. 804 (b) (5), a companion residual exception that
permits admission of certain hearsay statements when the
declarant is unavailable. The same standards apply under
Rule 803(24). See United States v. Carlson, 547 F.2d 1346,
1353 n.8 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977) ;
4 Weinstein’s Evidence { 804(b) (5) [01] (1975).
44
present case, there was ample corroboration of the
out-of-court declarations of the senators that Mandel
was not opposed to a veto override. For example,
when the Senate Majority Leader requested guidance
from one of Mandel’s lobbyists concerning the ad-
ministration’s position on the override, the lobbyist
did not urge support for the Governor’s veto but in-
stead simply shrugged his shoulders and walked away
(Tr. 4594-4595). Moreover, a number of senators
testified that, conirary to custom, there was a con-
spicuous absence of lobbying that day by Mandel’s
aides to obtain support needed to sustain his veto
(Tr. 5809-5310, 5601, 5669-5670, 6311, 6364; Pet.
App. 88a). While an override of any of Mandel’s
vetoes was highly unusual, the veto of House Bill
1128 was overridden by a surprisingly large ma-
jority that included Mandel’s closest supporters, who
voted as a bloc (Tr. 4597, 5010-5012, 5310, 5769).
Indeed, several of these supporters originally voted
against the bill but, following Mandel’s veto, voted to
override the veto and make the bill into law (Tr.
5011). Finally, Kovens, a longtime friend of Mandel,
lobbied on behalf of the veto override (Tr. 6310).
While these facts clearly corroborate the hearsay
statements of the senators—statements that were
mutually supportive of each other—the circumstances
under which the statements were made also demon-
strate that the senators had an incentive to speak
truthfully and no reason to misrepresent the facts.
See, e.9., United States v. McPartlin, 595 F.2d 1821,
13506 (7th Cir. 1979), cert. denied, No. 78-1751
45
(Oct. 1, 1979); United States v. Friedman, supra,
593 F.2d at 119; United States v. Leslie, 542 F.2d
285, 290 (5th Cir. 1976) ; United States v. Iaconetti,
406 F. Supp. 554, 558-560 (E.D.N.Y.), aff’d, 540
F.2d 574, 577-578 (2d Cir. 1976), cert. denied, 429
U.S. 1041 (1977). Thus, the principal declarant,
Senator Staten, was recognized as the leading spokes-
man for the administration’s position on the Senate
floor (Pet. App. 83a). His statements concerning the
administration’s position on the veto override were
not likely to be ill-informed or biased. Moreover, all
of the statements were made and overheard almost
contemporaneously with the declarant’s perception of
Mandel’s acquiescence in the veto override. This cir-
cumstance made a calculated misstatement unlikely.
See United States v. Medico, 557 F.2d 309, 315-316
(2d Cir. 1977) ; United States v. laconetti, supra, 406
F. Supp. at 559. Thus, as Judge Butzner noted in his
dissent from the panel decision (Pet. App. 82a), “the
statements were quite like the hearsay declarations
of present sense impression admissible under Rule
803(1).” *
85 There is no factual basis for the assertion of the panel
majority that “[s]ome of the most damaging hearsay state-
ments were repeated by long-time political enemies of the
Governor. Further, the statements were made on and around
the Senate floor in the heat of political battle, where rumors,
opinion and gossip abound” (Pet. App. 51a-52a).
Only one of the government’s witnesses, Senator Lapides,
classified himself as a political opponent of the administration,
and he volunteered that Mandel had been an excellent gov-
ernor in many respects (Tr. 5159). While the defense at-
tempted to demonstrate that Senator George Snyder w.s also
biased against Mandel, Senator Snyder did not present any
46
Most importantly, the availability of the declarants
to testify at trial provided a strong guarantee of the
“trustworthiness” of the declarations. See United
States v. Leslie, supra, 542 F.2d at 290; United Sites
v. Iaconetti, supra, 540 F.2d at 577-578. All the sena-
tors present on the day of the veto override, with the
exception of two who died before trial, were available
as witnesses. In fact, 17 of the surviving 38 senators,
including Senator Staten, actually testified. Thus,
damaging hearsay testimony. Senator Thomas, one of the
senators who quoted Senator Staten with respect to Mandel’s
position on the veto override, testified that his relationship
with Mandel had been “very cordial and friendly” (Tr. 5242).
Similarly, nothing in the record supports the statements of
the panel majority (Pet. App. 51la-52a) that the hearsay
statements were made while the legislature was in a state
of confusion. While there was some testimony concerning
confusion in the legislature on the last day of the legislative
session, when the consolidation bill failed to reach a vote, the
record does not show that a similar state of affairs existed on
the first day of the session, when the veto override was con-
sidered. In fact one senator described the cireumstances of
the veto override as “onesided” and “routine” (Tr. 4593).
Finally, none of the facts surrounding the hearsay statements
here in question even suggests that they were made in the
heat of political battle. The most damaging declarations were
made by Mandel’s floor leader to other senators while con-
veying the administration’s position on the override (Pet.
App. 80a).
86 Senator Staten testified as a defense witness. He denied
making the declarations attributed to him and denied ever
speaking with Mandel on the veto override (Pet. App. 83a).
In view of the testimony presented by the out-of-court
declarants and their availability as witnesses, there is no
merit to petitioners’ suggestion (79-1029 Pet. 38) that the
admission of the hearsay testimony raises a possible violation
of the Confrontation Clause. See California v. Green, 399
US. 149, 160-161 (1970).
47
there was ample opportunity for cross-examination of
the senators who made out-of-court statements about
the circumstances of the veto override.
b. Petitioners nonetheless contend (79-1029 Pet.
37-38) that the declarations should have been ex-
cluded because the government failed to advise them
in advance of trial of its intention to introduce the
statements, as required by Rule 803(24). However,
as Judge Butzner noted in his dissent from the panel
decision (Pet. App. 85a), petitioners “had adequate
notice of the government’s intention to proceed as it
did”. At an in-chambers conference during the first
trial, the court ruled that the senators’ hearsay testi-
mony was admissible and required the government
to furnish petitioners with copies of the transcripts
of the senators’ grand jury testimony. Thus, although
the government could not give petitioners the names
of certain out-of-court declarants whose identities it
did not know and could not learn through reasonable
investigation, it provided them with the relevant in-
formation in its possession and alerted them to the
substance of the out-of-court declarations—informa-
tion that permitted them to fashion their defense.”
At the in-chambers conference in the district court,
37 The panel majority noted (Pet. App. 5la) that the gov-
ernment could not give the names and addresses of several
out-of-court declarants whose identities could not be recalled.
However, the defense was fully apprised of the substance
of their statements. Moreover, their statements merely re-
peated the statements made by Senator Staten. In situations
in which the declarant’s address and name are unknown
despite reasonable efforts to locate him, if is sufficient to dis-
48
both defense counsel and the trial judge acknowledged
that the transmission of the transcripts to defense
counsel fulfilled the purpose of the notice requirement
of Rule 803(24) (see pages 3612-3613 of the first
trial transcript) .”
7. Finally, petitioners contend (79-1029 Pet. 40-
41) that the trial court erred in giving a modified
Allen instruction.
Following seven days’ deliberation, the court was
notified by the jury foreman that the jury was unable
to reach a unanimous decision (Tr. 11709-11710).
close the information the proponent has been able to acquire
by reasonable inquiry. 4 Weinstein’s Evidence, supra, {| 803
(24) [01], at 803-248. See United States v. Medico, supra,
557 F.2d at 316.
88 Thus, there is no substance to petitioners’ claim (79-
1029 Pet. 38) that the holding of the en banc court conflicts
with the decisions of other circuits. In United States v. Oates,
560 F.2d 45 (2d Cir. 1977), the court noted that “the defense
was unaware that the chemist’s report and worksheet would
be offered in lieu of the testimony of [the chemist] himself”
(id. at 72 n.80). Similarly, in United States v. Davis, 571
F.2d 1354 (5th Cir. 1978), the court noted that “the Govern-
ment made no attempt [to give] the * * * defense the
required advance notice of the hearssy evidence to be offered
at trial” (id. at 1860 n.11). And in United States v. Ruffin,
575 F 2d 346 (2d Cir. 1978), the court held that despite the
failure of the government to give any pretrial notice, error
in the admission of the hearsay testimony was harmless (id.
at 357-359). Finally, in United States v. Lyon, 567 F.2d 777
(8th Cir. 1977), cert. denied, 485 U.S. 918 (1978), the court
held that strict compliance with the notice rule is not re-
quired where, as here, the defendant was aware of the hear-
say declarant’s identity prior to trial and knew the substance
of the declarant’s statement. Id. at 784, citing United States
v. Carlson, supra, 547 F.2d at 1855.
49
The court then assembled the jury and gave a modi-
fied Allen instruction.” After continuing deliberations
for an additional six days, the jury returned its ver-
dict (Tr. 11773).
8®In its entirety, the instruction stated as follows (Tr.
11710-11711) :
Members of the jury, in order to return a verdict, each
juror must agree to the verdict. In other words, your
verdict must be unanimous. Jurors have a duty to con-
sult with one another and to deliberate with a view of
reaching an agreement, if it can be done without violence
to individual judgment. Although each juror must de-
cide the case for himself or herself, this should only be
done after an impartial consideration of the. evidence
with his or her fellow jurors.
In the course of deliberations, a juror should not hesi-
tate to re-examine his or her own views and change his |
or her opinion if convinced it is erroneous. Each juror
who finds himself to be in the minority should reconsider
his views in the light of the opinions of the majority.
Conversely, each juror who finds himself or herself in
the majority should give equal consideration to the views
of the minority. No juror should surrender his honest
conviction as to the weight or effect of the evidence
solely because of the opinion of his fellow jurors for the
purpose of returning a verdict. But remember also, after
full deliberation and consideration of all the evidence, it
is your duty to agree upon a verdict, if you can do so
without violating your individual judgment and con-
science.
For the parties that are involved in this lawsuit, the
Government and the Defendants, this case is an im-
portant one and its presentation to you has involved
expense and expenditure of time by both the Government
and the Defendants.
Now, Mister Foreman and members of the jury, please
retire and further deliberate.
50
This Court has consistently declined to review
claims similar to those presented by petitioners (see,
e.g., Lacey v. United States, cert. denied, 439 U.S.
832 (1978); United States v. Dyba, 554 F.2d 417
(10th Cir.), cert. denied, 434 U.S. 830 (1977);
Perez-Vega v. United States, cert. denied, 424 U.S.
970 (1976)), and there is no reason for a different
result here. The instruction given by the trial judge
was carefully balanced. It emphasized the responsi-
bility of both the majority and the minority jurors
to reexamine their views from the perspective of the
opposing viewpoint. It also made it clear that, while
it was the jury’s responsibility to return a verdict
if possible, no juror should surrender his or her honest
convictions simply to achieve unanimity (Tr. 11710-
11711). Indeed, that the jurors here diligently per-
# Accordingly, there is no conflict between the decision be-
low and the cases on which petitioners rely (79-1029 Pet. 41).
In United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert.
denied, 396 U.S. 837 (1969), the court’s principal criticism
of the Allen charge given by the trial judge was that it
contained no balancing admonition that the majority re-
examine its position from the perspective of the views of the
minority, and that it imposed a premium upon reaching a
unanimous verdict at the expense of conscientiously held
views. Id. at 414-417.. Neither of these factors is present
here. Notwithstanding these criticisms, the court affirmed
the conviction but precluded future use of the Allen charge
in an exercise of its supervisory power (id. at 420). In
United States v. Brown, 411 F.2d 9380 (7th Cir. 1969), the
court of appeals expressly approved the use of “carefully
worded and timed supplemental instructions” (id. at 932)
when a jury is unable to reach a verdict. The court adopted
the instruction recommended by the American Bar Associa-
tion in an exercise of its supervisory power. Finally, in
51
formed their duties free of any coercive influence is
manifest from the fact that they deliberated an addi-
tional six days before reaching a verdict."
CONCLUSION
The petitions for a writ of certiorari and a writ of
mandamus should be denied.
Respectfully submitted.
WADE H. MCCREE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ROBERT J. ERICKSON
JOHN F.. DEPUE
Attorneys
MARCH 1980
United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971),
the court reversed the defendants’ convictions because the
trial judge added unduly coercive comments to an otherwise
permissible Allen charge. Id. at 1180-1184. As in Brown, the
court announced adoption of the American Bar Association
model instruction.
*1 Indeed, after five days of additional deliberation, the
jury requested portions of the transcript to facilitate its
effort to reach a verdict. The trial judge declined to follow
suggestions from petitioners’ counsel that further inquiry be
made regarding the status of the jury’s deliberations (Tr.
11727, 11736).
ov. S. Government painting orice; 1980 315386 250
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