# Petition — Mandel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1486%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 961 ## Text a ws Ao wns a Supreme Court, i 5 FILED ——— a DEC 32 1979 SEICHABL ROGAK, JR. CLERR IN THE Supreme Court of the United States OCTOBER TERM, 1979 No. 79-1029 MARVIN MANDEL, W. DALE HESS, WILLIAM A. RODGERS AND IRVIN KOVENS, Petitioners, Vv. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ARNOLD M. WEINER, RICHARD V. FALCON, 36 South Charles Street, Baltimore, Md. 21201, Counsel for Marvin Mandel, Univ. of North Carolina, Chapel Hill, N. C. 27514, Of Counsel for Petitioners. M. ALBERT FIGINSKI, Counsel for Marvin Mandel, Petitioner WiLuiaM G. HUNDLEY, Counsel for W. Dale Hess, Petitioner MICHAEL E. Marr, Counsel for William A. Rodgers, Petitioner NORMAN P. RAMSEY, WILLIAM F. GATELY, Counsel for Irvin Kovens, Petitioner The Daily Record Co., Baltimore, Md. 21202 Se TABLE OF CONTENTS Ovaontins BELG 6 Se RI ids Gia pedo shcscChaie dene ckonstecxsiedaranschosss QUESTIONS PRESENTED o.5.6....ccéccicscoscissssccscésneoscessooes CONSTITUTIONAL, STATUTORY AND RULE PRo- WINNT TIVE IE ohio eins cesacscssnssisrcteiimiinsoes STATEMENT OF THE CASE ...........cccocccescsccessoccossscnses REASONS FOR GRANTING WRIT: I. Ill. IV. The decision below raises substantial and recurring questions worthy of review by this Court, and that review ought not be hindered or destroyed by the Fourth Circuit’s unreasoned action in “affirming the convictions by an equally divided Court.” ..........:.csccsccceceeeees The trial court’s refusal to instruct as to the Government’s alternative theories of the alleged mail fraud has acquired extraordinary significance as the issue that caused the en banc court to divide WUIRS, | hc ek sacecmin eipend Seetsivestnnce The federal mail fraud statute has been misapplied and overextended in this case, thereby creating an unfair trial as © well as conflicts with other Circuits .... Serious questions are present as to whether Congress intended to apply the “racketeering” provisions and sanctions. of the Organized Crime Control Act to the circumstances and the individuals AO: TN ia ase ct wie ncdnarmcdsccces The revival of “forfeiture of estate,” as the mandatory punishment for violation 18 of Title IX of the Organized Crime _ ‘: Control Act, raises profound and long- forgotten constitutional questions ......... VI. The decision below conflicts with the decisions of other courts of appeals as to the proper interpretation of 803(24) of the Federal Rules of Evidence ............... VII. The decision below conflicts with deci- sions of other Circuits as to the propr- iety of giving the Allen charge to a CIOS FE ooo iis. vasnspnesnasancstncssnentnynns COMOEAIBION wosscccecedsessssscsocccesnccicas MS Sia OR SRS SI Appendix: Judgment, dated November 1, 1979 .............. Dissenting Opinions, dated November 1, MOI iiss os canta nsacaids lavsevncsssmiscgeaniebocs tebitbasecoisuecs Judgment, dated July 20, 1979 ............:csccee0 Order, dated July 20, 1979 ...........cccccccescssseeees Dissenting Opinion, dated July 20, 1979 ..... Judgment, dated January 11, 1979 ............... Panel Opinion, dated January 11, 1979 ....... Dissenting Opinion, dated January 11, 1979 TABLE OF AUTHORITIES Cases Allen v. United States, 164 U.S. 492 (1896) ....... Apel v. United States, 247 F.2d 277 (8th Cir. NERS TAR” SERRE eon aT Te HOS Barr v. MUU TAR, dee., 66 FRD. 109 (S. DN.Y. NSE RIBS, © PEER TNESPRO am fe NOD SC Blachly v. United State, 980 F.2a 665 (th Ci ! pA Dati SREB ps soe Re RR MR NC aii Blane v. United States, 389 U.S. 835 (1967) Soa Blockburger v. United States, 284 U.S. 299 (1932) PAGE 37 SNR “a PAGE Calero-Toledo v. Pearson Yacht Leasing Co., 416 UR BR A i cscs acectibnins 34, 35 Cole v. Arkansas, 333 U.S. 196 (1948) ................. 26 Dutton v. Evan, 400 U.S. 74 (1970) ...............:0000. 40 Holy Trinity Church v. United States, 143 U.S. AD CIRO i ee ee ensecgenet 31 Iannelli v. United States, 420 U.S. 770 (1975) .. 31,33 McKeehan v. United States, 438 F.2d 739 (6th ORE, BT Bes isesnsgs Scchincachias gesdinncn ooeondaicnesddhddicesesoind 36 Neil v. Biggers, 409 U.S. 188 (1972) ................000 18 Parr v. United States, 363 U.S. 370 (1960) ........ 28 People v. Gainer, 139 Cal. Reptr. 861, 566 P.2d DIE CEG Oss ilatecectncashasceicaihotoonos ila vaceiavepcbiusbuainics Perez v. United States, 297 F.2d 12 (5th Cir. 1961) Platt v. United States, 163 F.2d 165 (10th Cir. DRT Sccssicnciicks 5 Sass ecicsisdac thes oaign tina comands Simpson v. United States, 435 U.S. 6 (1978) ..... Stirone v. United States, 361 U.S. 212 (1960) .... Tatum v. United States, 88 U.S. App. D.C. 386, RED Fe UD CE acess acccinesenstdeatredessnvecicess Trop v. Dulles, 356 U.S. 86 (1958) «0.0.0... United States v. Bailey, 581 F.2d 341.(8rd Cir. DEPTS) ccsnasncsasvic ehpsbespoccthorsnsbiorviosasincenel téibeupsanias tueden CIO ee ee acids United States v. Blair, 456 F.2d 514 (3d Cir. 1972) United States v. Brown, 411 F.2d 930 (7th Cir. ROY aiiicss. cscccecbnetta teas cacaddcmtpipasenecsasbotcbes scene SOT siscsitesiapierevoenisostcspdiiienshcsaiesesinpiosesiipeboessneenssong ROTOR sas staiisesnovaptedds spaioscashcbsvonibastenesoinbxbevensipbossenans United States v. Caldwell, 544 F.2d 691 (4th Cir. BUFO) cacincedcnicesaotcinabhiads pated cadss conuebcgdbadbbeescseivescoscnis iv United States v. Culbert, 435 U.S. 371 (1978) .. Pee United States v. Dana, 457 ‘F.2d 205 (7th Cir, PUFF kik ciagrcncnensneethssteian scien bla bacaciagsbeting viens 22 United States v. Davis, 571 F.2d 1354 (5th Cir STE ds iiinbckscatin sitttaabccvitisi nes iSiteninttts sada saibigunaciossions 38 United States v. Dixon, 536 F.2d 1388 (2d Cir RTD Cinsieiniisciccrnnssccicsicbsasihstszedsannenbaphivispeapesvalsisees 25 United States v. Fioravanti, 412 F.2d 407 (8rd COP, TROD: The second matter in which Governor Mandel was claimed to have benefited his co-defendants was a racing consolidation bill which was introduced later in the 1972 session. This proposal failed, but had it been enacted, all Maryland racing would have been consoli- dated at the state’s most modern tracks, Laurel and Pimlico (R. 1018; Tr. 4595-4603). The year before, during the 1971 session, prior to the purchase of Marlboro, the legislature with Mandel’s approval had enacted a statute requiring the Racing Commission to propose 5 The trial judge, at first, declined to admit the hearsay, remarking to the prosecutors that, “I am permitting you to state conclusions about this matter, and why run the risk of bringing hearsay, double hearsay evidence in a case of this importance” (Tr. 4647). He later relented, admitting the evidence “under whatever rule it is” (Tr. 6235). 12 consolidation during the next session (Tr. 4751, 5353, 7764-65, 8041-44). The 1972 consolidation bil), sponsored by the Racing Commission, was the product of the earlier enactment (Tr. 5353, 7596-76). Since 1960, as a member of a study commission, and throughout his tenure as governor, Mandel had consistently sponsored and favored every consolidation proposal brought before the legislature (Tr. 7405-15, 7906-08, 7951-53, 8276-80; M.Exs. 1, 5). Mandel supported the 1972 proposal the same as he had supported all similar proposals for more than a decade.® The two real estate ventures in which Mandel was alleged to have received interests as bribes were Ray’s Point, Inc. and Security Investment Company (R. 53-7). There was no testimony that Mandel’s participation in either venture was a bribe, and Kovens, allegedly the purchaser of the largest interest in Marlboro, had nothing to do with them. The Ray’s Point venture involved a parcel of unimproved rural land. The undisputed evidence was that Mandel and a third person had located the property in the fall of 1971, before Marlboro was purchased, and that they formed an investment group. It was also shown that Hess and the Rodgerses were among the participants; that the property was acquired through a 100% mortgage; that Mandel received a 15% interest for his efforts in forming the group; and that, in March, 1973, when the property was sold and the corporation was liquidated, the net worth of Mandel’s 15% was $165 (Tr. 1743-59, 1798-1801, 2054-60, 2080-83, 8161-70). The other venture, Security Investment Company, owned a building leased to the Social Security Adminis- 6 A study commission appointed by the current Governor, Harry Hughes, has just recently recommended consolidation of all Maryland racing at two racetracks, Pimlico and either Laurel or Bowie, See, Report of the Governor’s Commission on Racing Reform (December 11, 1979), pp. 20-23. 13 tration. Hess held a 9% interest in Security Investment as a member of a large investment group that included the Rodgerses (R. 574-76, 1824-25). In May, 1972, after the 1972 legislative session, Hess assigned 4% to Mandel. Mandel had participated with Hess in various real estate projects over the years, and the 4% in Security Investment was in exchange for Mandel’s interest in a motel venture.’ The assignment of the 4% was a private business matter between Hess and Mandel, and none of the other Petitioners was aware of it (R. 580, 1756-58; Tr. 2344-45, 2492-93). In April, 1973, in a further adjustment of their respective accounts, Hess and Mandel cancelled the assignment.® Under the law of Maryland, a private citizen has never been required to reveal business relationships with public officials, and, until 1974, public officials in Maryland were not required to disclose personal business relationships with private citizens (R. 7819). By express constitutional fiat, moreover, the Governor and the other constitutionally elected officers were ’ Before he was Governor, when he practiced law actively in Baltimore, Mandel had represented Hess in matters relating to Hess’ real estate ventures (Tr. 8499-8500, 9398- 9402). In 1968, in settlement of fees due, Hess granted Mandel an option to participate in a motel venture known as the Edwiness Venture (Tr. 8510-13, 8849, 9403-04; M. Ex. 256). In 1971, Mandel and Hess agreed that Mandel would not exercise the Edwiness option and that an interest in some other enterprise would be substituted for it. In 1972, after Hess was admitted to the Security Investment ership, he assigned the 4% to Mandel in exchange for the Edwiness option (Tr. 8515-19, 8849, 9504-06). * There was also evidence of miscellaneous gifts, loans and entertainment which were furnished to Governor Mandel by various of the other Petitioners, excluding Petitioner Cory. None of these transactions and occurrences was set forth in the indictment; they did not relate to any of the evidence central to the case; and many of them had occurred years before the purchase of Marlboro. See, e.g., R. 666-86, 707-18, 739- 48, 780-800, 817-18, 828-46, 1873-74). 14 exempted from the conflict-of-interest provisions of the state Code of Ethics (R. 186). See also, Report of the [Maryland] Committee to Submit a Code of Ethics (1969), p. 4. Nevertheless, of the twenty-two Maryland legislators who testified in this case, ten testified for the Government that they would have considered the Governor’s business relationships relevant to their considerations of the veto override and the 1972 consolidation bill. In contrast, the twelve who testified for the defense said that such information would have been irrelevant, or, at most, relevant solely in terms of its political ramifications. At the urging of the Government, the trial judge refused to give essential instructions relating to the theory of the defense, and, as a result, the charges submitted to the jury were significantly different from those made in the indictment. The most fundamental departure occurred with regard to the allegations of bribery.'! The trial judge declined to instruct the jury, in connection with the mail fraud counts, that, to conclude that the Governor schemed to defraud the state of his loyal and faithful services, it was necessary to fina that he had been bribed (R. 106, 119-27, 143, 155-57, 253, 257- 60). Insofar as the mail fraud counts were based on concealment of the co-defendants’ interests in Marlboro, moreover, the trial judge refused to instruct the jury that it was necessary to find that Mandel had actual knowledge that some of the co-defendants had pur- chased Marlboro and were owners of its stock (R. 253, ® Tr. 4606-4836, 4837-4895, 4996-5199, 5239-90, 5291-5399, 5399-5641, 5667-99, 5764-5829, 6307-63, . Tr. 7310-46, 7346-7404, 7416-35, 7568-90, 7655-62, 7663-75, 7676-90, 7691-7726, 7744-7823, 7824-86, 7904-19, 8191-8205. ‘! Imploring the trial j to omit any requirement of bribery in connection with the mail fraud counts, the chief prosecutor said that, “We are concerned about the fact that this jury should not be misled in believing that this is a bribery case.” 15 259-60). In connection with the racketeering counts, the jury was told that, upon a finding of two acts of mail fraud, as defined by the court, the defendants could be convicted of racketeering as well as mail fraud, all without any need for finding bribery.'? Under the instructions given, the jury was allowed to find the Petitioners guilty of mail fraud and recketeer- ing for failure of the Governor to adhere to a standard- less notion of loyal and faithful services and for failure of all of the defendants to comply with an undefined concept of fair dealing (R. 177-79). Further aggravating the problem, the jury was also instructed that, notwith- standing the inapplicability of the state Code of Ethics to the conduct of the Governor, the jurors could nevertheless look to the Code “as a guide for determin- ing the standard of conduct expected of public officials by the State of Maryland” and as an aid in determining the defendants’ intent (R. 186). After deliberating for a week, the jury reported that they were unable to come to “a unanimous decision as to the existence of a scheme to defraud” or to “a unanimous verdict on the guilt or innocence on any of the charges on any of the Defendants in this case” (R. 309-10). The trial judge thereupon delivered a supple- mentary instruction that the jurors should not hesitate to re-examine their views and that the importance of the case, as well as the time and expenditure involved in the trial, were relevant factors for them to consider '2 Consistent with this charge, the chief prosecutor, in his summation, emphasized that the jury could find the defend- ants guilty without making any determination that Mandel had n bribed. “What I want to explain to you or a anar to you,” he argued, “is that the whole concept of bribery is relevant only in Counts 21 and 23 [the racketeering counts] and that even as to those two counts you, in fact, can convict and should under the law convict even if you don’t find those two briberies, if you find any two of the 20 mail fraud violations” (R. 1989-90). 16 (R. 310-13; Tr. 11739-46). Six days later, after two jurors had fallen ill from the intense controversy that marked their deliberations, one requiring hospitalization and the other needing emergency medical care, the jury rendered the verdicts on which the judgments of conviction were entered.3 In their appeal to the Fourth Circuit, Petitioners maintained that the mail fraud charges, as submitted to the jury, were so lacking in definable standards as to amount to an over-extension of the mail fraud statute. If the indictment could be interpreted as allowing conviction on the basis of the instructions given, Petitioners contended, the charges should be dismissed as beyond the reach of 18 U.S.C. §1341. The panel majority held that the indictment was ot vague and undefined but that error was committed by the trial judge in submitting to the jury a different case than that which was charged. The panel majority concluded that the indictment charged a scheme cognizable under the mail fraud statute on either or both of two theories: (1) that the Governor had “either been bribed” or that “attempts had been made to bribe the Governor;” ot (2) that false information as to the ownership of Marlboro was pre- sented to the legislature or to the Racing Commnission to induce them to take favorable action toward the racetrack (Appendix hereto, p. 42a, infra). Since the jury instructions had been seriously deficient as to both theories, however, in not requiring a finding of bribery or actual knowledge of the allegedly false information, the panel majority held that the convictions were improperly obtained (Appendix hereto, pp. 42a-45a, infra). The error was compounded, the majority held, by substituting for bribery and actual knowledge the ‘8 See: Motion of Marvin Mandel for New Trial, Exs. B, C; Order rae et for Hearing Concerning Sick Juror, August 18, 1977. 17 standards of a Code of Ethics which was admittedly inapplicable to the conduct of the Governor (Appendix hereto, pp. 45a-48a, infra). Since it was necessary to remand the case for a new trial, the panel majority also reviewed the Govern- ment’s use of hearsay for “the central part of its case” (Appendix hereto, p. 48a infra). Reviewing carefully the volume and character of hearsay admitted, and assessing its prejudicial impact and unreliable nature, the majority held that it had been improperly admitted. “Evidence based on rumors and general discussions is the worst type of hearsay,” the majority wrote, adding that, “Such testimony, especially from unidentified declarants, does not possess the requisite guarantees of trustworthiness to justify a new exception to the hearsay rule” (Appendix hereto, p. 52a, infra). Other errors in the admission of evidence were noted (Appen- dix hereto, pp. 58a-55a, infra), but, inasmuch as the case was being remanded for new trial, other substantial issues were not reached (Appendix hereto, p. 61a, infra). After rehearing en banc, three members of the six- member court announced that, “The judgments of conviction are affirmed by an equally divided court,” and that, “A majority of the members of the en banc 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” (Appendix hereto, Pp. 7a, infra). Petitioners’ request for a further rehearing en banc, to cure the problems created by the 3-3 tie vote, was denied by a 4-4 tie vote. 18 REASONS FOR GRANTING THE WRIT I. THE DECISION BELOW RAISES SUBSTANTIAL AND RE- CURRING QUESTIONS WORTHY OF REVIEW BY THIS COURT, AND THAT REVIEW OUGHT NOT BE HINDERED OR DESTROYED BY THE FOURTH CIRCUIT’S UNREA- SONED ACTION IN “AFFIRMING THE CONVICTIONS BY AN EQUALLY DIVIDED COURT.” This petition for certiorari is necessarily directed to the order of the en banc Fourth Circuit dated July 20, 1979 (Appendix, p. 3a). That order is clear in one respect only. It clearly purports to affirm the judgments of conviction by an equally divided court, i.e., by a 3-3 vote of the qualified active Circuit Judges then available. The petition for mandamus filed simultaneously herewith demonstrates the lack of judicial power in such. an equal division to affirm the judgments of conviction in these circumstances. It becomes the function of this petition for certiorari to attempt to piece together the eects questions properly raised by the Petitioners in their appeals tothe Fourth Circuit which are worthy of review by this Court. Petitioners have no illusions about the difficulties involved in attempting to reconstruct these questions out of the procedural and decisional chaos created by the action of equal division of the Fourth Circuit. It has often been said that an affirmance by an equally divided court settles nothing for the divided court. See, Neil v. Biggers, 409 U.S. 188, 192 (1972). Here, even the point upon which the court below divided equally is not clearly stated, it being referred to merely as “the claim ’ of error in the charge to the jury.” Reliance must perforce be had upon Judge Widener’s dissenting opinion to discover which of the various claims of error in the instructions was the one on which. the court divided. 19 Moreover, the July 20th order further indicates that a majority of the members of the six-judge en banc court “would affirm the judgments of conviction against all the contentions of the Appellants,” except upon the point upon which there was equal division. Again, there is no identification of these contentions. Are they the other contentions raised in response to the limited questions posed in the Government’s petition for rehearing? Or, is this a 4-2 ruling rejecting the various other issues raised by Petitioners on their original appeals, including those which the three-judge panel did not reach? All we have are the dissenting words of Judges Widener and Russell. They first noted that “there are a number of issues raised in this case which are not dealt with in the majority en banc opinion,” and that, “Discussion of these issues was unnecessary in the majority panel opinion since a new trial was required in all events.” See Appendix hereto, page 14a, infra. This led Judges Widener and Russell to question the “decision not to discuss any of the remaining issues raised on appeal, some of which may present possible. grounds for reversal” (14a-15a, infra). Petitioners have no alternative but to go forward, before this Court, with all questions that they believe worthy of this Court’s consideration. They do so with full knowledge that they are asking this Court to perform appellate tasks that should have been per- formed in the first instance by the Fourth Circuit. The still viable and more fully articulated decision of the Fourth Circuit, dated January 11, 1979, should be given its proper effect through the requested mandamus. But whatever the procedural means, Petitioners must renew their request that their statutory right to a meaningful appellate review not be destroyed by the ambiguous and unenlightening en banc order of July 20, 1979. By any definition, this is an important federal prosecution, important both to the Government and to 20 the individuals whose liberty is at stake. As.a result of this prosecution, Maryland’s elected governor was unable to fulfill the functions of his office for most of his second term. As Judge Murnaghan remarked in his dissenting statement of November 1 (Appendix hereto, — p. 3a, infra): “This was no ordinary case. Its conse- quences on the entire political system of the State of Maryland are enormous. It cries out for a proper resolution, where such a resolution is possible.” Before the Fourth Circuit, the Government argued for a more definitive resolution of the issues, contending that: ‘{TJhe importance of the legal issues is matched by the importance of the case itself ... The case involves serious allegations of wrongdoing by the highest elected official of the State. The parties, the scores of witnesses, and the state of Maryland itself have endured nearly five years of turmoil and uncer- tainty.” Government’s Pet. for Rehearing, p. 29. The equal division below has done nothing to relieve that turmoil and uncertainty. Il. THE TRIAL COURT’S REFUSAL TO INSTRUCT AS TO THE GOVERNMENT’S ALTERNATIVE THEORIES OF THE AL- LEGED MAIL FRAUD HAS ACQUIRED EXTRAORDINARY SIGNIFICANCE AS THE ISSUE THAT CAUSED THE EN BANC COURT TO DIVIDE EQUALLY. The en banc Fourth Circuit indicated in its July 20th order that its equal division related to “the claim of error in the charge to the jury.” In their dissent, Judges Widener and Russell also stated that the equal division “related to the denial by the trial judge of requested instructions.” (Appendix hereto, pp. 7a, 8a, infra). The dissent by Judges Widener and Russell elabo- rated this point on which there was equal division. By reference to the discussion in the panel opinion that found reversible error in the denial of requested instructions (Appendix hereto, p. 8a, infra), these 21 Judges pinpointed the instructions that had been erroneously denied: (a) the refusal to give a bribery instruction as to the mail fraud counts; and (b) the failure to instruct as to Governor Mandel’s knowledge of the financial interests of the co-defendants. The panel gave importance to those two refusals to instruct by relating them to the two alternative theories of the mail fraud as advanced by the Government. On one theory, the essence of the mail fraud counts was the alleged bribery of Governor Mandel — thus the refusal to instruct as te bribery under those counts was held reversible error.'‘4 On the alternative theory, the indictment could be construed as alleging that the scheme was to obtain money and property by means of false representations and concealment of material facts — thus the refusal to instruct as to the need to find that the Governor knew of his co-defendants’ concealed financial interests was held reversible error.!5 The keystone in any evaluation of the importance of the refusals to instruct as to bribery and knowledge is found in the fact that the en banc court was deeply and evenly divided on these matters. Three of the six participating judges believed that the jury in this 4 The mail fraud counts alleged (see A. 52) that the Maryland citizens and agencies had been deprived of the faithful services of Governor Mandel “free on bribery, corruption, partiality, willful omission, bias, dishonesty, deceit, official misconduct and fraud.” Ju Murray, in holding the indictment sufficient, found that the “essence” of the scheme set forth in the indictment was “to defraud the citizens and the State of Maryland by bribing the Governor to assist legislation which would be financially beneficial to the owners of Marlboro.” United States v. Mandel, 415 F. Supp. 997, 1005 (D. Md. 1976). 'S The mail fraud counts also asserted (see A. 53) that the alleged scheme ‘involved an effort to obtain money and property “by means of false and fraudulent pretense, repre- sentations, and promises, and the concealment of material facts, relating to the Marlboro Race Track,” and other enterprises and “matters.” 22 important prosecution could have been hopelessly confused by the failure of the trial judge to define the bribery portion of the mail fraud charges, and the failure to deal with Governor Mandel’s lack of specific knowledge of his co-defendants’ interests. The other three judges flatly disagreed with that assessment. Therein lies the reason and the need for the grant of certiorari. At each level of this prosecution — the indictment, the trial, and the appeal — additional significance and controversy have been added to the two refusals to instruct. Moreover, the instruction issue that so deeply divided the en banc court was one that the Government claimed was important enough to warrant a rehearing en banc. Under Appellant Rule 35(a), such a rehearing is limited to those issues that have “exceptional importance,” as well as those reflecting some internal conflict within the Circuit. Obviously, any question possessing an importance sufficient to justify the grant of an en banc rehearing and then causes an equal division among the en banc judges, cannot lose its “exceptional impor- tance” when it comes before this Court for review. As Judges Widener and Russell stated in their July 20th dissent (p. 12a infra), the en banc court’s equally divided approval of the trial court’s instructions in these regards has created a conflict with the established rule in other Circuits that a criminal defendant is entitled to an instruction on any theory of defense for which there is a foundation in the evidence. See, e.g., United States v. Swallow, 511 F.2d 415, 523 (10th Cir. 1975), cert den., 423 U.S. 845; United States v. Noah, 475 F.2d 688, 697 (9th Cir. 1973), cert den., 414 U.S. 1095; United States v. Dana, 457 F.2d 205, 208 (7th Cir. 1972); United States v. Blair, 456 F.2d 514, 520 (3d Cir. 1972); United States v. Leach, 427 F.2d 1107, 1112 (1st Cir. 1970), cert. den., 400 U.S. 829; Blane v. United States, 389 U.S.835(1967); Perez v. United 23 States, 297 F.2d 12, 15-16 (5th Cir. 1961); Apel v. United States, 247 F.2d 277, 282 (8th Cir. 1957); United States v. O’Connor, 237 F.2d 466, 474, n.8 (2d Cir. 1956); Tatum v. United States, 88 U.S. App. D.C. 386, 190 F.2d 612, 617 (1951). The Government’s adamant insistence that essential instructions not be given with respect to the mail fraud charges, and the trial court’s consequent failure to grant them, amounts to a denial of the defendants’ right to a fair trial and an abuse of the prosecutorial function. When the trial judge permitted the mail fraud charges to be decided on a basis different from “the essence” of the indictment, he deprived the Petitioners of their “substantial right to be tried only on charges presented in an indictment by a grand jury,” and, “The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment.” Stirone v. United States, 361 U.S. 212; 217, 218-19 (1960). For a detailed analysis of the change in the Government’s allegations in the course of the trial, see the July 20th dissent of Judges Widener and Russell, at pages 8a-12a of the Appendix hereto, infra. Ill. THE FEDERAL MAIL FRAUD STATUTE HAS BEEN MIS- APPLIED AND OVEREXTENDED IN THIS CASE, THEREBY CREATING AN UNFAIR TRIAL AS WELL AS CONFLICTS WITH OTHER CIRCUITS. The grant of certiorari is not only appropriate but essential to determine if a grave injustice has been accorded these Petitioners by the en banc court’s approval of the judgments of conviction. Within those judgments are embedded serious problems as to the proper application of the federal mail fraud statute to a scheme to defraud a sovereign State and its citizens of the faithful services of their Governor. And _ those judgments, untutored as they are by any definitive appellate consideration, appear to be in conflict with 24 the rulings of other Circuits that have addressed these important problems. Since the racketeering counts are so totally dependent upon the viability of the mail fraud counts, any problems that may infect the judgments of conviction relative to mail fraud necessarily implicate the judg- ments of conviction under the racketeering counts. Thus any defects in the application of the mail fraud statute to the scheme here alleged bring into jeopardy the totality of the judgments of conviction so summar- ily affirmed by the en banc court. The due process and fair trial implications of such a result need no elabora- tion. A. The bribery aspect of the scheme As conceived by the indictment, the scheme was one to defraud the State of Maryland and its citizens of their right to the faithful and unbiased services of Governor Mandel, acting in his official capacity. The first problem in such public corruption prosecutions has been to define this public right to honest and faithful government for purposes of § 1341. Courts have gener- ally found the § 1341 standard to be the equivalent of private business standards of “moral uprightness.. . fundamental honesty, fair play and right dealing in the general business life. . . of society.” See, e.g., Blachly v. United States, 380 F.2d 665, 671 (5th Cir. 1967). Public officials, in other.words, may be convicted under § 1341 if their actions may be said to involve a scheme to defraud state citizens of an intangible, federally created right to “honest and faithful government.” United States v. Brown, 540 F.2d 364, 374-(8th Cir. 1976). But most Circuits have recognized that § 1341, as applied to public officials, might well be unconstitu- tional and overly intrusive upon traditional state interests unless some more explicit standard of criminal 25 conduct is used to supplement the “moral uprightness” standard. Thus virtually every prosecution and convic- tion of public officials under § 1341 have identified the violation of the “moral uprightness” standard in terms of the official’s involvement in extortion, bribery, kickbacks or violation of some other identifiable criminal, civil or common law duty. See, e.g., United States v. Isaacs, 493 F.2d 1124, 1170 (7th Cir. 1974), cert. den., 417 U.S: 976; United States v. Barrett, 505 F.2d — 1091, 1104 (7th Cir. 1975); United States v. Keane, 522 F.2d 534, 547 (7th Cir. 1975); United States v. Bush, 522 F.2d 641, 646, 651 (7th Cir. 1975); United States v. Dixon, 536 F.2d 1388, 1400 (2d Cir. 1976). Indeed, the Fourth Circuit itself, in United States v. Caldwell, 544 F.2d 691, 694-95 (4th Cir. 1976), has accepted this general understanding that mail fraud prosecutions of public officials should in some manner reflect that the officials were bribed or that they otherwise acted “in violation of state law” before the conclusion can be drawn that the citizens of the state were deprived of their right. to the officials’ “fair and impartial execution of the [state} laws.” 544 F.2d at 697. This judicial insistence that some identifiable viola- tion of a criminal, civil or common law duty be at th_ heart of a § 1341 prosecution of a public official found early expression in the instant prosecution. The indictment plainly charged that the State of Maryland and its citizens had been defrauded of their right to the _ faithful services [“moral uprightness”} of Governor * Mandel “free from bribery ...” A. 52. And the trial court early on determined that the “essence” of the § 1341 charge was a scheme that involved “bribing the Governor.” United States v. Mandel, 415 F. Supp. 997, 1005 (D. Md. 1976). Throughout the first trial and the retrial, the Government consistently asserted that bribery was indeed the heart of its case. 26 But at the end of the retrial, in recognition of the paucity of its proof of bribery, the Government changed its theory of the case. It persuaded the trial judge that, since bribery is not a statutory element of a scheme to defraud, it would be improper to include a bribery instruction in the mail fraud charge to the jury. The absence of a bribery instruction, however, gave the jury no standard to assess the federally created right to honest state government other than in terms of its own conception of the “moral uprightness” and “right dealing” of Governor Mandel’s official activities. The opinion of Judges Widener and Russell in dissent to the en banc affirmance of the judgments of conviction (Appendix hereto, pp. 8a-12a infra) recounts the Government’s “complete flip-flop” on the appeal with respect to the absence of a bribery instruction. The essential point remains that the jury was not instructed that, to convict the petitioners of mail fraud, it must find that bribery had in fact occurred. Only with such an instruction could there be any assurance that the jury had properly concluded that the State of Maryland and its citizens had been deprived of the faithful services of Governor Mandel “free from bribery.” Without a bribery instruction, the jury was free to make its assessment of the faithfulness of Governor Mandel’s activities in light of its own views of “moral uprightness, fundamental honesty, fair play and right dealing.” Whatever Government counsel may now say,!6 the judgments of conviction were drained of all instructional assurance that they rest on something more meaningful than an ad hoc application of the amorphous “moral uprightness” rubric. 16 It is axiomatic that Petitioners are entitled to have their convictions appraised not in terms of the prosecution's appellate arguments but in terms of the case aa it was tried and as the issues were determined in the trial court,” Cole v, Arkansas, 333 U.S. 196, 202 (1948). 27 It follows that when the en banc Fourth Circuit purports to affirm the judgments of conviction, it purports to affirm judgments stripped of the one element — bribery — that would assure that § 1341 has been applied in this case in a manner consistent with § 1341 jurisprudence and with the due process demands of fair notice. The en banc affirmance of such judgments must be deemed in conflict with all the Circuit decisions, cited above, that have insisted that a § 1341 prosecution of a public official involve some discernible violation of a criminal, civil or common law duty. This Court has never had occasion to address this problem of alleged mail fraud violations by public officials, which are so often coupled with identical allegations with respect to racketeering violations. This is the time and the casein which to make a definitive assessment of the application of §1341 to public officials. Mail fraud prosecutions of such officials are increasing in numbers. See, Ruff, Federal Prosecution of Local Corruption, 65 Geo. L.J. 1171 (1977). But unless such prosecutions are carefully confined within the bounds of congressional intent and due process require- ments, §1341 can soon become a vehicle for undue federal intrusion into the affairs of state governments. This very case carries with it the spectre of federal judges, federal prosecutors and federal juries sitting in unrestricted judgment of the ‘moral uprightness” of the activities of elected state officials. That is essentially a political judgment. And it is a judgment as to which the state officials can expect no fair warning as to criminal consequences, 28 B. The non-disclosure aspect of the scheme As submitted to the jury at trial, the mail fraud charge was that the State of Maryland and its citizens had been additionally defrauded by virtue of the non- disclosure of the business interests of Governor Mandel. Non-disclosure, in other words, was deemed to give alternative or additional content to the vague mail fraud standard of “moral uprightness” in the conduct of public office. But it is uncontested in this case that none of the specific acts of non-disclosure were rendered unlawful by any Maryland statute, regulation or rule. That absence of any state law violation places the non- disclosures in a vacuum. They simply become an unstructured element for the jury to assess as part of its unstructured application of the vague “moral upright- ness” standard under § 1341. Such a submission to the jury exascerbates the problem of determining the extent to which the “moral uprightness” concept written into § 1341 must be based on discernible violations of state laws or common law duties. Indeed, the en banc affirmance of the judgments of convictions constitutes a direct conflict with the interpretation of § 1341 adopted by the Eighth Circuit in United States v. Rabbit, 583.F.2d 1014, 1026 (8th Cir. 1978). In Rabbit, the court reversed a § 1341 conviction of a state legislator, based on non-disclosure of his business relationship with private individuals, The Eighth Circuit ruled that the legislator was under no affirmative duty to disclose his interest because “the government referred to no [state] standard of conduct applicable to legislators which clearly required disclo- sure of [the legislator'’s] interest in the [matter]. . .” The en bane affirmance also conflicta in principle with thie Court's dictum in Parr v. United States, 363 U.S. 370, 389 (1960), The Court there stated that 29 Congress enacted §1341 so as to forbid and make criminal any use of the mails for the purpose of executing a scheme to defraud, “leaving generally the matter of what conduct may constitute such a scheme for determination under other laws.” That dictum suggests that, if non-disclosure allegedly constitutes a part of the scheme, the non-disclosure must result from a violation of some requirement of disclosure “under other [state] laws.” These problems of non-disclosure, like that of bribery, warrant review and consideration by this Court. IV. SERIOUS QUESTIONS ARE PRESENT AS TO WHETHER CONGRESS INTENDED TO APPLY THE “RACKETEERING” PROVISIONS AND SANCTIONS OF THE ORGANIZED CRIME CONTROL ACT TO THE CIRCUMSTANCES AND THE INDIVIDUALS HERE INVOLVED. Substantial problems are generated by the affirmance of the judgments of conviction under Counts 21 and 24 of the indictment. Those counts alleged violations of Title IX of the Organized Crime Control Act of 1970, 18 U.S.C, §§ 1961-1968.'’ Title IX of that Act is entitled “Racketeer Influenced and Corrupt Organizations” (RICO), and is currently one of the most frequently used federal weapons in the drive against white collar crime. '’ Count 21 alleged that Governor Mande) alone had violated § 1962(b) of RICO in that | he had uired and an in and control of Security 2 attorn” al plo the 20 si ches in ta 1 20, aan Maryland bribery statute, Ann,, Art, 27, § 28. all the defendants rok than Governor Mandel conducted the affairs of Marlboro Race l'rack through a “pattern of racketeering activity,” in violation of §1962(c) of RICO, The alleged “pattern” consisted of the 20 mail fraud violations ch in tal through 20, No claim was made that any violations of the ee bene bribery statute constituted any part of this 30 The statutory problems that emerge in this case can be appreciated only after tracking the statutory provisions that lead to the labeling and punishing as “racketeers” many white collar defendants (such as these petitioners) who have no connection whatever with the Congressional or RICO concept of “racket- eers.” RICO violations are clustered in §1962, which essentially provides that “any person” who has maintained or conducted the affairs of an interstate enterprise through a “pattern of racketeering activity” is punishable as a “racketeer.” A “pattern of racketeer- ing activity” is defined in § 1961 as the commission of two or more chargeable or indictable offenses under state or federal law. In this case, the alleged “pattern” consisted of the federal mail fraud violations charged in the first twenty counts of the indictment. Thus, under the structure of RICO, a jury determination that the petitioners were guilty of two or more of the mail fraud counts automatically established a “pattern of racket- eering activity” for § 1962 purposes. There are two major questions resulting from the application of this statute to the petitioners: (1) Dm CONGRESS INTENT TO APPLY THE RICO ““RACKETEER PROVISIONS TO MAIL FRAUD VIOLATORS WHO ARE IN NO WAY CONNECTED WITH ORGANIZED CRIME? This Court has yet to give a definitive construction to the RICO provisions in light of the legislative history and purpose of the Organized Crime Control Act of 1970, of which RICO is an integral part. The rather narrow and precise thrust of the Act would seem well summarized in Section 1 of the’ Act (see Note to 18 U.S.C.A. § 1961), which states that the purpose of the Act is «to deal with and eradicate “the unlawful activities of those engaged in organized crime.” So 31 plain is this purpose that this Court, in dealing with another provision of the Act in Jannelii v. United States, 420 U.S. 770, 786 (1975), observed that the content of the entire Organized Crime Control Act “reflects the dedication with which the Legislature pursued this purpose [of eradicating organized criminal activities]’”. As stated recently by the Sixth Circuit in United States v. Sutton, 605 F.2d 260, 268 (6th Cir. 1979), the “legislative history conclusively demonstrates that RICO was enacted in response to the growing subver- sion of our society’s legitimate institutions of business and labor by organized crime, a relatively recent development that Congress deemed a significantly more dangerous threat to the na‘i-’s social and economic stability than the age-old prublem of crime for crime’s sake.” See also Barr v. WUI/TAS, Inc., 66 F.R.D. 109, 113 (S.D.N.Y. 1975). This statutory issue becomes one of interpreting the words “any person” — i.e., “any person” who violates § 1962 — in light of this legislative history and purpose. Are those words to be read literally and without regard to that history, so as to apply the RICO sanctions to “any person” who commits two or more violations of the mail fraud statute? Cf. United States v. Culbert, 435 U.S. 371 (1978), which held that the legislative history of the Hobbs Act did not justify reading the broad statutory language as applicable only to those engaged in “racketeering.” Oz should those words “‘any person” be subjected to the alternative and more familiar rule of statutory construction, “that a thing may be within the letter of the statute, and yet not within its spirit, nor within the intention of its makers’? Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). See also United Steelworkers of America v. Weber, 99 S. Ct. ‘2721 (1979). 32 Only this Court can determine which rule is to be applied in construing the “any person” language in RICO. Are those words to be read literally, or in light of the Congressional intent to deal only with those persons who are members of organized crime syndi- cates in America? (2) Dm CONGRESS INTEND TO IMPOSE MULTIPLE PUNISHMENTS FOR SIMULTANEOUS VIOLATIONS OF THE FEDERAL MAIL FRAUD STATUTE AND THE RICO ANTI-RACKETEERING STATUTE? The fact that violations of RICO depend so heavily in this case upon a “pattern” of mail fraud violations raises an important and unresolved question whether Congress intended to impose multiple punishments for these two interrelated offenses. This question becomes particularly acute if the “any person” language in RICO is read literally so as to apply to any person who commits a “pattern” of two or more mail fraud violations, regardless of whether he is a member of an organized crime group. This problem can be answered by use of one or both analyses that have been established by this Court. Under the test enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932), Congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction depends on “whether each [statutory] provision requires proof of a fact which the other does not.” Under that test, it can be argued that a RICO violation premised on a series of mail fraud violations requires no proof of any essential fact that need not be proved with respect to a mail fraud violation.!® 18 The fact that a RICO violation must involve an interstate enterprise does not distinguish the proof required of a mail fraud violation, icularly where as here the alleged scheme to defraud by mail involves interstate enterprises. In any event, the interstate nature of the yar a is generally inconsequential to proof of a RICO violation. 33 The same result is possible under the more sophisti- cated test applied in Jannelli and in Simpson v. United States, 435 U.S. 6, 12-13 (1978). The test in those cases is whether Congress exhibited an awareness of “signifi- cant differences in characteristics and consequences of the [two] kinds of offenses” that would reflect distinc- tive federal interests and concerns. Under the Jannelli- Simpson standard, it is difficult to perceive any discreet differences in the federal interests and concerns as between (a) punishing white collar businessmen, who are. not members of “organized crime,” for using the mails in execution of a single scheme to defraud, and (b) punishing white collar businessmen, who are not members of “organized crime,” for having engaged in a “pattern of racketeering activity” in the form of two or more uses of the mail in execution of a single scheme to defraud. The confluence of mail fraud and racketeering charges, which is so frequent in RICO prosecutions, makes it increasingly important that this problem of — punishments be addressed and resolved by this ourt. . V. THE REVIVAL OF “FORFEITURE OF ESTATE,” AS MAN- DATORY PUNISHMENT FOR VIOLATION OF TITLE IX OF THE ORGANIZED CRIME CONTROL ACT, RAISES PRO- FOUND AND LONG-FORGOTTEN CONSTITUTIONAL QUESTIONS. Pursuant to the mandate in § 1963 of RICO, Title IX of the Organized Crime Control Act, the District Court ordered that the five Petitioners found guilty of violating Count 24 forfeit to the United States all their interests in the Marlboro racetrack enterprise.!® Section 19’Count 24 alleged that the five defend Governor Mandel had Soudlanhed aaa 007 tag Seen conduct of the Marlboro Race Track through a “pattern of racketeering activity.” The racetrack enterprise was not alleged to be an illegal activity, nor was it alleged to be the means for effectuating the “pattern” of t mail fraud violations. R ene hn cath rain 34 1963, entitled “Criminal penalties,” condemns anyone who has conducted an enterprise in violation of § 1962 to suffer triple punishment: (1) he shall be fined not more than $25,000; and/or (2) he shall be imprisoned not more than 20 years; and (3) he shall forfeit to the United States any interest in any enterprise he has conducted in violation of § 1962. Precisely because § 1963 involves criminal forfeiture of property, rather than the in rem forfeiture of offending objects used in violation of some federal law, the statute gives rise to “serious constitutional ques- tions.” Calero-Toledo v. Pearson Yacht Leasing Co. 416 U.S. 663, 689 (1974). The legislative history of § 1963 confirms that forfeiture was here conceived of as the > third of three possible punishments, the others being fine and imprisonment, for the convicted individual. See H. Rep. No. 911549, 91st Cong., 2d Sess.; S. Rep. No. 91-617, 91st Cong., Ist Sess.; 116 Cong. Rec. 35205, 35208. And see United States v. Rubin, 559 F.2d 975, 991 n.15 (5th Cir. 1977), which distinguishes a § 1963 forfeiture from an in rem forfeiture. As the District Court below recognized, United States v. Mandel, 408 F. Supp. 679, 682 (D. Md. 1976), the forfeiture provisions of § 1963 “resurrected the device of criminal forfeiture, which had been abolished along with corruption of blood by the First Congress in 1790.” - That is a reference to § 24 of the Act of April 30, 1790, 1 Stat. 112, 117, the first federal criminal code, which stated: Sec. 24. Provided always, and be it enacted, That no conviction or judgment for any of the offenses aforesaid, shall work corruption of blood, or any forfeiture of estate. That early outlawing of corruption of blood and forfeiture of estate, as punishment for violation of any federal criminal statute, remains a part of the federal 35 criminal code to this day. See 18 U.S.C. § 3563, derived from Rev. Stat. § 5326 (1874). The constitutional problems implicit in any criminal forfeiture are a reflection of the historic common law revulsion against this form of punishment. Beginning with the Magna Carta, increasing restrictions were placed on the use of forfeiture of estate in England.” By the time of the adoption of the Constitution, criminal forfeiture “was deemed repugnant to our ideas of justice and was not included as part of the common law of this — 5 Thompson, Real Property § 2514, p. 404 The common law outlawing of criminal forfeiture undoubtedly accounts for the quick adoption by Congress of the 1790 statute. And the adoption of the statute, which was contemporaneous with the adoption of the Constitution, reflected what the legislators deemed to be the constitutional rule, forbidding such forfeitures save in one limited instance. The Framers had written into Article III, Section 3, a provision that permitted forfeiture of estate in a limited situation only, i.e., forfeiture of a convicted traitor’s life estate. All other forms of forfeiture of estate resulting from a conviction for treason thereby “has been constitution- ally proscribed.” Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. at 683. See also Wallack v. VanRiswick, 92 U.S. 202 (1876). The constitutional issues generated by § 1963, read against this historical and constitutional background, may be stated as follows: (1) Does Article III, Section 3, which permits only the forfeiture of life estates of convicted traitors, constitute »” See 3 Holdsworth, History of English Law 68-71 (3d ed. 1927); 1 Pollack & Maitland, History of English Law 351 (2d ed. 1909). A short summary of this common law development is contained in the Calero-Toledo opinion, 416 U.S. at 682-683. 36 a constitutional prohibition of all other forms of forfeiture of estate? It would seem incongruous that the Framers would proscribe criminal forfeiture of other than life estates of convicted traitors while permitting criminal forfeiture of all kinds of estates of those convicted of lesser federal offenses. And the contempo- vaneous adoption of the 1790 statute would appear to be an implementation of the broad outlawing of criminal forfeiture implicit in Article III, Section 3. (2) Does the Due Process Clause of the Fifth Amend- ment proscribe criminal forfeiture of property that has “not been actually used or involved in any criminal activity? See Platt v. United States, 163 F.2d-165 (10th Cir. 1947); United States v. One 1974 Cadillac Eldorado, 407 F. Supp. 1115 (S.D.N.Y. 1975). Forfeiture of such property may be considered an undue penalty not only for historic common law reasons but because other civil and less drastic penal remedies are available, as § 1963 provides. See also McKeehan v. United States, 438 F.2d 739, 742-745 (6th Cir. 1971). (3) Alternatively, does the historic common law revulsion against forfeiture of estate, supplemented by the forfeiture provisions in Article HI, Section 3, make the criminal forfeiture of property here decreed a “cruel and unusual punishment” within the meaning of the Eighth Amendment? If the Eighth Amendment truly draws its meaning “from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), forfeiture of estate must be deemed “unusual” if not “cruel.” (4) Is the singling out of those convicted of violating § 1962 of RICO for purposes of imposing the punish- ment of criminal forfeiture consistent with the equal protection concepts implicit in the Due Process Clause of the Fifth Amendment? 37 These are constitutional questions of national impor- tance. Definitive answers are necessary to determine if the § 1963 forfeiture provisions may validly be applied in this and in all future RICO prosecutions. VI. THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF OTHER COURTS OF APPEALS AS TO THE PROPER INTERPRETATION OF RULE 803(24) OF THE FEDERAL RULES OF EVIDENCE. The trial judge permitted the Government to establish what the panel opinion describe as the “central part of its case” (Appendix hereto, p. 48a) through hearsay. Specifically, the Government alleged that Mandel brought about the override of his own veto of a bill which would have given Marlboro additional racing days, and thereby greatly increased Marlboro’s profita- bility. ; As its proof of this contention, the Government introduced testimony of several Maryland state sena- tors who were present during the lobbying and voting on this bill. The nature of the hearsay testimony was _ described by the panel opinion of the Fourth Circuit as consisting of statements “by unidentified declarants, statements relating to the general discussierramong the -- senators, statements concerning discussions with other senators and testimony by one senator relating the feeling of other senators.” 591 F.2d at 1368. This testimony was objected to as hearsay but was admitted under Rule 803(24), Federal Rules of Evidence, even though the Government never provided the Petitioners with the names and addresses of most of the declarants whose statements were testified to by the witnesses. The panel majority held that this hearsay was _inadmissable because of the lack of notice and because the hearsay did not meet the criteria of Rule 803(24). With respect to the notice requirement, the panel . opinion stated that Rule 803(24) is “not to be construed 38 broadly . . . and. . . we see no reason to depart from its plain requirements.” Thus when the judgments of convictions were affirmed by an equally divided en banc court, the Fourth Circuit held in effect that the hearsay was admissible even without notice of the hearsay and the identity of the declarants as required | by Rule 803(24). | Such a holding conflicts directly with that of the Second Circuit in United States v. Oates, 560 F.2d 45, 73 n.30 (2d Cir. 1977) (“there is absolutely no doubt that Congress intended the requirement of advance notice to be rigidly enforced”). The holding that the notice may be dispensed with also conflicts in principle with decisions in the Fifth and Eighth Circuits. See e.g., United States v. Davis, 571 F.2d 1354, 1360, n.11 (5th Cir. 1978) (“. . . government made no attempt to invoke the . . . [803(24)] . . . exception by giving the defense the required advance notice of the hearsay evidence to be offered at trial”); United States v. Lyon, 567 F.2d 777, 784 (8th Cir. 1977), cert. denied, 435 U.S. 918 (1978) (pretrial notice may be dispensed with when other procedures, such as a continuance after notice gives opportunity for accomplishing the Congressional pur- - poses). See also, United States v. Ruffin, 575 F.2d 346, 358 (2d Cir. 1978) and United States v. Davis, 571 F.2d 1354 (5th Cir. 1978). There is no case, except this one, in which a Circuit has approved dispensing with the notice requirement altogether. Aside from the conflict as to notice requirement, the decision to affirm the convictions in efiect extends Rule 803(24) far beyond any of its previous applications. The disputed testimony was characterized by the panel as follows: “First, the senators who testified all say that someone else said that Governor Mandel did not care whether his veto was overridden. No senator seems to have testified that Governor Mandel told 39 him that the Governor did not care. Important also is the whole setting from which this testimony is drawn. We are dealing with a purely legislative political scene. Some of the most damaging hearsay statements 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. We are not dealing with an objectively observable factual event. We are dealing with circumstantial proof of the position a governor took on two pieces of legisla- tion. Evidence based on rumors and general discussions is the worst t of hearsay.” mein ype ay.” App., pp. Thus, the en banc decision which approved the use of such hearsay demonstrated a liberality of interpreta- tion of Rule 803(24) which is at odds with the Congressional declaration that this exception “. . . be used very rarely and only in exceptional circumstances - and that it not be employed as a “broad license for trial judges to admit hearsay” or as a means for bringing about “major judicial revisions of the hearsay rule.” Rule 803(24), Conference Report, 28 U.S.C.A. Historical Note. i | Other Circuits, sensitive to the limited role contem- plated by Congress for Rule 803(24), and acutely sensitive to the Sixth Amendment confrontation prob- lems found by unduly expanding Rule 803(24) in criminal cases, have refused to construe or apply it broadly. E.g., United States v. Mathis, 559 F.2d 294, 299 (5th Cir. 1977) (“Yet tight reins must be held to ensure that this provision does not emasculate our well- developed body of law. . .”); See also, United States v. Bailey, 581 F.2d 341, 349 (3rd Cir. 1978); United States v. Ruffin, supra; United States v. Gonzolez, 559 F.2d 1271 (5th Cir. 1977). | 40 The decision below also raises important Sixth Amendment questions about the scope to be given Rule 803(24) in criminal cases. Although they are not co- extensive, the Confrontation Clause and the hearsay rule “stem from the same roots,” Dutton v. Evan, 400 U.S. 74, 86 (1970). Despite the Confrontation Clause inhibitions on freely permitting hearsay evidence in criminal cases, some courts, and most particularly the Fourth Circuit, have relied on the new Federal Rules of Evidence to extend the permissible use of hearsay in criminal cases “to new and unwarranted lengths,” 4 Weinstein Evidence, 4 804(b)(5), p. 143 (1978 Supp.). The conflict among the Circuits as to the proper use of Rule 803(24) in criminal cases is sure to recur until resolved by this Court. VII THE DECISION BELOW CONFLICTS WITH DECISIONS OF OTHER CIRCUITS AS TO THE PROPRIETY OF GIVING THE ALLEN CHARGE TO A DEADLOCKED JURY. On the evening of the seventh day of deliberations, the jurors reported that they were deadlocked on all the charges. The following morning, the trial judge deli- vered a modified version of the so-called Allen charge, a supplemental instruction to the jury designed to break that deadlock. He told the jyrors, in part, that: “For the parties that are involved in this law suit, the Government and the Defendants, this case is an important 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.” 41 Six days after the delivery of this charge, the j rendered their verdicts of guilt. er This Court has not addressed the propriety of the Allen or “dynamite” charge since its birth in Allen v. United States, 164 U.S. 492 (1896). The Circuits are in total conflict over use of the Allen charge, with three Circuits disapproving its use in any form. See, United States v. Fioravanti, 412 F.2d 407, 414-420 (8rd Cir. 1969), cert. den. 396 U.S. 837 (1969); United States v. Brown, 411 F.2d 930 (7th Cir. 1969); United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971). Most commentators and at least twenty-three state courts have disapproved the use of any form of the Allen charge.”! Indeed, the Judicial Conference of the United States has recommended that it no longer be given in federal courts. See Supplement to Report of the Committee on the Operation of the Jury System Judicial Conference of the United States 2 (1969), Whether the Allen charge be disapproved altogether or whether it be retained in some form or other, the conflicts among the Circuits demonstrate the need for guidance from this Court. 21 California is the latest state to outlaw th Allen charge in its criminal courts. Sea People “i Hane 30 Cal. Rptr. 861, 868-70, 566 P.2d 997, 1004-6 (1977). And see A.B.A. Project on Minimum Standards for Criminal Justice: coe Pacha eniative ae May 1968) § 5.4, pp. 145-56: ; Allen arge: ing Pro Recent Developments, 47 N.Y.U.L. Rev. 296 agra. ee tis x 42 CONCLUSION For these various reasons, a Writ of Certiorari should issue to review the judgment and order of the Court of Appeals for the Fourth Circuit affirming the judgments of conviction by an equally divided vote. Respectfully submitted, ARNOLD M. WEINER, RIcHARD V. FALCON, 36 South Charles Street, Baltimore, Md. 21201, Counsel for Marvin Mandel, Petitioner, and of Counsel for Petitioners EUGENE GRESSMAN, School of Law Univ. of North Carolina, Chapel Hill, N. C. 27514, Of Counsel for Petitioners. M. ALBERT FIGINSKI, Counsel for Marvin Mandel, Petitioner WruiuiaM G.. HUNDLEY, Counsel for W. Dale Hess, Petitioner MICHAEL E. MARR, Counsel for William A. Rodgers, Petitioner NorMAN P. RAMSEY, WiiuiaM F. GATELY, Counsel for Irvin Kovens, Petitioner APPENDIX ORDER (Filed November 1, 1979) United States Court of Appeals for the Fourth Circuit Nos. 77-2487 thru 77-2492 United States of America, Appellee, UV Marvin Mandel, et al., Appellants. Upon consideration of the defendants’ petition for another rehearing before the en banc court and the response of the United States, each of the judges in regular active service who is not disqualified having been polled, and it appearing that fewer than a majority of them have voted for it, It Is Now ORDERED that the petition for another rehearing en banc before the enlarged court be, and it hereby is, denied. For The Court: CLEMENT F. HAYNSWORTH, JR., Chief Judge, Fourth Circuit. October 30, 1979. 2a STATEMENT WITH RESPECT TO DENIAL OF FURTHER HEARING - (Filed November 1, 1979) United States Court of Appeals for the Fourth Circuit Nos. 77-2487 thru 77-2492 United States of America, v. ~ Marvin Mandel, et al., Appellants. MURNAGHAN, Circuit Judge: This statement is not lightly made. It appears only after reflection, and despite considerations which would normally preclude its seeing the light of day. First, one customarily does not announce a dissent from court action which is taken by vote and without opinion. Second, my past tangential contact with this case while a practicing lawyer would, in ordinary circumstances, dicate that I should recuse myself to, avoid, the appearance of even slightest possible Third ois gd adage egy sae et short though it has been, has already thoroughly ered os coc: ipeion th a doting. Ol compassion and concern for the Court as an institution of each of the members. The fact that four of my colleagues disagree with me ie strong indication that : et ane Those considerations have not deterred me only because of a strange certainty, transcending the ordinary confidence one has in cae’s 3a convictions, that the Court’s failure to decide this case constitutes a serious injustice. It is nearly as important that cases be decided, and the decisions be accorded finality, as it is that they be disposed of absolutely correctly. Courts have, as a consequence, adopted a rule of necessity that an evenly divided appellate court, although it cannot render a decision, affirms the judgment. The unsatisfactory nature of such a decisionless result is reflected, however, in the rule that judgments of equally divided courts are not accorded precedential value. The rule of necessity has, however, no scope for application here. The even division which would normally bring the rule into play is not present when the even division coincides with an expansion of the court’s membership. Judge Sprouse and I had joined the Court by the time it considered and acted on the petition for further rehear- ing. So I regret the denial of that petition, the granting of which would avoid a situation so frustrating to defendants who have made arguments sufficient to persuade three members of the Court (that is one-half of those who participated in rehearing) that reversal and a new trial are required, if justice is to be accomplished. The defendants and the public generally, in whose service the courts operate, are entitled to a decision of this Court, whether it leads to reversal and a new trial, or whether, through affirmance, it gives requisite certainty and finality to the convictions. This was no ordinary case. Its consequences on the entire political system of the State of Maryland are enormous. It cries out for a proper resolution, where such a resolution is possible. It would, of course, avail nothing, if yet another rehearing were to result only in a new deadlock. Since an even number of judges has been added to the Court, the danger of a fresh deadlock seems at first a large one, especially in light of the closeness of the issues, 2 closeness which is evidenced by the splits,in both the 4a panel and the en banc court. As things are situated, however, another even division could not occur because any reargument of this case would be heard by an odd number of judges. Enabling a court to reach a decision is not sufficient ean ee alone, for a judge to recuse himself or herself. If it were, then, since all judges would be equally subject to the duty to recuse, evenly divided courts would effectively decide cases by lot, or some other arbitrary process, as they selected one of their members for recusal. Nor is preserving the decision making ability of a court sufficient reason for judges to fail to fulfill an otherwise clear obligation to disqualify themselves. But when grounds for a judge’s recusal exist, but are ones related to appearances rather than actualities, impact on the court’s decision making ability is a factor which the judge should take into account in deciding whether or not to participate. Another rule of necessity is then : — appearance of justice suffers far greater damage from a court’s gh at inability to reach a decision than it does from the participation of a member of the court for whom there are palpable but far-fetched possibilities of bias. Since the reasons why I might recuse myself are of _ guch a tenuous and speculative nature,' they would be outweighed by the importance of the court’s being able to reach a decision. The court would thus be assured that, whether or not Judge Sprouse had to recuse himself, an odd number of members would participate in any rehearing of this case en banc. If he did not recuse himself, I would. If he did recuse himself, I would sit. express my dissent from the decision not to hold 5a permit that expression, I refrain from disqualifying myself. WIDENER, Circuit Judge, dissenting: I respectfully dissent from the failure of the court to grant further en banc consideration in this case for the reasons expressed in my two opinions previously filed. In addition, Judge Murnaghan’s conditional disquali- fication now makes it certain that the case can be heard by an uneven number of judges. We know that on one important issue the court was divided 3 to 3, so a rehearing would have to result in a majority vote, one way or the other. Especially in a criminal case in which people are going to jail by the vote of an evenly divided court, I have more reservations than I can overcome about sending them there without the vote of a majority when the means for getting a majority one way or the other is readily available to the court. I think the court as an institution suffers by our action, for I am not at all sure that we serve properly the appearance of justice when it is within our command so to do. I am authorized to state that Judge Russell joins me in this opinion. 6a JUDGMENT (Filed July 20, 1979) United States Court of Appeals for the Fourth Circuit No. 77-2487 thru 77-2492 United States of America, Appellee, v. Mervin Mandel, ov Appellant. Appeal from the United States District Court for the District of Maryland This cause came on to be heard on the record from the United States District Court for the District of Mary- land, and was argued by counsel. In consideration whereof, It is now here 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. WiiuiaM K. Sxiateze, II, Clerk. 7a ORDER (Filed July 20, 1979) United States Court of Appeals for the Fourth Circuit Nos. 77-2487 thru 77-2492 United States of America, Appellee, v. Marvin Mandel, et al., Appellants. PER CuRIAM: 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 except the claim of error in the charge to the jury which was the point upon which there was equal division. Affirmed. 8a DISSENTING OPINIONS _ Wwener, Circuit Judge, dissenting: I respectfully dissent for all of the reasons discussed in the majority opinion of the panel. United States v. Mandei, 591 F.2d 1347 (4th Cir. 1979), and would add I The point of difference on which the en banc court is evenly divided relates to the denial by the trial judge of requested instructions. As indicated in the panel opinion, I would have reversed because of what I consider error in failing to give a bribery instruction in connection with the mail fraud counts of the indict- ment, and also for failure to give an instruction concerning Governor Mandel’s knowledge of other defendants’ financial interests. Without deemphasizing the latter, I think that affirming despite the lack of a bribery instruction for the mail fraud counts is so far from settled precedent that the reasoning should be error. The mail fraud counts of the indictment had for a substantive basis a charge of bribery. However care- 9a bribe or bribes. It is clear that such bribery was an essential element of the crime stated in the mail fraud counts of the indictment. Such was the construction given the indictment at the first hearing before Judge Murray, when one of the issues was a construction of the charges in the indictment. Judge Murray’s ruling on this point was clear: “While the factual allegations in the indictment make the scheme appear to be a complex and subtle one, the thrust of the charges is simple. In essence, the indictment charges that the defend- ants devised a scheme to defraud the citizens and the state of Maryland by bribing the Governor to assist legislation which would be financially beneficial to the owners of Marlboro. . . .” United States v. Mandel, 415 F. Supp. 997, 1005 (D. Md. 1976) (Emphasis added). And that ruling accorded with the position taken by the government itself at the hearing. At the first trial, the government asserted that bribery was at the heart of its mail fraud prosecution. Thus, counsel for the government at that trial stated to the jury: “Ask yourselves the question, as the evidence comes in, did the benefits that these men were giving to Marvin Mandel really have nothing to do with the benefits that they wanted to get out of the State Government and that to a substantial extent they were getting out of the State Government because that is the question ultimately that you are going to have to be deciding.” (Emphasis added) And throughout and until the end of the second trial, although the government may have begun to shift its 2 Paragraph 27 of count 1 of the indictment alleged that “Marvin Mandel would and did . . . in return for financial and other benefits ... act with intent to aid and assist certain legislation and legislative matters financially benefi- cial to the owners of Marlboro Race Track” (emphasis added). I think this is an accusation of bribery, pure and simple. 10a position with regard to bribery in connection with the mail fraud counts of the indictment, it continued to emphasize the importance of bribery in connection with those counts by introducing a mass of evidence on the alleged flow of benefits to Governor Mandel from the other defendants in return for official preference, without limiting such evidence to the racketeering counts of the indictment. The pervasive influence of bribery on the whole case is shown by the charge of the trial court to the jury with respect to the mail fraud counts, when, although it had just refused the bribery instruction of the defendants with respect to the mail fraud counts, in stating the charge against the defendants, it related the charge that Governor Mandel had not performed his office “free from bribery.” ‘The government at that time did not disclaim the bribery charge, as in fact it should have as a matter of common fairness if indeed it had abandoned the charge. Rather, it stayed silent when it had a duty to speak, and thus had its cake and ate it too. Despite all this background, the government strenu- ously objected to any bribery instruction in connection with the mail fraud counts, as requested by the defendants at the conclusion of the testimony. Contrary to the position taken by it essentially at all times prior, the government argued that bribery was not an element of the mail fraud charges and that it was improper to include a bribery instruction in connection with the mail fraud counts. The trial judge accepted this argument and denied the requested instruction. Even in argument to the jury, counsel for the government argued that bribery was not relevant to the mail fraud counts. They did this on the basis of the trial judge’s ruling denying defendants’ requested instruc- _ On this appeal, however, the government has made a complete flip-flop. It now concedes — contrary to its argument to the trial judge at trial, not to mention to lla the mail fraud counts. But, contrary to its position at tr:al when it induced the trial judge to deny the defendants’ request for a bribery instruction, it argues on this appeal that there was no error in the denial of an instruction on bribery under the mail fraud counts because: (a) The trial judge did define bribery in connec- tion with the racketeering counts and this was sufficient (1) to tell the jury what bribery was and (2) to tell the jury that bribery was included in the mail fraud counts (even though the trial judge specifi- cally refused to so instruct the jury at the instance of the Government itself); and (b) The trial judge did tell the jury, in summar- izing the positions of the parties, that the defendants denied bribery. This argument was accepted by those of my brothers who would affirm the judgment. I cannot accept the argument. The government cannot blow hot and cold at the same time. It cannot argue that bribery is not involved in the mail fraud counts at trial and secure a ruling to that effect from the trial judge in connection with the jury instructions and use that ruling as a basis for the argument to the jury that the “whole concept of bribery is relevant only in Counts 21 and 23” (the racketeering counts), and then on appeal shift completely its position and contend that an instruction on bribery was to be treated as having been given, even though such an instruction was not only not included in the instruction on the mail fraud counts but had been specifically ruled to be improper. I cannot agree to such sophistry in a case where a defendant’s right to a fair trial is involved. The government and the trial judge agreed that bribery was an element in the crime charged in the racketeering counts. For that reason, a bribery instruc- tion was given in connection with those counts. Neither the government nor the trial judge thought it sufficient wai 12a to omit such an instruction simply because the trial judge had stated the conflicting positions of the parties. But when the trial court gave its instructions on the mail fraud counts, it purposely omitted any instruction on bribery. Would not a jury be expected to notice the contrast between the instructions on the mail fraud and racketeering counts? Would it not be reasonable for the jury to assume under these circumstances that bribery was in no way related to the mail fraud counts? And would not this be especially so in view of the argument made by the government counsel, fresh in the minds of the jury, that bribery was irrelevant to the mail fraud counts? This is an involved case. The prosecution rests on fragmented circumstances, many of the more essential ones being no more than mere rumor and legislative corridor gossip. In such a case, is not a defendant entitled to precise instructions? What was done here was, however, more likely to confuse and mislead than to provide clear guidance for the jury. And that should entitle the defendants to a new trial. The error is not insubstantial; it is fundamental. I further note that it was not explicitly noted in the panel opinion that a criminal defendant is entitled to an instruction on any theory of defense for which there is a foundation in the evidence, and that a refusal to so instruct is reversible error. Because that principle is so universally recognized and accepted, I should have believed it required no mention or citation. However, since the affirmance of the defendants’ convictions must reject this time honored principle, I should point out that every circuit, including this court, has embraced the principle that a criminal defendant is entitled to an instruction on any theory of defense for which there is a foundation in the evidence. See, e.g., United States v. Swallow, 511 F.2d 415, 523 (10th Cir. 1975), cert. den., 423 U.S. 845; United States v. Mitchell, 495 F.2d 285, 287-88 (4th Cir. 1974); United States v. Noah, 475 F.2d 688, 697 (th Cir. 1973), cert. den., 414 l3a U.S. 1095; United States v. Dana, 457 F.2d 205, 208 (7th Cir. 1972); United States v. Blair, 456 F.2d 514, 520 (3d Cir. 1972); United States v. Leach, 427 F.2d 1107, 1112 (1st Cir. 1970), cert. den., 400 U.S. 829; United States v. Blane, 375 F.2d 249, 252 (6th Cir. 1967), cert. den., 389 U.S. 835; Perez v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961); Apel v. United States, 247 F.2d 277, 282 (8th Cir. 1957); United States v. O’Connor, 237 F.2d 466, 474, n.8 (2d Cir. 1956); Tatum v. United States, 88 U.S. App. D.C. 386, 190 F.2d 612, 617 (D.C. Cir. 1951). The district court’s refusal to give the substance of defendants’ requested instructions on bribery and knowledge in © connection with the mail fraud counts of the indictment clearly violated this principle. The additional remarks I have made as to the sufficiency of the jury instructions should be read in light of the fact that the panel opinion carried the mail fraud statute near its outer limits, and some cases may arguably indicate beyond. See Hammerschmidt v. United States, 265 U.S. 182 (1924). Especially in view of that, it would have been far preferable for the district court to have charged the jury on the only two theories upon which a conviction could have been sustained, concealment or misrepresentation of facts and bribery. This, it did not do, and, assuming that is not reversible, it went further and rather than charge the j jury with the law as it applied to the case, it charged the jury as to the contentions of the parties and even refused the defendants’ proffered charges, as this dissent and the panel opinion note. Accordingly, I am unshaken in my belief that the jury was inadequately and prejudicially charged in this case. II With respect to the hearsay issue, I add only the following quote from Kotteakos v. United States, 328 U.S. 750, 761 (1945): l4a “What may be technical for one is substantial for another; what minor and unimportant in one setting crucial in another. “Moreover, lawyers know, if others do not, that what may seem technical may embody a great tradition of justice, Weiler v. United States, supra, or a necessity for drawing lines somewhere between great ateas of law; that, in other words, one cannot always segregate the technique from the substance or the form from the reality. It is of course highly technical to confer full legal status upon one who has just attained his majority, but deny it to another a day, a week or a month younger. Yet that narrow line, and many others like it, must be drawn. The ‘hearsay’ rule is often 15a appeal, some of which may present possible grounds for reversal. For the reasons stated above and in the panel opinion, I respectfully dissent. I am authorized by Judge Russell to state that he joins in this opinion. a peg eeamape esa sila 16a JUDGMENT (Filed January 11, 1979) United States Court of Appeals for the Fourth Circuit No. 77-2487 thru 77-2492 United States of America, : Appellee, v Marvin Mandel, Aroellant. Appeal From the United States District Court for the District of Maryland. This Cause came on to be heard on the record from . the United States District Court for the District of Maryland, and was argued by counsel. On Consideration Whereof, It is now here ordered and adjudged by this Court that the judgments of acquittal on Count 23 of the indictment are affirmed. The judgments of conviction on such other counts of the indictment as to which the defendants were not acquitted or which were not dismissed are vacated and remanded for a new trial; the order of forfeiture is also vacated and remanded consistent with the opinion of WiuiaM K. Sxate, I Clerk. 3 a CF 17a OPINION (Filed January 11, 1979) United States Court of Appeals for the Fourth Circuit Nos. 77-2487 thru 77-2492 United States of America, Appellee, v. Marvin Mandel, et al., Appellant. WIDENER, Circuit Judge: Marvin Mandel, Governor of the State of Maryland, W. Dale Hess, Harry W. Rodgers, William A. Rodgers (brother of Harry Rodgers), Irvin Kovens, Maryland businessman, and Ernest N. Cory, a Maryland attorney (hereinafter “Appellants’”), appeal from their convic- tions for mail fraud and racketeering violations under 18 U.S.C. §1341' and 18 U.S.C. §1961 et seq.? (The 1 18 U.S.C. § 1341 (mail fraud statute and § 1341) provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, repre- sentations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction 18a anized Crime Control Act), respectively. Appellants me each adjudged guilty of fifteen counts of mail fraud under §1341 and one count of prohibited racketeering activity under §1961 et seq.° Appellant Mandel was sentenced to a four-year prison term; Appellants Hess, Harry Rodgers, and Kovens were each sentenced to four years’ imprisonment and fined $40,000; Appellant William Rodgers was sentenced to 20 months’ imprisonment and fined $40,000; and Appel- lant Cory was sentenced to 18 months’ imprisonment. Additionally, pursuant to 18 U.S.C. §1963(a), Appel- lants Hess, Harry Rodgers, William Rodgers, Kovens, and Cury were ordered to forfeit their ownership interests in the Southern Maryland Agricultural Associ- ation, Inc., based upon their convictions under count 24 of the indictment. thereon, or at the place at i directed ro i by the person to whom it is ; pate or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 2 18 U.S.C. § 1962, entitled Prohibited activities, provides in pertinent part: (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or Se ar ee mre dd indirectly, interest in or con of any | which is Pron Mir in, or the activities of Aer ng ery interstate or foreign commerce. iz (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. * The indictment charged oy toy with 20 counts of district court, vetutned verdicts of gu lants on all but three of the mail fraud counts. The 19a The gist of the mail fraud counts of the indictment charged that beginning between January 7, 1969 and the spring of 1971, and continuing thereafter to the date of the filing of the indictment, Appellants devised and intended to devise a scheme and artifice: “(a) To defraud the citizens of the State of Maryland, and its governmental depart- ments, agencies, officials and employees, both executive and legislative, of their right to the conscientious, loyal, faithful, disinter- ested and unbiased services, actions and performance of officia) duties of MARVIN MANDEL, in his official capacities as Governor of the State of Maryland, free from bribery, corruption, partiality, willful omis- sion, bias, dishonesty, deceit, official mis- conduct and fraud; “(b) To defraud the citizens of the State of Maryland, and its governmental depart- ments, agencies, officials and employees, both executive and legislative, of their right to have the state’s business and its affairs conducted honestly, impartially, free from bribery, corruption, bias, dishonesty, deceit, official misconduct and fraud, and in ac- cordance with the laws and Code of Ethics of the State of Maryland; “(c) To defraud the citizens of the State of Maryland, and its governmental depart- Additionally, the indictment charged various combinations of the Appellants with 4 counts of prohibited racketeering activity. Governor Mandel was charged with engaging in a pattern of racketeering activity in counts 21 and 22 of the indictment. Appellants Hess, Harry Rodgers, and William Rodgers were charged with engaging in a pattern of racketeering activity in count 23 of the indictment. And, Appellants Hess, Harry Rodgers, Williams Rodgers, Kovens, and Cory were charged with engaging in a pattern of racketeering activity in count 24 of the indictment. Count 22 was dismissed prior to trial. The jury returned verdicts of guilty on counts 21, 23, and 24 of the indictment. The district court entered a judgment of acquittal on count 23 of the indictment, from which the government has appealed. » 20a ments, agencies, officials and employees, both executive and legislative, of their right to have available and to be made aware of all relevant and pertinent facts and circum- stances when: : 1) drafting, considering and deliberating ad upon ain legislation for the State of Maryland with respect to the Mary- land horse racing industry and to other matters; (2) administering the laws of the State of Maryland with respect to the Maryland horse racing industry and to other matters; and (3) transacting business for and on behalf of the State of Maryland; “(d) To obtain, directly and indirectly, money, property and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of material facts, relating to the Marlboro Race Track, the Bowie Race Track, the Security Investment Company, Ray’s Point, Inc., and to other matters. (from count 1, para. 13, of the indictment). Paragraphs 14 through 32 of count 1 set forth the specifics of the alleged scheme to defraud. These specifics include allegations of bribery and the misrepresentation and concealment of material infor- mation on the part of the Appellants. Counts 2 to 20 incorporate by reference the allegations contained in count 1 and charge Appellants with various particular uses of the mails in the execution of the alleged scheme. In the racketeering counts, the government charged Governor Mandel in count 21 with acquiring and maintaining an interest in and control of the Security Investment Company through a pattern of racketeering activity that in mail fraud and bribery. Count 23 charged Hess, Rodgers, and William Rodgers with conducting and participating in the conduct of the 2la affairs of the Security Investment Company through a pattern of racketeering activity that included mail fraud and bribery. Count 24 charged Hess, Harry Rodgers, Williams Rodgers, Kovens, and Cory with conducting and participating in the conduct of the affairs of the Marlboro Race Track through a pattern of racketeering activity that included mail fraud. The evidence adduced at trial focused upon the specific allegations contained in count 1 of the indict- ment, i.e., the alleged bribery of Governor Mandel and the alleged misrepresentation and concealment of material information on the part of Appellants. The facts developed at trial touching upon the alleged bribery of the Governor and the alleged misrepre- sentation and concealment of material information by Appellants were essentially uncontroverted. The dis- pute centered on the proper inferences that could be drawn from these facts. The evidence adduced at trial included the following: In February 1971, the owners of Marlboro Race Track (who at the time did not include any of the Appellants), a small half-mile track located in Prince George’s County, Maryland, contracted with the owners of Hagerstown Race Track, a half-mile track located in Washington County, Maryland, for the transfer to Marlboro of the 18 racing dates allotted to Hagerstown. Since the Maryland horse racing industry is regulated by the State and the permanent transfer of racing days requires the affirmative approval of the Maryland General Assembly, a bill designated as House Bill 1128 was drafted by attorneys for Marlboro and Hagerstown and submitted to the Maryland House of Delegates. The bill, as initially drafted, provided for a straight-forward approval of the transfer contract. However, prior to its passage, the bill was amended to provide that Marlboro would make its payments to the State of Maryland and then the State would make payments to Hagerstown. On May 28, 1971, Governor Mandel vetoed the bill in its amended form because he was advised thot the payment provision was unconstitutional. 22a Subsequent to the veto, the owners of Marlboro actively began to attempt to sell the racetrack. Cory, acting on behalf of undisclosed clients, negotiated with the owners of Marlboro for its purchase. On December 31, 1971, the controlling interest in Marlboro was sold to the group represented by Cory. As of December 31, 1971, that group consisted of Appellants Hess, Harry Rodgers, William Rodgers, and Irving Schwartz, a longtime friend and business associate of Kovens. Schwartz had previously purchased 17,000 shares of Marlboro stock. At the time of settlement, the sellers of Marlboro did not know the identity of the members of the purchasing group except for Schwartz. The purchase of Marlboro was in part financed by a $1,825,000 loan from the Suburban Trust Company. The balance of the purchase price was funded by Schwartz and Harry Rodgers. The government contended that Schwartz was merely a nominee for Kovens in the purchase of Marlboro. It introduced evidence to show that Kovens provided much of the funding for the initial purchase payments and subsequent loan interest payments made by Schwartz; that Kovens and Schwartz altered check stubs and other documents manifesting Kovens’ financial involvement in the purchase of Marlboro; and that Kovens played a major role in the management of Marlboro following its purchase. The Marlboro purchasing group did not want their identities revealed. Thus, on January 1, 1972, Eugene Casey, who had been chosen by the purchasers to act as president of Marlboro, announced at a press conference that he was the new purchaser of Marlboro. On January 7, 1972, Casey and Cory prepared and sent a letter to the Maryland General Assembly stating that Casey had recently acquired ownership of Marlboro and requested that Governor Mandel’s veto of House Bill 1128 be overridden. A disputed issue of fact was whether Governor Mandel knew the true identities of the new purchasers of Marlboro. 23a On January 12, 1972, the General Assembly overrode the Governor’s veto of House Bill 1128. As a result of the veto override, the racing days belonging to Marlboro doubled from 18 to 36. The government introduced the testimony of several Maryland state senators who stated that Senator Staten, Governor Mandel’s legislative ally, said shortly before the veto override vote that the Governor would not mind if his veto of House Bill 1128 were overridden. Additionally, the government adduced testimony from some senators that if they had known of the involvement in Marlboro of the Appellants other than the Governor, and of their business relationships with Governor Mandel, they would have considered such information relevant in their consideration of the veto override. In mid-March 1972, a bill to consolidate Maryland race tracks in a variety of ways (consolidation bill) was introduced in the State Senate. The consolidation bill, inter alia, provided for Marlboro’s racing days to be increased from 36 to 94 and provided for Marlboro to run its days at the State’s two one-mile tracks. The government introduced evidence to show that Governor Mandel engaged in a strenuous lobbying effort to secure passage of the consolidation bill. It ulso introduced evidence that Kovens lobbied hard behind the scenes for the passage of the consolidation bill. At the time the consolidation bill was pending before the General Assembly, the true identities of the owners of Marlboro were not known. The government introduced the testimony of some members of the Maryland State Senate who stated that in deciding how to vote on the consolidation bill they would have considered it relevant to have known that Hess, Kovens, Harry Rodgers, and William Rodgers were in fact the owners of Marlboro and had provided substantia! financial benefits to Governor Mandel. Appellants introduced evidence to the effect that consolidation of the racing industry had long been a toyic of interest in Maryland, and one in which Governor Mandel had long played a — leading role. His support of such a measure antedated 24a by years the various incidents appearing in this case which involved Marlboro. The consolidation bill had been embroiled in contro- versy since its introduction. After being passed by the Senate in amended form, it was passed by the House of Delegates in its original form and returned to the Senate for a final vote. The bill was never brought to a vote in the Senate. A plethora of evidence was introduced on Appellants’ alleged scheme to defraud by misrepresenting and concealing the true identities of the owners of Marlboro. In all the dealings between Marlboro and the Maryland Racing Commission and the General Assembly between 1972 and 1974, the fact that Hess, Harry Rodgers, William Rodgers, and allegedly Kovens, were the true owners of Marlboro was never revealed. The govern- ment contended that with a total lack of accurate information, the Maryland Racing Commission granted to Marlboro a series of administrative benefits that caused substantial profit to accrue to Hess, Harry Rodgers, William Rodgers, Kovens, and Cory. Appel- lants countered the government’s evidence by maintain- ing that prior to the passage of a strict disclosure law in 1974, the use of nominees rather than publicly revealing the names of the beneficial owners of racetracks was a common and legal practice. As an example of the alleged fraudulent concealment of the true identities of the owners of Marlboro, the government pointed to the Marlboro-Bowie merger. On December 28, 1972, Marlboro Race Track and Bowie Race Track, a one-mile track, were merged. The stock of Marlboro and the assets of Bowie were transferred to a newly established corporation, Southern Maryland Agricultural Association, Inc., with the former owners of Marlboro being issued 30% of the stock in the new company. Appellants’ share of Southern Maryland Agricultural Association, Inc. stock was issued to Marlboro Associates. On February 16, 1973, Hess, Harry Rodgers, and William Rodgers transferred their 25a interest in Marlboro Associates to Cory by way of an agreement which included a non-recourse note. Under the terms of the transfer, Cory was to have five years to fund the purchase price ($630,000) himself or to. arrange for the sale of the stock to a third person. If at the expiration of the five-year period the purchase price was not paid, the stock would revert to the original owners. In a document furnished to the Racing Commission in 1973, Cory was listed as the owner of the portion of Marlboro Associates formerly owned by Hess, Harry Rodgers, and William Rodgers, as well as the portion originally owned by him. Evidence also was adduced on the flow of undisclosed financial and other benefits to Governor Mandel from some of the other Appellants. The main purpose of this evidence, from the government’s standpoint, was to show that Governor Mandei took positions favorable to the owners of Marlboro on House Hill 1128 and the consolidation bill in return for these benefits. At trial, there was evidence which tended to show that Governor Mandel, inter alia, received the follow- ing: (1) in 1969, clothing purchased fiom Alper and Myers, a Baltimore clothing store, paid for by checks drawn on Charlestown Race Track, which was princi- pally owned at the time by Kovens. Charlestown recorded the checks as expenditures for guard uniforms; (2) in 1970, a diamond bracelet for his wife, Barbara, paid for by Hess and Harry Rodgers; (3) in April 1972, clothing from Cuzzens, a Ft. Lauderdale, Florida, men’s store, paid for by Harry Rodgers; (4) in September 1974, clothing from Max Margolis, a Baltimore clothing store, paid for by Kovens. The government also placed special emphasis on Governor Mandel’s involvement in Ray’s Point, Inc. and Security Investment Company. Ray’s Point is a parcel of land consisting of approximately 200 acres of waterfront property located on the eastern shore of Maryland. In December 1971, an investment group — consisting of Appellants Hess, Harry Rodgers, and 26a illiam Rodgers, and Nathan Cohen, and Thomas Haus Lowe, Speaker of the Maryland House of Delegates, purchased Ray’s Point, and, for tax pur- poses, formed Ray’s Point, Inc. to hold the land.‘ Hess, Harry Rodgers, and William Rodgers assigned a 15 t interest in Ray’s Point, Inc. to Governor Mandel, with the 15 percent interest coming in equal shares from their respective interests. Appellant Man- del’s 15 percent interest consisted of 150 shares in Ray 8 Point, Inc.; he paid $1 per share, a comparable price to that paid by the other shareholders. In order to finance the purchase price of the land and incidental expenses of development, Ray’s Point, Inc. borrowed $350,000 on a mortgage given to the Equitable Trust Bank. The mortgage was guaranteed by Hess, Harry Rodgers, and William Rodgers, and Nathan Cohen, but not by Governor Mandel or Thomas Hunter Lowe. The first corporate minute book prepared on behalf of Ray’s Point, Inc., listed the names of all the share- holders. However, subsequently a new list was prepared that omitted the names of Governor Mandel and - Thomas Hunter Lowe. Governor Mandel’s and Thomas Hunter Lowe’s interests in Ray’s Point, Inc., were reflected by stock certificates held by nominees, with Governor Mandel’s certificate being held by Hess. In May 1972, Hess assigned to Governor Mandel a 4 percent interest in Security Investment Company. Security Investment Company is a limited partnership formed in 1967 by Harry and William Rodgers, and some other persons, that, among other things, leases two office buildings to the Federal Social Security Administration in Baltimore. In March 1972, Hess was admitted as a 9 percent partner in Security Investment Company, effective retroactively to December 1971. On May 15, 1972, retroactive to January l, 1972, Hess assigned to Governor Mandel %ths of his interest in . investors had a 20 perceni interest in Ray’s Fag hagh yore is not now the Speaker of the Maryland House. 27a Security Investment Company. According to Hess and Governor Mandel, the assignment represented legal fees owed to Mandel for legal services rendered several years earlier, although there was evidence that the income from the Security interest was not correctly reported on the Governor’s income tax return and that Hess’ records with respect to the same had been altered. Based upon the proximity between Governor Man- del’s acquisition of interests in Ray’s Point, Inc. and Security Investment Company, as well as his receipt of other benefits, and the Maryland General Assembly’s consideration of Governor Mandel’s veto of House Bill 1128 and the consolidation bill, the government argued that Mandel took positions on House Bill 1128 and the consolidation bill favorable to the owners of Marlboro Race Track in return for those financial and other benefits. Combined with the misrepresentations and concealment of the true identities of the owners of Marlboro and the financial relationships existing between Mandel and the other Appellants, the govern- ment contended that the Appellants’ conduct consti- tuted a scheme to defraud the citizens and the State of Maryland. Appellants contended that all aspects of their conduct were legally innocent and the inferences drawn by the government were unsupportable. Appellants have raised a myriad of issues on appeal. Because we reverse their convictions for trial error committed in the court below, we do not find it necessary to express an opinion on all of the issues pre- sented in the briefs. I Appellants contend that their prosecution and convic- tion under the mail fraud statute constitutes an unwarranted overextension of that statute and an impermissible federal intrusion into the political affairs of the State of Maryland. They assert that their prosecution and conviction under § 1341 in this case constitutes an unwarranted overextension of that statute in that “there was no evidence that any state or 28a federal law was transgressed by any of the defendants in the execution of any part of their so-called ‘corrupt relationship,’ or scheme to defraud. At most, the alleged scheme to defraud was but a non-criminal scheme of non-disclosure.” Along the same line, Appellants cryptically state, “No previous mail fraud prosecution has permitted conviction of a public official to rest upon the slim reed of a federal prosecutor’s untutored notion of what the public or the state should expect by way of an ethical and honest performance of a state official's duties. In every previous case, the criminal law or common law provided some guidance for assessing ‘the loyal and honest services’ of the public official.” They also assert that the use of the mail fraud statute in this case constitutes an impermissible federal intrusion into the political affairs of the State of Maryland in that the government “cast the mail fraud counts of [the] indictment ... as if the Federal Government were parens patriae for ‘the citizens of the state of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative.’” In Appellants’ view, “the thrust of the indictment and the prosecution was . . . to impose mail fraud and racket- eering sanctions on these defendants, including the . Governor of the State, in order to insure that Maryland will in the future have more adequate disclosure requirements. [footnote omitted] In that way, presum- ably, the citizens, the state legislature and the state governmental agencies will have more information in arriving at political and official judgments. And in that way, the State of Maryland might in some way haye a more republican and responsible form of government.” Appellants maintain that use of § 1341 in such a way violates the principles of federalism so central to our form of government. We are cognizant of the problem of the ever expand- ing use of the mail fraud statute to reach activities that heretofore were considered within the exclusive domain of State regulation. See United States v. Caldwell, 544 F.2d 691, 697 (4th Cir. 1976) (concurring opinion). See 29a also United States v. McNeive, 536 F.2d 1245, 1252 (8th Cir. 1976); United States v. Edwards, 458 F.2d 875, 880 (5th Cir. 1972), cert. den., 409 U.S. 891. Additionally, we note that statutes such as the mail fraud statute should be carefully and strictly construed in order to avoid extension beyond the limits intended by Congress. See United States v. Kelem, 416 F.2d 346, 347 (9th Cir. 1969), cert. den., 397 U.S. 952 (1970). Nevertheless, we think the indictment and prosecution in this case constitute neither an unwarranted overextension of the mail fraud statute, as that phrase is used by Appel- lants, nor an impermissible federal intrusion into the political affairs of the State of Maryland, but as will be later noted we do not adopt the broad reading of the statute sought by the United States. A As just stated, we think the claim that prosecution under §1341 constitutes an impermissible federal intrusion into the political affairs of the State of Maryland and thus violates principles of federalism is without merit. The purpose of the mail fraud statute and the corresponding limits upon its appropriate use, in the context of federalism problems, is clear. The purpose of § 1341 and its predecessors is to prevent the post office department from being used to carry our fraudulent schemes. See Durland v. United States, 161 U.S. 306, 314 (1895) (interpreting a predecessor to § 1341). See also United States v. States, 488 F.2d 761, 767 (8th Cir. 1973), cert. den., 417 U.S. 909 (1974) (purpose of § 1341 is to prevent the misuse of the Postal Service). The constitutionality of the mail fraud statute and the limits upon its use to effectuate its purpose were stated by the Supreme Court in the following terms: “The overt act of putting a letter into the post office of the United States is a matter that Congress may regulate. [citation omitted] Whatever the limits to its power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to — policy, whether it can forbid the scheme or not.” 30a Badders v. United States, 240 U.S. 391, 393 (1916) (interpreting a predecessor statute to § 1341). See also Parr v. United States, 363 U.S. 370, 389 (1960). The basic purpose and scope of the mail fraud statute has been examined by numerous circuit courts as well. This Court, in United States v. Brewer, 528 F.2d 492 (4th Cir. 1975), echoed the words of the Supreme Court in Durland by stating, “{the mail fraud statute] prevents the post office from being used as an instrument of crime.” Id. at 498. We also followed Badders by stating that “(t]he statute does not define a scheme to defraud, and it contains no restrictive language excluding any type of fraudulent conduct in which use of the mails plays an essential rule. On the contrary, the plain language of the statute condemns any scheme to defraud in which the mails are employed. .. .” [citation omitted] Id. at 494-95. The Second Circuit has likewise recognized that the mail fraud statute’s purpose and scope revolve around the misuse of the mails in Gouled v. United States, 273 F 506, 508 (2d Cir. 1921), aff'd, 255 U.S. 298 (1921), and the Eighth Circuit has stated the purpose and scope of the mail fraud statute in almost the same language as that used by the Second Circuit in Gouled. See United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. den., 417 U.S. 909 (1974). The Tenth Circuit, in United States v. Lynn, 461 F.2d 759, 763 (10th Cir. 1972), described the reach of the mail fraud statute in the following terms: “The federal mail fraud statute does not purport to reach all frauds, but only those instances in which the use of the mails is a part of the execution of the fraudulent scheme. All other cases are to be dealt with by appropriate state law.” (footnote omitted). From the foregoing discussion, it is clear that the regulation of the mail fraud statute is on the misuse of the mai's, control of which lies with Congress, and not on the substance of the scheme to defraud. Even if the - ' substance of the scheme to defraud involves matters normally within the purview of state control or gla regulation, once the mails are utilized to effectuate the scheme, the federal government has the right to prosecute the schemer under the mail fraud statute. In United States v. States, supra, an attack, similar to the one made by Appellants in this case, was made on the use of § 1341, i.e., that the application of the mail fraud statute to matters traditionally left to the states violated principles of federalism. In that case, the federal government prosecuted two candidates for the office of Committeeman in the City of St. Louis, Missouri, for devising and carrying out a scheme to defraud the voters and residents of two wards in the City of St. Louis and the Board of Election Commis- sions of the City of St. Louis by the use of fraudulent voter registrations and applications for absentee ballots. The court stated: ‘{A]ppellants argue that the application of the mail fraud statute as to the facts of this case will result in a ‘policing’ of state election procedure, and that Congress has never explicitly authorized such widespread intervention into state affairs. The appellants’ argument misinterprets the purpose of the mail fraud legislation. The focus of the statute is upon the misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails. ... The purpose of 18 U.S.C. § 1341 is to prevent the Postal Service from being used to carry out fraudulent schemes, regardless of what is the exact nature of the scheme and regardless of whether it happens to be forbidden by state law.” Id. at 766-67. A similar holding was United States v. Mirable, 503 F.2d 1065 (8th Cir. 1974), cert. den., 420 U.S. 973 (1975), in which the scheme involved understatement of gross sales in monthly sales/use tax returns. We fully agree with the Eighth Circuit’s statement in United States v. States concerning the proper scope of the mail fraud statute in relation to principles of federalism and, thus, reject Appellants’ contention that the use of the mail 32a fraud statute in this case constitutes an impermissible federal intrusion into the political affairs of the State of Maryland. Appellants were indicted, prosecuted and convicted for the alleged misuse of the mails and the fact that the alleged scheme to defraud involved matters traditionally of state concern is not a defense to the prosecution. B We think Appellants’ contention that their convic- tions were based on an unwarranted overextension of the mail fraud statute is likewise without merit.5 The essence of Appellants’ contention is that since the government’s theory of the case did not depend upon the violation of any state or federal law, including the common lew, in the execution of the alleged scheme to defraud, the indictment, prosecution and conviction under § 1341 constitute an unwarranted overextension of that statute. Our reading of the indictment and survey of the evidence adduced by the government at trial reveals that Appellants were indicted and prosecuted for devising a scheme and artifice to defraud the citizens of the State of Maryland and her govern- mental departments, agencies, officials and employees, both executive and ative, of the a to.conscien- tious, loyal, faithful, interested and honest govern- ment through bers and non-disclosure and conceal- 5 In this section of the opinion, we are dealing solely with the issue of whether the government’s indictment and prosecution of the Appellants constitute an unwarranted rept paaened bri arte hap a aw pel ag ethe properly instructed on w with regard 8 We ha reviewed the record, including evidence that we oils deemmaiinel: st improperly admitted, in order to determine the direction of the government's prosecution in 7 ot ont 5 ee: Ee “Marvin Mandel would and . in return for certain financial and other 33a ment of material information. As our discussion of the relevant case law will show, a scheme to defraud that involves bribery and non-disclosure and concealment of material information may come within the purview of the federal mail fraud statute even though no state or federal statute or common law is transgressed in terms. Congress first enacted the federal mail fraud statute in 1872,° and, although it has since been amended five times, the essential elements of an offense under the statute have remained unchanged.? See Survey of the Law of Mail Fraud, 1975 Il. L. F. 237, 239. Ever. though the mail fraud statute has been in existence for over 100 years, Congress has never defined or established the precise limits of the phrase “scheme or artifice to defraud.” See United States v. McNeive, 536 F.2d 1245, 1248 (8th Cir. 1976). Perhaps it is because, as one court has aptly pointed out, “The law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity.” Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941), cert. den., 314 U.S. 687. Nevertheless, since Congress has not attempted to define the phrase “scheme or artifice to defraud,” the burden to do so has fallen on the courts. In order to Additionally, sub-paragraphs 13(a) and (b) specifically allege that Appellants devised a scheme to defraud the citizens of the State of Maryland of the loyal and faithful services of their Governor and of their right to have the state’s business and its affairs conducted honestly and impartially, free from, inter alia, bribery. Appellants contend that the government abandoned its claim that the alleged schemé involved bribery: There can be no question that a large portion of the government’s evidence focused on the alleged scheme to defraud through bribery. The deficiency, if any, that exists with regard to the alleged bribery element in this case relates to the jury instructions, which will be discussed infra. 8 Act of June 8, 1872, ch. 335, §301, 17 Stat. 323. ® The essential elements of an offense under the statute are: (1) a scheme to defraud; and, (2) the mailing of a letter, etc., for the purpose of executing the scheme. See, e.g., United States v. Brewer, 528 F.2d 492, 494 (4th Cir. 1975). ~~, 34a determine the appropriate reach of the mail fraud statute, it has been necessary for the courts to attempt to define and establish the limits of the words “scheme or artifice to defraud” as they are used in the mail fraud statute. See United States v. McNeive, 536 F.2d 1245, 1248 (8th Cir. 1976). In attempting to define and establish the meaning of the words, scheme to defraud, the starting point for most courts has been to discern the of the mail fraud statute. As previously stated, the purpose of the statute is to prohibit the misuse of the mails. See, e.g., Durland v. United States, supra; United States v. States, supra. With this purpose in mind, numerous courts have made general statements concerning the approach courts should take in attempting .to define and establish the limits of the words “scheme or artifice to defraud.” For example, the Eighth Circuit has stated, ‘{Thhe definition of fraud in § 1341 is to be broadly and liberally construed to further the purpose of the statute; namely, to prohibit the misuse of the mails to further fraudulent enterprises.” United States v. States, 488 F.2d at 764. See also United States v. Keane, 522 F.2d 534, 544 (7th Cir. 1975), cert. den., 424 U.S, 976 (1976); United States v. Buckner, 108 F.2d 921, 926 (2d Cir. 1940), cert. den., 309 U.S. 669. | For the. most part, courts have broadly construed the words; “scheme. or artifice to defraud.” The result has been ‘to ‘include .within that term’ many schemes ’ involving, deception which employ the mails in their execution if they are contrary to public policy and fail to measure up to accepted moral s and notions of honesty and fair play. In Badders v. United States, 240 U.S. 391, 393 (1916), the Court stated, “Whatever the limits to [Congress’] power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to public policy. . . .” See also Parr v, United States, 363 U.S. 370, 389 (1960). This public policy reference has been followed by some courts as setting the outer limits to the term “scheme or artifice to 35a defraud” as that term is used in the mail fraud statute, i.e., any scheme contrary to public policy that involves deception can be prosecuted under the mail fraud statute if the mails are used in the execution of the scheme. See, e.g., United States v. Edwards, 458 F.2d 875, 880 (5th Cir. 1972), cert. den., 409 U.S. 891. Other cases have used accepted moral standards a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1486%3A1. Public record. Not legal advice.