# Reply Brief — RODGERS v. UNITED STATES (Nos. 79-1030, 79-1028, 1029) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1487%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1979 ## Text ¥ ys a s nee i FILED 3 MAR 25 1980 IN THE | MICHAEL RODAK, JR. CLERK Supreme Court of the United States OcTOBER TERM, 1979 No. 79-1030 Harry W. Ropcers, II[T., Ernest N. Cory, JR., Petitioners, v. UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITIONERS’ REPLY MEMORANDUM A. RaAyMonpD RANDOLPH, JR. THomas C, GREEN RicHarD A. KAPLAN SHarP, RANDOLPH & GREEN Suite 501 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 659-2400 Attorneys for Petitioner Harry W. Rodgers, III Wma. BraprorD REYNOLDS SHaw, Pirrman, Ports & TROWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 (202) 331-4100 Attorney for Petitioner Ernest N. Cory, Jr. Press or Byron 8. Apams Parntina, Inc., Wasuineton, D. OC. IN THE Supreme Court of the United States OcToBER TERM, 1979 No. 79-1030 Harry W. Ropoers, ITI, Ernest N. Cory, JR., Petitioners, Vv. United States OF AMER'CA, stespondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITIONERS’ REPLY MEMORANDUM 1. In both this case and Bulluck v. Washington, 468 F.2d 1122 (D.C. Cir. 1972) (en banc), the order grant- ing rehearing en banc ‘‘did not vacate the judgment of the division” (tbid.). The equally-divided en banc court in Bulluck held that it therefore had no power to alter the outstanding gudgment of the panel. But the equally-divided en banc court in this case exercised that power by affirming petitioners’ convictions al- though the judgment of the panel had set these aside. We had supposed the conflict between these courts of 2 appeals was clear and direct, but the government says there is ‘‘no merit’’ to. such a view.’ According to the government, it matters greatly that the panel in Bulluck had affirmed the district court while the panel here had reversed.’ But to accept that proposition one would have to conelude not only that Bulluck does not mean what it holds, but also that an equally-split federal court has the power to affect a judgment depending on what the judgment is and who rendered it—a notion totally at odds with a century and a half of federal adjudication.’ That history demonstrates one firm principle: no ranmgen court, including an en banc court of appeals, has the power to alter an outstanding judgment with- out a majority vote.‘ The government says its position adheres to that principle because “An equal division of the en bane court of Sudieals means that a majority of the judges to have passed upon the issue (including the district judge) were in agreement with the ruling from which the appeal was taken.’’* But the equal —_-_--— 1 Brief in Opp., at p. 19 n.12. .? Ibid. The government's idea apparently is that, despite Bulluck, an equally-divided en banc District of Columbia Circuit might find the power to affect an unvacated panel’s judgment of reversal although the power is absent with respect to a panel’s judgment of affirmance, We are left to wonder whether the power would be present or lacking when the panel has affirmed in part and re- versed in part, sustaining for example convictions on some counts but reversing convictions on others. ° See our Petition (No. 79-1030), at pp. 16-18: Brody henson ts ns RN lian ot a oped en is why affirmance by an. equally-divided court is merely a declara- tion of the deadlock, having no precedential value and having the waa en had never occurred. "© Brief in Opp., at p.18. EF = See ch ON Sey eee Ago Sus Syed BAA Nt Wait OES ok lt 3 division means no such thing if, for example, the panel’s majority in favor of reversal consisted of a judge sitting by designation, as frequently occurs, In that situation the government’s head-count would re- sult in a tie if the vote of the trial judge were given the same weight as a vote of a judge sitting on the court of appeals; ° on the other hand, if one tallied only the votes of judges who heard the case on appeal, there would be a majority of one for reversal, yet the gov- ernment would contend that the lower court judgment should be affirmed. Furthermore, when an en bane court of appeals splits evenly after a panel including one or two judges sitting by designation unanimously voted to set aside agency action upon direct review, the ‘‘majority” of judges who heard the case would favor the panel decision. But under the government’s sub- mission, the agency action would be allowed to stand because the panel’s judgment was automatically va- cated upon the grant of rehearing en banc.’ It is on this ground—that the grant of rehearing en banc ‘‘itself vacate[s] the panel decision’ *—that the government’s entire argument rests. It is a ground re- jected in Bulluck, it has no statutory basis,’ and the government has offered not a single reason” why this *The judge sitting on the court of appeals by designation, who voted opposite of the district judge, would not be a member of the equally-divided en banc court of appeals. See 28 U.S.C. § 46(c). ’ Brief in Opp., at pp. 18-19. * Brief in Opp., at p. 18. *See 28 U.S.C. §46(c). The government itself recognizes as much earlier in its Brief i in Opposition (see p. 16). 1° The italicized quotation from Judge Waterman’s dissenting opinion in Farrand Optical Co. v. United States, 317 F.2d 875, 4 should be the rule except to say that it is so." On the other hand, we have pointed out” that a vote to grant rehearing en banc cannot also be considered a vote to vacate the panel’s judgment, which is essentially a vote on the merits, as this Court recognized in Moody v. Albermarle Paper Co., 417 U.S. 622, 627 (1974). Cir- cuit judges in favor of the panel’s decision may never- theless vote for rehearing en banc. Indeed, when an equal division results, ole can usually assume with assurance that at least one of the judges who made up the majority voting for rehearing en banc agreed with the panel’s disposition. In the absence of an announced rule, there is thus no basis to suppose that a majority of the active circuit judges not only voted to grant en banc review but also decided to set aside the panel’s judgment. The Fourth Circuit, like most of the courts of appeals, has no such rule, its order granting rehearing en banc did not va- 886 (2d Cir. 1972), at p. 18 of the government’s Brief in Opposi- tion, says only that it is ‘‘obvious’’ that a grant of rehearing en banc has this result. 1 The government states (Brief in Opp. p. 17 n.11) that in light of his dissenting opinion in Drake Bakeries, Inc. v. Local 50, 294 F.2d 399 (2d Cir. 1961), aff’d on other grounds, 370 U.S. 254 (1962), when the equally-divided en banc court, by a 4-2 vote, affirmed the district court rather than the panel, and his silence when a somewhat different result occurred in Farrand Optical v. Umted States, supra, Judge Friendly must have changed his view concerning the effect of a tie vote. We think this demon- strates only that Judge Friendly decided to adhere to the principle of stare decisis, particularly since the deadlocked en banc court in Farrand Optical sent the case back to the court of appeals panel : consider the appellate issues it had not reached in its original ecision. 12 See Petition (No. 79-1030), at p. 18. 4) cate the panel’s decision and its tie vote therefore could not affect that decision, which should have been affirmed. 2. Insofar as the government’s case against these petitioners depended upon non-disclosure of certain beneficial owners of Marlboro Racetrack, we have pre- viously explained our legal position that petitioners did not thereby violate the mail fraud statute. Peti- tion (79-1030), at pp. 19-26. Instead of addressing the fundamental statutory construction question raised in our petition, the government recounts the evidence in an attempt to make it appear that the statutory is- sue is not properly presented. With respect to these petitioners, however, the mail fraud issue cannot be dismissed as nothing but a factual dispute about the weight of the evidence. The evidence relating to this issue is not in dispute. As the Govern- ment points out, petitioner Cory withheld from the State Racing Commission the identities of Hess, Kov- ens and the Rodgers brothers as beneficial owners (Brief in Opp., at pp. 7, 33-34). It is not disputed that he did so intentionally in responding to official inquir- ies about the beneficial ownership of Marlboro Race- track (Brief in Opp. at p. 34). In fact, petitioner Cory explicitly advised Racing Commissioner Jackson that he could not disclose the ownership interests of his clients because of ethical constraints imposed on him by the attorney-client relationship (Tr. 6205-07). He thus reported these ownership interests in the names of nominees, including himself as “ Attorney,’’ Petition (79-1030), at p. 20, with the affirmative representation that none of the beneficial owners of Marlboro Race- track was involved in a criminal enterprise or book- 6° making (7d. at 21). Not only was this the standard re- porting practice that had long been acceptable to the Maryland State Racing Commission (id. at 21-22), but the Attorney General of the State had advised the Rac- ing Commissioner not to insist on further disclosure from petitioner Cory in light of the attorney-client re- lationship (Tr. 6207). It is not a sufficient answer in these circumstances for the government to assert simply that there was in- tentional concealment of information in response to official inquiries. That is conceded. However, the court of appeals in United States v. Rabbit, 583 F.2d 1014, 1024 (8th Cir. 1978), clearly held that purposeful non- disclosure was not reachable under the mail fraud statute when the individual withholding information was under no affirmative duty to disclose.** And that, we submit, was the situation here. Petition (79-1030), at pp. 23-25. Indeed, not only was there no affirmative disclosure obligation, but also well-recognized ethical constraints inherent in the attorney-client relationship between petitioner Cory and the beneficial owners he represented counselled against revealing their identi- ties. To hold that such conduct violates the mail fraud statute extends that criminal provision well beyond any recognized bounds of statutory construction and thus demands the attention of this Court. 3. Because the trial judge gave an instruction on bribery with respect to two of the racketeering counts (Counts 21 and 23), the government argues that the ** A majority of this Court has recently recognized the impor- tance in a criminal context of establishing an affirmative duty to disclose when the prosecution for fraud rests on evidence of non- disclosure. Chiavella v. United States, No. 78-1202, 48 L.W. 4250 (March 18, 1980). 7 failure to include a bribery instruction in connection with the mail fraud counts is of no material conse- quence (Brief in Opp., at pp. 24-27). Insofar as peti- tioners Rodgers and Cory are concerned, this position is untenable. Neither of these petitioners was indicted under Count 21, and petitione. Cory was also not indicted under Count 23." In its instructions, the district court explicitly advised the jury that the charges given on Counts 21 and 23 were meant to refer only to the de- fendants named in those counts (Tr. 11481-82). There is thus nothing to the government’s argument that the bribery instruction in connection with the two racket- eering counts was readily transferable (albeit sub silento) to the mail fraud counts on which these peti- tioners were indicted. | Rather, in the circumstances of this case, the failure to give a separate bribery instruction under the mail fraud counts was clear error in regard to these peti- tioners. As the government acknowledges, the theory of the mail fraud prosecution “included bribery as one of the ways in which fraud was committed’’ (Brief in Opp., at pp. 25-26 n.19; emphasis in original). Thus, at least with respect to one of the two theories advanced by the prosecution, bribery was treated as an element of the mail fraud offense.”* As such, the district court was under an affirmative obligation to include an in- 14 While petitioner Rodgers was indicted under Count 23, the district court entered a judgment of acquittal on this count. Peti- tion (79-1028) App. 18a-19a n.3. 15 See United States v. Mandel, 591 F.2d 1347, 1365 (1979) ; see also Judge Widener’s dissent below on rehearing en banc at 79- 1028 Pet. App. 5a-8a. 8 struction on bribery in its mail fraud charge even if not requested to do so. L.g., United States v. Schmidt, 376 F.2d 751 (4th Cir.), certiorari denied, 389 U.S. 884 (1967). When, as here, such a request was made by the defendants, the failure to give the instruction is re- versible error. See Judge Widener’s dissent below on rehearing en banc at Petition (79-1028) App. 8a-9a, and the cases there cited. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, A. RAyMonp RANDOLPH, JR. THOMAS C, GREEN RicHarp A, KAPLAN SHARP, RANDOLPH & GREEN Suite 501 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 659-2400 Attorneys for Petitioner Harry W. Rodgers, III Wo. Braprorp REYNOLDS SuHaw, Pirrman, Ports & TROWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 (202) 331-4100 Attorney for Petitioner Ernest N. Cory, Jr. March 1980 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1487%3A2. Public record. Not legal advice.