Opposition — Holloway v. United States

a Court, Us Bi

TITLED

i, MA

Nos. 79-1184 and 79-1194 AU @ 1980

tAE RODAK, JR., CLERK

In the Supreme Court of the United States on

OCTOBER TERM, 1979

ALLAN HOLLOWAY and ALLEN E. PERKINS,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

STANLEY SPIEGEL, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

Page

CERIN DP oiiiciccncoisucsndsreniceinennaieaamatninian 2

POT iicininictceveteatiniticicnicnasenp igitnasaiiei aes 2

Questions Prewented .........-cnsecccssccrccecereesnssnnacons 2

PII xs csceocsscsccsevesnceecsansicennigs eccucenaelesinaiacaiaiiacicataed 3

SI iivsiiccacansigitecinntaaiions sa pcaiitciniia ileal 7

RII seicciccsccciucetmanitintecel Aacaiieenuieem ees 27

CITATIONS

Cases:

peg he O_O 27

Cohen v. United States, 378 F.2d 751,

cert. denied, 389 U.S. 897 -..........000........ 15

Cupp v. Naughten, 414 U.S. 141 -............ 19

Fowler v. Hunter, 164 F.2d 668 ................ 11

Hammontree v. Phelps, 605 F.2d 1371 .... 19

Horne v. United States, 264 F.2d 40, cert.

| Peon ence 12

Mann v. United States, 319 F.2d 404, cert.

GORI, Be isle BN i ceiintninteciceccrretrseens 15

Patton v. United States, 281 U.S. 276 ...... 8,9

Salinger v. United States, 272 U.S. 542 .... 27

Sandstrom v. Montana, 442 U.S. 510 ....16, 17, 18

Schacht v. United States, 398 U.S. 58 ...... 23

United States v. Brown, 571 F.2d 980 ...... 24

United States v. Cameron, 464 F.2d 338 .. 24

United States v. Chiantese:

I BO se dicccnsihicasitinantieatisnisinemnntinitin 20

POI ae RD Sees ccticdareckcpsiciailbescasesinchisinbes 15

Oe TE RT iiiscciticderncbassintsinclaisaitienags 15

Il

Cases—Continued

United States v. Cirami, 510 F.2d 69,

cert. denied, 421 U.S. 964 .....................-

United States v. Dawson, 516 F.2d 796,

cert. denied, 423 U.S. 855 .....................

United States v. Dieter, 429 U.S. 6 ..........

United States v. Diggs, 527 F.2d 509 ......

United States v. Florea, 541 F.2d 568,

cert. denied, 480 U.S. 945 —.........2....-.---

United States v. Floyd, 496 F.2d 982,

cert. denied, 419 U.S. 1069 -............

United States v. Garrett, 574 F.2d 778 ....

United States v. Goldberg, 330 F.2d 30,

cert. denied, 377 U.S. 958 ......................

United States v. Guerrero-Peralta, 446 F.

Ra aH AUD ev Mae se nN Set CPS

United States v. Healy, 376 U.S. 76 -........-

United States v. Holt, 529 F.2d 981 ........

United States v. Jenkins, 420 U.S. 358 ....

United States v. Lane, 479 F.2d 1134,

cert. denied, 414 U.S. 861 ............ sibtaiies

United States v. Lewis, 524 F.2d 991,

cert. denied, 425 U.S. 988 ....................

United States v. Martin Linen Supply Co.,

GO TE TE sities entdatinendecceeaieinn

United States v. Pacente, 503 F.2d 548,

cert. denied, 419 U.S. 1048 -.......... habs

United States v. Park, 421 U.S. 658 -......

United States v. Prior, 546 F.2d 1254 ......

United States v. Releford, 352 F.2d 36,

cert. denied, 382 U.S. 984 -........000002020.0.-

United States v. Ricks, 475 F.2d 1326 ......

United States v. Reyes, 603 F.2d 69 ........

United States v. Robinson, 545 F.2d 301..

United States v. Roby, 592 F.2d 406, cert.

denied, 442 U.S. 944 ....

Ill

Cases—Continued Page

United States v. Smith, 528 F.2d 788,

cert. denied, 424 U.S. 978 ................ 10, 11, 24

United States v. Smith, 550 F.2d 277,

cert. denied, 434 U.S. 841 -.WWWW.000.0000... 24

United States v. Spinella, 506 F.2d 426 .... 22, 23

United States v. Taylor, 498 F.2d 390 ...... 10, 12

United States v. Taylor, 507 F.2d 166 ....... 11

United States v. Vega, 447 F.2d 698, cert.

Gented, 404 U.S. 1086 ..2.c..2c..0...020:........ 11

United States v. Virginia Erection Corp.,

Bee MI saciicedrscrhtecnsanotecbideaeewrtdeccctesicns 11

Williams v. Florida, 399 U.S. 78 .............. 9

Williams v. United States, 382 F.2d 36,

cert. denied, 379 U.S. 976 ...................~- 12

Wisniewski v. United States, 353 U.S.

ala is cers de tassel tice accienseetscinticiesinen 19

United States v. Wilson, 420 U.S. 332 -..... 22

Constitution, statutes and regulations:

United States Constitution, Sixth Amend-

IETS SACS 5.2 ONO a OTE 7, 9, 26

Speedy Trial Act, 18 U.S.C. 3161(e) ...... 23

I cli chains cccebnnichcassdsoniatanscrne 3

Fe EE IE dihtctiincstsaindtincdonnscie Lenitenscieaccbbdana 3

Fed. R. Crim. P.:

le, 12

UE MTOR ascbacttaccencseens 2,9, 10, 11, 12, 14

BN NEE stich ciaieslccdacnnlciadbiamaeeablons 26

RPE APART SSRIS Se hea Meee Oe Ie 17

gS RRA LP a eR BSR Ne eaA 17

Miscellaneous:

E. Devitt and C. Blackmar, Federal Jury

Practice and Instructions (3d. ed.

PORE D tistnindenesntaistipgataiainsnlaibeaialiniiiitigued 14

nu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1184

ALLAN HOLLOWAY and ALLEN E. PERKINS,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 79-1194

STANLEY SPIEGEL, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (79-1184 Pet.

App. la-24a) is reported at 604 F.2d 961."

JURISDICTION

The judgment of the court of appeals was entered

on October 18, 1979. A petition for rehearing was

denied on January 2, 1980 (Pet. App. 25a). The

petition for a writ of certiorari in No. 79-1184 was

filed on January 31, 1980, and the petition in No.

79-1194 was filed on February 1, 1980. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether a written stipulation signed by all

counsel and accepted by the district court validly

waived petitioners’ right to a 12-member jury under

Fed. R. Crim. P. 23(b).

2. Whether the instructions to the jury on intent

violated petitioners’ due process rights.

3. Whether the district court lacked jurisdiction

to enter a judgment of conviction and sentence pe-

titioners, after the court granted a motion for a

new trial and then vacated the new trial order in

response to the government’s timely motion for re-

consideration.

1 Unless otherwise indicated, “Pet, App.” refers to the

appendix in No. 79-1184. ;

3

4. Whether the district court abused its discretion

in substituting alternates for two jurors who were

found to be acquainted with one of the defendants.

5. Whether the district court’s deletion of the

words “aiding and abetting” from the substantive

mail fraud counts was an impermissible amendment

of the indictment.

STATEMENT

After a nine-week jury trial in the United States

District Court for the Northern District of Georgia,

petitioners were convicted of mail fraud, in violation

of 18 U.S.C. 1341. Petitioner Spiegel was convicted

on 30 counts and was sentenced to six and one-half

years’ imprisonment, followed by five years’ proba-

tion. Petitioner Holloway was convicted on 25 counts

and was sentenced to five years’ imprisonment, fol-

lowed by five years’ probation. Petitioner Perkins

was convicted on one count and was sentenced to one

year’s imprisonment.’ The court of appeals affirmed

(Pet. App. la-24a).

1. Petitioners do not challenge the sufficiency of

the evidence to support their convictions. Accord-

ingly, we rely primarily on the summary of the 50-

volume trial record in the opinion of the court of

2 All three petitioners were indicted, along with three other

defendants, on 32 counts of mail fraud and one count of con-

spiracy to commit that offense, in violation of 18 U.S.C. 371.

One defendant pleaded guilty to one count of mail fraud, and

the other five proceeded to trial. Petitioners were acquitted

on the conspiracy charge, and the two co-defendants were

acquitted on all charges.

Se

4

appeals (Pet. App. 2a-5a). Briefly, the government’s

evidence established that in October 1970 petitioner

Spiegel acquired a controlling interest in a New

York-based corporation, Coliseum Properties, Inc.

(Coliseum). He then formed two subsidiaries of

Coliseum, Leasing Corporation of America (Leas-

ing) and Auditing Services, Inc. (Auditing), both

with offices in Atlanta. Petitioner Holloway’s firm,

Holloway Enterprises, Inc. (HEI), contracted with

Coliseum to sell franchises for both Auditing and

Leasing (Pet. App. 3a).

The criminal activity involved the fraudulent sale

of franchises to numerous purchasers throughout the

United States. Leasing offered franchises to persons

interested in entering the leasing business. Prospec-

tive dealers were told that they could offer to lease

any income-producing equipment to businesses and

industries in their territory. They were told that

Leasing had a distinct competitive advantage because

of its access to more than 200 sources of funding and

that therefore Leasing dealers could offer more favor-

able lease terms than other leasing companies. A

number of other promises were made as part of the

sales pitch, and the names and telephone numbers

of allegedly successful dealers were furnished to

prospects. A total of 34 Leasing franchises were

sold between December 1970 and December 1971, at

$10,000 each. Of 137 lease applications submitted by

dealers in 1971, only four leases were placed (Pet.

App. 3a).

5

Auditing offered to conduct computerized audits of

utility expenses incurred by businesses and indus-

tries. Under petitioners’ scheme, Auditing dealers

would solicit business customers whose past utility

bills would then be audited for overcharges, com-

putation errors, or other incorrect billing procedures.

On the basis of such audits, prospective dealers were

told, customers could expect to recover refunds for

past inaccurate billings; in addition, Auditing would

make recommendations for changes in service that

would enable clients to save on future utility bills.

Customers were to pay their Auditing dealer 50%

of any refunds or savings realized as a result of the

computerized audits and service recommendations;

the dealer would then submit half his profits to Audit-

ing. Prospective dealers were told that Auditing’s

computerized analyses would assure recoveries for a

very high percentage of the customer accounts

audited. It was claimed that the utility rates from

each dealer’s territory were programmed into Audit-

ing’s computer. Prospects were shown photographs

of an RCA computer and were given the names and

addresses of purportedly successful dealers. Sixty-

two Auditing franchises were sold in 1971. Audit-

ing’s share of the franchise fees was more than

$650,000, and HEI received more than $225,000.

Although franchisees submitted numerous auditing

contracts, very few recoveries ever occurred (Pet.

App. 3a-4a).

Evidence showed that many of the representations

made to franchise purchasers were false. Leasing

6

did not have the funding sources it claimed; letters

from alleged sources were shown to have been falsi-

fied. Auditing never had the capacity to audit utility

bills by computer; it used only about seven hours

of computer time during a 10-week contract with a

facility in Alabama. Moreover, petitioner Spiegel

had been told by a computer expert that the rate

structure of an entire utility company could not be

programmed, and that billing analyses had to proceed

one business at a time (Pet. App. 4a).

Petitioners Spiegel and Holloway were shown to

have been directly involved in the fraudulent sales.

Petitioner Perkins worked as a “singer” for both

Leasing and Auditing, posing as a successful dealer

and falsely claiming that he was receiving significant

income from his “franchises” (Pet. App. 4a).

2. Ata pretrial conference attended by all counsel

and by petitioner Spiegel, the court raised the ques-

tion whether all parties would waive their right to

a jury of 12 (4 Tr. 50). No decision was reached

at that time, and the court raised the matter again

a week later, after voir dire and before the actual

selection of jurors. In a side-bar conference, each

defense attorney stated that his client would waive

the requirement of 12 jurors (6 Tr. 120).* It was

also agreed that two alternate jurors would be se-

lected, notwithstanding the waiver (6 Tr. 122, 125).

* The transcript of the side-bar discussion indicates that

defense counsel agreed to waive the requirement of 12 jurors

in exchange for five additional preemptory challenges (6 Tr.

120, 122).

7

After selection of the jury, counsel for the govern-

ment and for all the defendants signed a written

stipulation waiving the requirement of 12 jurors (No.

79-1194 Pet. App. F-1), and the trial judge an-

nounced in open court that he had received and ap-

proved the written “agreement to proceed with less

than twelve [jurors] in the event of necessity” (6

Tr. 188).

Soon after the trial began, two jurors were excused

and were replaced by the two alternates (9 Tr.

20, 87). Near the end of the lengthy trial one of the

remaining jurors became ill. When the juror did not

report for duty on Monday of the trial’s ninth week,

all defense counsel asked, in the presence of their

clients, that the juror be discharged and that the

trial proceed with 11 jurors (44 Tr. 3). Over the

government’s objection, the district court excused the

juror and explained to the jury, in the defendants’

presence, that the trial would proceed with 11 jurors

(44 Tr. 3-4, 9).

ARGUMENT

1. Petitioners contend (79-1194 Pet. 21-27) that

their convictions should be reversed because they per-

sonally did not expressly consent on the record to a

verdict by an 1l-member jury.* Petitioners argue

that the waiver in this case was made by counsel

alone and that such a waiver cannot satisfy the re-

quirements of the Sixth Amendment or Rule 23(b)

of the Federal Rules of Criminal Procedure.

4 Petitioners Holloway and Perkins have adopted the argu-

ments raised by petitioner Spiegel (79-1184 Pet. 4).

8

Petitioners’ argument begins with Patton v. United

States, 281 U.S. 276 (1930), in which the question

presented was whether a defendant can ever “waive

[his] constitutional right to a trial by a jury of

twelve persons.” Jd, at 287. This Court held that

such a waiver is permissible (id. at 297, 305-308).

The Court further stated in dictum that “before any

waiver can become effective, the consent of govern-

ment counsel and the sanction of the court must be

had, in addition to the express and intelligent con-

sent of the defendant.” Jd. at 312. Several years

after Patton, the permissibility of a waiver of the

right to a 12-member jury was codified in Fed. R.

Crim. P. 23(b), which provides:

Juries shall be of 12 but at any time before

verdict the parties may stipulate in writing with

the approval of the court that the jury shall

consist of any number less than 12 or that a

valid verdict may be returned by a jury of less

than 12 should the court find it necessary to

excuse one or more jurors for any just cause

after trial commences.

Petitioners assert (79-1194 Pet. 22-23) that Patton

required “the express and intelligent consent of the

defendant” for a waiver of a jury of 12 and that

that requirement has not been modified by subsequent

developments. This contention is incorrect for two

reasons. In the first place, the question of how a

defendant’s waiver must be manifested in order to be

effective was not controverted in Patton. The Court’s

summary of the facts of the case (281 U.S. at 286-

9

287) leaves no doubt that the defendants, after con-

sulting with counsel, personally agreed to continue

the trial before the 11 jurors who remained after

one was excused for illness. The Court’s subsequent

reference to the “express and intelligent consent of

the defendant” as a prerequisite for an effective

waiver was thus unnecessary to the decision, since

there was no dispute that the defendants in Patton

fulfilled all possible requirements on that score. More-

over, Patton was decided on the assumption that the

Sixth Amendment right to a jury trial in criminal

cases entailed a jury of 12. That assumption proved

erroneous in Williams v. Florida, 399 U.S. 78, 86-

103 (1970), in which the Court held that a 12-

member panel is not a necessary ingredient of the

trial by jury guaranteed by the Sixth Amendment.

Accordingly, since the decision in Williams, a de-

fendant’s right to a 12-person jury has only a statu-

tory basis. In the federal system, that basis is Fed.

R. Crim. P. 23(b). United States v. Roby, 592 F.2d

406, 408 (8th Cir.), cert. denied, 442 U.S. 944

(1979). Patton’s reference to the “express and intel-

ligent consent of the defendant” was not only unnec-

essary to the Court’s decision but also a product of

what we now know to be an ill-founded assumption

that waiver of a 12-person jury relinquishes a consti-

tutional right and therefore must meet a high stand-

ard of voluntariness. Since Williams v. Florida, supra,

the propriety of a waiver of a 12-person jury in a

federal criminal trial turns solely on the interpreta-

10

tion and application of Rule 23(b). No constitu-

tional issue is involved.

Petitioners allege a conflict among the circuits as

to the type of consent required by Rule 23(b) in

order to effect a valid waiver (79-1194 Pet. 24-27).

They assert that several courts of appeals have con-

strued the words “parties may stipulate in writ-

ing” to mean that the Rule requires the express

consent of the defendant himself in open court, re-

gardless of any written or oral stipulation by de-

fense counsel, while other courts have held that an

agreement by counsel is enough to bind the de-

fendant. In fact, however, whatever disagreement

has developed among the courts of appeals regard-

ing the interpretation of Rule 23(b) is not impli-

cated in this case.

All the cases in which the courts have required

the defendant’s personal and express consent to a

jury of less than 12 involved the lack of a written

stipulation and therefore an apparent violation of the

terms of Rule 23(b). The courts’ inquiry in these

cases focused on whether the purpose of the Rule

might nevertheless be fulfilled, even in the absence

of literal compliance with its terms. United States

v. Reyes, 603 F.2d 69, 70, 71 (9th Cir. 1979);

United States v. Smith, 523 F.2d 788, 791 (5th Cir.

1975), cert. denied, 424 U.S. 973 (1976) (written

stipulation lost); United States v. Taylor, 498 F.2d

390, 391-392 (6th Cir. 1973) ; United States v. Lane,

479 F.2d 1134 (6th Cir.), cert. denied, 414 U.S. 861

- (1978) ; United States v. Ricks, 475 F.2d 1326, 1327-

11

1328 (D.C. Cir. 1973); United States v. Guerrero-

Peralta, 446 F.2d 876, 877 (9th Cir. 1971).°

The courts of appeals have uniformly held that,

despite the language of the Rule, the stipulation

need not be in writing to be effective, and that it

is sufficient if the record adequately shows the de-

fendant’s consent to the agreement. E.g., United

States v. Smith, supra, 523 F.2d at 791; United

States v. Lane, supra, 479 F.2d at 1136; United

States v. Ricks, supra, 475 F.2d at 1328; United

States v. Guerrero-Peralta, supra, 446 F.2d at 877;

Horne v. United States, 264 F.2d 40, 43 (5th Cir.),

5 United States v. Vega, 447 F.2d 698 (2d Cir. 1971), cert.

denied, 404 U.S. 1038 (1972), another case cited by petitioners

(79-1194 Pet. App. I-1) as requiring the defendant’s personal

consent, did not actually state such a rule. Without discussing

either the absence of a written stipulation or the specific kind

of consent that must appear, the court found that Rule 23 (b)

was satisfied where counsel was shown to have consulted with

his client before orally agreeing to proceed with 11 jurors.

Similarly, Fowler v. Hunter, 164 F.2d 668 (10th Cir. 1947),

held only that a stipulation by counsel, when agreed to by the

defendant, is a valid waiver.

In United States v. Virginia Erection Corp., 335 F.2d 868

(4th Cir. 1964), the court of appeals ruled that the district

court erred in allowing more than 12 jurors to participate

in deliberations; the court assumed in dictum (id. at 871)

that a written stipulation by the parties in conformity with

Rule 23(b) would be sufficient to effect a valid waiver of a

jury of 12. And, in United States v. Taylor, 507 F.2d 166, 168

(5th Cir. 1975), the court of appeals simply did not address

the question of how a defendant’s consent to a jury of fewer

than 12 must be manifested. In Taylor, there was no waiver

at all, written or oral, by either counsel or the defendant him-

self; indeed, defense counsel vigorously objected when the dis-

trict court decided to accept the verdict of 11 jurors.

12

cert. denied, 360 U.S. 934 (1959); see also Williams

v. United States, 332 F.2d 36, 39 (7th Cir. 1964),

cert. denied, 379 U.S. 976 (1965). The courts have

reasoned that the purpose of the written stipulation

requirement is to ensure that the defendant in fact

consented to a trial and verdict by less than 12

jurors and that this purpose is satisfied whenever

the record adequately demonstrates his consent. E.g.,

United States v. Guerrero-Peralta, supra, 446 F.2d

at 877.

The disagreement that has arisen under Rule 23

(b) concerns the kind of showing in the record that

is sufficient to demonstrate the defendant’s consent

when there is no written stipulation. In those cir-

cumstances, some courts have held that the explicit

consent of the defendant must appear in the record

(e.g., United States v. Taylor, supra; United States

v. Guerrero-Peralta, supra), and others have ac-

cepted some indication of implied consent (United

States v. Roby, supra, 592 F.2d at 408; Williams v.

United States, supra; Horne v. United States,

supra).

Here, however, a written stipulation was executed

by counsel for all parties and accepted by the district

court. Rule 23(b) was fully satisfied, and there

is no need to inquire further into the quality of the

defendants’ consent. The formality of a written

stipulation provides the best evidence of a defend-

ant’s consent. That is why Rule 23 provides in

terms for waiver by written stipulation. The Rule

- does not require the defendant’s own signature on

13

the stipulation. Indeed, the wording of subsection

(b)—-“the parties may stipulate’—contrasts with

that of subdivision (a) of the same Rule, which

provides that “the defendant” must waive in writing

his right to a trial by jury.

In the only other case involving the question

whether the defendant himself must sign the Rule

23(b) stipulation, United States v. Pacente, 503 F.2d

543 (7th Cir.) (en banc), cert. denied, 419 U.S.

1048 (1974), the court held that counsel’s signature

was enough to satisfy the Rule, without any other

showing of the defendant’s express consent. As the

court of appeals stated in Pacente (id. at 552):

Nothing in Rule 23(b) suggests that counsel’s

signature on a stipulation for a reduced size of

jury does not bind the party he represents if

the record fails to show that the party author-

ized counsel to stipulate.

While the record in this case fails to show the ex-

press personal consent of petitioners to the waiver

agreed to by counsel, there is ample indication that

petitioners were aware of and consented to their

lawyer’s action. The matter of the waiver was dis-

cussed in the presence of all defendants, acceptance

by the trial judge of the written stipulation was an-

nounced in open court, and, at the time of the twelfth

juror’s dismissal, it was explained, again in open

court and without objection from any defendant, that

the trial would proceed with 11 jurors.

Moreover, as the court of appeals noted (Pet. App.

lla), defense counsel in this case affirmatively

14

sought, as a matter of trial strategy, the dismissal of

the twelfth juror and pressed this course over the

prosecution’s objection. Petitioners cannot now main-

tain that their rights were not fully protected. See

United States v. Lewis, 524 F.2d 991, 992 (5th Cir.

1975), cert. denied, 425 U.S. 938 (1976). In the

circumstances of this case, both the literal terms of

Rule 23(b) and its underlying purpose were fulfilled.

2. Petitioners also challenge the constitutionality

of the district court’s instructions to the jury on the

question of intent (79-1194 Pet. 9-21). The court’s

charge included the following statement (47 Tr. 45;

emphasis added) :

Now it is reasonable to infer that a person

ordinarily intends the natural and probable con-

sequences of acts knowingly done or knowingly

omitted and, unless the contrary appears from

the evidence, you, the jury, may draw the infer-

ence that the accused whose case you are con-

sidering intended all the consequences which one

standing in like circumstances and possessing

like knowledge should reasonably have expected

to result from any act knowingly done or know-

ingly omitted by the accused.'®

6In addition to challenging the statement reproduced in

the text, petitioners also assert that two additional portions

of the court’s instructions were erroneous. These portions

of the charge (reprinted at 79-1194 Pet. 12) both concerned

the presumption that every person knows what the law is,

and they were both correct statements of the law. E. Devitt

and C. Blackmar, Federal Jury Practice and Instructions

§ 14.10 (8d ed. 1977).

15

Several courts of appeals, including the Fifth Cir-

cuit, have disapproved this so-calied “Mann” charge

(see Mann v. United States, 319 F.2d 404, 407 (5th

Cir. 1963), cert. denied, 375 U.S. 986 (1964)), al-

though they have generally found that other parts of

the instructions to the jury cured the problem in

individual cases. The courts have objected to the

charge on the grounds that it may be interpreted by a

jury to shift the burden of proof on criminal intent

to the defendant. See, e.g., United States v. Garrett,

574 F.2d 778 (3d Cir. 1978) ; United States v. Chian-

tese, 560 F.2d 1244 (5th Cir. 1977) (en banc);

United States v. Robinson, 545 F.2d 301 (2d Cir.

1976); United States v. Diggs, 527 F.2d 509 (8th

Cir. 1975); Cohen v. United States, 378 F.2d 751

(9th Cir.), cert. denied, 389 U.S. 897 (1967);

Umited States v. Releford, 352 F.2d 36 (6th Cir.

1965), cert. denied, 382 U.S. 984 (1966). In its

en banc ruling in United States v. Chiantese, supra,

the Fifth Circuit held that, although the error of

giving such an instruction would not automatically

produce a reversal, it could not be cured in future

cases by reference to correct statements elsewhere in

the charge regarding the government’s burden of

proof. 560 F.2d at 1255. As the court of appeals

panel in the present case noted (Pet. App. 19a, 21a),

however, the Chiantese ruling was prospective only.

Adhering to the procedure followed in Chiantese it-

self (see 582 F.2d 974 (5th Cir. 1978), cert. denied,

441 U.S. 922 (1979) ), therefore, the panel reviewed

the district court’s instructions in their entirety. The

16

court ruled that, taken as a whole, the instructions

were not misleading and that “the evidence of objec-

tive conduct [was] sufficient to sustain a guilty ver-

dict despite the Mann language” (Pet. App. 21a,

22a).

Relying on Sandstrom v. Montana, 442 U.S. 510

(1979), petitioners contend that their convictions

cannot stand in the face of the improper instruction

on intent. The instruction given in this case, how-

ever, was materially different from that condemned

in Sandstrom. The charge in Sandstrom informed

the jury that “the law presumes that a person in-

tends the ordinary consequences of his voluntary

acts.” By contrast, the disputed instruction in this

case was phrased in terms of a permissible inference.

Notwithstanding petitioners’ contention to the con-

trary, this difference in language is significant. The

Court in Sandstrom stressed the particular danger

of the “presumption” language used by the state

trial court. The critical factor, in the Court’s view,

was that the jurors “were not told that they had a

choice, or that they might infer that [a person in-

tends the ordinary consequences of his voluntary

acts]; they were told only that the law presumed it.”

442 U.S. at 515. Moreover, the jurors in Sandstrom

“were not told that the presumption could be re-

butted, as the Montana Supreme Court held, by the

defendant’s simple presentation of ‘some’ evidence;

nor even that it could be rebutted at all.” Jd. at 517.

The Court concluded (id. at 517, 519; citation omit-

ted): “Given the common definition of ‘presume’ as

At. re

17

‘to suppose to be true without proof,’ and given the

lack of qualifying instructions as to the legal effect

of the presumption, we cannot discount the possi-

bility that the jury * * * could have given the

presumption conclusive or persuasion-shifting ef-

fect * * ais

Thus, although the courts of appeals have also dis-

approved the use of an “inference unless contrary

evidence” charge, it is only the “presumption” in-

struction that this Court has found so likely to mis-

lead a jury that it violates the constitutional due

process guarantee. The particular charge given here

was not at issue in Sandstrom and was not discussed.

Moreover, the defendant in Sandstrom presented a

clear contemporaneous objection to the “presump-

tion” instruction (442 U.S. at 513); by contrast,

petitioners did not complain about the Mann charge

at trial (Pet. App. 20a & n.16). They made only a

vague general objection to “putting the burden on

the defendant,” and they did not identify specifically

any allegedly erroneous portion of the instruction.

Their objection on appeal therefore must be evaluated

under the “plain error” standard of Fed. R. Crim.

P. 52(a). See also Fed. R. Crim P. 30 (“No party

may assign as error any portion of the charge or

omission therefrom unless he objects thereto before

the jury retires to consider its verdict, stating dis-

tinctly the matter to which he objects and the

grounds of his objection”). In these circumstances,

the court of appeals correctly held that Sandstrom

“does not mandate a finding [of] * * * constitutional

18

deficiencies” in all potentially burden-shifting charges

(Pet. App. 17a).

In addition, the Sandstrom decision is partially

explained by the lack of any specific qualifying or

curative instructions that would have ameliorated

the effect of the trial judge’s use of the “presump-

tion” instruction. Sandstrom did not hold, as peti-

tioners assert (79-1194 Pet. 14), that other portions

of the charge cannot cure an erroneous instruction

like the one given in that case. The Court’s opinion

said only that the very general additional instruc-

tions given there were not sufficient to remove the

risk that the jury would regard the “presumption”

instruction as either conclusive or “persuasion-shift-

ing” (442 U.S. at 518 n.7).

Here, by contrast, the district court devoted a

lengthy portion of its instructions to the issue of

intent, emphasizing the jury’s responsibility with re-

gard to this aspect of the case. The jury was told

repeatedly that the burden was always on the prose-

cution to prove each element beyond a reasonable

doubt and that the defendant never had any “burden

or duty of calling any witnesses or producing any

evidence” (47 Tr. 15, 29, 34). The court explained

that “[f]raudulent intent is not presumed or as-

sumed” (47 Tr. 31), that “[s]pecific intent means

more than the general intent to commit a crime or

commit an act” (47 Tr. 42), that intent could be

proved by circumstantial evidence, and that the jury

could consider “any statements made or omitted or

acts done or omitted by the defendent” as well as all

19

the surrounding facts and circumstances that might

aid in their determination of his state of mind (47

Tr. 32, 42, 46-47). The objectionable phrase in the

court’s instructions was but one small part of a com-

plete and careful exposition of how the jury should

proceed in determining whether intent had been

proved.

Considered as a whole (see United States v. Park,

421 U.S. 658, 674 (1975); Cupp v. Naughten, 414

U.S. 141, 146-147 (1973)), the instructions clearly

and adequately conveyed the nature of the govern-

ment’s burden of proof. The possibility that the jury

was misled is negligible. Furthermore, in light of

the en bane court of appeals’ decision in Chiantese,

it is unlikely that the instruction of which petitioners

complain will be repeated in the Fifth Circuit, which

has produced the bulk of litigation concerning the

Mamn charge.’ At the very least, intervention by this

7 Petitioners allege (79-1194 Pet. 17-18) that the Fifth

Circuit decision in Hammontree v. Phelps, 605 F.2d 1871

(1979), conflicts with the court of appeals’ ruling here. An

intra-circuit conflict ordinarily does not constitute grounds

for review in this Court (Wisniewski v. United States, 358

U.S. 901 (1957)), and, in any event, the cases are distin-

guishable. Hammontree involved a statutory presumption

that was meant to be permissive only but that was found to

have been erroneously interpreted as mandatory in the state

trial court’s instructions to the jury. In addition, the instruc-

tions as a whole were confusing in their juxtaposition of the

notions of presumptive evidence against the defendant and

the presumption of innocence. The trial court did not make

clear that the defendant had no duty to present evidence in

his favor and, in fact, the instruction may well have left the

impression that the defendant was required to rebut the pre-

sumption against him. See 605 F.2d at 1879-1380.

20

Court is not warranted until it can be seen whether

Chiantese is successful in producing its intended re-

sult of eliminating the Mann charge in the Fifth

Circuit.

3. Petitioners contend that their due process and

speedy trial rights were violated when the district

court, before sentencing and judgment of conviction,

granted and then denied a motion for a new trial

(79-1194 Pet. 28-35).

Petitioners filed motions for a new trial shortly

after the jury’s verdicts were announced in August

1974. The district court permitted petitioners to de-

lay the filing of amplified motions until a copy of

the lengthy transcript could be obtained from the

court reporter. Amended motions were finally filed

in June 1976. On April 14, 1977, the district court

granted a new trial. The court’s order (Pet. App.

26a) stated:

Defendants’ motion for new trial is granted

by reason only of the grounds relating to final

decision by eleven jurors only. While there are

substantial other issues raised, the Court would

not grant a new trial on the basis of any one

of them, but the Court must, of course, keep in

mind that in the Court of Appeals, a ground for

new trial, even though inadequate in itself, may

have a tandem or enhancing effect. United

States v. Williams, 523 F.2d 1208 (1975).

The court later revealed that, at the time it ordered

a new trial, it had already discovered the panel’s

initial decision in Chiantese (546 F.2d 185 (5th Cir.

21

1977) ), and it was concerned that its use of the

Mann charge, “considered in conjunction with the

12-juror issue,” might cause reversal (Pet. App. 29a).

The government moved for reconsideration of the

district court’s new trial order and informed the

court that the Fifth Circuit had decided to hear

Civiantese en banc.

On June 8, 1977, the district court granted the

motion for reconsideration and vacated its new trial

order (79-1194 Pet. App. B-1). Several months later,

after the en banc decision in Chiantese, the district

court denied the motions for a new trial, stating that

it was “persuaded that decision by an eleven man

jury was not error, and that a 12-man jury was

properly waived” (Pet. App. 29a). Petitioners were

finally sentenced, and the judgment of conviction was

entered, in February 1978. Petitioners appealed, and

petitioner Spiegel also sought a writ of mandamus

directing the district court to reinstate its new trial

order and vacate his sentence. Spiegel argued that

the district court lacked power to reconsider the new

trial order, because that order rendered the jury

verdict null and void and deprived the district court

of jurisdiction to reinstate the verdict and impose

sentence. The court of appeals denied mandamus

(No. 78-1764, June 6, 1978), and this Court denied

certiorari (439 U.S. 861 (1978)). Petitioners now

repeat the same arguments advanced earlier by

Spiegel in support of his request for mandamus. Al-

though now advanced on direct review of petitioners’

convictions, the arguments are no more persuasive

22

than before, and they do not merit further attention

from this Court.

If the district court had entered a judgment of

acquittal following the jury’s verdict of guilty, the

government could have appealed, and in the event of

a reversal by the court of appeals, the jury verdict

would have been reinstated. United States v. Martin

Linen Supply Co., 480 U.S. 564, 570 (1977) ; United

States v. Wilson, 420 U.S. 382, 344-345 (1975);

United States v. Jenkins, 420 U.S. 358, 365 (1975).

If entry of a judgment of acquittal does not render

a jury verdict null and void, it follows a fortiori

that an interlocutory order for a new trial, granted

before any judgment of conviction was entered,

should not invalidate the jury verdict.

Petitioners rely on language in United States v.

Spinella, 506 F.2d 426, 430 (5th Cir. 1975), but that

case does not support their argument. The court in

Spinella held only that, once a trial has begun and

jeopardy has attached, the district court does not

have the power to vacate its new trial order and

reinstate the original conviction. The court stated

that the order granting a new trial operated to

vacate the previous judgment of conviction; it did

not say that the jury’s verdict was rendered a nullity

or that a court that has granted a new trial may

not change its mind in response to a timely motion

for reconsideration and enter a judgment of convic-,

tion on the outstanding verdict. In fact, the court

in Spinella implied that a new trial order in a crimi-

nal case can be vacated at any time before the new

23

trial begins, just as may be done in a civil case

(ibid.). At least where a timely request for recon-

sideration has been filed, this is a salutary rule,

because it gives district courts an opportunity to

correct their own errors and to avoid unnecessary

expenditures of judicial resources. Cf. United States

v. Dieter, 429 U.S. 6, 8 (1976); United States v.

Healy, 376 U.S. 75, 80 (1964).®

4, Petitioners Holloway and Perkins raise two

insubstantial claims not joined by petitioner Spiegel.

They argue first (79-1184 Pet. 4-8) that the district

court erred when it removed two jurors during the

course of the trial and replaced them with alternates.

During voir dire, counsel for the government did

not inquire whether anyone knew the defendants or

their families. On the day after the jury was sworn,

one of the jurors, Helen McSwain, informed a clerk

that she was acquainted with petitioner Spiegel (7

Tr. 4). The trial judge informed counsel, and the

trial proceeded without objection (7 Tr. 5). The next

8 Petitioners make much (79-1194 Pet. 34 n.7) of. the gov-

ernment’s failure timely to file its brief in support of its mo-

tion for reconsideration. But, as the court of appeals correctly

noted (Pet. App. 24a), application of a court’s local rules is a

discretiOhary matter; the district court’s failure to insist on

full compliance with a rule does not deprive it of jurisdiction.

Schacht v. United States, 398 U.S. 58, 64 (1970).

As to petitioners’ speedy trial claim (79-1194 Pet. 34), the

court of appeals correctly held that the Speedy Trial Act, 18

U.S.C. 3161(e), was tolled by the granting of the govern-

ment’s motion for reconsideration before the expiration of 60

days from the date of the order granting a new trial (Pet.

App. 24a). Accordingly, the Act was not violated.

24

day, juror McSwain communicated directly with the

trial judge and explained her discomfort at serving

on the jury because of her relationship with the

Spiegel family (8 Tr. 127-128). Another juror,

Harvey Jones, informed the court that he too knew

the Spiegels (8 Tr. 130-131). The cou’ questioned

both jurors individually (9 Tr. 11-13, 28-30, 34).

Both said they thought they could still render an

impartial verdict, but McSwain continued to express

her reluctance to remain on the jury. It also became

known that Jones had dated Spiegel’s daughter sev-

eral times (ibid.). After extensive discussion of the

situation with ali counsel, the court concluded that

both jurors would have difficulty remaining im-

partial. The court therefore excused Jones and Mc-

Swain and replaced them with alternates (9 Tr. 10-

11, 36-37).

Courts have consistently held that under Rule

24(c) of the Federal Rules of Criminal Procedure,

the district court has broad discretion to replace a

juror “whenever facts are presented which convince

the trial judge that the juror’s ability to perform his

duty as a juror is impaired.” United States v.

Cameron, 464 F.2d 333, 385 (8d Cir. 1972). The

district court’s action should not be disturbed on

appeal absent a clear showing of abuse of discretion

or prejudice to the defendant. F.9., United States v.

Brown, 571 F.2d 980, 985, 991 (6th Cir. 1978);

United Scates v. Smith, 550 F.2d 277, 285 (5th Cir.),

cert. denied, 484 U.S. 841 (1977); United States v.

25

Floyd, 496 F.2d 982, 990 (2d Cir.), cert. denied,

419 U.S. 1069 (1974).

The court of appeals correctly ruled that the dis-

trict court acted well within its discretion in this

case (Pet. App. lla-15a). The record demonstrates

that the court carefully considered the effect of the

jurors’ relationship with the Spiegels on their ability

to remain unbiased. McSwain was admittedly trou-

bled about remaining on the jury, and Jones not only

had a previous relationship with Spiegel’s daughter

but apparently had been less than candid in explain-

ing his past acquaintance with the Spiegel family to

the court. Under these circumstances, the court did

not act arbitrarily in determining that these jurors

could not view the case impartially.

The record contains no evidence that the replace-

ment of Jones and McSwain had any prejudicial

effect on the remaining jurors. The court questioned

the two discharged jurors and found no indication

that they had influenced the rest of the jury in.any

way (9 Tr. 15-18, 38, 48). The court also instructed

the jury that no misconduct was involved in the

dismissal of the two jurors and that they had acted

with complete propriety (9 Tr. 49-50).

Petitioners argue that the government waived any

objection to juror McSwain by failing to question

her on voir dire about her knowledge of the defend-

ants and that the court’s sua sponte action was there-

fore improper.’ This contention misconstrues Rule

® Jones explained that he was unaware that he knew any-

one in the case until he saw petitioner Spiegel’s daughter

26

24(c). Substitution of alternate jurors is the pre-

rogative of the court and does not require the consent

of any party. United States v. Brown, supra, 571

F.2d at 985; United States v. Florea, 541 F.2d 568,

573 (6th Cir. 1976), cert. denied, 480 U.S. 945

(1977); United States v. Floyd, supra, 496 F.2d at

990. United States v. Goldberg, 330 F.2d 30 (3d

Cir.), cert. denied, 377 U.S. 953 (1964), on which

petitioners rely, is not to the contrary. The court of

appeals in Goldberg held that Rule 24(c) does not

prevent the replacement of a juror when the reason

for his disability existed at the time of his selection

and went undiscovered until some time later. The

court mentioned the power of both defense and pros-

ecution to waive a challenge to a juror, but it no-

where suggested that such a waiver would prevent

the court from acting on its own motion. Jd. at 43.

There is thus no conflict to resolve between Goldberg

and the present case.”

5. Finally, petitioners Holloway and Perkins al-

lege (79-1184 Pet. 8-11) that the district court im-

permissibly amended the indictment when it struck

the words “aided and abetted” from the substantive

mail fraud counts. (48 Tr. 138-15). This contention

is untenable.

enter the courtroom after the start of the. trial (9 Tr. 29).

A government inquiry on voir dire concerning the prospective

jurors’ acquaintance with anyone in the case would therefore

not have revealed Jones’ past relationship with Spiegel.

10 Petitioners allege a violation of their Sixth Amendment

rights as well as a violation of Rule 24(c), but they cite no

authority for the proposition that the substitution of jurors

accomplished here amounted to constitutional error.

27,

While the general rule is that an indictment may

not be amended (Ex parte Bain, 121 U.S. 1 (1887) ),

the federal courts uniformly permit amendments

when the effect is to withdraw one or more of the

charges against the defendant. See Salinger v.

United States, 272 U.S. 542, 548-549 (1926); United

States v. Prior, 546 F.2d 1254, 1257 (5th Cir. 1977) ;

United States v. Holt, 529 F.2d 981 (4th Cir. 1975) ;

United States v. Cirami, 510 F.2d 69 (2d Cir.), cert.

denied, 421 U.S. 964 (1975); United States v. Daw-

son, 516 F.2d 796 (9th Cir.), cert. denied, 423 U.S.

855 (1975). The court’s action here could only have

benefited petitioners, as they obviously realized when

they accepted the deletion without objection (48 Tr.

14-15).

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

May 1980

W ou. S. GOVERNMENT PRINTING OFFICE; 1980 319484 301