# Opposition — Holloway v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 935

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1628%3A2. Public record. Not legal advice.