Petition — Patrick Petroleum Corp. v. United States

: os Court, U. a =

f FILE D

i FEB 49 1980

IN TH K j 4 ff *HAEL ~ RODAK, IR, CLERR

Supreme Court of the United States

October TERM, 1979

29-1282

No.

Patrick PETROLEUM CorPorRATION OF MICHIGAN,

CHar es Doucias Rosrnson anp Ronatp LaMar MEEKsS,

Petitioners,

v.

Unitep States oF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MicHakL EK. Ticar

JOHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C. 20036

Attorneys for

Charles Douglas Robinson

SAMUEL J. BUFFONE

JOHN MAGE

LYNNE BERNABEI

1302 18th Street, N.W.

Washington, D.C. 20036

Attorneys for

Patrick Petroleum Corporation

MicHarEL RaMSEY

Old Cotton Exchange

202 Travis at Franklin

Houston, Texas 77002

Attorney for Ronald Lamar Meeks

Press of Byron S. Adams Printing, Inc., Washington, D. C.

>

TABLE OF CONTENTS

Page

ELE EE ee 1

eek Kha a nay ope speek eee eae 2

ed obs ves be 6 0s 5 05s 6-r0'e ces 2

kos ccbehcaccevesseeveses 2

SI UE AO oc eect eccceicccccccccs 3

Reasons FOR GRANTING THE WRIT ...............--; 5

RE Be ae ee 14

CITATIONS

CasEs:

Abbott v. United States, 239 F.2d 310 (5th Cir. 1956) 6

Hamling v. United States, 418 U.S. 87 (1974) ........ 10

Kamn v. United States, 323 U.S. 88 (1944) .......... 7

Krulewitch v. United States, 336 U.S. 440 (1949) .... 9

Parr v. United States, 363 U.S. 370 (1960) - et. passim

Russell v. United States, 369 U.S. 749 (1962) ........ 10

Tousste v. United States, 397 U.S. 112 (1970) ........ 8

United States v. Bailey, No. 78-990, 48 U.S.L.W. 4104

Ns i ea cis esate cuddess 8, 10, 13

United States v. Boyd, 606 F.2d 792 (8th Cir. 1979) .. 5

United States v. Brown, 540 F.2d 364 (8th Cir. 1976) 13

United States v. Cooper, 596 F.2d 327 (8th Cir. 1979) 8

Umited States v. Hess, 124 U.S. 483 (1888) .......... 10

United States v. Johnson, 323 U.S. 273 (1944) ...... 8

Citations Continued

Page

United States v. LaFerriere, 546 F.2d 182 (5th Cir.

CNT Wi siG deed Raab 56d vice eesbanevalnetdeves 5, 11

United States v. Lamont, 236 F.2d 312 (2d Cir. 1956) 10

United States v. Maze, 414 U.S. 395 (1974) .. 3, et. passim

United States v. McNieve, %36 F.2d 1245 (8th Cir.

SE NSE ee ak BUA Voc bea ee Ruts a bb eR es ece se 14

United States v. Payne, 474 F.2d 603 (9th Cir. 1973) .. 13

United States v. Sampson, 371 U.S. 75 (1962) ........ 6, 8

United States v. Tarnopol, 561 F.2d 466

NTE Sekirei pba iocwaGes c¥oeseeees 5, 12, 13

Umited States v. United States Gypsum Co.,

Ne Pee ee tee eee ee eee 13

United States v. Universal C.I.T. Credit Corp.,

PE cdc ccasscntebeitedewsentace 8

U.S. Cope Provisions:

EN Satay Cha N oad 4's Kh bab A > bmg bone eRe 4

Se eG. Lwin cap avabiwhiceessvices 2, et. passim

ee EN ih ay Ks kis Be bovine tan ewes anaed 2

OTHER AUTHORITIES:

C. Ruff, Federal Prosecution of Local Corruption, 65

erase AE CE rk ok 5 Wa Eads cove et eea yr 4

G. Fletcher, Rethinking Criminal Law § 1.2.5 (1978) 9

Judicial Conference of the United States, Annual Re-

port of the Director of the Administrative Office

of the United States Courts (1976), (1977) ..... +

U.S. Fifth Circuit, District Judges Association, Pat-

tern Jury Instructions 102 (1979) .............. 6

IN THE

Supreme Court of the United States

Ocrosrer Term, 1979

No.

Patrick PETROLEUM CoRPORATION OF MICHIGAN,

CHar.Es Dovucias Rosinson anp Ronaup Lamar MEEkKs,

Petitioners,

Vv.

Unrrep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners Patrick Petroleum Corporation of Michigan

(a Michigan corporation), Charles Douglas Robinson and

Ronald Lamar Meeks? pray that a writ of certiorari issue

to review the judgment of the United States Court of Ap-

peals for the Fifth Circuit, reversing the dismissal by the

United States District Court for the Southern District of

Texas of the indictment against them for failure to state

an offense against the United States.

OPINIONS BELOW

The opinion of the court of appeals, officially reported at

608 F.2d 542, is printed in the Appendix (App. C, 25a-33a).

For the Court’s convenience, the well-reasoned opinion of

the district judge, reported at 457 F. Supp. 982, is also

* William Thomas Kent and Lauren Lee Smith, Jr., parties below,

are not seeking certiorari. Kent is a fugitive.

2

included in the Appendix (App. B, 21a-24a) along with the

indictment which the district judge found insufficient (App.

A, 1a-20a).

JURISDICTION

The judgment of the court of appeals was entered on

December 17, 1979. A timely Petition for Rehearing and

Suggestion of the Appropriateness of a Rehearing En

Banc was denied on January 18, 1980. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

18 U.S.C. § 1341:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

representations, or promises, or to sell, dispose of,

loan, exchange, alter, give away, distribute, supply, or

furnish or procure for unlawful use any counterfeit

or spurious coin, obligation, security, or other article,

or anything represented to be or intimated or held out

to be such counterfeit or spurious article, for the pur-

pose of executing such scheme or artifice or attempting

to do so, places in any post office or authorized depost-

tory for mail matter, any matter or thing whatever to

be sent or delivered by the Postal Service, or takes or

receives therefrom, any such matter or thing, or know-

ingly causes to be delivered by mail according to the

direction thereon, or at the place at which it is directed

to be delivered by the person to whom it is addressed,

any such matter or thing, shall be fined not more than

$1,000 or imprisoned not more than five years, or both.

(Relevant portions italicized.)

QUESTIONS PRESENTED

1. What type of mailings may form the basis of a mail

fraud indictment, specifically :

3

(a) After the victim of the alleged scheme has been

deprived of the valuable confidential data (or other proper-

ty) which it is the object of the scheme to obtain, are mail-

ings reflecting the use of the data “for the purpose of exe-

cuting” the scheme?

(b) Must an indictment for mail fraud contain a

specific allegation of the relationship between the mailings

and the alleged scheme to defraud?

(c) Are mailings to the victim of a scheme to de-

fraud, which indicate that he has been defrauded and

tend to identify the nature and beneficiary of the fraud,

punishable under the mail fraud statute?

(d) Are routine business mailings, themselves in-

trinsically innocent, exempt from mail fraud prosecution,

by analogy to the “required by law” doctrine of Parr v.

United States, 363 U.S. 370 (1960)?

2. Is specific intent to defraud an element of the of-

fense of mail fraud, and, if so, must not an indictment for

mail fraud allege specific intent?

STATEMENT OF THE CASE

This case presents two closely-related questions concern-

ing the scope and application of the mail fraud statute;

both questions have vexed the courts of appeals, and were

improperly decided by the court below in conflict with

decisions of this court, including United States v. Maze,

414 U.S. 395 (1974).

The mail fraud statute, useful though it be, shares with

that other darling of the prosecutor’s nursery, conspiracy,

a potential for great abuse. Mail fraud prosecutions are

apparently on the increase. The number of federal fraud

cases commenced in fiscal year 1977 was 4,986, a 317 percent

increase over the number of such cases filed in fiscal year

4

1973. While some of this increase is due to the use of mail

fraud theories in political corruption cases, see, n.2, supra,

this case presents a far more typical alleged fact pattern,

and hence a more urgent need for this Court’s guidance and

supervision.

Simply put, the alleged fraud here consists of theft-type

conduct, theft by an oil company employee of confidential

data, followed by mailings which transported neither the

allegedly stolen data nor any payments to the thief. As we

show below, the government’s theory succeeds only if iso-

lated acts of defrauding can be transmuted into a contin-

uing offense, contrary to a consistent course of this Court’s

decisions.

The indictment charges sixteen counts of mail fraud, 18

U.S.C. § 1341, and one count of conspiracy, 18 U.S.C. § 371,

to commit mail fraud;* it charges a “scheme” to obtain

valuable, confidential information from Union Oil Com-

pany about Union’s leasing and drilling activities in Mis-

sissippi. A Union employee, Lauren Lee Smith, allegedly

sold this information to William Thomas Kent, who in

turn sold it to Patrick Petroleum Corporation.* The in-

dictment goes on to charge that Patrick Petroleum obtained

? Judicial Conference of the United States, Annual Report of

the Director of the Administrative Office of the United States

Courts (1977), page 253; id., (1976), page 231. The designation

‘*fraud’’ includes all federal fraud offenses, but there is much

evidence that mail fraud prosecutions account for a large share

of the increase. See, e.g., C. Ruff, Federal Prosecution of Local

Corruption, 65 Geo.L.J. 1171 (1977).

* A Department of Justice policy requires special approval be-

fore more than fifteen counts are brought. Petitioners do not know

if such approval was obtained here.

*Smith has admitted stealing data and selling it to Kent. Kent

is a fugitive. Patrick, Robinson and Meeks have denied knowing

about any scheme to defraud Union Oil.

5

leases in Mississippi based on the information obtained

from Kent, paid Kent commissions, and later attempted to

sell an interest in the leases to Union Oil.

The alleged scheme was, in sum, to defraud Union Oil

of:

(1) its right to have its business affairs conducted

honestly ;

(2) the loyal services of its employee, Smith;

(3) its property (App. A, p.2a).

However, none of the mailings alleged in the indictment

relate to Kent’s securing information from Smith, nor to

payments from Kent to Smith. The indictment also does

not allege that Kent ever used the mails in his dealings

with Patrick Petroleum.

The mailings alleged in Counts 1, 2, 3, 4 and 11 relate

to the delivery to Patrick Petroleum and Meeks of expense

statements from lease brokers.

Counts 5, 6, 9 and 12 charge mailings between Patrick

Petroleum’s Vice Fresident Robinson and its employee

Meeks about leaseholds in Mississippi.

The mailings in Counts 6, 8, 10 and 13 of the indictment

concern commissions to be paid by Patrick Petroleum to

Kent through his trustees.

The mailings alleged in Counts 14, 15 and 16 relate to

offers by Patrick Petroleum to Union Oil to sell partial

interests in the Mississippi oil leases.

REASONS FOR GRANTING THE WRIT

1(a). United States v. Maze, 414 U.S. 395 (1974), has

sparked a continuing debate in the courts of appeals. See,

e.g., Umted States v. LaFerriere, 546 F.2d 182 (5th Cir.

1977) ; United States v. Tarnopol, 561 F.2d 466 (3d Cir.

1977) ; United States v. Boyd, 606 F.2d 792 (8th Cir. 1979).

6

At the heart of this case is an issue concerning the

reet interpretation of the statutory words acheme ‘ . to

defraud”. To be sure “schemes to defraud” may be :

various as human ingenuity itself. Maze, supra, 414 U. ‘

at 407 (Burger, C.J., dissenting). There is no question,

however, that the use of the mails must be in furtherance

of—“for the purpose of executing”—the scheme. Mase

teaches that the definition of “scheme... to defraud is

victim-related, in the sense that when the victim hus been

bilked of the thing of value which is the object of : the

scheme, an element of the offense is complete. Mailings

which take place thereafter are presumptively not for the

purpose of executing the scheme”,® unless they involve

“lulling” the victim, as in United States v. Sampson, 371 ©

U.S. 75 (1962).°

The indictment alleges a scheme to deprive Union Oil

of confidential information. The value of such information

to its possessor lies precisely in its secrecy, and the possess-

or suffers an immediate harm at the point confidentiality

is breached. Compare Abbott v. United States, 239 F.2d

310, 314 (5th Cir. 1956), in which the data itself and pay-

ment for it were transmitted by mail.

Hence, allegations that the schemers intended to or did

use the information in a certain way once it was obtained

‘The above analysis is applicable to schemes involving depriv-

ing a victim of a thing or things of value.

6 The elements of a mail fraud offense are:

‘1, The Defendant willfully and knowingly devised a

scheme or artifice to defraud, or for obtaining money er prop-

erty by means of false pretenses, representations or promises,

and

‘(2 The Defendant used the United States Postal Service

by mailing, or by causing to be mailed, some matter or thing

for the purpose of executing the scheme to defraud.’’ U.S.

Firrn Crrcurt, District Jupces Association, Pattern Jury

Instructions 102 (1979).

eo

ee eee

7

are irrelevant, both to the legality or illegality of their

conduct and to the alleged relationship of the mailings to

the scheme. So while the indictment contains allegations of

plans and actions after Union’s data was compromised,

these do not affect the issue presented for decision.

In Kann v. United States, 323 U.S. 88 (1944), the defend-

ants had siphoned off profits from government contracts

through a dummy corporation. They caused checks to be

written and cashed, and pocketed the proceeds. The mail-

ings alleged to have been “for the purpose of executing”

this scheme were made by the banks to collect the funds

represented by the checks. This Court found these mailings

not within § 1341, holding:

“The persons intended to receive the money had re-

ceived it irrevocably. It was immaterial to them, or to

any consummation of the scheme, how the bank which

paid or credited the check would collect from the

drawee bank. It cannot be said that the mailings in

question were for the purpose of executing the scheme,

as the statute requires.”

323 U.S. at 94.

See also Parr v. United States, 363 U.S. 370 (1960), dis-

cussed in Maze, supra, 414 U.S. at 400-401.

The only escape from the logic of Kann and Maze would

be to consider theft-type schemes as continuing offenses.

This door is closed, however, by the teaching of Maze itself.

The issue is raised by this case and ought to be decided

squarely by this Court as a means of supervising the ad-

ministration of federal criminal justice.

Mail frauds involving theft-like takings cannot, by law

or logic, be characterized as continuing offenses. That is,

when someone decides unlawfully to appropriate the prop-

erty of another, the moment of. unlawful appropriation

marks the end, as to a particular victim, of the scheme or

5

8

artifice to defraud. Later mailings will generally not be

in furtherance of it as to that victim.’

Consideration of the “continuing offense” issue in this

context can guide prosecutors and courts and illuminate

the teaching of Maze and Kann. This Court has found there

to be a continuing offense when the Congress has clearly

mandated such a result, e.g., United States v. Bailey, No.

78-990, 48 U.S.L.W. 4104 (U.S., Jan. 21, 1980). More often,

the decision has turned on considerations of lenity or con-

stitutional values. In United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218 (1952), a Fair Labor Standards

offense was found to be “continuing” in order to foreclose

multiple prosecutions for the same basic course of unlaw-

ful conduct. In Toussie v. United States, 397 U.S. 112

(1970), failure to register for the draft was held not a

continuing offense because a contrary result would have

greatly extended the statute of limitations. In United

States v. Johnson, 323 U.S. 273 (1944), consideration of

the sixth amendment right to trial in the vicinage led the

Court to hold a false teeth offense not a continuing one.

The indictment dismissed by the district judge in this

case seeks to make a theft-type scheme to defraud into a

continuing offense, for the purpose of punishing a series of

mailings which reflect nothing more than the usual response

a petroleum company makes to new and potentially useful

information about a potential source of oil. It hires lease

brokers, pays royalty commissions, offers to sell portions

of its interest. These mailings are even less connected to

the alleged scheme than those at issue in Kann. To take one

example, Count 8 alleges mailing of a check for the benefit

of William Kent, who had a continuing interest in the

* Again, we recognize the ‘‘lulling’’ exception of Sumpson, supra.

‘Check kiting’’ schemes are also held to present a special case,

e.g., United States v. Cooper, 596 F.2d 327 (8th Cir. 1979), al-

though such holdings are open to question in light of Maze.

ee ete det ah nt,

9

mineral leases. If this check can be the subject of liability,

then so could a similar payment at any time during the

life of the lease and any renewals of it—five, ten or more

years later. This illustration points up the wisdom of

adopting an express rule that theft-type mail frauds are

not continuing offenses.

Such a rule would also comport with the customary

understanding of those crimes which the type of scheme

alleged here most closely resembles: the theft offenses of

larceny, embezzlement, and false pretenses. The time at

which the elements of a theft offense are complete, and

the offense committed, is fairly clear. See generally G.

Fletcher, Rethinking Criminal Law § 1.2.5 (1978). By hold-

ing that presumptively the scheme is over as to a particular

victim when the wrongful appropriation takes place, the

Court would provide a clear approach to analyzing a

significant proportion of fraud cases.

Finally, we note that holding theft-type mail frauds are

not “continuing” would comport with the principle of

Krulewitch v. United States, 336 U.S. 440 (1949) that there

is no implied scheme to conceal a scheme.

1(b). The indictment in this case fails to allege how any

mailing was “for the purpose of executing” the scheme. It

is in the familiar pattern of an allegation of the scheme,

incorporated by reference in each succeeding count, coupled

with an allegation of mailing, with nary a connecting

phrase or sentence of explanation.

Yet, as Kann, Maze and their progeny illustrate, the

issue of relationship between the fraud and the mailing is

troublesome and recurrent. For this reason, the indictment

is subject to a special test:

“Where guilt depends so crucially upon such a specific

identification of fact, . . . an indictment must do more

than simply repeat the language of the criminal stat-

ute.’

10

2), quoted

Russell v. United States, 369 U.S. 749, 764 (1962),

in Hamling v. United States, 418 US. 87, 118 (1974).

is Court has recently noted that the functions of an

waisdciout are to inform the accused of what he or she

must meet and to set forth the offense in enough detail that

the accused may plead double jeopardy if prosecuted again.

United States v. Bailey, supra, 48 U.S.L.W. at 4109.

There is a third function, as this Court recognized in

dismissing an indictment under a predecessor mail fraud

statute:

“To inform the court of the facts alleged, so that it

may decide whether they are sufficient in law to support

a conviction if one should be had.”

United States v. Hess, 124 U.S. 483, 487 (1888). And while

it might be tempting to let the pleader always satisfy this

requirement by tracking the statutory language,” the temp-

tation should be resisted where the virtues of precise

pleading have so obvious a reward: courts could, from the

face of the indictment, test its allegations against the gov-

erning standards of Maze, Kann, and Parr. Compare

United States v. Lamont, 236 F.2d 312, 315 (2d Cir. 1956).

Judge Charles Clark, no stranger to the movement for

simplified forms of pleading, cautioned against reverting

to a “formalism of generality”. United States v. Lamont,

supra, 236 F.2d at 317. If the pleader is forced to make the

crucial factual identification in the indictment, the court

can determine whether the case can go forward without

subjecting the defendant to the “expense” and “humilia-

tion” of a trial. Jd. at 314.

®Of course a mail fraud indictment cannot simply track the

statute, for § 1341 does not contain all elements of the offense.

See 2, infra.

° A careful reading of Parr reveals that the holding rests in part

upon the insufficiency of the indictment.

11

1(c). The mailings alleged in counts 14, 15 and 16 of

the indictment present a special question. They could have

served no purpose but to further—indeed to insure—de-

tection of the alleged fraud. See United States v. LaFer-

riere, 546 F.2d 182, 197 (5th Cir. 1977). In essence, Patrick

Petroleum was telling Union Oil that it had acquired sub-.

stantial leasehold interests in an area of Mississippi in

which Union was vitaliy concerned and in which Union

had every reason to believe that both its interest and the

basis for that interest were matters of strictest confidence.

The transmission of Patrick’s offer up the chain of Union’s

corporate command, as reflected in counts 15 and 16, would

virtually have guaranteed that Union would act to see

how Patrick had acquired the information which enabled

it to obtain leasehold interests.”

This case thus offers an opportunity for the Court to

decide whether mailings designed to ensure detection of

the fraudulent scheme may form the basis of a prosecution

under 18 U.S.C. § 1341.

1(d). In Parr v. United States, supra, this Court re-

versed a mail fraud conviction because the indictment did

not allege and the proof did not show that the mailings in

question—which consisted of letters, tax statements, checks,

tax receipts and invoices—were other than the normal

ones which would be sent and received by any school

district in exercise of its statutory taxing powers. That

is, the fact that petitioners—who were public officials—

had devised a scheme to misappropriate tax funds was not

*° Indeed, that is exactly what happened. Counts 15 and 16 are

based on letters and memoranda between Union’s exploration de-

partment, regional land manager and Jackson, Mississippi land

man on which one high Union official noted: ‘‘I do not favor any

action which would bid these ‘block’ busters out and give them

their money back plus a retained interest!’’

12

sufficiently related to the mailings which formed a part of

the tax-gathering process which produced the funds. One

basis for the holding in Parr was that the mailings in

question were required by state law.

The Third Circuit has taken Parr a step further. In

United States v. Tarnopol, 56) F.2d 466 (3d Cir. 1977),

record company executives diverted substantial quantities

of inventory and pocketed the proceeds. The mailings con-

sisted of business records which had been created in the

course of manufacturing the inventory, a portion of which

was diverted. The court of appeals reversed the convic-

tion upon the following rationale:

“[Mlailings taking place after the object of the scheme

has been accomplished, .. . or before its accomplish-

ment has begun, .. . are not sufficiently closely related

to the scheme to support a mail fraud prosecution.

Nor are routine mailings required by law which are

themselves intrinsically innocent even though they take

place during the course of carrying out a fraudulent

scheme, the objective of which is the embezzlement of

funds received in response to the mailings. Parr v.

United States. ... We do not believe that there is a

valid distinction to be drawn between those routine

mailings which are required by law and those routine

mailings, themselves intrinsically innocent, which are

regularly employed to carry out a necessary or con-

venient procedure of a legitimate business enterprise.

In either case the mailings themselves are not suffi-

ciently closely related to the fraudulent scheme to sup-

port a mail fraud prosecution even though securing

the funds received through some of them is the object

of the scheme to defraud, as was true in... Parr....

See United States v. Brickey, 296 F. Supp. 742, 748-

749 (E.D. Ark. 1969). A fortior: if the documents re-

ceived in the mailings are used by the perpetrators of

the scheme merely as a convenient but not essential

tool in carrying out that object, as in the case before

us.’

561 F.2d at 472.

am cee

13

Although without criticizing Tarnopol directly, the

Eighth Circuit has taken a somewhat different view, in

affirming the conviction in United States v. Brown, 540

F.2d 364, 376-77 (8th Cir. 1976).

This case presents an opportunity to survey the contours

of the rule set out in Parr. Does Parr turn on the required

character of the mailings; or as suggested in Maze and

held in Tarnopol were routine mailings in Parr simply

functionally unrelated to the scheme to defraud, so as not

to be “for the purpose of executing” it?

Hiring lease brokers, paying commissions, offering

leases for sale—these are the normal activities of petroleum

c..ipanies engaged in leasing operations, whatever the

source of their information about leasing prospects. There

is, as we noted above, no allegation in this case that the

mails were used to transmit the data from the defalcating

Union Oil employee, or to send him money in payment.

A sound and even expansive reading of Parr would also

tend to restrain the prosecutorial tendency to select for

prosecution a large number of marginally-relevant mail-

ings, resulting in an indictment which is cumbersomely long

and carries a maximum penalty far in excess of that

merited by the underlying wrongful conduct.

2. No lengthy discussion is needed to underscore the

importance in this Court’s recent decisions on the issue

of intent. See, e.g., United States v. United States Gypsum

Co., 438 U.S. 422 (1978) ; United States v. Bailey, supra.™

Section 1341 does not contain such a requirement, but

the courts have uniformly held that the intent to defraud

is an element of the offense. E.g., United States v. Payne,

as The indictment in Bailey did contain an allegation of intent.

See United States v. Bailey, 585 F.2d 1087, 1095 n.22 (D.C. Cir.

1978).

14

474 F.2d 603 (9th Cir. 1973); United States v. McNieve,

536 F.2d 1245 (8th Cir. 1976). That being so, the indictment

should contain an allegation of that intent, expressly and

not by implication. This issue—whether the interpolated

intent element must then be set out in the indictment—is

worthy of this Court’s attention.

CONCLUSION

For the foregoing reasons, petitioners respectfully pray

that a writ of certiorari issue.

Respectfully submitted,

Micuaet EK. Ticar

JoHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C. 20036

Attorneys for

Charles Douglas Robinson

SAMUEL J. BUFFONE

JoHN MAGE

LYNNE BERNABEI

1302 18th Street, N.W.

Washington, D.C. 20036

Attorneys for

Patrick Petroleum Corporation

MicHAEL RAMSEY

Old Cotton Exchange

202 Travis at Franklin

Houston, Texas 77002

Attorney for Ronald Lamar Meeks

¥

Dated: February 19, 1980

APPENDIX

° 7 ——

ee ++

la

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CriminaL No. H-78-112

Unitep States or AMERICA

Vs.

WiuuiaM THomas Kent,

Patrick PETROLEUM CORPORATION OF MICHIGAN,

a Michigan Corporation,

Cuar.es Dovucias Rosinson

Ronautp Lamar Merks, and Lauren Lee Smiru, JR.

Indictment

Tue Granp Jury CHARGES:

Count One

(1) At all times material to this Indictment:

(a) Defendant Witu1am THomas Kent resided at

the Houston House in Houston, Texas, and maintained an

office at 711 Main Street, Houston, Texas.

(b) Defendant Patrick PreTroLEuM CorRPORATION OF

Micuican, a Michigan corporation, maintained an office at

1901 C & I Building, Houston, Texas.

(c) Defendant CHartes Dove tas Rosrnson resided

in Michigan and was a Vice-President and authorized

representative of defendant Patrick PeTroLeum Corpora-

TIoN Or MicHiaan.

(d) Defendant Ronatp Lamar Meeks resided in

Houston, Texas, and was employed as Division Land Man

2a

and an authorized representative of defendant Patrick

PeTroLeum Corporation or Micuican in Houston, Texas,

until about April, 1976, after which he was self-employed.

(e) Defendant Lauren Lez Smiru, Jz., resided in

Houston, Texas, and was employed as a draftsman in the

Houston, Texas office of Union Oil Company of California,

a California corporation.

(2) Prior to April 1, 1975, and continuing to on or about

April 18, 1977, in the Houston Division of the Southern

District of Texas and within the jurisdiction of this Court,

the defendants Wmu1Am THomas Kent, Patrick PETROLEUM

Corporation or Micuiaan, a Michigan corporation (herein-

after referred to as Parrick PretTroLeum Corporation),

Cartes Dovctas Rosinson, Ronatp Lamar Merxs, and

Lauren Lee Smits, Jr., devised a scheme and artifice to

defraud the Union Oil Company of California (hereinafter

referred to as Union Oil Company) of (a) its right to have

its business and affairs conducted honestly, impartially,

free from deceit, raft, trickery, corruption, fraud, undue

influence, dishonesty, and conflict of interest; (b) its right

to the conscientious, loyal, honest, faithful, disinterested

and unbiased services, decisions, actions and performance

of duties by defendant Lauren Ler Smits, Jr. as a drafts-

man employed by Union Oil. Company, free from corrup-

tion, partiality, wilful omission, bias, dishonesty, miscon-

duct, conflict of interest, bribery and fraud; and (c) its

property and secret profits obtained by defendant Lauren

Lee Smirn, Jr., in the performance of his duties as a

draftsman for the Union Oil Company.

(3) It was a part of the scheme and artifice to defraud

that defendant Lauren Lee Smit, Jr., as a draftsman

employed by Union Oil Company, would and did have

access to exclusive and confidential property of Union Oil

Company consisting of maps, papers, drawings, documents,

and information contained therein, reflecting geographic

——_

3a

and geological areas of the State of Mississippi in which

Union Oil Company was leasing and planned to lease oil,

gas and mineral rights, which data included buy-outlines,

contour interval maps, prospect summaries, tract sheets,

activity letters, authorities for expenditures, recommended

Union Oil Company bids on “school board” lands, seismic

profiles, development well analysis, prospective locations of

oil wells, drilling schedules and well completion reports,

all of which data reflected information and analysis col-

lected, compiled and evaluated by Union Oil Company of-

ficers and employees, including geologists, geophysicists,

technicians and landmen, for the exclusive use of Union Oil

Company in exploring, locating, bidding, leasing and de-

veloping oil, gas and mineral resources in the State of

Mississippi.

(4) It was a further part of the scheme and artifice to

defraud that the defendant Wmu1am Tuomas Kent would

and did tamper with the employer-employee relationship

between Union Oil Company and defendant Lauren Lez

SmirH, Jr. and subvert, and encourage, aid and assist in

the subversion of, the fidelity and duty of defendant

Lauren Lee Samira, Jr. to Union Oil Company by bribing

defendant Lauren Lee Smrru, Jr., that is, by paying and

agreeing to pay defendant, Lauren Lez Smrru, Jr., for the

aforesaid confidential and exclusive data and information

belonging to Union Oil Company.

(5) It was a further part of the scheme and artifice to

defraud that the defendants Wim.11am THomas Kent, Pat-

RICK PETROLEUM CorRPORATION, CHARLES Dovaias Rosinson

and Ronatp Lamar Meeks would and did cause defendant

Lauren Lee Smirn, Jr. to violate his employment agree-

ment with Union Oil Company that he would not copy or

disclose any documents, papers, or drawings coming into

his possession or knowledge as an employee of Union Oil

Company except in pursuance of his duties or as required

by his employment or by law, and would cause defendant

4a

Lavren Lez Smrra, Jr. to steal, purloin, abstract, copy and

otherwise reproduce property of the Union Oil Company

consisting of the aforesaid maps, documents, papers, draw-

ings, bid recommendations, and information contained

therein, and deliver and disclose the same to defendant

Wuuiam Tuomas Kent on a continuing basis, while hold-

ing himself out and continuing to falsely and fraudulently

pretend and represent himself as honest and loyal to the

interests of his employer, the Union Oil Company, thereby

defrauding Union Oil Company of his honest, loyal, faith-

ful services, and depriving Union Oil Company of valuable

property.

(6) It was a further part of the scheme and artifice to

defraud that defendants Patrick PetroLeum CorpPorRATION,

its Vice-President, defendant Cuartes Dovaias Rosinson,

and its employee, defendant Ronautp Lamar Meeks, would

obtain from defendant Wm.1am Tomas Kent the afore-

said data and would, with knowledge that it was stolen

from Union Oil Company and in anticipation snd contem-

plation that Union Oil Company would continue leasing and

undertake development and drilling activities in the areas

of the State of Mississippi covered by and based on said

data, hire brokers to move swiftly to procure leases for

defendant Patrick Perroteum Corporation in those areas

of the State of Mississippi where the stolen data indicated

leases had been obtained and were being sought by Union

Oil Company, thereby impeding and thwarting Union Oil

Company’s leasing and development plans and depriving

Union Oil Company of the rightful exclusive use and enjoy-

ment of its own property.

(7) It was a further part of the scheme and artifice to

defraud that after securing said leases in the State of

Mississippi with the use and on the basis of said data stolen

from Union Oil Company, defendant Patrick PretTroLeum

CorporaTION would be in a position to share in the produc- ,

tion of wells developed and drilled by Union Oil Company

ee ee

in Perry County, Mississippi; and defendants Patrick

PETROLEUM CoRPORATION, CHARLES Doveias Rosrnson and

Ronatp Lamar Meeks would and did endeavor to sell an

interest in Hancock County, Mississippi leases to Union

Oil Company and thereby recover defendant Patrick

PetroLEuM CorporaTion’s complete costs of securing said

leases while retaining a substantial interest in future royal-

ties and production from said leases.

(8) It was a further part of the scheme and artifice to

defraud that defendants Patrick PetroLeum Corporation,

CuarLtes Doveatas Rosrnson and Ronautp Lamar MEEKs,

through checks and assignments of royalty interests made

to the names of third parties, namely, J.J. Paul and Harold

Gray, would and did covertly and deviously pay defendant

Wiru1am THomas Kent a commission of ten dollars on each

net mineral acre defendant Patrick PreTroLeum Corpora-

TION leased in the State of Mississippi through the use of

said data stolen from Union Oil Company, plus an over-

riding royalty interest in all such acreage so leased, as the

leases were obtained on acreage in the State of Mississippi

by defendant Patrick PetroLeum Corporation.

(9) It was a further part of the scheme and artifice to

defraud that defendant Wit1am THomas Kent would pay

defendant Lauren Lee Smita, Jr. a percentage of defend-

ant Witu1amM THomas Kent’s aforesaid commissions plus

overriding royalty interests in the acreage leased by Pat-

RICK PETROLEUM CorporaTION in the State of Mississippi

through the use of the information stolen by defendant

Lauren Lee Smita, Jr. from Union Oil Company and fur-

nished to defendant Wiu1am THomas Kent.

(10) On or about August 8, 1975, in the Houston Division

of the Southern District of Texas and within the jurisdic-

tion of this Court, the defendants Wimu1am Tomas Kent,

Patrick PETROLEUM CorporATION oF Micuigan, a Michigan

6a

corporation, Caartes Dovcias Rosinson, Ronatp Lamar

Meeks, and Lavren Lee Smiru, Jr., for the purpose of

executing the aforesaid scheme and artifice to defraud, and

attempting to do so, did knowingly cause to be delivered by

the United States Postal Service, according to the direc-

tions thereon, a statement from Larry D. Bloomer for

services and expenses in Hancock County, Mississippi,

during the month of July, 1975, addressed to Patrick

Petrroteum Corporation, Attention: Mr. Ron Meeks, 1901

C & I Building, Houston, Texas 77002.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Two

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about August 12, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WimL1am THomasS

Kent, Patrick PetrroLeum Corporation oF MICHIGAN, a&

Michigan corporation, CHarLes Doveias Rosinson, Ronap

Lamar Meeks, and Lauren Lee Sirs, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did knowingly cause to be de-

livered by the United States Postal Service, according to

the directions thereon, a statement from John O’Connell for

services and expenses in Perry County, Mississippi, during

the month of July, 1975, addressed to Patrick PretroLEuM

Corporation, 1901 C & I Building, Houston, Texas 77002,

Attention: Mr. Ron Meeks.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Ta

Count Three

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about August 29, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WinLiam THomas

Kent, Patrick PETROLEUM CORPORATION OF MICHIGAN, &

Michigan corporation, CHarLes Dove tas Rosrnson, Ronaup

Lamar Meeks, and Lauren Lee Sirs, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did knowingly cause to be de-

livered by the United States Postal Service, according to

the directions thereon, a statement from Hugh Story for

services and expenses in Hancock County, Mississippi, from

July 27 through August 25, 1975, addressed to Patrick

PreTroLeuM Corporation, 1901 C & I Building, Houston,

Texas 77002, Attention: Mr. Ronald L. Meeks.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Four

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further al-

leges:

(2) That on or about August 30, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants Wmu1am THomas

Kent, Patrick PetroLeum CorporaTION oF MICHIGAN, &

Michigan corporation, CHarLes Doveias Rosrnson, Ron-

ALD Lamar Merks, and Lauren Lee Smrtu, Jr., for the

purpose of executing the aforesaid scheme and artifice to

defraud, and attempting to do so, did knowingly cause to be

8a

delivered by the United States Postal Service, according

to the directions thereon, a statement from Larry D.

Bloomer for services and expenses in Hancock County,

Mississippi, during the month of August, 1975, addressed

to Patrick PerroLeum Corporation, Attention: Ron Meeks,

1901 C & I Building, Houston, Texas 77002.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Five

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about September 23, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WiLLiaM

Tomas Kent, Patrick PetTroLeEuM CorporaTION OF MIcHI-

can, a Michigan corporation, CHarLes Doveias Rostnson,

Rowaup Lamar Meeks, and Lauren Lez Smitu, Jr., for the

purpose of executing the aforesaid scheme and artifice to

defraud, and attempting to do so, placed and wilfully

caused to be placed in an authorized depository for mail

matter in Houston, Texas, a memorandum dated September

23, 1975, from Ron Meeks to C.D. Robinson, Jackson, Michi-

gan, to be sent and delivered by the United States Postal

Service, which memorandum reflected net acres leased in

Hancock County, Mississippi, in or for Patrick PETROLEUM

CorPorRATION’s name, and a request to issue a commission

check for $15,070.00 payable to Harold Gray.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Six

(1) The Grand Jury realleges and incorporates here

in by reference all the ‘allegations contained in Paragraphs

9a

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about November 13, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WiLLiam THOomas

Kent, Patrick PeTroL—eum CorporaTION oF MICHIGAN, &

Michigan corporation, CuarLes Doveias Rosinson, RonaLp

Lamar Meeks, and Lauren Ler Smith, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did knowingly cause to be de-

livered by the United States Postal Service, according to

the directions thereon, a letter dated November 11, 1975,

from John Murdy to Mr. Ronald Meeks, Patrick Petroleum

Corporation, 1901 C & I Building, Houston, Texas 77002,

which letter referred to the Hancock County, Mississippi

lease play and an enclosed assignment of overriding royalty

interest from Patrick Petroleum Corporation of Michigan

to Harold Gray.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Seven

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about December 1, 1975, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WiLu1am THoMmas

Kent, Patrick PeTroLEUM CorPoRATION OF MICHIGAN, &

Michigan corporation, CHarLes Doves Rosinson, RoNALp

Lamar Meeks, and Lauren Lee Smiru, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did place and wilfully cause to be

placed in an authorized depository for mail matter in

10a

Houston, Texas, a memorandum from Ron Meeks to C.D.

Robinson, Jackson, Michigan, to be sent and delivered by

the United States Postal Service, which memorandum re-

ferred to instruments pertaining to leases in Perry County,

Mississippi.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Eight

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about January 30, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WmL1am THomas

Kent, Patrick PeTRoLEUM CoRPORATION OF MICHIGAN, &

Michigan corporation, CHartes Douveias Rosinson, Ronap

Lamar Meeks, and Lauren Lee Smrru, JRr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did knowingly cause to be delivered

by the United States Postal Service, according to the

directions thereon, a letter dated January 28, 1976, from

Kelly McClintic to Mr. Ronald L. Meeks, Patrick Petroleum

Corporation, 1901 C & I Building, Houston, Texas 77002,

which letter referred to an enclosed $7,200.00 check payable

to J.J. Paul as commission for 720 acres leased in Hancock

County, Mississippi.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Nine

(1) The Grand Jury realleges and incorporates herein

by reference all the ailegations contained in Paragraphs 1

lla

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about February 10, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants Wit1am THOMAS

Kent, Patrick PreTroLeum CorPoRATION OF MICHIGAN, &

Michigan corporation, CHartes Doucias Rosinson, Ronaup

Lamar Meeks and Lauren Lez Samira, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did place and wilfully cause to be

placed in an authorized depository for mail matter in

Houston, Texas, a memorandum from Ron Meeks to C.D.

Robinson, Jackson, Michigan to be sent and delivered by

the United States Postal Service, which memorandum re-

ferred to Issaquena County acreage in Mississippi and a

copy of the Public Notice—Invitation to bid on Issaquena

County acreage.

(Violation: Title 18, United States Code, Sections 1341

- and 2)

.

Count Ten

(1) The Grand Jury realleges and incorporates herein by

reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about March 5, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WiuL1am THomas

Kent, Patrick PreTroLeEuM CorporaTION OF MICHIGAN, a

Michigan corporation, CHarLes Doveias Rosinson, Ronaup

Lamar Mreks, and Lauren LEE Sirs, JRr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did knowingly cause to be de-

livered by the United States Postal Service, according to

the directions thereon, a letter dated March 3, 1976, from

12a

John Murdy that referred to an enclosed assignment of

overriding royalty interest to J.J. Paul, which letter was

addressed to Mr. Ronald L. Meeks, Patrick Petroleum Cor-

poration, 1901 C & I Building, Houston, Texas 77002.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Eleven

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about March 19, 1976, in the Houston

Division of the Southern District of Texas and within

the jurisdiction of this Court, the defendants WiLL1AM

Tomas Kent, Patrick PETROLEUM CorpoRaTION oF MIcHI-

aan, a Michigan corporation, CHartes Dovaias Rosrnson,

Ronatp Lamar Meeks, and Lauren Les Smiru, Jr., for the

purpose of executing the aforesaid scheme and artifice to

defraud, and attempting to do so, did knowingly cause

to be delivered by the United States Postal Service, ac-

cording to the directions thereon, a statement dated March

17, 1976, from Hugh Story for services and expenses in

checking county school land lease sales and bidding on

Issaquena County school land, which statement was ad-

dressed to Patrick Petroleum Corporation, 1901 C & I

Building, Houston, Texas, 77002, Attention: Mr. Ronald

L. Meeks.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Twelve

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

tM al or ene at

13a

through 9 of Count One of this Indictment, and further al-

leges:

(2) That on or about March 19, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants Wiut1am THomas

Kent, Patrick PretroLEuM CoRPORATION OF MICHIGAN, &

Michigan corporation, CHartes Douaias Rosinson, Ronaup

LaMar Meeks, and Lauren Ler Smiru, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud,

and attempting to do so, did place and wilfully cause to be

placed in an authorized depository for mail matter in

Houston, Texas, a memorandum from Ron Meeks to C.D.

Robinson, Jackson, Michigan to be sent and delivered by

the United States Postal Service, which memorandum re-

ferred to a J.J. Paul commission and assignment, and

an Issaquena County lease.

(Violation: Title 18, United States Code, Sections 1341 |

and 2)

Count Thirteen

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about March 29, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants Witu1am THOoMasS

Kent, Parrick PeTroLEuM CorPoRATION OF MICHIGAN, a&

Michigan corporation, CHartes Dovetas Rosrnson, Ronaup

Lamar Merks, and Lauren Ler Smita, Jr., for the purpose

of executing the aforesaid scheme and artifice to defraud

and to obtain property by means of false and fraudulent

pretenses, representations, and promises, and attempting

to do so, did knowingly cause to be delivered by the United

States Postal Service, according to the directions thereon,

14a

a memorandum dated March 25, 1976, from L.F.. Spelbring

to Ron Meeks, Patrick Petroleum Corporation, Houston,

Texas, which memorandum referred to an attached

$5,200.00 check payable to J.J Paul, and an assignment of

overriding royalty interest to J.J. Paul in a lease from

Issaquena County, Mississippi.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Fourteen

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about June 3, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WmLLIAM Tomas

Kent, Parrick PeTrroLeuM CorporaTION oF MICHIGAN, &

Michigan corporation, CHartes Dovcias Rosrnson, and

Ronatp Lamar Meeks, for the purpose of executing the

aforesaid scheme and artifice to defraud and attempting to

do so, did place and wilfully cause to be placed in an au-

thorized depository for mail matter in Houston, Texas, a

letter from Ronald L. Meeks to Union Oil Company of

California, 200 East Pascogoula, Jackson, Mississippi

39402, which letter contained an offer to sell a seventy-five

percent interest in leases held by Patrick Petroleum Cor-

poration in Hancock County, Mississippi for $294,000.00,

such letter to be sent and delivered by: the United States

Postal Service.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Fifteen

(1) The Grand Jury realleges and incorporates herein

toon OS rs te se | AN a ES

15a

by reference all the allegations contained in Paragraphs

1 through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about June 10, 1976, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants Wimu1am THomas

Kent, Patrick PetroLeum Corporation oF MICHIGAN, a

Michigan corporation, CHartes Doveias Rosinson, and

Ronatp Lamar Meegks, for the purpose of executing the

aforesaid scheme and artifice to defraud, and attempting to

do so, did knowingly cause to be delivered by the United

States Postal Service, according to the directions thereon,

a memorandum dated June 8, 1976, from J.P. Foster to

W.F. Bolding, Union Oil Company of California, 4635

Southwest Freeway, Houston, Texas, with an enclosed let-

ter from Ronald L. Meeks dated June 3, 1976, offering to

sell for $294,000.00 a seventy-five percent interest in leases

held by Patrick Petroleum Corporation of Michigan on

2358.1 net acres in Hancock County, Mississippi.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Sixteen

(1) The Grand Jury realleges and incorporates herein

by reference all the allegations contained in Paragraphs 1

through 9 of Count One of this Indictment, and further

alleges:

(2) That on or about January 24, 1977, in the Houston

Division of the Southern District of Texas and within the

jurisdiction of this Court, the defendants WiiL1am THomas

Kent, Parrick PrerroLeum CorporaTION OF MICHIGAN, &

Michigan corporation, Cartes Dovatas Rosinson, and

Ronatp Lamar Merks, for the purpose of executing the

aforesaid scheme anc artifice to defraud, and attempting

to do so, did knowingly cause to be delivered by the United

States Postal Service, according to the directions thereon,

16a

a memorandum from Bill Renfro to Mr. W.F. Bolding,

Union Oil Company of California, Houston, Texas, with

an enclosed letter from Charles Robinson proposing to

sell for $260,281.11 a three-fourths interest in Patrick

Petroleum Corporation leases of 2358.1 net acres in Han-

cock County, Mississippi.

(Violation: Title 18, United States Code, Sections 1341

and 2)

Count Seventeen

Commencing on or about April 1, 1975 and continuing

to on or about April 15, 1977, in the Houston Division of

the Southern District of Texas and within the jurisdiction

of this Court, Witu1am Tomas Kent, Patrick PETROLEUM

Corporation or Micuican, a Michigan corporation, CHARLES

Doveuas Rosrnson, and Ronatp Lamar Meeks, defendants

herein, did wilfully and knowingly conspire, combine, con-

federate and agree together and with each other, and with

other persons to the Grand Jury known and unknown, to

commit offenses against the United States, that is, to use

the mails in furtherance and in execution of a scheme and

artifice to defraud and for obtaining money and property

by means of false and fraudulent pretenses, representations

and promises, which said scheme and artifice to defraud is

set forth more fully in Paragraphs 1 through 9 of Count

One of this Indictment which are realleged and incor-

porated herein by reference, the object of said conspiracy

being violations of Title 18, United States Code, Section -

1341.

In furtherance of the conspiracy and to effect the objects

and purposes thereof, the defendants did commit in the

Southern District of Texas, and elsewhere, the following:

Overt Acts

1. The said defendants did do and cause to be done the

17a

acts set forth in Counts Two through Srrteen of this In-

dictment on the dates, at the places, and in the manner set

forth therein, all of which are realleged and incorporated

herein by reference.

2. On or about June 10, 1975, in Houston, Texas, defendant

Wuu1am THomas Kent received from Lauren LEE Sirsa,

Jr. maps stolen from Union Oil Company of California.

3. On or about June 30, 1975, defendants CHaritzs Dovaias

Rosinson and Ronatp Lamar Meeks met with defendant

Wuru1am Tromas Kent at the Houston House in Houston,

Texas.

4. On or about July 1, 1975, defendants Ronautp Lamar

Meeks and Wiiu1AM Tomas Kent met at the Red Carpet

Restaurant in Houston, Texas, concerning lease acquisi-

tions in Hancock County, Mississippi.

5. On or about July 5, 1975, in Houston, Texas, defendant

Ronatp Lamar Meeks instructed Larry Bloomer by tele-

phone to obtain Tobin maps of a designated area in the

State of Mississippi.

6. On or about July 7, 1975, in Houston, Texas, defendant

Ronatp Lamar Meexs asked Hugh Story when he could

begin leasing in Hancock County, Mississippi on behalf of

defendant Patrick PerroLeEum CoRPorRATION.

7. On or about July 7, 1975, in Jackson, Michigan, defend-

ant CHarLtes Doveias Rosrnson instructed Robert Robin-

son to begin leasing in Hancock County, Mississippi on be-

half of defendant Parrick PrerroLeum Corporation.

8. On or about July 9, 1975, in Houston, Texas, defendant

Ronatp Lamar Meeks instructed Larry Bloomer to begin

leasing in Hancock County, Mississippi on behalf of -

fendant Patrick PrTRoLEUM CoRPORATION.

18a

9. On or about July 10, 1975, in Houston, Texas, defendant

Ronautp Lamar Meeks instructed John O’Connell to begin

leasing in Perry County, Mississippi on behalf of defendant

Patrick PetrRoLEUM CoRPORATION.

10. On or about July 31, 1975, defendants Ronatp Lamar

Meeks and Wiiu1am Tuomas Kent met at the Prime Min-

ister Restaurant in Houston, Texas, concerning additional

information on Hancock County, Mississippi.

11. On or about September 24, 1975, in Houston, Texas,

defendants Ronatp Lamar Meeks and Wuiuisam THomas

Kent met at Harborow’s Restaurant in Houston, Texas

concerning bids on county acreage in Hancock County, Mis-

sissippi.

12. On or about November 3, 1975 defendants RonaLp

Lamar Meeks and Wiuu1AM Tsomas Kent met at the Bull

’n Bear Restaurant in Houston, Texas regarding bids on

school board leases in Hancock County, Mississippi.

13. On or about November 25, 1975 defendants Ronatp

Lamak Meeks and Wii11AmM THomas Kent met at the Bull

’n Bear Restaurant in Houston, Texas concerning county

school land bids in Hancock County, Mississippi.

14. On or about January 26, 1976 defendants Ronap

Lamar Meeks and Wiuuiam THomas Kent met at the Bull

’n Bear Restaurant in Houston, Texas regarding the up-

coming bid on Kemper County acreage.

15. On or about January 26, 1976, defendants Ronap

Lamar Meeks and Wiuu1am T'Homas Kent met at the Prime

Minister Restaurant in Houston, Texas, regarding Issa-

quena County acreage sale.

16. On or about February 4, 1976 defendants Ronatp

19a

Lamar Meeks and Wuiui1am Tomas KENT met at the

Prime Minister Restaurant in Houston, Texas concerning

Issaquena County bids.

17. On or about February 16, 1976 defendants Royatp

Lamar Merexs and Wim TxHomas Kent met at the

Bull ’n Bear Restaurant in Houston, Texas regarding bids

on Issaquena County acreage.

18. On or about February 18, 1976 defendants RonaLp

Lamar Merexs and Wiu1am Tuomas Kent met at Poor

Devils’ Restaurant in Houston, Texas to discuss the ex-

tension of the lease sale of Issaquena County, Mississippi

acreage.

19. On or about March 11, 1976 defendants Ronatp Lamar

Merks and Wiu1aM THomas Kent met at Todd’s Restau-

rant in Houston, Texas regarding bid on the Issaquena

school acreage.

20. On or about March 23, 1976 defendants Ronatp Lamar

Meeks and Wiuu1aAmM Tomas Kent met at the Bull ’n Bear

Restaurant in Houston, Texas regarding the sale of de-

fendant Patrick PerroLeum Corporation’s Hancock County

leases.

21. On or about February 14, 1977, in Houston, Texas

defendant Witu1am Tuomas Kent received a Union Oil

Company map of Sellers Prospect from Lauren LEE

Smiru, JR.

22. On or about February 18, 1977 defendant Wiu1am

Tomas Kent mailed a map of Sellers Prospect to de-

fendant CuarLtes Doveias Rosinson in Jackson, Michigan.

23. On or about February 21, 1977, in Jackson, Michigan

defendant CuarLes Dovecias Rosrnson received by mail a

20a

map of Sellers Prospect from defendant Wm1aM THoMaS

KEnrT.

(Violation: Title 18, United States Code, Section 371)

A True BILL:

/s/ Wuu1am G. SHERWOOD

Foreman of the Grand Jury

/s/ J. A. “Tony” CanaLEs

United States Attorney

/s/ Douveatp D. McMm.an

Trial Attorney

United States Department of Justice

ee enna

2la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CRIMINAL NO. H-78-112

Untrep States oF AMERICA

Vv.

WiuuM THomas Kent, Patrick PetroLeum Corporation

oF MicHIGAN,

a Michigan corporation,

Caries Dovetas Rosiyson, Ronatp Laman Meexs,

and Lavren Lee Smrru, Jr.,

Dougald McMillan, U.S. Department of Justice,

Dallas, Texas, and Jack O’Donnell, Assistant United

States Attorney, Houston, Texas, attorneys for

Plaintiff.

Tigar & Buffone (Samuel J. Buffone), Washington,

D.C., attorneys for Defendant Patrick Petroleum

Corporation of Michigan.

Tigar & Buffone (Michael E. Tigar), Washington,

D.C., attorneys for Defendant Charles Douglas

Robinson.

Michael Ramsey, Houston, Texas, attorney for De-

fendant Ronald Lamar Meeks.

October 10, 1978

Memorandum and Order:

William Thomas Kent, Patrick Petroleum Corporation

of Michigan, Charles Douglas Robinson, Ronald Lamar

22a

Meeks, and Lauren Lee Smith, Jr. have been indicted on

numerous counts of violating the federal mail fraud statute

(18 U.S.C. § 1341). The Defendants are charged with con-

cocting a scheme to defraud Union Oil Company of Cali-

fornia of “(a) its right to have iis business and affairs

conducted honestly ..., (b) its right to the conscientious,

loyal ... performance of duties by Defendant Lauren Lee

Smith, Jr. [its employee] ..., and (c) its property and

secret profits obtained by Defendant Lauren Lee Smith,

Jr. in the performance of his duties as a draftsman for

the Union Oil Company.” According to the indictment,

William Thomas Kent persuaded Smith to funnel confi-

dential geophysical information gathered by Union Oil to

Kent. Kent then sold the information to Patrick Petroleum

which allegedly knew that the data had been misappro-

priated. Patrick Petroleum employed brokers to procure

oil and gas leases based on the data obtained from Kent.

,

Counts One through Sixteen involve substantive mail

fraud violations. Count Seventeen alleges a conspiracy to

use the mails in furtherance of a scheme to defraud.

Defendant Smith has pleaded guilty to Count Eleven.

Under a plea agreement, if he persists in such plea, the

other counts against him will be dismissed. Defendants

Patrick Petroleum, Robinson, and Meeks have filed a

motion to dismiss the indictment for failure to allege an

offense against the United States.

In order to charge the offense of mail fraud, there must

exist a scheme to defraud and use of the mails for the

purpose of executing that scheme. Pereira v. United

States, 347 U.S. 1 (1954). The federal mail fraud statute

does not reach all frauds, but only those in which the mails

are used to execute the fraud. Other cases are left to

state law. Kann v. United States, 323 U.S. 88 (1944). It is

not enough that a scheme to defraud exists and that the

defendant has caused the mails to be used in some tangen-

23a

tial fashion. The mailing must be for the purpose of execut-

ing the scheme. United States v. Mage, 414 U.S. 395

(1974). From the face of this indictment, the mailings are

not sufficiently closely related to the alleged scheme to

bring them within the mail fraud statute. The scheme to

defraud involved in this indictment was the tampering

with the employer-employee relationship existing between

Union Oil and Lauren Lee Smith and obtaining confiden-

tial geophysical data from Union Oil through its employee.

There is no allegation that the mails were employed in this

activity. The mailings made the subject of this indictment

all deal with the activities of Patrick Petroleum and its

operatives vis-a-vis the various Mississippi oil and gas

leases. Count One is based on a statement from a Larry

Bloomer to defendant Ronald Meeks, a Patrick Petroleum

employee, for services and expenses in Hancock County,

Mississippi. Count Nine is based on the mailing of a mem-

crandum from Ronald Meeks to Charles Robinson which

referred to acreage in Issaquena County, Mississippi,

which was about to go on sale. Count Fourteen is based

upon an offer to sell Mississippi acreage sent by Ronald

Meeks to Union Oil. These counts are representative of the

other mail fraud counts charged in the indictment.

In United States v. La Ferriere, 546 F.2d 182 (5th Cir.

1977), the Court stated that the close relation of the mail-

ings to the scheme (required by United States v. Maze,

supra) “does not turn on time or space, but the dependence

in some way of the completion of the scheme or the pre-

vention of its detection on the mailings in question.” Id. at

187. In United States v. Brickey, 296 F.Supp. 742 (E.D.

Ark. 1969), the Court explained the close relation required

in the following manner:

“Regardless of the particular language that a par-

ticular court may use in deseribing the necessary

connection between the fraud and the use of the mails,

it seems clear in the context of a criminal prosecution

24a

that the connection must be real and proximate, not

merely abstract or remote.” at 748.

It is readily apparent that the scheme to defraud Union

Oil of the honest services of Lauren Smith and to obtain

Union Oil’s secret geophysical data was in no way fur-

thered or connected with the mailings made the basis of

this indictment. Those mailings all related to the activities

of Patrick Petroleum in acquiring oil and gas leases in

Mississippi. Although the indictment alleges a continuing

scheme of channeling confidential data to Thomas Kent and

then to Patrick Petroleum, each and every mailing alleged

in the indictment was remote from the misappropriation

of the data and the defalcation of the Union Oil employee.

Therefore, it is

ORDERED that the indictment be dismissed.

DONE at Houston, Texas, this 10th day of October,

1978.

/s/ Ross N. Sterne

United States District Judge

25a

APPENDIX C

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

Unrrep States or America, Plaintiff-Appellant,

v.

WuuiaM THomas KENT, Patrick PetroLEuM CORPORATION

or Micuican, CHarLes Doucias Rosinson, Ronaup LamMarg

MEEKs, AND Lauren Lee Smits, Jr., Defendants-Appellees.

No. 78-3438.

Dec. 17, 1979.

Appeal from the United States District Court for the

Southern District of Texas.

Before Tsoruat and Vance, Circuit Judges, and ALLGoop,

District Judge.*

Vance, Circuit Judge:

The government appeals the dismissal of an indictment

for mail fraud, 18 U.S.C. §§ 1341 and 2, and conspiracy to

commit mail fraud, id. § 371, charged against Lauren Lee

Smith, Jr., William Thomas Kent, Patrick Petroleum Corp.

of Michigan, Charles Douglas Robinson, and Ronald Lamar

Meeks. These charges arose from the alleged defalcation

by Smith, receipt by Kent, and use by the other appellees

of confidential geophysical data belonging to Smith’s em-

ployer, Union Oil Co. of California. We find the indictment

sufficient and reverse the order of dismissal.

* District Judge of the Northern District of Alabama, sitting by

designation.

26a

I.

The indictment alleged that Smith, as a draftsman em-

ployed by Union Oil, had access to confidential documents

concerning petroleum resources in the state of Mississippl.

These documents included well completion reports, develop-

ment well analysis, prospective well locations, recommended

Union Oil bids, and related information. This material had

been prepared for Union Oil by its employees, and Smith’s

employment agreement prohibited his disclosure of the

company’s confidential property.

Smith, Kent, Patrick Petroleum, Robinson, who was its

vice president in Michigan, and Meeks, who was Patrick

Petroleum’s division land agent in Texas, allegedly “de-

vised a scheme and artifice to defraud the Union Oil Com-

pany.” This scheme consisted of fraudulently depriving

Union Oil of “(a) its right to have its business and affairs

conducted honestly ... ; (b) its right to the conscientious,

loyal, honest . . . performance of duties by... SmirH...

free from... fraud; and (c) its property and secret profits

obtained by ... Smrra....” The alleged scheme involved

not only the fraudulent acquisition of Union Oil’s property,

but also the use of that property. Kent allegedly paid

Smith to provide geological data, investment recommen-

dations, and other confidential information, and then trans-

mitted it to Patrick Petroleum, Robinson, and Meeks. Pat-

rick Petroleum, Robinson, and Meeks allegedly used the

purloined data to obtain leases for Patrick Petroleum,

through hired real estate brokers in those areas where

Union Oil had acquired or was seeking to procure leases.

They then paid Kent a commission and assigned him an

overriding royalty interest, and accomplished this through

checks and assignments made to J. J. Paul and Harold

Gray. Kent paid Smith a percentage of these commissions.

The first fifteen counts of the indictment incorporate the

foregoing allegations and each describes one use of the

mails in executing the fraudulent scheme. Counts 5, 6, 7, 9

27a

and 12 allege that Smith, Kent, Patrick Petroleum, Robin-

son, and Meeks used the mails to send letters or memo-

randa between Robinson in the Michigan office and Meeks

in the Texas office concerning oil leases of Mississippi

property. Counts 1 through 4 and 11 charge that they used

the mails to receive statements from the real estate brokers

for their services and expenses in acquiring oil leases.

Counts 5, 8, 12 and 13 allege that the five co-schemers used

the mails to send checks to those brokers and accompanying

memoranda to Robinson or Meeks. Counts 6, 8, 10, and 13

charge that they used the mails to send commission checks

or royalty interest assignments to J. J. Paul or Harold

Gray upon leasing oil property. Counts 14 through 16

allege that Kent, Patrick Petroleum, Robinson, and Meeks

used the mails to send offers from Meeks or third parties

to sell to Union Oil a part interest in some Patrick Pe-

troleum leases.’ Finally, count 17 charges that those four

appellees conspired to use the mails to further this fraudu-

lent scheme and artifice, and lists overt acts that include the

events already mentioned, receiving stolen maps from

Smith, holding meetings between Kent and Meeks to dis-

cuss leases, and instructing the brokers to lease particular

oil properties.? These counts correspond to the theory that

the appellees used Smith’s data stolen from Union Oil to

plan oil leases, used real estate brokers to obtain the leases,

gave a commission and royalty interest to Kent upon ac-

quiring leases, and made an offer to sell the oil rights to

Union Oil, all following their entry into a scheme or artifice.

Smith entered a plea of guilty to count 11, and, if he per-

sists in that, the government will dismiss the other counts

against him. The district court dismissed all seventeen

counts of the indictment because it found the mailings to be

The actual wording of the indictment charged that they ‘‘know-

ingly’’ or ‘‘willfully’’ used or ‘‘caused’’ the use of the mails.

? Each count of the indictment except the last also alleged

responsibility as a principal to the mail fraud. 18 U.S.C. § 2.

28a

only incidental to the fraudulent scheme charged. United

States v. Kent, 457 F.Supp. 982 (S.D. Tex. 1978).

Il.

An indictment is sufficient if it contains ail the elements

of the alleged offense. United States v. Lester, 541 F.2d

499, 501-502 (5th Cir. 1976); United States v. Mann, 517

F.2d 259, 266-267 (5th Cir. 1975), cert. denied. 423 US.

1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). Indictment for

mail fraud under 18 U.S.C. § 1341 requires (1) a scheme to

defraud (2) which involves a use of the mails (3) for the

purposes of executing the scheme. United States v. Shry-

ock, 537 F.2d 207, 209 (5th Cir. 1976), cert denied, 429

U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977) ;? see United

States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 38 L.Ed.2d

603 (1974).*

In the present case the district court erred in delineating

8 An implicit element of mail fraud is a specific intent to commit

fraud. United States v. Vasilios, 598 F.2d 387, 392 (5th Cir. 1979) ;

United States v. Foshee, 569 F.2d 401, 403 (5th Cir.), modified on

other grounds, 578 F.2d 629 (5th Cir. 1978). Because the statute

does not expressly mention intent, an indictment for mail fraud

need not specifically charge the necessary specific intent. United

States v. Behrman, 258 U.S. 280, 288, 42 S.Ct. 303, 66 L.Ed. 619

(1922) ; United States v. Lester, 541 F.2d 499, 501 (5th Cir. 1976).

In any event, the indictment under challenge here actually did

allege intent by charging that each mailing was done ‘‘knowingly’’

or ‘‘willfully.’’ See United States v. Kelley, 546 F.2d 42, 42-43 (5th

Cir. 1977). We therefore reject appellees’ argument that the in-

dictment was insufficient because it omitted intent.

*These three requirements should preclude federal prosecutors

from reaching fraudulent transactions only incidentally involving

the mails, because such schemes should be prosecuted under state

laws, Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 89 L.Ed.

88 (1944) ; United States v. Edwards, 458 F.2d 875, 880 (5th Cir.),

cert. denied sub nom. Huie v. United States, 409 U.S. 891, 93 S.Ct.

118, 34 L.Ed.2d 148 (1972), or new federal legislation, United

States v. Maze, 414 U.S. at 405 n. 10, 94 S.Ct. 645.

29a

the scope of the alleged fraudulent scheme. As the lower

court characterized it, the scheme involved only the “mis-

appropriation of the data and the defalcation of the Union

Oil employee.” The indictment, however, alleges that the

scheme being prosecuted involved more than a fraudulent

acquisition. It charges that the scheme necessarily included

Kent’s acquisition of the purloined information, his sale of

the data to Patrick Petroleum, its use of the data to acquire

leases, and its attempted sale back to Union Oil and to

others ° of part interests in the lease. Use of the purloined

data was part and parcel of the scheme alleged.

Because the district court misunderstood the scope of

the alleged fraudulent scheme, it erred in determining that

the purpose of the mailings charged was not to execute the

fraudulent scheme:

(T]he scheme to defraud Union Oil of the honest serv-

ices of Lauren Smith and to obtain Union Oil’s secret

geophysical data was in no way furthered or con-

nected with the mailings made the basis of this indict-

ment. Those mailings all related to the activities of

Patrick Petroleum in acquiring oil and gas leases in

Mississippi. .. . [E]very mailing alleged in the indict-

ment was remote from the misappropriation of the data

and the defalcation of the Union Oil employee.

United States v, Kent, 457 F.Supp. at 983-84. We conclude,

contrary to the district court, that the mailings could be

found to have been “for the purpose of executing such

scheme or artifice or attempting so to do,” 18 U.S.C. § 1341.

5 The appellees’ responsibility for the mailings was also sufficient-

ly alleged. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct.

358, 98 L.Ed. 435 (1954); United States v. Toney, 598 F.2d 1349,

1355 (5th Cir. 1979).

30a

The requisite statutory purpose exists if the alleged

scheme’s completion could be found to have been dependent

in some way upon the information and documents passed

through the mails, compare United States v. LaFerriere,

546 F.2d 182, 187, 187 n. 6 (5th Cir. 1977) with Umted

States v. Johnston, 547 F.2d 282, 284 (5th Cir.), cert. denied,

431 U.S. 942, 97 S.Ct. 2660, 53 L.Ed.2d 261 (1977), and if

the use of the mails was “an integral part of the scheme to

defraud,” compare United States v. Melvin, 544 F.2d 767,

775 (5th Cir. 1977) with United States v. Netterville, 553

F.2d 903, 910 (5th Cr. 1977), cert. denied, 434 U.S. 1009, 98

S.Ct. 719, 54 L.Ed.2d 752 (1978). See United States v. Maze,

414 U.S. at 399-403, 94 S.Ct. 645.° This test of denendence

does not demand that the use of the mails rather than of a

private messenger or other means was itself essential to the

fraudulent scheme or that “the success of the scheme ac-

tually depended on the mailings in a ‘but for’ sense.”

United States v. LaFerriere, 546 F.2d at 188 n. 6. Accord,

United States v. Buchanan, 544 F.2d 1322, 1325 (5th Cir.

1977). It instead requires that the thing mailed was an in-

tegral part of execution of the scheme so that the use of

the mails was in this way “incident to an essential part of

the scheme.” Periera v. United States, 347 U.S. 1, 8, 74

S.Ct. 358, 362, 98 L.Ed. 435 (1954). Accord, United States

v. Buchanan, 544 F.2d at 1325.

The dependence test is not met if use of the mails is made

after the scheme has been fully consummated, but a fraudu-

lent scheme may depend on a mailing even after the de-

frauders have received the sought-after money or docu-

® The dependence test is not met if the ‘‘use of the mails is only

collateral or incidental to the scheme, or made after the scheme

has been fully consummated or has ‘reached fruition.’ ’’ Hender-

son v. United States, 425 F.2d 134, 141 (5th Cir. 1970). Accord,

Parr v. United States, 363 U.S. 370, 390-91, 393, 80 S.Ct. 1171, 4

L.Ed.2d 1277 (1960). EF. g., United States v. Maze, 414 U.S. 395,

94 S.Ct. 645, 38 L.Ed.2d 603 (1974).

ORT LT AOE

ee

3la

ments, because “the use of the mails after the money is

obtained [or documents stolen] may be for the purpose of

executing the fraud. United States v. Ashdown, 509 F.2d

793, 799 (5 Cir. 1975).” United States v. Zweig, 562 F.2d

962, 964-65 (5th Cir. 1977). This is another way of saying

that the scheme may embrace more than just fraudulent

acquisition of money or documents. E. g., United States v.

Bright, 588 F.2d 504, 508 (5th Cir. 1978), cert. denied, 440

U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979) (not just

forgery of a will but appointing a co-schemer as the estate’s

attorney and guiding the forged will through probate;

United States v. Becker, 569 F.2d 951, 964 (5th Cir. 1978)

(not just sale of fraudulent options but the purchaser’s

subsequent exercise of those options).

The fraudulent scheme involving the acquisition and use.

of Union Oil’s property charged in the indictment in this

case could be found dependent on the documents mailed:

the instructions mailed to real estate brokers to enter par-

ticular leases, the payments mailed to those brokers for

services, the commissions and royalty assignments mailed

indirectly to Kent to obtain the stolen data, and the offer

mailed to Union Oil to sell it a part interest. These mailings

were not incidental to the scheme if the materials mailed

were integral to the plan’s execution. As characterized in

the indictment, the mailings were not made after fruition

of the fraud, but were necessary to complete the scheme.

United States v. Zweig, 562 F.2d at 964-65; United States

v. Ashdown, 509 F.2d at 799. Because the appellees’ scheme

could be found dependent on the mailings charged in the

indictment, we conclude that the indictment for mail fraud

should not have been dismissed by the district court.’ Cf.

Abbott v. Umited States, 239 F.2d 310, 313-315 (5th Cir.

* We also believe that the indictment for acting as a principal to

the mail fraud, 18 U.S.C. § 2; see note 2 supra, for the same reason

, should not have been dismissed.

32a

1956) (scheme furthered by mailings between oil company

employees who sold confidential geophysical information

and recipient who bought oil leases).*

III.

The basis for the offense of conspiracy to commit mail

fraud, 18 U.S.C. § 371, is “an agreement to use the mails to

defraud.” Pereira v. United States, 347 U.S. at 11, 74 8.Ct.

at 364. Accord, United States v. Netterville, 553 F.2d at

908-09. This offense also requires implication of each ap-

pellee in the conspiracy. United States v. Becker, 569 F.2d

at 961; United States v. Netterville, 553 F.2d at 911. In the

instant case, appellees *® could be found to have conspired in

a fraudulent scheme dependent on documents and informa-

tioned mailed. The indictment for conspiracy to commit

mail fraud should not have been dismissed, for the same

reasons that the Supreme Court reversed dismissal of an

indictment in Sampson.

At the time the trial court dismissed the substantive

counts it also dismissed the conspiracy counts without

stating additional reasons. . . . Since the conspiracy

count on its face, like the substantive counts on their

8 As Justice Black concluded in a similar mail fraud case,

[T]he indictment in this case alleged that the defendants’

scheme contemplated from the start the commission of fraudu-

lent activities which were to be and actually were carried out

both before and after the money was obtained from the victims.

... We cannot hold that such a deliberate and planned use of

the United States mails by defendants . . . to be ‘‘for the

purpose of executing’’ a scheme within the meaning of the

mail fraud statute. For these reasons, we hold that it was error

for the District Court to dismiss these . . . substantive counts.

United States v. Sampson, 371 U.S. at 80-81, 83 S.Cv. at 176

(emphasis added).

® Smith was not charged in the conspiracy count.

33a

faces, properly charges a separate offense against each

of the defendants, it was also error to dismiss the

conspiracy count.

371 U.S. 75, 81, 83 S.Ct. 173, 176, 9 L.Ed.2d 136 (1962).

REVERSED AND REMANDED.