Petition — Milestone v. United States

Supreme Court, U. 8.

rite

AUG2 0 1980

No. BR 0 ie 2 6 0 MICHAEL RODAK, JK., Gils

Supreme Court of the United States

|

OCTOBER TERM 1980

PHILIP MILESTONE,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT ‘

PETITION FOR WRIT OF CERTIORARI

JACOB KOSSMAN

1325 Spruce Street

Philadelphia, Pa. 19107

(215) 735-5085

Counsel for Petitioner

DICK BAILEY PRINTERS, 290 RICHMOND AVE., S.J., N.Y. 10302

TELEPHONE: (212) 447-5358

QUESTION PRESENTED

Whether the indictment against petitioner was un-

constitutionally amended, after the grand jury had charged:

an offense under 18 U.S.C. §201(b)(1) by a single payment

of money with alleged intent to influence both of two in-

dependent and unrelated income tax proceedings, each

within a separate Internal Revenue Service Division and

each in the hands of a different IRS employee, when the trial

court amended the indictment and eliminated the allegation

that the payment had been made with intent to influence

the agent in charge of that proceeding.

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all par-

ties to the proceeding in this Court.

TABLE OF CONTENTS

Page

PPT rer eee

PRED 90 CW PHOQROGING co. icc cc ciiccvvevencstiohccmesbns

| PPO MTPTTTTT TTT Cer RT i ee 1

THAASMONE OF JUTOICTION «0... ccccsaccccrceoeveenenens 1

Constitutional Provision Involved ...........600e eee 2

NS A PR IONO s cccccvccncngcasess vada eNONE 2

Reasons for Allowance of the Writ of Certiorari....... 5

1. The Court of Appeals Below Has Decided a

Federal Question in a Way in Conflict With Ap-

plicable Decisions of this Court .............65. 5

ll. The Court of Appeals Below Has Decided Impor-

tant Questions of Federal Law Which Have Not

Been, But Should Be, Settied By This Court...... 9

CD. S'picch cet cpvces ancheswesesenentaan Green 15

Appendices:

Appendix A — Opinion of the United States Court of

Appeals for the Third Circuit .......... ccc cece ee ees la

PRONE BD — JUGATION oc ccccccccccccvccscceceste 12a

Appendix C — Oral Opinion of District Court......... 14a

iii

Table of Cases:

Ex parte Bain, 121 U.S. 1(1887)........ cece ee

Ford v. United States, 273 U.S. 593 (1927).....

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

Salinger v. United States, 272 U.S. 542 (1926).

Stirone v. United States, 361 U.S. 212, 217

EN ET NIN ae Se A Oe See Le ae Di a gli

United States v. Cirami, 510 F.2d 69, 72 (2d

Cir.), cert. denied, 421 U.S. 964(1975)........

United States v. Edwards, 465 F.2d 943, 950

NL, WEEE 3 bin kk oad ku.idallon ova hes Chea ae oc

United States v. Hayes, 464 F.2d 1252 (5th Cir.

WEN on 9 nd cid LAR EEA eoh eae aeenas

United States v. Milestone, 591 F.2d 1337, cert.

denied, 100 Sup.Ct. 47 (Oct. 1, 1979) .........

United States v. Norris, 281 U.S. 619 (1930)...

6,14

iv

Other Authorities:

United States Constitution

ry ae os Cd's veces bb ekb bee

United States Code

18 U.S.C. Section 201(b)(1)............00 0,

18 U.S.C. Section 201(b)(2)........... 0c eee

28 U.S.C. Section 1264(1)........eceeeeees |

ss MIEN ED viv ccasceveccccvcedpes

Federal Rules of Criminal Procedure

ee ac. tc a sone tne ce ueunee ache

1

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

PHILIP MILESTONE,

Petitioner,

We

UNITED STATES OF AMERICA,

Respondent.

, ;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petition for Writ of Certiorari

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit below is not yet reported. A copy of that

court’s opinion is attached as Appendix A. The opinion of

the District Court below was delivered orally and is attached

as Appendix C.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit below was filed on June 30, 1980 (Appen-

2

dix B). The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).,

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution of the United

States provides:

no person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or in-

dictment of a Grand Jury.

STATEMENT OF THE CASE

This post-conviction proceeding, under 28 U.S.C.

§ 2255, challenges the validity of the judgment against peti- .

tioner in a criminal prosecution in the United States District

Court for the Eastern District of Pennsylvania.

Petitioner was convicted on one count of a four-count

indictment. The count upon which petitioner was found

guilty is substantially different from the true bill returned by

a grand jury,

Count Ill, as endorsed by the grand jury foreman, alleg-

ed that petitioner had corruptly paid $200.00 to Arnold R.

Small, an officer in the Internal Revenue Collection Division,

with intent to influence Officer Small on a matter regarding

collection of delinquent taxes, and with intent to influence

Robert A. Mastrogiovanni, an Agent in the IRS Audit Divi-

sion, on a different matter then pending before Agent

Mastrogiovanni. Although conjoined by the grand jury in

“harging an offense, the two IRS proceedings were indepen-

dent and unrelated to each other. Officer Small’s task was

to collect unpaid taxes on petitioner's 1971 and 1972 in-

come. Agent Mastrogiovanni’s duty was to investigate peti-

tioner’s tax returns for 1974 and 1975.

The third count of the indictment was as follows:

3

THE GRAND JURY FURTHER CHARGES:

That on or about November 16, 1977, at

Philadelphia, in the Eastern District of Pennsylvania,

PHILIP MILESTONE corruptly did, directly and indirect-

ly, give a thing of value, that is, money in the amount

of approximately two hundred dollars ($200.00) to Ar-

nold R. Small, an officer and employee of the United

States Department of the Treasury, to wit: a Revenue

Officer of the Internal Revenue Service, with intent to

influence the said Arnold R. Small’s decision and action

on a question and matter then pending before him in his

official capacity in respect to the collection of delin-

quent taxes owed by PHILIP MILESTONE and Madeline

Milestone, his wife, and the reaching of a Part Payment

Agreement between the said PHILIP MILESTONE and

Madeline Milestone, his wife, and the Internal Revenue

Service, and with intent to influence the decision and

action of Robert A. Mastrogiovanni in his official

capacity and in respect to an Internal Revenue Service

audit for the tax liability of PHILIP MILESTONE and

Madeline Milestone, his wife, for the calendar years

1974 and 1975.

In violation of Title 18, United States Code, Sec-

tion 201(b)(1) and 2.

Count Ill of the indictment thus charged that petitioner

had paid money to influence Officer Small’s actions in the

matter of a tax delinquency for two years and to influence

Agent Mastrogiovanni's actions in the matter of an audit of

petitioner's tax returns for two other years. To convict

under Count Ill, as formed by the grand jury, the trial jury

would have to conclude that the single payment had been

made to affect both proceedings. In a pretrial hearing, the

District Court so ruled. (Hearing, April 28, 1978, Transcript

p. 9).! !

‘See also /d. at pp. 17-18, transcript lodged in court below.

4

Three days later, on the first day of the trial, the indict-

ment was amended. All reference to the audit proceedings

and the allegation of intent to influence Agent

Mastrogiovanni were stricken.

“‘In Count Ill of the indictment, we would ask to

delete the last section which begins. . . line 8 from the

bottom, startine with ‘‘and with intent to influence the

decision and action of Robert Mastrogiovanni.'’ (He 'r-

ing, May 1, 1978, Transcript pp. 4-5).

Counsel for petitioner acquiesced to the Government's mo-

tion. Indeed, he had previously moved to have this count

dismissed because of duplicity and surplusage. The District

Court ordered that the indictment be amended.

Count Ill, as amended, read:

THE GRAND JURY FURTHER CHARGES:

That on or about November 16, 1977, at

Philadelphia, in the Eastern District of Pennsylvania,

PHILIP MILESTONE corruptly did, directly and indirect-

ly, give a thing of value, that is, money in the amount

of approximately two hundred dollars ($200.00) to Ar-

nold R. Small, an officer and employee of the United

States Department of the Treasury, to wit: a Revenue

Officer of the Internal Revenue Service, with intent to

influence the said Arnold R. Smalls decision and action

on a question and matter then pending before him in his

official capacity in respect to the collection of delin-

quent taxes owed by PHILIP MILESTONE and Madeline

Milestone, his wife, and the reaching of a Part Payment

Agreement between the said PHILIP MILESTONE and

Ma.'esline Milestone, his wife, and the Internal Revenue

Service.

In violation of Title 18, United States Code, Sec-

tion 201(b)(1) and 2.

Trial was conducted on the amended indictment, which

5

contained four counts. Count | and Ii charged petitioner and

a co-defendant with making payments to influence the ac-

tion of Agent Mastrogiovanni. Count IV charged petitioner

and a co-defendant with conspiracy to bribe both Agent

Mastrogiovanni and Officer Small. Oveart act number 8

under Count IV recited the same $200.00 payment that is

the substance of Count Ill. The jury found petitioner not

guiulty of the charges in Counts |, Il and IV. The only guilty

verdict was rendered on amended Count Ill, where all

reference to the audit proceedings and Agent

Mastrogiovanni had been stricken from the indictment.

The district court sentenced petitioner to imprisonment

for a term of two years and to a fine of $10,000.00. On

direct appeal, the court of appeals for the third circuit af-

firmed, United States v. Milestone, 591 F.2d 1337, and

this Court denied certiorari. 100 Sup. Ct. 47 (Oct. 1,

1979).

The question presented in this §2255 proceeding is dif-

ferent from the matters raised on direct appeal by former

counsel for petitioner. The district court (Van Artsdalen,

D.J.) held a hearing on petitioner’s motion to vacate

sentence. At the conclusion of the hearing, the motion was

denied. Appendix C infra.

The United States Court of Appeals for the Third Circuit

(Aldisert, Weis, and Garth, C.JJ.) affirmed in an opinion by

Judge Weis. Appendix A infra.

REASONS FOR ALLOWANCE OF THE

WRIT OF CERTIORARI

|. The Court of Appeals Below Has Decided a Federal

Question in a Way in Conflict With Applicable Deci-

sions of this Court.

The Constitution of the United States Quarantees that

persons suspected of serious crimes canndt be placed on

6

trial unless a grand jury returns an indictment charging them

with specified offenses. The Fifth Amendment provides:

no person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or in-

dictment of a Grand Jury.

The constitutional impropriety of judicial amendment of a

grand jury’s indictment was announced by this Court in

1887. Ex parte Bain, 121 U.S. 1 (1887). Although ap-

proaching a hundred years old, the decision of this Court in

Bain retains its full vitality. This Court said in 1960, ‘’the

Bain case, which has never been disapproved, stands for

the rule that a court cannot permit a defendant to be tried on

charges that are not made in the indictment agé.nst him.’’

Stirone v. United States, 361 U.S. 212, 217 (196). And

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

States v. Norris, 281 U.S. 619 (1930).

The facts of the Bain case are strikingly similar to those

in the present case. Bain was charged with bank fraud by

making a false statement ‘‘with intent to deceive the Comp-

troller of the Currency and the agent appointed to examine

the affairs of the [banking] association.’’ 121 U.S. at 4. The

prosecution moved to strike the words ‘‘the Comptroller of

the Currency and’’ from the indictment, and the trial court

so ordered. The effect was to modify the indictment so that

the prosecution would have to prove only an intent to

deceive the agent appointed to examine the affairs of the

association, rather than carrying a burden of proving intent

to deceive that agent and the Comptroller of the Currency.

This Court held that the trial court's amendment

viulated the Constitution. The Court declared:

No authority has been cited to us in the American

courts which sustains the right of a court to amend any

part of the body of an indictment without reassemblin

the grand jury... . [T]he institution [of the grand jury

was adopted in this country, and is continued from

7

considerations similar to those which gave to it its

chief value in England, and is designed as a means, not

only of bringing to trial persons accused of public of-

fences upon just grounds, but also as a means of pro-

tecting the citizen against unfounded accusation,

whether it comes from the government, or be promp-

ted by partisan passion or private enmity.

121 U.S. at 8, 11.

The court of appeals below conceded that the decision

in Bain appears to be controlling in the present case, but

went on to find what it deemed to be distinguishable facts.

The Third Circuit declared that the statute under which Bain

was prosecuted did not make it an offense to act to deceive

the Comptroller of the Currency; in that court’s view, the

statute proscribed only deception of the Comptroller's

agent. Thus, said the third circuit, the allegafion with

respect to the Comptroller did not state an offense and was

surplusage.

There are two responses to the reasoning of the court

of appeals. First, the analysis that it made to exp/ain this

court’s decisicn is the precise analysis rejected by this court

in Bain:

The learned judge who presided in the Circuit

Court at the time the change was made in this indict-

ment, says that the court allowed the words ‘‘Comp-

troller of the Currency and’’ to be stricken out as

surplusage, and required the defendant to plead to the

indictment as it then read. The opinion which he

rendered on the motion in arrest of judgment, referring

to this branch of the case, rests the validity of the

court’s action in permitting the change in the indict-

ment, upon the ground that the words stricken out

were surplusage, and were not at all material to it, and

that no injury was done to the prisoner by allowing

such change to be made. . . . While it may seem to the

court, with its better instructed mind in regard to what

the statute requires to be found as to the intent to

deceive, that it was neither necessary nor reasonable

that the grand jury should attach importance to the fact

that it was the Comptroller who was to be deceived.

yet it is not impossible nor very improbable that the

grand jury looked mainly to that officer as the party

whom the prisoner intended to deceive by a report

which was made upon his requisition and returned

directly to him. As we have already seen, the statute

requires these reports to be made to the Comptroller at

least five times a year, and the averment of the indict-

ment is that this report was made and returned to that

officer in response to his requisition for it. How can the

court say that there may not have been more than one

of the jurors who found this indictment, who was

satisfied that the false report was made to deceive the

Comptroller, but was not convinced that it was made

to deceive anybody else? And how can it be said that,

with these words stricken out, it is the indictment

which Was found by the arand iury? If it lies within the

province of a court to change the charging part of an in-

dictment to suit its own notions of what it ought to

have been, or what the grand jury would probably have

made it if their attention had been called to suggested

changes, the great importance which the common law

attaches to an indictment by a grand jury, as a prere-

quisite to a prisoner's trial for a crime, and without

which the Constitution says ‘‘no person shall be held to

answer,’’ may be frittered away until its value is almost

destroyed.

121 U.S. at 9-10.

Thus, the first response to the court of appeals decision is

that it résts upon the rationale that this Court explicitly

reversed in Bain.

Even if the court of appeals were correct in its novel in-

terpretation of the statute involved in the Bain case, the

distinction makes the present case a more severe violation

of the Constitution. There can be no doubt that 18 U.S.C.

§201(b)(1) would make it a crime to bribe either Revenue

Officer Small or Revenue Agent Mastrogiovanni. An indict-

ment limited to either alone would not fall outside the

9

statute, in the manner that the court of appeals thought the

statute in Bain did not reach the Comptroller of the Curren-

cy. Therefore, the language stricken in the present case

cannot be described as immaterial or surplusage. We are left

with the same rhetorical questions that this Court put in the

Bain case: How can it be said that there may not have been

more than one of the jurors who found the indictment in the

present case, who was satisfied that the payment was

made to influence Agent Mastrogiovanni? How can it be

said that, with these allegations stricken out that petitioner

was tried on an indictment found by the grand jury? The

decision of the court of appeals fritters away the protection

of the Fifth Amendment and is in the teeth of the controlling

decision of this Court.

ll. The Court of Appeals Below Has Decided Important

Questions of Federal Law Which Have Not Been, But

Should Be, Settled By This Court.

Lower federal courts maintain that the decisions of this

Court that involve judicial actions with respect to indict-

ments are inconsistent, leaving the law in a confused state.

See, e.g., United States v. Cirami, 510 F.2d 69, 72 (2d

Cir.), cert. denied, 421 U.S. 964 (1975); United States v.

Edwards, 465 F.2d 943, 950 (9th Cir. 1972). The prin-

cipal decisions cited for this purpose are Ex parte Bain,

supra, on one hand, and Salinger v. United States, 272 U.S.

542 (1926), and Ford v. United States, 273 U.S. 593

(1927), on the other hand. The Cour: of Appeals below

mired itself in the supposed confusion between two lines of

cases that proceed from these decisions. It is timely and

proper that this Court again address the issues presented by

these cases so that any confusion inadvertently created by

them can be eliminated.

Ex parte Bain has been thoroughly discussed in the prior

section of this petition. Its relationship to the present case is

so clear that there ought not to be any spillover from Sa/

10

inger and Ford. Since the Court of Appeals was led astray, it

is necessary to review those decisions briefly in order to

understand why the lower courts have experienced difficul-

ty in following the determinations of this Court.

In Ford, the indictment charged defendants with con-

spiracy to violate the National Prohibition Act, the Tariff Act

of 1922, and a treaty between Great Britain and the United

States. Defendants contended that the indictment was in-

valid because of the references to the treaty, since the trea-

ty created no offense against the law of the United States.

This court agreed that the treaty could not be the basis of a

criminal charge, but held that the reference thereto in the in-

dictment could be treated as surplusage.

But it is contended that this is to amend the indictment

and comes within the inhibition of the principle of Ex

parte Bain, 121 U.S. 1. That decision condemns the

striking out of words from an indictment. The action

here complained of is merely a judicial holding that a

useless averment is innocuous and may be ignored.

273 U.S. at 602.

The prosecution in Salinger was for use of the mail to

execute a scheme to defraud. The indictment contained

several counts. All related to the same scheme, but each

count charged a distinct use of the mail for the purpose of

carrying out the scheme. Salinger was convicted on the

seventh count and acquitted on the others. The trial court

withdrew some charges from jury consideration because

they lacked any support in the evidence. This Court held

that there had been no violation of the Fifth Amendment.

The contention that the court, by withdrawing

from the jury a part of the charge as without support in

the evidence, amended the indictment and thereby pre-

vented it from longer serving as an accusation by a grand

jury is on no better plane than the [other arguments].

The indictment was not amended, either actually or in

legal effect. It remained just as it was returned by the

11

grand jury, and the trial was on the charge preferred in

it and not on a modified charge. After the evidence was

put in, the accused, believing that part of the charge

had no support in the evidence, requested that that

part be withdrawn from the jury; and the court acceded

to the request when the final instructions were given.

The scheme to defraud as set forth in the indictment

was manifold in that it comprehended several relatively

distinct plans for fleecing intended victims. What the

court withdrew from the jury was all of these plans but

one... . Whether this was right or wrong—as to which

we intimate no opinion— it did not work an amendment

of the indictment and was not even remotely an infrac-

tion of the constitutional provision that ‘‘no person

shall be held to answer for a capital or otherwise in-

famous crime unless on a presentment or indictment of

a grand jury.’’ ... In the case of Ex parte Bain, 121

U.S. 1, on which the accused relies, there was an ac-

tual amendment or alteration of the indictment to avoid

an adverse ruling on demurrer, and the trial was on the

amended charge without a resubmission to a grand

jury.

272 U.S. at 548-49.

It is apparent from these excerpts that the power of trial

courts to deal with indictments could be more clearly

stated. This Court should eliminate the possibility that the

controlling factor is the form in which the trial court acts.

Some language in Sa/inger suggests that a trial court is pro-

hibited from deleting language from an indictment, but may

accomplish the same result by instructions to the jury to

disregard part of the indictment. Surely this is not a result

intended by this Court. Constitutional rights, including the

Fifth Amendment right involved in this case, are not subject

to manipulation by formal means.

As is plainly apparent from the opinion in Salinger, the

fraudulent scheme charged by the grand jury was

‘‘manifold.’’ It had several a/ternate forms. Where alter-

native theories of fraud are properly charged by the grand

jury, it is not a violation of the Fifth Amendment for the trial

12

court to eliminate those theories for which the evidence at

trial lacks support. :

Similarly, if the grand jury includes in the indictment

factual allegations that do not state an offense or legal

references that do not define a crime, a trial court is not

tampering with the indictment when this surplusage is

removed.

However, where the grand jury has structured an in-

dictment to couple allegations, not as alternatives but as

cumulative factual statements of an offense, a trial court

lacks power to amend the indictment by striking one branch

of those factual allegations. Equally, the trial court lacks

power to accomplish that result by an instruction to the jury

at the close of the evidence. The district judge in this case

recognized the principle when he declared before trial that

the prosecution would have to prove intent to influence

both IRS employees if the case went forward on the indict-

ment returned by the grand jury, However, the district court

and the court of cppeals both failed to recognize the mean-

ing of Bain which precludes such truncating of an indict-

ment by deleting material factual averments, included by a

grand jury.

The premise of the third circuit below is that any

language may be stricken from an indictment, no matter

how important the deleted matter may have been to the

grand jury, if the remainder contains a legally sufficient

allegation of an offense. In the view of that court, this ‘‘nar-

rows’’ the charge against a defendant, thus presumably

working to his benefit. What remains is, according to the

court's theory, still the act of the grand jury. This view,

whatever its merits in other circumstances, is plainly inap-

posite when the grand jury has framed its indictment by

conjoining factual averments. The grand jury charged peti-

tioner with an effort to influence a revenue officer and a

revenue agent, each dealing with a separate tax matter. It is

plainly easier for the government to prove only half of that

13

charge. Indeed, on three counts, which alleged attempts to

influence agent Mastrogiovanni, the petit jury acquitted.

What the court of appeals described as ‘‘narrowing’’ of the

charge obviously involved a substantial disadvantage to the

defendant. When, as here, the altered indictment exposes a

defendant to hazards greater than those created by action

of a grand jury, the substantive guarentee of the Fifth

Amendment is violated.

This Court has not spoken to the issues presented here

in many years. The problem is one of frequent recurrence in

the lower federal courts. It is a matter of fundamental con-

cern to defendants in criminal cases. The confusion that the

Courts of Appeals have perceived in this area should be

dealt with promptly.’

A subordinate issue should also be given authoritative

interpretation by this Court. The court below refers to the

?The confusion expressed by lower federal courts is found in

even more virulent form in the Department of Justice, as il-

lustrated by the submissions in the court below. In a post-

argument letter to the court, the Government declared:

Although the Supreme Court stated in Stirone v. United

States, 361 U.S. 212, 217 (1960), that the strict prohibi-

tion against amendments to indictments as set forth in Ex

parte Bain has never been disapproved, it is difficult, if not

impossible, to reconcile Ford and Salinger with Ex parte

Bain, .. . The government believes that the proper analysis

of the cases following Ex parte Bain is that Bain has been

overruled sub silentio by Ford and Salinger.

Any other conclusion would undermine much if not all of

the current law in this and other circuits regarding amend-

ments and variances (lodged in the clerk's office in the court

below).

Department of Justice attorneys are responsible to provide legal

assistance to grand juries. When those attorneys are as confused

as this submission ‘indicates, it is important that this Court in-

tervene promptly to avoid further serious damage to the system of

justice.

14

so-called ‘‘liberalizing effect’’ of the provision for waiver of

indictment in Rule 7(b) of the Federal Rules of Criminal Pro-

cedure. The Federal Rule makes plain, of course, that only

the defendant himself can agree to forego the protection of a

grand jury, and then after being advised of his rights in open

court. No such waiver occurred in this case. Nonetheless,

the courts below seek to find some comfort for their deci-

sions in the failure of defense counsel to object to the pro-

secution’s motion to amend the indictment.

Absence of contemporaneous objection by defense

counsei is not significant. Even if defense counsel had ex-

pressly agreed to the amendment, it would not avail the

Government. United States v. Norris, 281 U.S. 619 (1930). Im-

proper amendment of an indictment can be presented by motion

to vacate sentence under §2255 even though there was no objec-

tion at trial. United States v. Hayes, 464 F.2d 1252 (Sth Cir.

1972). Nothing in the Federal Rules of Criminal Procedure

undermines the holding in the Norris case.

Indeed, on the main issue presented by this petition, the

Rules of Criminal Procedure provide support by analogy in the

requirements for amendment of an information. Rule 7(e) pro-

vides:

The court may permit an information to be amend-

ed at any time before verdict of finding if no additional

or different offense is charged and if substantial rights

of the defendant are not prejudiced.

Petitioner, who never waived the right to indictment, was

put on trial for an offense different from that charged by the

grand jury, and petitioner's substantial rights were

manifestly prejudiced.

15

CONCLUSION

For the foregoing reasons, petitioner respectfully sub-

mits that a writ of ceritorari should be issued to review the

decision of the United States Court of Appeals for the Third

Circuit in this case.

Respectfully submitted,

JACOB KOSSMAN, ESQ.

1325 Spruce Street

Philadelphia, Pa. 19107

(215) PE 5-5085

Counsel for Petitioner

la

APPENDIX A

Opinion of the United States Court of

Appeals for the Third Circuit

No. 79-2782

UNITED STATES OF AMERICA, Appellee

v.

PHILIP MILESTONE, Appe//ant

* e+ te He HH

WEIS, Circuit Judge.

One count of a federal indictment charged bribery to af-

fect the acts of two officials, but at pretrial, the prosecution

elected to prove conduct only as to one. The trial court per-

mitted an alteration of the indictment to that effect. We

conclude that the modification did not constitute an amend-

ment to the indictment requiring grand jury approval. Ac-

cordingly we reject the petitioner’s contention to the con- .

trary and affirm a district court judgment denying a writ of

habeas corpus.

Petitioner sought postconviction relief under 28 U.S.C.

§2255 from his conviction of bribery with intent to in-

fluence an official act in violation of 18 U.S.C. §201(b)(1),

and aiding and abetting in violation of 18 U.S.C. §2. He

alleged that the indictment had been improperly amended,

that there was insufficient evidence of corruption, and that

the government had failed to disclose exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963).

After an evidentiary hearing, the district court denied the

petition.

2a

|

Petitioner's conviction resulted from an indictment con-

taining three substantive counts and one count of con-

spiracy for the bribery of two Internal Revenue agents. The

incidents occurred during an audit of petitioner's returns for

the years 1974 and 1975 by Internal Fevenue agent Robert

A. Mastrogiovanni and a simultaneous attempt by Revenue

Officer Arnold R. Small to collect delinquent taxes for the

years 1971 and 1972. A superseding indictment charged

in Count 1 that petitioner, together with his accountant,

hasd bribed Agent Mastrogiovanni. Count IV charged a con-

spiracy by petitioner and the accountant to bribe both of-

ficials. Counts Il and Ill alleged that Officer Small had been

bribed on two separate occasions to influence his decision

and that of Agent Mastrogiovanni.

Defense counsel filed a motion to dismiss Counts II and

''| because they were duplicitous. After a pretrial argument,

the government made an election on each of those counts.

In Count Il, the prosecution chose to assert that the bribe

was given to Small to influence the decision of

Mastrogiovanni. On Count Ill, the proof was to be that Small

received the bribe to affect his own decision. To accomplish

this result, the government moved to delete the language in

Count Il pertaining to the attempt to influence Small and in

Count Ill the wording applicable to Mastrogiovanni.

In response to the government motion to remove these

references, counsel for Milestone said: '’Well, your Honor,

that was my alternative request in my motion to dismiss to

strike that language as surplusage; and your Honor, | have

no objection to the Government making the election at this

time.’’ The court denied petitioner’s motion to dismiss, but

ganted the government's motion for election.

At the conclusion of the trial, a redacted version of the

indictment was sent out with the jury for its use in the

course of its deliberation. The jury convicted the petitioner

on Count Ill, but found him not guilty on the other counts.

On direct appea:, the conviction was affirmed. United

3a

States v. Milestone, 591 F.2d 1337 (3d. Cir.), cert. denied,

___U.S., _ 48 U.S.L.W. 3218 (U.S. Oct. 1, 1979).

In this §2255 proceeding, petitioner alleges that the in-

dictment was impermissibly amended, and, having failed to

secure the assent of the grand jury to the change, the court

lacked jurisdiction to convict the defendant. The petition

also contends that the evidence was insufficient because

Milestone had simply given money to the officer without an

agreement of any kind. The third asserted ground for relief

is that the government — but not the prosecutor personally

— failed to disclose to the defense that Officer Small, who

testified at trial, had been officially charged with various

derelictions of duty by the Internal Revenue Service and

was being processed for dismissal.

The petition was assigned to the same district judge

who has__ presided over the trrial. After a hearing, he deter-

mined that the indictment had not been amended. He

analogized the election to several situations, including one

where an offense is charged conjunctively but either matter

would constitute a violation. In that situation, the court

reasoned, the government could present evidence as to

either theory and the case could be submitted to the jury on

that basis. Turning to the Brady claim, the trial judge found

that neither the prosecutor nor the defense attorney was

aware that official charges had been lodged against Officer

Small by the agency at the time he testified. But since the

government had informed the defense before trial about the

preliminary stages of Small’s difficulties with the Service

and the defendant did cross-examine the officer about the

matter, the court was convinced that there was no Brady

violation. The court did not discuss the insufficiency claim.

Preliminarily, we find that the trial court did not err in

the dismissal of the Brady claim, and we choose not to

discuss it further. Similarly, there is no basis in the record to

conclude that there was insufficient evidence to support the

4a

conviction. '

The issue most vigorously pressed or this appeal is the

alleged amendment of the indictment in violation of the prin-

ciple set out in the opinion in Ex parte Bain, 121 U.S. 1

(1887). That venerable case stands for the proposition that

after an indictment has been returned, its charges may not

be broadened through amendment except by the grand jury

itself. See Stirone v. United States, 361 U.S. 212,

215-217 (i960); United States v. Goldstein, 502 F.2d

526, 528-529 (3d Cir. 1974) (in banc). Bain discussed the

unique function of the grand jury and the constitutional right

to on indictment by that body. According to the Court, if the

charge on which the defendant stood trial was not the com-

plete product of the grand jury, then the trial court lacked

power to try and sentence him. Since this was a matter of

jurisdiction, it could be reviewed through a writ of habeas

corpus.’ Consistent with this view, it has been held that

1. Although we seriously question whether the insufficiency

of the evidence contention may be entertained in this §2255 peti-

tion when there has been a direct appeal, see United States v.

Williams, 615 F.2d 585, 590-91 (3d Cir. 1980); Battaglia v.

United States, 428 F.2d 957, 960 (9th Cir.), cert. denied, 400

U.S. 919 (1970), we nevertheless conclude that the claim is

without merit.

We note that present counsel did not represent petitioner

either at trial or on direct appeal.

2. When Bain was decided (1887), there was no right of ap-

peal in federal criminal cases. Review was secured through a writ

of habeas corpus, and was available only to correct jurisdictionoal

defects. The concept of jurisdiction as the necessary predicate for

cojlateral review of criminal matters continued long after direct

criminal appeals became available. Finally, in Waley v. Johnston,

316 U.S. 101 (1942), the Court abandoned the fiction that the

writ was limited to jurisdictional deficiencies. /d. at 104-05;

Wainwright v. Sykes, 433 U.S. 72, 78-79 (1977). See generally,

Hart, Foreward: The Time Chart of the Justices, 73 HARV. L.

REV. 84, 103-05 (1459).

5a

even if the defendant consented to an amendment, jurisdic-

tion would not be conferred on the court, see United States

v. Norris, 281 U.S. 619, 622-23 (1930); United States v.

Williams, 412 F.2d 625, 627 (3d Cir. 1969), although this

proposition is questionable today since Fed. R. Crim. P. 7(b)

permits a defendant to waive an indictment altogether in

noncapital cases.’

Rather than decide this appeal on a waiver basis, we

prefer to go to the merits. That requires that we analyze Ex

parte Bain, supra, a much quoted and much discussed deci-

sion. On first impression, that case appears to be controll-

ing, but close examination reveals that it is distinguishable

NOTE 2—Continued

This background suggests that Bain’s characterization of the

violation as jurisdictional may have been influenced by the Court's

perception of a tightly restricted habeas corpus remedy.

Whatever the reason, however, the jurisdictional categorization is

precisely what permits review of this §2255 petition. For

although petitioner did not raise this issue on direct appeal, col-

lateral review is available under § 2255 to correct jurisdictional er-

rors. See Thor v. United States, 554 F.2d 759, 762 (5th Cir.

1977).

3. Acknowledging the ‘‘liberalizing effect’’ that Ruie 7 has

had on Bain, see United States v. Auerbach, 423 F.2d 767 (5th

Cir. 1970) (per curiam), Professor Wright notes:

‘‘[T]here are occasional statements in the cases that an in-

dictment cannot be amended even with the consent of the

defendant. If taken literally these would be indefensible... .

When the other great rights protected by the Constitution,

such as right of counsel and right to trial by jury, are

waivable by the defendant, it would be quite surprising if the

right here in question could not be waived.’’

1C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE §127,

at 271-72 (1969 & Supp. 1979) (footnote omitted).

6a

on crucial factual grounds. There, the defendant was charg-

ed with a species of bank fraud, specifically, making a false

statement ‘‘with intent to deceive the Comptroller of the

Currency and the agent appointed to examine the affairs of

the association ....’’ 121 U.S. at 4. The statute under

which defendant was indicted, however, proscribed only

false statements made with intent to deceive ‘ ‘any officer

of the association, or any agent appointed to examine the

affairs of any such association.’’ /d. at 3. A cornpanion

statute, not the subject of the indictment, required that

reports be submitted periodically by the association to the

Comptroller.

In the trial court, defendant’s demurrer to the indict-

ment was sustained. Although the Supreme Court opinion

does not explain the reason for the trial judge’s ruling, ap-

parently it was based on the premise that the statute made

it an offense to deceive the agent appointed to examine

bank affairs but did not extend the proscription to the

Comptroller of the Currency. Thus, if the indictment re-

quired that the comptroller be deceived, no crime would be

charged and the defendant's demurrer was proper.‘

Following the favorable ruling to the defendant,

however, ‘‘on motion of the United States, by counsel, the

court order[ed] that the indictment be amended by striking

out the words ‘the Comptroller of the Currency and’ therein

contained.’ /d. at 5, quoting the record of the trial court

(emphasis from Supreme Court opinion). The indictment as

modified then did charge a crime under the statute — de-

ceiving the ‘‘agent.’’ Thus, the defendant who was out of

4. Apparently, the Bain trial court recognized the common

law rule that although a statute may enumerate various acts in the

disjunctive, the indictment should charge in the conjunctive. In

such a case, the accused may be found guilty of either allegation.

See 2 WHARTON’S CRIMINAL P’ “CEDURE §291 (12th ed.

1975).

Ta

court on his successful demurrer was brought back in by the

action of the trial judge in modifying the indictment.

If the case had been submitted to a petit jury under the

original indictment and a guilty verdict had been returned, it

could not have been sustained because the court could not

have known whether the jury believed that the comptroller

had been deceived (no crime), or whether the agent had

been misled (a crime under the statute). Cf. Government of

the Virgin Islands v. Richards F.2d ; (3d Cir.

1980); United States v. Dansker, 537 F.2d 40, 51 (3d Cir.

1976), (if one of two alternatives in a count entirely

negates guilt, then guilty verdict may not stand). That the

Supreme Court applied a similar rationale to the indictment

is brought out by Justice Miller’s observation: ‘“How can

the court say that there may not have been more than one

of the jurors who found this indictment, who was satisfied

that the false report was made to deceive the Comptroller,

but was not convinced that it was made to deceive anybody

else? And how can it be said that, with these words stricken

out, it is the indictment which was found by the grand

jury?’’ 121 U.S. 10.° Obviously, then, the words deleted by

the trial court were not mere surplusage but were of

substance — striking them revived an indictment that had

been moribund after the successful demurrer.

The Bain situation must be contrasted with the case at

hand. In Count Ill, the indictment originally charged that Of-

ficer Small received a bribe with intent to affect his decision

5. Later cases make it clear that this latter sentence is not to

be read too literally — e.g., surplusage may be deleted or ignored.

See Ford v. United States, 273 U.S. 593, 602 (1927).

8a

and that of Agent Mastrogiovanni.°® Petitioner contends that

just as in Bain, where the indictment required proof against

both the Comptroller and the agent, so did the grand jury im-

pose a similar dual burden upon the prosecution in the case

at hand. Therefore, argues the petitioner, this case cannot

be distinguished. Unlike Bain, however, both alternatives

here describe criminal violations.

The pertinent statute, 18 U.S.C. $201(b)(1),. reads in

relevant part: ‘‘Whoever ... corruptly gives ... anything

6. Count Ill, as found in the first indictment, reads in pertinent

part as follows:

‘‘That on or about November 16, 1977, at Philadelphia,

in the Eastern District of Pennsylvania, PHILIP MILESTONE

corruptly did, directly and indirectly, give a thing of value,

that is, money in the amount of approximately two hundred

dollars ($200.00) to Arnold R. Small. . . . a Revenue Officer

of the Internal Revenue Service, with intent to influence the

said Arnold R. Small’s decision and action on a question and

matter then pending before him in his official capacity .. .

and with intent to influence the decision and action of Robert

A. Mastrogiavanni [sic] . . . an Internal Revenue Agent, ona

question and matter then pending before Robert A.

Mastrogiavanni [sic] . . . in his official capacity... .

In violation of Title 18, United States Code, Section

201(b)(1) and (2).’’

The redacted Count Ill reads in pertinent part:

‘‘That on or about November 16, 1977, at Philadelphia, ,

in the Eastern District of Pennsylvania, PHILIP MILESTONE

corruptly did, directly and indirctly, give a thing of value, that

is, money in the amount of approximately two hundred

dollars ($200.00) to Arnold R. Small, . . . a Revenue Officer

of the Internal Revenue Service, with intent to influence the

said Arnold R. Small’s decision and action on a question and

matter then pending before him in his official capacity. .. .

In violation of Title 18, United States Code, Section

201(b)(1) and 2.’’

9a

of value to any public official . . . with intent — (1) to in-

fluence any official act... ‘’ shall be fined or imprisoned.

By its terms, the statute focuses on giving to influence any

official act, and whether the official act be one or many, one

crime is committed by the one gift. If the government prov-

ed intent to affect the decision of Small, of Mastrogiovanni,

or both, the statute would be violated, and the case could

be submitted to the jury under any of those possibilities.

The case, therfore, is not governed by Ba/n but is closer to

Salinger v. United States, 272 U.S. 542 (1926), which

allowed the trial court to withdraw part of a charge, and

Ford v. United States, 273 U.S. 593 (1927), where the

court was permitted to strike surplusage from an indictment

without impairing its validity.

Properly viewed, Bain and its progeny forbid two

general kinds of amendments to an indictment. First, Bain

prohibits any amendment that transforms an indictment

from one that does not state an offense into one that does.

This is the fact pattern of Bain itself and it directly im-

plicates the power of the court to try the defendant. The se-

cond improper alteration is seen in any change that tends to

increase the defendant's burden at trial. This was the situa-

tion in Stirone v. United States, supra, and it is proscribed

because it has the effect of undermining the notice function

of the indictment. See United States v. Crocker, 568 F.2d

1049, 1059-60 (3d Cir. 1977); United States v. Galdstein,

supra at 529.’ But not every change has such prejudicial ef-

fect — some alterations are permitted.

7. Stirone, a Hobbs Act prosecution, concerned an indictment

that alleged as its interstate commerce clause nexus shipments of

sand used to make concrete from outside Pennsylvania into that

state. At trial, the government proffered an alternate basis for

jurisdiction — the use of defendant’s concrete in a mill that

shipped steel products from Pennsylvania to other states. The

Court held that this was an impermissible amendment.

10a

The courts of appeals have given the Bain rule a similar,

practical reading. In Thomas v. United States, 398 F.2d

531 (5th Cir. 1967), for example, the court sustained the

action of the trial court in granting the government's motion

to strike from an indictment one of the objects of a conspir-

acy and several overt acts charged. The defendant argued

that these were allegations that the grand jury thought ©

necessary to include in voting a true bill against him. The

court held that Sa/inger, noi Bain, controlled and noted that

the effect of the court’s action was to narrow, rather than

expand, the issues the defendant was called upon to meet.

The same observation applies to the case sub judice. See

also United States v. Hall, 536 F.2d 313 (10th Cir.), cert.

denied, 429 U.S. 919 (1976); Overstreet v. United States,

321 F.2d 459 (5th Cir. 1963), cert. denied, 376 U.S. 919

(1964).°

NOTE 7—Continued

Interestingly, the Stirone explanation of Bain, see 361 U.S. at

216 n.2, fails to capture the essence of the latter's holding.

Stirone failed to mention the crucial fact that only under one alter-

native was Bain charged with an offense.

8. Defendant also argues that submission of a copy of the

redacted indictment to the jury was error. This contention is

without merit. See United States v. McCrane, 527 F.2d 906,

912-13 (3d Cir. 1975), vacated on other grounds, 427 U.S.

909, aff'd on remand, 547 F.2d 204 (3d Cir. 1976) (per curiam).

Finally, we note that it is irrelevant whether the trial court

was correct in holding that the counts were duplicitous since any

error in that respect favored the defendant. Duplicity is the joining

in a single count of two or more distinct and separate offenses.

United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). But

deciding that there are separate offenses must be supported by a

finding of legislative intent to provide multiple punishment for the

same conduct. See 1 C. WRIGHT, FEDERAL PRACTICE AND

PROCEDURE 8142 (1969). We question whether multiple

punishment could be imposed for the same $200 bribe simply

lla

We conclude, therefore, that deleting the reference to

Agent Mastrogiovanni in Count Ill was not an amendment

to the indictment and was, at the most, only the removal of

surplusage on the motion of the defendant. See Fed. R.

Crim. P. 7(d).° it follows that the modification of the indict-

ment did not require the resubmission to the grand jury, and

the district court did not lose jurisdiction over the case. Ac-

cordingly, the district court properly dismissed the petition

for habeas corpus. The judgment will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

NOTE 8— Continued

because the decision of more than one official was to be affected.

Cf. Busic v. United States, __ U.S... 48 U.S.L.W. 4535

(U.S. May 19, 1980); Simpson v. United States, 435 U.S. 6

(1978) (interpretation of federal enhancement statute prohibiting

use of a firearm in the course of a felonious act). Insofar as Count

lll was concerned, only one bribe was given on one occasion.

9. Rule 7(d) reads:

“The court on motion of the defendant may strike

surplusage from the indictment or information.’

12a

APPENDIX B

Judgment

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2782

UNITED STATES OF AMERICA

vs.

MILLESTONE, PHILLIP

3385 Pine Road

Huntington Valley, PA.

Philip Milestone,

Appellant

(D.C. Criminal No. 77-0051 2-02)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: ALDISERT, WEIS and GARTH, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Eastern District of Penn-

sylvania and was argued by counsel on April 21, 1980.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

Court, filed November 30, 1979, be, and the same is

13a

hereby affirmed. Costs taxed against appellant.

ATTEST:

[s] Thomas F. Quinn

Clerk

June 30, 1980

l4a

APPENDIX C

Oral Opinion of District Court

* * *

There are two issues that are raised. The first is a con-

tention that the matters, as submitted to the jury, in some

manner amended the indictment that had been presented by

the Grand Jury.

The defendant was convicted only as to Count Ill,

which is a violation of Title 18, U.S. Code Section 2018, 1

and 2, and charges that on November 16, 1977, a sum of

money, approximately two hundred dollars was given to Ar-

nold Small, and the count then further proceeds to say that

it was given with intent to influence Arnold Small’s decision

concerning taxes owed by the defendant, and with intent to

influence the decision of Robert Mastrogiovanni, an

employee of the Internal Revenue Service.

I'm not sure at this point, because we do not have the

records from the Court of Appeals, exactly how the issue

came up pretrial, but | believe it was by reason of various

pretrial motions that were filed on behalf of the defendant in

which the question of Count Ill was brought up as to

whether or not it was duplistic, and therefore should be dis-

missed; and | am not sure whether there was a direction by

myself, or whether it was simply a suggestion that the

Government should elect, as to whether they were pro-

ceeding under one or the other, or possibly both. | am not

sure.

it is clear, under the law, that if, in fact, money was

paid for the purpose of influencing Arnold Small, it would

heve been a violation; and if it was paid for the purpose of

influencing Robert Mastrogiovanni, it would have been a

violation; or if it was paid for the purpose of influencing both

of them, it would have been a violation.

There was no evidence presented, that | recall, in the

course of ite trig!, from wich the jury could have found

15a

that that payment was done with, for the purpose of in-

fluencing the decision of Robert Mastrogiovanni, although |

may be in error in that.

In any event, the Government elected to proceed on the

theory that, and solely on the theory that money was paid

for the purpose of influencing a decision by Arnold Small.

It was submitted to the jury on that theory.

A copy of the indictment, or relevant portions of the in-

dictment was sent out to the jury to assist it in understan-

ding the nature of the charges against the defendant.

The fact that it was not the original indictment, or the

- entire indictment, it seems to me, does not raise any issues,

so long as there was, so long as the matter, as it was sub-

mitted to the jury, was a matter that included the charges

that had been presented by the Grand Jury.

It seems to me that this is analogous to the situation,

where there is a count in which something is charged con-

junctively, but one or the other would constitute the of-

fense; and the Government presents evidence only as to the

one, and it is submitted to the jury on the basis of only the

finding of the one.

It is also analogous to a situation, as | see it, where a

conspiracy charges many overt acts, and there is no evi-

dence as to certain overt acts that were found by the indict-

ment; and it certainly would, | think the cases hold as a mat-

ter of fact, it will be proper under those circumstances to

submit a copy of the indictment to the jury, to the trial jury,

with those overt acts as to which there would be insuffi-

cient evidence contained in it, or at least without explaining

to the jury they could not base their finding on such an overt

act.

it’s also, | think, somewhat analogous to a situation,

although not completely so, of where there may be multiple

counts in an indictment, but as to some counts they're

dismissed by the court, or the Government agrees to drop

them before the matter is submitted to the jury; and a copy

16a

of the indictment, without those particular counts, is sent to

the jury for its investigation and inspection.

| think it’s also of significance in this case that there

was no objection expressed by defense counsel, so far as |

recall, to the election that had been made by the Govern-

ment, to the form of the copy of the indictment that was

submitted to the trial jury for its consideration; and as |

understand the contention of the defendant in this case,

that is the petitioner, what counsel took would be im-

material since it is a constitutional issue, and apparently one

which defense counsel assumes could not be waived by

counsel for the petitioner.

Be that as it may, and whether it’s relevant or not, itis, |

think, a matver of record, that there was no objection at that

time, and it seems to me that should make some difference.

* * *

Therefore, the petition for writ of habeas corpus, or for

dismissal under 28 U.S.C., Section 2255 filed by Mr.

Milestone will be denied and dismissed.