Petition — Burgin v. United States

a

| ., Supreme Court, U.S.

“«s FILED

80-645

OCT 15 1980

NO.

On Te fe JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

WILLIAM G. BURGIN, JR.,

Petitioner,

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

WILLIAM J. THREADGILL

215 Fifth Street North

Columbis, Mississippi 39701

Attorney for Petitioner

Of Counsel:

JOE O. SAMS, JR.

514 Second Avenue North

Columbus, Mississippi 39701

BBE CS AE ACE AOE LORD MOODLE MOIRA GET AERIS LEE SILER ak SEAR IL ESI TRI OES

Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

SE

NO.

SEE

WILLIAM G. BURGIN, JR.,

Petitioner,

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

QUESTIONS PRESENTED

There are three basic but related questions:

1. Whether the Petitioner, a state legislator, was denied

his constitutional rights of due process and to be advised of

the charges against him by his conviction of violauon to Title

18, Section 371 U.S.C., which, in pertinent part, broadly

prohibits conspiracies “‘to defraud the United States”, when

none of the acts complained of were illegal, no federal or

State statutes or regulations were violated, no corruption,

dishonesty, deceit, craft, trickery, fraud, bribery, kickbacks,

or proscribed acts were shown, no government right or

function was impeded, impaired or defeated, the United

States suffered no loss of its money or property, and the

[

II

contract entered into by the Welfare Department, paid for

with state funds, part of which were subsequently reim-

bursed by the government, was fully performed?

2. Whether, particularly in view of the recent holding of

this Court in U.S. v. Gillock, 100 S.Ct. 1185, 63 1.Ed.2d

454 (1980) that a state legislator has no privilege or

immunity preventing his official legislative acts from being

used against him in a federal criminal prosecution, the use of

18 U.S.C. 371 to superintend the ethical propriety and

quality of state legislative process, in absence of clear and

convincing evidence of concrete, identifiable harm to the

government, is an unconstitutional undermining of im-

portant federalism concerns, calculated to destroy the

federal system.

3. Whether the admission in evidence of out-of-court

statements of alleged non-testifying co-conspirators, not

subject to cross-examination, made outside of the presence

of Petitioner without the prior determination by the trial

judge that substantial, independent evidence existed i) of a

conspiracy, ii) the declarant’s membership in such con-

spiracy, and iii) that the declarations were in the course of

and in furtherance of the conspiracy, when coupled with a

statement of the trial judge to the jury that a government

witness “should have been named” as a member of the

conspiracy, deprive Petitioner of the Fifth and Sixth

Amendment rights; namely, the right to due process of law,

the right to a fair trial by an impartial jury and the right to

confrontation and cross-examination of witnesses against

him.

III

TABLE OF CONTENTS

Page

I fg a Sr ne NY oO en |

ae Dlr se cy ad va OCU e ck devs becekR 2

STATEMENT OF THE CASE......5...ccccccccccccecs 2

QUESTIONS PRESENTED ...........ccccccccccvesees 5

REASONS THE PETITION SHOULD

ee 6 65). ok wh occu de vevcdiceax 6

REASONS THE PETITION SHOULD

ed gs ys Uh sic « écs she kets 10

IE ERS ear en a 13

TABLE OF AUTHORITIES

Bouie v. City of Columbia,

Fe ee ewacon ‘9

Connally v. General Construction Co.,

RS OE >) 9

Jackson v. Denno,

378 U.S. 268, 84 S.Ct. 1774, 12 L. Ed. 2d 908

ae ee os cee die 11,12

National League of Cities v. Usery,

os 5 ss ods xn Vous deca cbdendc var 9

Rabe v. Washington,

oh aos i's < 9 ox we Gali ba ede oe ae eccan 9

Smith v. Goguen,

Ee MEM MU OO CEO TOD onc ccadccdcacecsvdsccecen. 9

United States v. Apollo,

I BOOTED oy kinds ics bvcecicnkeccecn 4,10

United States v. Bass,

eS SU, PO ROIOY ooo ick css oi oa vn veo de cickoics )

United States v. Bruton,

Pee ee SPI er iss oe eR SS 12

United States v. Dennis,

384 U.S. 855, 860 (1966, Krulewitch v. U.S.,

OG US. 440, 445-SE (1969)).. oo cc cccccccccccccccer’ 7

U.S. v. Emmons,

OEP Wats BP, STO-42 (ISTO)... ova vincccccccvcccccececs y

U.S. v. Gillock,

100 S. Ct. 1185, 63 L. Ed. 2d 454 (1980).............. 6

U.S. v. Gradwell,

Be ee I D MEDE ED ook bcc vcccstbdesvisocecen. 7

United States v. Harris,

Pe a. ca coche cc buhcvowuwkcccekens 9

United States v. James,

UT Wa POON CIRVIOD oc bk vn coh av bec vec en bcevicecce 4,10

U.S. v. James,

576 F.2d 1121 (Sth Circuit, 1978 - James I)........... 10

U.S. v. James,

590 F.2d 575, (5th Circuit, 1979 - James a tate ree 10

United States v. Nixon,

ee nC I ey es 11

United States v. Porter,

591 F.2d 1048 (Sth Circuit, 1979)................0000. 8

Statutes, Rules & Acts:

ee ok) AED ol | 5 Re 2

glanced treo Fe 12

Seem, MID. BOR soo hn. Ga cow ko dav oekdk ak 2,5,6,7,8

i iin vines doc ee cecnckcknckcccaeein, 11

My MT 6 sac vac hoo kk odo dnnkid vaekc bccn, 1]

era be RR ge | RE 9

William G. Burgin, Jr., petitions for a Writ of Certiorari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra) is

reported at____ F.2d____ , where it is styled United States

of America vs. William G. Burgin, Jr. and David Flavous

Lambert, Jr., No. 79-5304. There is no District Court

opinion.

2

JURISDICTION

The judgment of the Court of Appeals was entered on July

24, 1980 (App. B). A Petition for Rehearing En Banc was

denied without opinion on September 15, 1980 (App. C,

infra), and on September 30, 1980, the Court of Appeals

granted a stay of issuance of the mandate until October 23,

1980, to enable Petitioner to employ counsel and file this

Petition (App. D, infra). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

1. Amendments V and VI to the Constitution of the

United States.

2. Title 18, Section 371, United States Code.

3. Rule 104, Federal Rules of Evidence.

3

STATEMENT OF CASE

Petitioner, a member of the Mississippi State Senate, was

indicted on two counts, one charging violation of 18 U.S.C.,

Section 371, and the other a violation of the Hobbs Act, 18

U.S.C. 1951 and 1951. A jury trial resulted in Petitioner’s

conviction on the conspiracy count with his co-defendant,

Lambert, and acquittal of both defendants on Count II.

Petitioner was sentenced for 15 months and fined $10,000.

The Court of Appeals affirmed.

In the summer of 1975, Dr. Helvey, Vice President of

Learning Development Corporation (LDC), a Tennessee

company that provided services to such programs as Head

Start pre-school training projects, had occasion to meet one

Robert Broome who interested Helvey in selling his services

in Mississippi.

Broome suggested to Helvey that Lambert, a former state

senator, was knowledgeable in the operation of many

departments of Mississippi State government and Broome,

with Helvey’s concurrence, arranged a meeting between

Helvey and Lambert.

Subsequently, LDC hired Broome by contract with Bob

Broome and Associates, to seek out business prospects for

LDC in Mississippi and other states. Broome, in turn, made

an arrangement to obtain Lambert’s help and to pay

Lambert. Compensation for Broome and Lambert was, by

contract, 50% of the amount of business they obtained for

LDC.

Through Lambert’s efforts, LDC President Goodner met

appropriate officials of the Mississippi State Department of

Public Welfare (DPW) and subsequently negotiated and

obtained a fixed price contract with DPW in the amount of

$379,000 for the 1976-77 school year, under which LDC

4

provided certain services to Head Start Programs, spon-

sored and funded by DPW, seventy-five percent of such

expenditures being subsequently reimbursed by the United

States Department of Health, Education and Welfare

(HEW). A second contract for the 1977-78 school year was

later executed for $480,000.00. Immediately after LDC

began receiving money under its contract with DPW,

Broome received payment from LDC and in turn, Broome

paid Lambert.

When Lambert periodically received money under his

contract with Broome and later under a direct contract from

LDC, he made payments totaling $83,000.00 to Burgin, his

long-time friend and attorney, for long-standing debts in-

curred from 1958 through 1968 owed to Burgin by Lambert

for legal services. Payments by Lambert to Petitioner were

by checks, which Petitioner deposited in his bank account,

reported for state and federal income taxes, and approxi-

mately $47,000.00 of the amount received by Petitioner was

paid to the federal and state governments for such taxes.

During the period LDC performed under the contracts,

Lambert sought and received help from many acquaintances

in state government in promoting the interest in LDC but at

no time did Lambert actually perform work in providing

services which LDC furnished to DPW under its contract.

Some of the money paid LDC was appropriated by the

Appropriations Committee of which Burgin was chairman,

but only after it was approved and recommended by a sub-

committee of the full committee of which he was not a

member, by the full Senate Appropriations Committee, the

Senate as a body, by the House of Representatives, and

comparable committees there. The money appropriated to

and used by DPW to support the LDC contract was dealt

with routinely by the State Legislature, and was in no way

5

ear-marked or otherwise designated to pay the LDC con-

tract. Use of the money was left to the sole discretion of

appropriate officials of DPW, subject to rules and regula-

tions of HEW.

When the government offered testimony at the trial of

unindicted co-conspirator Broome, Petitioner objected,

under the authority of United States v. James, 510 F.2nd

546 (1978), since at that point in the trial no conspiracy had

been established. The motion was denied, and the trial court

applied the hearsay rule of United States vy. Apollo, 476

F.2nd 156 (1973), since the Court of Appeals granted

rehearing en banc on the James rule and no final decision had

been rendered.

Throughout the trial, Petitioner moved for exclude evi-

dence and for severance on the grounds that evidence

extremely prejudicial to him was admitted but only as to

Lambert, including alleged declarations of Lambert, who did

not testify in his own behalf and could not be called as a

witness or cross-examined by Petitioner. These motions

were denied.

During the trial, Petitioner moved for mis-trial when the

trial judge in the presence of the jury stated that the

government witness Goodner “‘probably should have been

indicted” as a co-conspirator, thereby advising the jury that

the court believed a conspiracy to exist when no substantial,

independent evidence thereof admissable against Petitioner

had been offered. The motion was likewise denied.

6

REASONS THE PETITION SHOULD

BE GRANTED

This Court held that the Federal Courts have an af-

firmative duty to carefully scrutinize indictments under the

broad language of the conspiracy statute because of the

possibility, inherent in a criminal conspiracy charge, that its

wide net may ensnare the innocent as well as the guilty. U.S.

v. Dennis, 384 U.S. 855, 860 (1966, Krulewitch v. U.S.,

336 U.S. 440, 445-58 (1949). The question is whether the

Defendant’s conduct “‘plainly and unmistakably” falls under

the proscription of 18 U.S.C. 371. U.S. v. Gradwell 243

U.S. 476, 485 (1917).

Pared to essentials, the Government’s case against

Burgin, described as an “influential” state legislator, can be

reduced to the single theme — that of alleged unethical

conduct. The supporting evidence viewed most favorable to

the Government, is of two general kinds. First, Burgin

contacted stated administrative officials in connection with

the LDC contracts; second, Burgin used his legislative

position to facilitate the availability of state funds in

connection with those contracts. These activities were

alleged to have “‘defrauded” the United States, contrary to

18 U.S.C., Section 371, even though it is admitted and the

Court below found that the LDC contracts were legal, fair

and were fuily performed.

The District Court charged the jury in broad, general

terms as to the meaning of Section 371. This general charge

was in keeping with the Government’s broad view of Section

371. In its opposition to Burgin’s motion for acquittal, for

example, the Government argued that the “broad boundries

of the offense ... are apparent... . Itinvolves much more than

the common notion of fraud . . .” and the “‘scheme through

J

which a fraud is administered is also not subject to precise

definition . . .” The Government’s argument in the District

Court is replete with language of this character.

In the Government’s view Section 371 is a general catch-

all, a bottomless repository for reaching any conduct not

meeting its view of the appropriate standards of conduct. But

Section 371 is a criminal, not a civil statute. To give Section

371 a sweep so wide as the Government suggests would

render it constitutionally infirm because the “‘crime” would

not in fact be defined until the statute was applied to the acts

of a defendant. More specifically, Section 371 is not a

license to the federal courts to impose jail sentences while

working out a code of government ethics to be applied to

State officials who have some connection with federally

funded projects. Any such view of Section 371 transgresses

both due process and federalism concerns.

On the Government’s evidence, Burgin’s conduct, as a

legislator may involve a question of ethics. But, Section 371

is a fraud statute, not a general ethics statute, and every

alleged unethical act does not automatically result in

“defrauding” the United States. U.S. v. Porter, 591 F.2d

1048 (5th Circuit, 1979). Whether Burgin’s acts were

ethical or not, the Government, here, has not proved that the

United States has been defrauded of anything. The Gov-

ernment has not suffered any pecuniary loss; nor has some

lawful function been “impaired, obstructed or defeated.”

The Government in the District Court could not specify the

fraud that occurred. The allegation, in inflated language,

amounts only to the Government’s disapproval on ethical

grounds, of Burgin’s conduct.

8

Once the insufficiency of the Government’s general ethics

approach is made plain, it becomes apparent that there is no

meaningful distinction between this case and Porter. The

only distinction is that Burgin was a state legislator and that

fact cuts sharply against the propriety of applying Section

371 in this case for the result is to allow the Federal

Government to scrutinize the quality of the state legislation

process. Federal criminal statutes are traditionally con-

strued not to undermine important federalism concerns.

United States v. Bass, 404 U.S. 336, 349 (1979), United

States v. Enmons, 410 U.S. 396, 410-12 (1976). At

minimum such an application of Section 371 is inconsistent

with that important canon of Statutory construction. It is, in a

real sense, unconstitutional under the doctrine of National

League of Cities v. Usery, 426 U.S. 833 (1976), to use

Section 371 to superintend the ethical propriety of the state

legislative process, at least absent clear and convincing

evidence that the Government suffered concrete, identifia-

ble harm as a result of that “lack” of quality.

The basic requirement of due process mandates that all

men — even if they hold public office — be informed as to

what the State commands or forbids. Smith v. Goguen, 415

U.S. 566, 574 (1974). As held by this Court in Connally v.

General Construction Co., 269 U.S. 385, 391 (1926);

“. .. a Statute which either forbids or required the doing

of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and

differ as to its application violates the first essential of

due process of law.”

Therefore, to avoid the constitutional vice of vagueness, it

is necessary, at aminimum, that a statute give fair notice that

certain conduct is proscribed. Rabe vy. Washington, 405

U.S. 313, rehearing denied, 406 U.S. 911 (1972). Criminal

9

prohibitions must be clearly defined in order to assure that

individuals are forewarned of the consequences of their

conduct. Grayned v. City of Rockford, 408 U.S. 104 at 108

(1972); Bouie v. City of Columbia, 378 U.S. 347 (1974);

United States v. Harris, 347 U.S. 612 (1954). Itis admitted

that no federal statute, regulation, rule or order, nor any state

prohibition made it a crime for petitioner to do any actor acts

complained of by the government. No Statute, regulation,

rule or order required that he disclose to DPW. HEW, the

FBI, Justice Department, or anyone else, under penalty of

prison, that Lambert owed him money for past legal services.

The Government contended, and the judgment com-

plained of holds, exertion of influence by a public official is a

violation of Section 371, if in any way, for any reason, no

matter how legal or legitimate, the official indirectly

thereafter received any money from contract proceeds, even

though the United States obtained all that it bargained for,

the contract price was fair and reasonable, the contracts

were valid, legal and laudable in purpose.

10

II

Manifest prejudice, rising to obvious denial of Petitioner’s

Fifth and Sixth Amendment rights, resulted from the refusa!

of the trial judge to prevent jury consideration of extra-

judicial hearsay statements of alleged co-conspirators in

absence of a prior finding by the judge — not the jury under

purportedly cautionary instructions — that the government

had first proven by substantial, independent evidence, the

existence of a conspiracy, the membership of the declarant

and Petitioner therein, and that the offered hearsay was

uttered in the course of and in furtherance of such

conspiracy. See Rule 104, Federal Rules of Evidence and

United States v. James, 576 F.2d 1121 (5th Circuit, 1978—

“James I’’).

The trial judge followed the rule of United States vy.

Apollo, 476 F.2d 156 (5th Circuit, 1973) which was

expressly overruled by United States v. James, 590 F.2d

575, (Sth Circuit, 1979 — “James II’’), in which that court

held that: co-conspirator’s declarations in a conspiracy trial:

11

“endanger the integrity of the trial because the

relevancy and apparent probative value of the state-

ments may be so highly prejudicial as to color evidence

even in the mind of a conscientious juror, despite

instructions to disregard the statements or to consider

them conditionally. . .

... Arule that puts the admissibility of co-conspirator

statements in the hands of the jury does not avoid the

danger that the jury might ccnvict on the basis of the

statements without first dealing with the admissibility

question. It was the same danger which motivated the

Supreme Court to hold in Jackson v. Denno, 378 U.S.

268, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that a

criminal defendant is entitled to have a “reliable and

clear-cut determination of voluntariness of (his) con-

fession, including the resolution of disputed facts upon

which the voluntariness may depend” made by some-

one other than the jury which is to determine his guilt or

innocence.”’ 590 F.2d at 579.

This Court set the required standard in United States v.

Nixon, 418 U.S. 683 (1974):

“Declarations by one defendant may also be admissible

against other defendants upon a showing by inde-

pendent evidence’*: of a conspiracy among one or more

other defendants and the declarant and if the declara-

tions at issue were in furtherance of that conspiracy.”

418 U.S. at 701.

Footnote 14 to that opinion, in turn, contains the sig-

nificant language:

‘As a preliminary matter, there must be substantial,

independant evidence of a conspiracy, at least enough

to take the question to the jury .. . . Whether the

standard has been satisfied is a question of admissibility

of evidence to be decided by the trial judge.” 418 U.S.

at 701, n.14.

Petitioner was denied the required protection. This Court

12

spoke to the danger, extreme prejudice, breach of the right of

confrontation and cross examination, and lack of due

process in Jackson v. Denno, supra, and held the Appollo

procedure to which Petitioner was subjected, to be un-

constitutional in United States y. Bruton, 391 U.S. 123

(1968), which involved an analgous declaration or con-

fession of a non-testifying co-defendant. As stated by Mr.

Justice Stewart in his concurring opinion:

“Quite apart fromJackson vy. Denno, however, I think it

clear that the underlying rationale of the Sixth Amend-

ment’s Confrontation Clause precludes reliance upon

cautionary instructions when highly damaging out-of-

court statements of a co-defendant, who is not subject to

cross-examination, is deliberately placed before the

jury at a joint trial. A basic premise of the Confrontation

Clause. . . is that certain kinds of hearsay. . . (citation

omitted)... are at once so damaging, so suspect, and yet

so difficult to discount, that jurors cannot be trusted to

give such evidence that minimal weight it logically

deserves whatever instructions the trial judge may

give.” 391 U.S. at 133.

Compound the prejudice of the extra-judicial co-

conspirator statements admitted against Petitioner, with the

denial of an opportunity to cross-examine the declarant,

Lambert, and with the statement of the trial judge to the jury

that a government witness ‘‘should have been named” as a

co-conspirator, at the time when not a syntilla of evidence

had been introduced to prove a conspiracy or Petitioner’s

involvement, and the unconstitutional result is obvious.

Denied due process, denied confrontation of witnesses

against him, denied the right to cross-examine his alleged co-

conspirators, and damned by the statements of the trial judge

to the jury, Petitioner had no chance of acquittal — even

though no crime was committed or proved. He did not have a

13

fair and impartial trial.

The constitutional rights that are guaranteed Petitioner

have, to this point, been disregarded and denied him. Justice

has been aborted. This Court must act if he is not to become a

political prisoner.

CONCLUSION

For the reasons stated, the petition should be granted.

Respectfully Submitted,

WILLIAM J. THREADGILL

215 Fifth Street North

Columbus, Mississippi 39701

(601) 328-2316

OF COUNSEL:

JOE O. SAMS, JR.

514 Second Avenue North

Columbus, Mississippi 39701

(601) 328-6491

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

V.

William G. BURGIN, Jr. and David

Flavous Lambert, Jr.,

Defendants-Appellants.

No. 79-5304.

United States Court of Appeals, Fifth Circuit.

July 24, 1980.

Defendants, a state senator and chairman of the appropri-

ations committee and a former state senator, were convicted

in the United States District Court for the Southern District

of Mississippi, Walter L. Nixon, Jr., J., of conspiracy to

defraud the United States and they appealed. The Court of

Appeals, Garza, Circuit Judge, held that: (1) indictment,

which charged that defendants were involved in a silent

scheme whereby the state senator, in exchange for re-

munerattion, was to use his political influence as an elected

official to insure that state funds would be appropriated or to

exert influence in his official capacity on various state

officials in order to enable another to enter into or maintain

contracts financed by federal funds, charged a violation of

Statute proscribing conspiracy to defraud the United States

in any manner or for any purpose; (2) evidence was sufficient

for jury to infer that state senator’s influence was upon

director of the Department of Public Welfare was purchased

2a

in exchange for money from the former state senator, who

received a portion of the money paid to another under

contracts with the Department; (3) district court’s comment

that another individual probably should have been named a

conspirator was not reversible error; and (4) district court

did not abuse its discretion nor did the former state senator

show prejudice in the denial of part of his motion for a bill of

particulars, —

Affirmed.

Appeals from the United States District Court for the

Southern District of Mississippi.

Before AINSWORTH, INGRAHAM and GARZA,

Circuit Judges.

GARZA, Circuit Judge:

In the Summer of 1975, Dr. Charles Helvey, Vice

President of Learning Development Corporation (LDC), a

Tennessee business concern formed to conduct behavioral

modification programs, met Robert Broome. Mr. Broome

inquired of Dr. Helvey if LDC has sought to sell its services

in Mississippi. Although LDC’s activities had been confined

to Tennessee, Dr. Helvey became interested in the idea and

a meeting in Jackson, Mississippi was arranged.

4: few months later Dr. Helvey met with Mr. Broome and

former Mississippi state senator Defendant David Flavous

Lambert. It was suggested to Dr. Helvey that Defendant

Lambert was familiar with Mississippi governmental affairs

and could be helpful in LDC’s relations with Mississippi

agencies. Subsequently, LDC entered a contract with Bob

Broome and Associates on a contingent basis to assist in its

Sale efforts. Broome and Associates, in turn, made an

3a

arrangement with Lambert to. assist in contacting state

agencies, Broome and Associates were to receive 50% of

any amount received under contracts with Mississippi

agencies. :

Following arrangements made through Broome and

Lambert, R. Lee Goodner, President of LDC, met with

various staté agencies seeking a contract for LDC services.

After several meetings with officials of the Mississippi

Department of Public Welfare (DPW), Mr. Goodner ne-

gotiated and entered into a $380,000 fixed price contract

with Fred St. Clair, Commissioner of DPW, in which LDC

was to provide services to various Head Start centers in

Mississippi for the 1976-77 school year. The funding for this

contract, as in the one which would follow the next year, was

provided from 75% federal Title XX funds (42 U.S.C.

§ 1397 et seq.) and 25% from state funds. Pursuant to the

prior arrangement, LDC paid Broome and Associates

almost $190,000 in eight installments for the duration of this

first contract.

Commissioner St. Clair had only recently assumed his

position with DPW at the time of the LDC contract and felt

that it would be in his department’s best interest to cultivate a

good relationship with Defendant-Senator William G.

Burgin, Jr., Chairman of the State Senate Appropriations

Committee. On several occasions in conversations between

Defendant Burgin and St. Clair, Burgin inquired as to the

Status of the Head Start training program. In December of

1976, DPW delayed its payment to LDC and Burgin

inquired of St. Clair whether any problems had been

encountered.

In the early part of 1977, Goodner and Lambert ap-

proached St. Clair to negotiate a contract for the 1977-1978

school year. In May, 1977 a $480,000 contract was

4a

executed. The contract provided for similar services as the

prior one but covered a larger geographical area. By the time

this second contract went into effect, Broome’s involvement

with LDC had largely ended and his 50% portion of the

DPW-LDC coatract was paid to Development Associates,

an Alabama corporation created by Lambert. Approxi-

mately $164,000 was paid to Development Associates

under this second contract.

Prior to completion of the first contract, St. Clair decided

to terminate the LDC program. However, St. Clair was

contacted by Burgin and asked to wait until expiration of the

first contract to make that determination whether to continue

the program. In the Summer of 1977, LDC was requested by

DPW to increase its performance bond to conform to that

required of other contractors. After being informed of this,

Burgin indicated to St. Clair that there was no need for an

increased bond. St. Clair relented and LDC’s bond re-

quirement stayed the same.

In the Fall of 1977 due to problems encountered with the

LDC program, DPW delayed payments to LDC. On

December 22, Defendant Burgin inquired as to the reason

for the delay and asked DPW to prepare a check for LDC

that day since LDC needed the money for Christmas. Burgin

personally picked up the check for LDC.

In the Spring of 1978, LDC submitted its proposal for a

third year. Commissioner St. Clair sent the proposal to the

regional office of the United States Department of Health,

Education and Welfare for approval. Burgin contacted St.

Clair and encouraged St. Clair to get the proposal approved.

Because of the federal investigation, the third contract was

never entered into.

In summary, of the two DPW-LDC contracts amounting

to $860,000, approximately $354,000 was paid out by LDC

5a

to either Bob Broome Associates or Development As-

sociates. Of this amount, Broome received approximately

$50,000; Lambert received approximately $220,000; and

Burgin received approximately $83,000. The payments to

Burgin came through monies paid to Lambert. Lambert and

Burgin both testified that the funds paid to Burgin were in

settlement of an outstanding debt owed by Lambert to Burgin

and for Burgin’s performance of legal services.

It is undisputed that Burgin prepared both the LDC—Bob

Broome and Associates contract and the LDC—Develop-

ment Associates contract and that he knew from the outset

that 50% of the DPW—LDC funds would be paid to either

Bob Broome and Associates or Development and As-

sociates. It is also undisputed that some of the money paid to

LDC was appropriated by the Appropriations Committee of

which Burgin was chairman. However, the appropriations

were approved and recommended by the Appropriations’

sub-committee of which Burgin was not a member and the

full Senate voted for the appropriations as a body. Ad-

ditionally, there is nothing to indicate that the appropriations

were dealt with in a manner not routine and the use of the

appropriated money was within the sole discretion of DPW

officials.

Defendants Burgin and Lambert were indicted on two

counts. Count I charged a violation of 18 U.S.C. § 371 by

conspiring to defraud the United States Government of its

governmental functions and the right to have the transaction

of official business of the United States Department of

Health, Education and Welfare conducted honestly, im-

partially and with integrity as the same should be conducted,

free from corruption, fraud, improper and undue influence,

dishonesty, unlawful impairment and obstruction. !

‘Count I is reproduced in entirety as an appendix.

6a

Count II charged a Hobbs Act violation of 18 U.S.C. § §

1951 and 1952 in that Burgin and Lambert did obstruct,

delay and effect commerce by extorting cash and negotiable

instruments from LDC by the wrongful use of fear of

economic loss and under color of official right.

A jury trial resulted in both defendant’s acquittal on Count

~II and verdict of guilty as to Count I. Burgin was sentenced to

fifteen months, Lambert was sentenced to twenty-four

months, and both were fined $10,000. Burgin and Lambert

have appealed raising several points of error.

SUFFICIENCY of the INDICTMENT

Defendants, Burgin and Lambert, were charged with the

second part of §371 which, in broad terms, prohibits

conspiracies “‘to defraud the United States, or any agency

thereof in any manner or for any purpose . . .”? They argue

that Count I is defective in that it fails to charge conduct

amounting to criminal conspiracy. Specifically, they con-

tend that giving § 371 as broad a sweep as given in this case

will render the statute constitutionally infirm because the

supposed crime would not be defined until the statute was

applied to the acts of the defendants. The question for our

determination is whether the conduct charged in Count I

‘pleinty and unmistakably” falls within the proscription of

§ 371. U.S. v. Porter, 591 F.2d 1048, 1055 (5th Cir. 1979).

718 U.S.C. §371 provides:

Conspiracy to commit offense or to defraud United States.

If two or more persons conspire either to commit any offence

against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose, and one or more

of such persons do any act to effect the object of the conspiracy,

each shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

7a

[1] In Hammerschmidt v. U.S., 265 U.S. 182, 44 S.Ct.

511, 68 L.Ed. 968 (1924), the Supreme Court interpreted

§ 371:

To conspire to defraud the United States means

primarily to cheat the government out of property or

money, but it also means to interfere with or obstruct

one of its lawful governmental functions by deceit,

craft, or trickery, or at least by means that are

dishonest. It is not necessary that the government shall

be subjected to property or pecuniary loss by the fraud,

but only that its legitimate official action and purpose

shall be defeated by misrepresentation, chicane, or the

overreaching of those charged with carrying out the

governmental intention. (emphasis added) 265 U.S. at

188, 44 S.Ct. at 512.

More recently, in Dennis y, U. S., 384 U.S. 855, 86 S.Ct.

1840, 16 L.Ed.2d 973 (1966), the Court stated that §371

reaches “any conspiracy for the purpose of impairing,

obstructing, or defeating the lawful function of any de-

partment of government.” It is now clear that the term

“defraud” as used in §371 not only reaches financial or

property loss through employment of a deceptive scheme,

but also is designed and intended to protect the integrity of

the United States and its agencies, programs and policies.

See U. S. v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15

L.Ed.2d 681 (1965); Haas v. Henkel, 216 US. 462, 30

S.Ct. 249, 54 L.Ed. 569 (1910); Crawford v. U. S., 212

U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465 (1909); U. S. v,

Brasco, 516 F.2d 816 (2nd Cir, 1975), cert. den. 423 U.S,

860, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975); Shushan y, U. S.,

117 F.2d 110 (Sth Cir, 1941); U.S. v, Sweig, 316 F.Supp.

1148 (S.D.N.Y.1970).

In support of the indictment, the government argues that

the meaning of “defraud” includes any scheme of “‘influence

8a

peddling”’ whereby a public official receives remuneration

for the exertion of influence upon other officials in order for

another to gain the upper hand in some financial transaction

with the government. Although no pecuinary loss to the

government has occurred, the government contends that the

mere exertion of influence by a public official having a

covert financial interest is a violation of § 371.

The defendants argue that to apply § 371 in circumstances

where the government has suffered no pecuniary loss would

amount to no more than a code of governmental ethics to be

applied to any state official having some connection with

federally funded projects. In support of their argument, the

defendants rely heavily on U. S. v. Porter, supra, wherein

this court held that if the government has suffered no

pecuniary loss from the activities set forth in the indictment,

the indictment can stand only if it alleges that some lawful

function of the government has been impaired, obstructed or

defeated. In the Porter case, the government contended that

the United States had been defrauded of its right to have the

Medicare program conducted honestly and fairly because of

the business practices employed by the defendant doctors.

This court held that where purely private parties were under

no legal duty to act differently than they had been acting the

government had failed to demonstrate interference with any

of its lawful functions.

12] However, in Porter, this Court through Chief Judge

Coleman, expressly recognized that ‘‘no public officials

were bribed or participated in the scheme.” 591 F.2d at

1055. The indictment in this case charged overreaching of an

agent of the United States by a public official having a

financial quid pro quo interest in a federally financed

contract. If that allegation does not amount to obstruction of

a lawful governmental function, it is hard to imagine an

9a

indictment which would. Therefore, we hold that the alleged

involvement of Burgin and Lambert in a silent scheme

whereby Burgin, in exchange for remuneration, was to use

his political influence as an elected official to insure that

state funds would be appropriated or to exert influence in his

official capacity on various state officials in order to enable

another to enter into or maintain contracts financed by

federal funds, charges a violation of 18 U.S.C. §371.

SUFFICIENCY of the EVIDENCE

[3] In a corollary to their attack of the indictment, the

defendants complain that the evidence is insufficient to

sustain their convictions. Reviewing sufficiency of the

evidence questions we must view the evidence supporting

the convictions in the light most favorable to the government

and all credibility choices and inferences must be made in

support of the jury’s verdict. Although most of the evidence

against the defendants is circumstantial, our test is whether

reasonable minds could have found the evidence in-

consistent with every reasonable hypothesis of the de-

fendant’s innocence,

In support of their contention, the defendants point to the

evidence showing the legality and fairness of the DPW—

LDC contracts. Indeed, the evidence clearly stows that no

influence was directly exerted by Burgin upon the agent for

the DPW in the initial contract negotiations with LDC.

Although a conflict in testimony shows a dispute arose as to

the quality of LDC’s performance, the evidence establishes

that LDC fully performed under the contract and was

entitled to full payment. In fact, it is undisputed that the

DPW—LDC contracts were completely valid in a strict

legal sense. Unfortunately, the arguments of defendants

10a

equate absence of pecuniary loss with absence of

impairment, obstruction or defeat of the lawful functions of

an agency of the government.

[4] The thrust of the charges are that Burgin and Lambert

conspired to impair and obstruct the government by using

Burgin’s official capacity to influence state appropriations

and influence official action of the DPW. While virtually no

evidence, direct or circumstantial, exists regarding Burgin’s

influence on the appropriations of money, there does exist

evidence both of a Lambert-Burgin conspiracy and of

Burgin’s undue influence on St. Clair, the director of DPW.

This wrongful influence constitutes the “defrauding” of the

government. The overt acts of Lambert and Burgin in

furtherance of the alleged conspiratorial objective are not

disputed.

[5,6] The testimony of St. Clair was that the first DPW—

LDC contract was partly the result of Burgin’s influence and

that the second contract was due solely to Burgin’s

intercessions in the DPW’s operation. The testimony was

also clear that Burgin hindered the operations of DPW on

several occasions which resulted in lessening the contractual

performance of LDC and in expediting payments under the

contracts. Although the defendants contended the payments

from Lambert to Burgin were for legal services, the evidence

was sufficient for the jury to infer that Burgin’s influence was

purchased in exchange for the money from Lambert. The

fact that certain actions of either Burgin or Lambert, when

viewed as separate occurrences, may not have been illegal

does not eliminate their illegality when together they

constitute a plan of influence for pay the result of which is to

deprive the government of the unobstructed operations of its

federally funded program.

lla

ADMISSION of CO-CONSPIRATOR

HEARSAY STATEMENTS

During the trial, the government was allowed to introduce

hearsay statements of discussions between Lambert and

others before any independent evidence of a conspiracy

between Burgin and Lambert was introduced. The trial court

properly gave cautionary instructions on the limited use of

this hearsay testimony as set out in U.S. y, Apollo, 476 F.2d

156 (Sth Cir. 1973). The defendants at trial objected to such

procedure and urged that the panel decision in U. S. v.

James, 576 F.2d 1121 (5th Cir. 1978), should control the

admission of the statements.

While the en banc decision in U. S. y. James, 590 F.2d

575 (Sth Cir. 1979), upheld but modified the panel decision,

the trial in this case was conducted after petition for

rehearing en banc was granted. The effect of the granting of

rehearing en banc was to vacate the earlier panel decision. U.

S. v. Gutierrez-Barron, 602 F.2d 722 (Sth Cir. 1979); U.S.

Ct. of App., 5th Cir., Rule 17. Additionally, the en banc

decision specifically held the new procedure was to be only

prospectively applied after the expiration of thirty days

following the latter decision. Therefore, the defendant’s

point of error in this case must fail.

- MOTION for MISTRIAL

Following certain testimony regarding a meeting attended

by Lambert and LDC’s President Goodner, the trial court

instructed the jury as to the use that could be made of the

statements in regard to Burgin’s guilt. At this point, Burgin’s

counsel moved for a severance because Goodner had not

been named as a co-conspirator. The trial judge then stated:

12a

Of course, Goodner is not named as a co-conspirator in

Count I of the indictment, although the indictment

charges each of the defendants with conspiring with

each other and with others known and unknown to the

grand jury and he probably should have been named...

The defendants contend that this statement by the judge

clearly indicated to the jury that a conspiracy did exist and

therefore contaminated the jury’s function of determining

whether a conspiracy existed.

The government argues the statement most probably

would not give the jurors the impression that a conspiracy

existed, but rather that Goodner should have been indicted

as a member of the alleged conspiracy. Furthermore, the

government contends that if any harm was done, it was done

to its case since it was the government, not defendants, which

was relying on Goodner’s testimony.

[7] Certainly the comment was an error by the trial court.

However, the statement occupied only a few seconds of the

trial and the judge gave curative instructions to disregard the

statement. We do nct feel the trial court’s comment so

prejudiced the jury as to deprive defendants of a fair trial and,

therefore, we find no reversible error. U. S. v. Onori, 535

F.2d 938 (Sth Cir. 1976); U.S. v. James, 510 F.2d 546 (5th

Cir. 1975).

BILL of PARTICULARS

Defendant Lambert complains that the trial court erred in

affirming the Magistrate’s denial of all but three of Lambert’s

forty-three questions on Count I. Lambert claims he was

unable to adequately prepare his defense due to the vague

allegations of the indictment.

[8,9] A defendant possesses no right to a bill of

13a

particulars and the decision on the motion lies within the

discretion of the court. Will v. U.S., 389 U.S. 90, 88 S.Ct.

269, 19 L.Ed.2d 305 (1967); U. S. v. Sherriff, 546 F.2d 604

(Sth Cir. 1977). The defendant has the burden of showing

prejudice or a clear abuse of discretion.

[10,11] The function of a bill of particulars is to enable

the defendant to prepare for trial and avoid prejudical

surprise as well as providing protection against a subsequent

prosecution for the same offense. U.S. v. Murray, 527 F.2d

401 (Sth Cir. 1976). It is not designed to compel the

government to detailed exposition of its evidence or to

explain the legal theories upon which it intends to rely at

trial. U. S. v. Sherriff, supra; Downing v. U. S., 348 F.2d

594 (Sth Cir. 1965), cert. denied, 382 U.S. 901, 86 S.Ct.

235, 15 L.Ed.2d 155 (1965). After reviewing Lambert’s

requests we conclude that the court below did not abuse its

discretion nor has Lambert shown prejudice in the denial of

part of his motion.

LEGISLATIVE PRIVILEGE

Defendant Burgin argues that Rule 501 of the Federal

Rules of Evidence recognizes the existence of acommon law

privilege barring use of any of his official legislative acts as

evidence against him. However, the recent decision of the

Supreme Court in U. S. v. Gillock, __-US.___ , 100

S.Ct. 1185, 63 L.Ed.2d 454 (1 980), holds, that in a federal

criminal prosecution against a state legislator, Rule 501

provides no legislative privilege barring the intreduction of

evidence of the legislative acts of the defendant. Burgin’s

argument is without merit.

14a

CONCLUSION

A fair summary of the evidence presented by the govern-

ment shows that Defendant Burgin, a state senator and

Chairman of the appropriations committee, and his as-

sociate, Defendant Lambert, a former state senator, being

aware that 50% of the Learning Development Corporation

charges to the Department of Public Welfare were being

paid indirectly and later directly to Lambert with a large

portion going to Burgin, used their influence in assuring that

Learning Development Corporation obtained and retained

its contract with the Department of Public Welfare. Aware

of this, Burgin should have advised the Department of Public

Welfare that the contract could have been entered for much

less. However, he failed to do so and conspired with Lambert

to keep the Department ignorant of his personal gain from

the transactions. This exemplifies influence peddling of the

rankest kind.

AFFIRMED.

Appendix

The Grand Jury charges:

COUNT I

1. That from on or about April, 1975, and continuously

thereafter up to and including the date of the filing of this

indictment, in the Southern District of Mississippi, and

elsewhere, WILLIAM G. BURGIN, JR. and DAVID

FLAVOUS LAMBERT, JR., defendants herein, knowing-

ly and willfully did conspire and agree together, and with

each other, and with other persons known and unknown to

the Grand Jury, not named as defendants herein, to defraud

the United States of and concerning its governmental

15a

functions and rights,thatis, of and concerning its right to have

its business and its affairs, and particularly the transaction of

the official business of the United States Department of

Health, Education, and Welfare, conducted honestly,

imparttially, and with integrity as the same should be

‘ conducted, free from corruption, fraud improper and undue

influence, dishonesty, unlawful impairment and obstruction.

2. That from on or about October 1, 1975, to the date of

the filing of this indictment, there was in existence a program

of federal financial assistance whereby the United States,

through the Secretary of the Department of Health,

Education, and Welfare, would provide funds to the various

States for social service endeavors, such program being

established by and described in Title XX of the Social

Security Act, as amended, specifically Section 1397 et seq.,

Title 42, United States Code, with the monies received by

the States being commonly referred to as “Title XX funds.”

3. That at all times material herein, the State Department

of Public Welfare was an administrative agency of the State

of Mississippi and as such was responsible for the adminis-

tration of funds received from the United States pursuant to

the program described in Paragraph.2 hereinabove.

4. That at all times material herein, Learning Develop-

ment Corporation was a business entity incorporated under

the laws of the State of Tennessee having its principal offices

in the State of Tennessee and established to provide

educational and training services in the fields of learning

deficiencies, behavior modification, and motivation en-

hancement.

5. That from on or about October 1 , 1976, to on or about

June 30, 1978, Learning Development Corporation pos-

sessed a contract with the State Department of Public

Welfare by which Learning Development Corporation

l6a

agreed to administer various social service programs with

remuneration to Learning Development Corporation from

the State Department of Public Welfare to consist in large

part of funds received by the State of Mississippi pursuant to

the program described in Paragraph 2 hereinabove.

6. That at all times material herein, WILLIAM G.

BURGIN, JR. was Mississippi State Senator and Chairman

of the Mississippi State Senate Appropriations Committee.

7. That it was part of the conspiracy described in

Paragraph 1 hereinabove that DAVID FLAVOUS

LAMBERT, JR. would assist in the conduct of the affairs of

Learning Development Corporation concerning its con-

tractual relationships within the State of Mississippi.

8. That it was a further part of the conspiracy that

WILLIAM G. BURGIN, JR., would use and exert his

position and influence as a State Senator and Chairman of

the Mississippi State Senate Appropriations Committee

upon Fred W. St. Clair, Commissioner of the State De-

partment of Public Welfare, and other State of Mississippi

Officials in order to enable Learning Development Cor-

poration to obtain and maintain contracts with the State of

Mississippi and its agencies.

9. That it was a further part of the conspiracy that

WILLIAM G. BURGIN, JR., would use and exert his

position and influence as a State Senator and Chairman of

the Mississippi State Senate Appropriations Committee to

insure that state appropriations were available and sufficient

to enable the State of Mississippi and its agencies to obtain

and maintain contracts with Learning Development Cor-

poration.

10. That it was a further part of the conspiracy that a

portion of the remuneration received by Learning De-

velopment Corporation pursuant to its contracts with the

17a

State of Mississippi and its agencies would be funds obtained

by the State of Mississippi from the United States.

11. That it was a further part of the conspiracy that

DAVID FLAVOUS LAMBERT, JR. would obtain from

Learning Development Corporation a portion of the re-

muneration received by Learning Development Corporation

pursuant to its contracts with the State of Mississippi and its

agencies.

12. That it was a further part of the conspiracy that the

monies obtained by DAVID F LAVOUS LAMBERT, JR.,

from Learning Development corporation would be dis-

tributed among DAVID FLAVOUS LAMBERT, JR..,

WILLIAM G. BURGIN, JR., and, at times, other persons

known and unknown to the Grand J ury.

13. That it was a further part of the conspiracy that the

financial interests of WILLIAM G. BURGIN, JR., as

described hereinabove, would be concealed from the

knowledge of State of Mississippi officials as well as the

knowledge of the general public.

OVERT ACTS

In furtherance of the conspiracy and to promote and

accomplish its objectives, the co-conspirators committed

certain overt acts in the Southern District of Mississippi and

elsewhere, including: ,

1. In late 1975 or early 1976, DAVID FLAVOUS

LAMBERT, JR. met with R. Lee Goodner, Jr., President of

Learning Development Corporation, to discuss the possi-

bility of Learning Development Corporation obtaining a

contract in the State of Mississippi.

18a

2. In or about April, 1976, DAVID FLAVOUS

LAMBERT, JR. attended a meeting with officials of the

State Department of Public Welfare at which the interest of

Learning Development Corporation in securing a contract

was discussed.

3. In or about August, 1976, WILLIAM G. BURGIN,

JR. met with Fred W. St. Clair and sought his support for

Learning Development Corporation’s proposed contract.

4. In or about October, 1976, WILLIAM G. BURGIN,

JR. met with Fred W. St. Clair, again seeking support for

Learning Development Corporation.

5. On or about November 23, 1976, DAVID FLA-

VOUS LAMBERT, JR. executed a check payable to

WILLIAM G. BURGIN in the approximate amount of

$2,834.00.

6. On or about December 14, 1976, DAVID FLA-

VOUS LAMBERT, JR. executed a check payable to

WILLIAM G. BURGIN in the approximate amount of

$13,838.00.

7. In late 1976 or early 1977, WILLIAM G. BURGIN,

JR. called Fred W. St. Clair and inquired about the

performance of Learning Development Corporation.

8. On or about February 8, 1977, DAVID FLAVOUS

LAMBERT, JR. executed a check payable to WILLIAM

G. BURGIN in the approximate amount of $4,346.00.

9. On four to six occasions, in 1977, DAVID FLA-

VOUS LAMBERT, JR. presented a check drawn on the

account of Learning Development Corporation and payable

to ‘Bob Broome and ASsociates” to an employee of the

Fidelity Bank, Jackson Mississippi, requesting a five

thousand dollar cash payment and deposit of the remainder

in the accounts of Lambert and Bob Broome.

10. In or about the spring of 1977, WILLIAM G.

19a

BURGIN, JR. called Fred W. St. Clair and expressed

coxicern over difficulties being experienced in negotiations

between Learning Development Corporation and the State

Department of Public Welfare.

11. In or about August, 1977, WILLIAM G. BURGIN,

JR. had a conversation with Fred W. St. Clair expressing

dismay over the bonding requirements being imposed upon

Learning Development Corporation.

12. In the late summer of 1977, WILLIAM G.

BURGIN, JR., had a conversation witia Fred W. St. Clair

informing St. Clair not to be concerned over the Budget

Commission’s recommendation for the State Department of

Public Welfare budget because additional funds could be

added by the State Senate if necessary.

13. On or about December 22, 1977, WILLIAM G.

BURGIN, JR. obtained a check from the State Department

of Public Welfare intended as payment to Learning

Development Corporation.

14. On or about December 30, 1977, DAVID

FLAVOUS LAMBERT, JR. executed a check payable to

WILLIAM G. BURGIN in the approximate amount of

$8,500.00.

15. On or about February 2, 1978, DAVID FLAVOUS

LAMBERT, JR. executed a check payable to WILLIAM

G. BURGIN in the amount of $8,506.00.

16. On or about March 1, 1978, DAVID FLAVOUS

LAMBERT, JR. executed a check payable to WILLIAM

G. BURGIN in the approximate amount of $6,182.00.

17. During the first half of 1978, WILLIAM G.

BURGIN, JR. met with Fred W. St. Clair inquiring whether

a $750,000 state appropriation would be sufficient to fund a

future Learning Development Corporation contract.

18. On or about March 23, 1978, DAVID FLAVOUS

20a

LAMBERT, JR. executed a check payable to WILLIAM

G. BURGIN in the approximate amount of $8,600.00.

19. In or about May, 1978, DAVID FLAVOUS LAM-

BERT, JR. met with Fred W. St. Clair and expressed his

chagrin over the fact that St. Clair had sent a proposed

contract with Learning Development Corporation to the

regional office of the United States Department of Health,

Education and Welfare.

All in violation of Section 371, Title 18, United States

Code.

APPENDIX B

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 79-5304

D. C. Docket No. J78-00021-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM G. BURGIN, Jr., and

DAVID FLAVOUS LAMBERT, Jr.,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Mississippi

Before AINSWORTH, INGRAHAM and GARZA,

Circuit Judges.

2t

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Mississippi, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed.

July 24, 1980

ISSUED AS MANDATE:

APPENDIX C

United States Court of Appeals

FIFTH CIRCUIT

Gilbert F. Ganucheau OFFICE OF THE CLERK

Clerk September 15, 1980

TO ALL PARTIES LISTED BELOW:

NO. 79-5304 U.S.A. -vs- WILLIAM G. BURGIN, JR.,

and DAVID FLAVOUS LAMBERT, JR..,

(J78-00021 (N)

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition(s) for rehearing, and no member of the

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) of the petition( ) for rehearing en branch

has also been denied.

2c

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

By /s/ Peggy O, Keller

Deputy Clerk

cc: Mr. William E. Spell

Mr. Joe Sams, Jr.,

Mr. Henry Paul Monaghan

Mr. James B. Tucker

Mr. Michael C. Farrow

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5304

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM G. BURGIN, JR., and

DAVID FLAVOUS LAMBERT, JR..,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Mississippi

ORDER:

( ) The motion of appellant WILLIAM G. BURGIN,

Jr., for stay of the issuance of the mandate pending

petition for writ of certiorari is DENIED. See Fifth

Circuit Local rule 17, as amended January 22, 1979.

( ) The motion appellant, WILLIAM G. BURGIN, JR.,

for stay of the issuance of the mandate pending petition

(

(

)

)

2d

for writ of certiorari is GRANTED to and including

October 23, 1980, the stay to continue in force until

the final disposition of the case by the Supreme Court,

provided that within the period above mentioned there

shall be filed with the Clerk of this Court the certificate

of the Clerk of the Supreme Court that the certiorari

petition has been filed. The Clerk shall issue the

mandate upon the filing of a copy of an order of the

Supreme Court denying the writ, or upon the ex-

piration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of

this Court within that time.

The motion of

for a further stay of the issuance of the mandate is

GRANTED TO and including :

under the same conditions as set forth in the preceding

paragraph.

IT IS ORDERED that the motion of

for a further stay of the issuance of the mandate is

DENIED.

Illegible

UNITED STATES CIRCUIT

JUDGE