Petition — Klauber v. Attorney Grievance Commission

Supreme Court brief1981

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UlTCe-SUPTEME UOUTT, Ur

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No. \PR 28 1981

LE NE A ENE RN ORTORSION F | SONNE Se STEVAS,

me me ee +

In THE

Supreme Court of the United States

OcToBER TERM, 1980

GERALD N. KLAUBER.

Petitioner,

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF MARYLAND

—_

MicHaet E. Marr

909 Charles Center South

36 South Charles Street

Baltimore, Maryland 21201

(301) 539-4250

Attorney for Petitioner

The Daily Record Co., Baltimore, MD 21202 classi (i)

QUESTIONS PRESENTED

1. In an attorney licensing proceeding following a crim-

inal conviction for mail fraud, does the use of a rule that

every allegation in the criminal indictment is taken as

conclusively proven, violate due process, where the crimin-

al jury had been instructed that it need not find each and

every allegation proven in order to convict.

2. Does mail fraud still require a finding of actual fraud,

as opposed to constructive fraud, given the expanded use of

the mail fraud statute in recent years to cover behavior

not previously believed to be within its purview.

3. May the Maryland Court of Appeals overule its own

earlier decision after Petitioner relied on that decision in

deciding to forego an evidentiary presentation, where that

earlier decision involved the very same parties, on the very

same record, and addressing the very same issue?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..cesssssvscorsoscstacschalie eee I

Opinions Bei oocilsccicssscrcsocsssssdaeeeeee 1

PURISDICTION ocsccccsccscccsssvchonccouacncheassneasssnteeaeeaeae 2

CoNSTITUTIONAL, STAT!'TORY, AND RULE Provisions

ENVOLVED o.s0ssasanserecnsrieunesasadsesencsidelneinrnas aan 2

STATEMENT OF THE CAGE | .occcssscovscsssescssesicnseneee 3

STATEMENT OF FACTS. ......:ssssusasocssnsecseaneeee 7

REASONS FOR GRANTING THE WRIT:

I. The use of a conclusive presumption to

take the allegations in the criminal

indictment as conclusively proven,

where the jury had been instructed that

it need not find each of those allega-

tions as proven, violates due process 9

Il. Review should be granted to clarify

whether a showing of actual fraud, as

opposed to constructive fraud, is still

required to support a conviction for

Ail FAW oooscccecsossassansiasscs cue 11

III. The Court should grant the petition in

order to correct the gross injustice in

that the Court of Appeals, without any

notice whatsoever, reversed an earlier

decision between the same parties, on

the same record, addressing the same

issue, upon which petitioner had relied 14

CONCLUSION _ ...c+sccccsecoesscousecoceswansovsieencuiellnunennnaaanaaan 16

PRECEDING PAGE WAS BLANK |

TABLE OF AUTHORITIES

Cases

Acting Director, Dept. of Forests and Parks v.

Walker, 39 Md. App. 298, 385 A.2d 806

(1978), affirmed sub nom, Walker v. Acting

Director, 284 Md. 357, 396 A.2d 262 (1979) 15

Andrews v. Drew Municipal School District, 507

F.2d 611 (5th Cir.), cert. granted, 423 U.S.

820, cert. dismissed 425 U.S. 559 (1979) ...... 10

Attorney Grievance Commission v. Freedman,

285 Md. 298, 402 A.2d 75 (1979) .........eeeeee 8

Attorney Grievance Commission v. K!auber, 283

Md. 306, 391 A.2d 849 (1978) .......... eee 2,4,6

7,8, 14, 15

Attorney Grievance Commission v. Klauber, 284

Md. 306, 396 A.2d 253 (1979) ............::ccceeeees 2,5

Bar Association of Baltimore City v. Marshall,

269 Md. 510, 307 A.2d 677 (1973) ................. 6

Bell v. Burson, 402 U.S. 535 (1972) ..................... 10

Carrington v. Rush, 380 U.S. 89 (1965) ............. 10

Cleveland Board of Education v. LaFleur, 414

ye STD seiseasussovdsheveaneleies vellcosovecctmalesaies 10

Maryland State Bar Association v. Agnew, 271

Md. 543, 318 A.2d 811 (1974) ..............cccccceeee 13

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 9,10

United States v. Klauber, 611 F.2d 512 (4th Cir.)

cert. denied, 100 S. Ct. 1835 (1980) .........000... 5

United States v. Mandel, 591 F.2d 1347 (4th

Cir.), rev’d, 602 F.2d 653 (en banc), cert.

denied 100 S. Ct. 1647 (1979) ou... eeeeeeees 12

United States v. West, 549 F.2d 545 (8th Cir.)

cert. denied, 430 U.S. 956 (1977) ..........eeee 10

Vlandis v. Kline, 412 U.S. 441 (1973)... 10

Washington Suburban Sanitary Commission v.

Kline, 281 Md. 1, 376 A.2d 505 (1977) .........

Constitutional Provisions

Constitution of the United States:

Fourteenth Amendment ..............ccccccccceeeeeeees

Statutory Provisions

Be A: ID. pila atresecindgldccond cen assiintnbeniauchepecses

Be I Fie OUTS can vip Sonenedticdaninneia ‘cesnecnesincsahnienito

Ne NRG? BE WU soa aecscaicalcuncraabacessinieisepeserataneces

as I OE UNE ro capericancrcdpinwentnctiennnents

Rules

Md. Rules of Procedure, Ann. Code of Md.,

Volume 9C (1977 Replacement Volume):

NINE 2 cactus skakdccescacscidaevdskocesassnnliveosees

I ND fic Acad dicbecincrnsaninanasspseneawkerds

EE TT PPI, spaicdecsckvosessasnceswetnadenneacesss

Be WN Ss clidccdauciakeccousccniaeesienteamnvestives

PAGE

No.

Supreme Court of the United States

OctrosBer TERM, 1980

GERALD N. KLAUBER,

Petitioner,

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF MARYLAND

Petitioner Gerald N. Klauber respectfuily moves this

Court to review both the opinion and judgment of the

Court of Appeals of Maryland entered in this proceeding

on February 10, 1981, and the denial of a Petition for

Rehearing, that denial dated March 24, 1981.

OPINIONS BELOW

The letter/order indicating that the Petition for Rehear-

ing had been denied is unpublished and is attached hereto

as Appendix I. The Opinion of the Court of Appeals of

Maryland ordering that Petitioner be disbarred is not yet

published and is attached hereto as Appendix II. Addi-

tionally, there are two prior reported decisions relating to

earlier aspects of the instant case: Attorney Grievance

Commission v. Klauber, 283 Md. 597, 391 A.2d 849 (1978)

and Attorney Grievance Commission v. Klauber, 284 Md.

306, 396 A.2d 253 (1979). Finally, the instant proceeding,

which is an attorney disbarment proceeding, arose out of

and subsequent to Petitioner’s conviction for mail fraud

(18 U.S.C. 1341) and prohibited practices (18 U.S.C. 1961

et. seq.) in the United States District Court for the District

of Maryland. That conviction was affirmed in United

States v. Klauber, 611 F.2d 512 (4th Cir. 1979), cert. denied

100 S. Ct. 1835 (1980).

JURISDICTION

The judgment of the Court of Appeals of Maryland was

entered on February 10, 1981. A timely Petition for

Rehearing was denied on March 24, 1981. This Court’s

jurisdiction is invoked under 28 U.S.C. 1257 (3).

CONSTITUTIONAL, STATUTORY, AND

RULE PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV:

Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside . . . nor shall any State deprive

any person of life, liberty, or property without due

process of law. . .

Federal Mail Fraud Statute — 18 U.S.C. §§ 1341:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, . . . for the purpose of

executing such scheme or artifice or attempting so to

do, places in any post office or authorized depository

for mail matter, any matter or thing whatever to be

sent or delivered by the Post Office Department,. . .

shall be fined not more than $1,000 or imprisoned not

more than five years, or both.

Maryland Rules of Procedure, Rule BV 10(e)(1), Ann.

Code of Md., Volume 9C (1977 Replacement

Volume);

Conviction of Crime — Adjudication of Misconduct.

1. Proof of Guilt.

In a hearing of charges pursuant to this Rule, a

final judgment by a judicial tribunal in another

proceeding convicting an attorney of a crime shall be

conclusive proof of the guilt of the attorney of that

crime. A plea or verdict of guilty, or a plea of nolo

contendere followed by a fine or sentence, is a

conviction within the meaning of this Rule. A final

adjudication by a judicial tribunal in a disciplinary

proceeding that an attorney has been guilty of

misconduct is conclusive proof of the misconduct in

the hearing of charges pursuant to this Rule.

STATEMENT OF THE CASE

On December 1, 1977, Petitioner Gerald N. Klauber was

indicted by a federal grand jury in the District of

Maryland' and charged with sixteen counts of ma‘l fraud

in violation of 18 U.S.C. 1341 and one count of prohibited

practices in violation of 18 U.S.C. 1962 et. seq.’

' Also indicted with Respondent was his law partner Howard

Fine. Prior to Respondent’s trial, however, the two cases were

severed, and ultimately, the indictment against Fine was

dismissed.

* “Prohibited practices”, sometimes referred to as “racketeer-

ing”, as defined in 18 U.S.C. § 1961 (1) and (5), simply makes

unlawful two acts of mail fraud committed within a ten year

period. In the instant case, it was agreed by Petitioner and

Respondent that since the prohibited practices conviction repre-

sents nothing more than two additional mailings within the

context of the overall indictment, that for the purpose of this

licensing matter, the same mail fraud analysis applies with

equal force to tle prohibited practices conviction. For conveni-

ence sake, in this Petition, when referring to mail fraud,

Petitioner intends to include reference to prohibited practices as

well.

On March 27, 1978, a jury trial commenced in the

United States District Court for the District of Maryland,

the Honorable Alexander Harvey, II, presiding. The trial

lasted approximately four weeks, and on April 21, the jury

returned a verdict of guilty on each count. On June 21,

1978, Respondent was sentenced to a term of five years

imprisonment for each count, all sentences to run concur-

rently. On June 27, 1978, a timely appeal was noted to the

United States Court of Appeals for the Fourth Circuit.

On June 28, 1978, during the pendency of the criminal

appeal, Respondent, pursuant to Md. Rule BV 16, initiated

suspension proceedings against Petitioner in the Maryland

Court of Appeals which has original jurisdiction over

attorney discipline matters. BV 16, at that time, provided

for suspension of an attoruey prior to exhaustion of

criminal appellate review if that attorney had been

convicted of an offense involving moral turpitude. In the

context of the initial suspension action, the only evidence

presented were the jury instructions from the criminal

case, the indictment, and a certified copy of the judgment/

commitment order.

Based on that evidentiary showing, the Court of Appeals

concluded that mail fraud was not an offense necessarily

involving moral turpitude and held that the record in the

instant case was too ambiguous to justify a finding of

moral turpitude. Accordingly, the Court dismissed the

Petition. Attorney Grievance Commission v. Klauber, 283

Md. 597, 391 A.2d 849 (1978) (hereinafter referred to as

“Klauber I.”).

Following that dismissal, Respondent re-filed its Peti-

tion to Suspend on October 11, 1978. The second Petition,

however, purported to be pursuant tc BV 16, as amended,

effective July 1, 1978. The amended version no longer

required a finding of moral turpitude in order to suspend.

Following oral argument, the Court of Appeals held that

since Petitioner’s criminal conviction was final as of June

21, 1978, ten days prior to the effective date of amended

BV 16, to suspend Petitioner under the amended rule

would constitute an unlawful retroactive application of

that rule. Accordingly, the Petition was dismissed. Attor-

ney Grievance Commission v. Klauber, 284 Md. 306, 396

A.2d 253 (1979) (hereinafter referred to as “Klauber II.”)

On November 29, 1979, the United States Court of

Appeals affirmed the conviction. See, United States v.

Klauber, 611 F.2d 512 (4th Cir. 1979). Following that

Court’s denial of a Motion for Rehearing With a Sugges-

tion for Rehearing En Banc, Petitioner filed a Petition for

Writ of Certiorari to this Court. On April 21, 1978, that

Petition was denied. See, 100 S. Ct. 1835.

On April 24, 1980, three days after denial of the Petition

for Writ of Certiorari, Bar Counsel filed yet a third

Petition to Suspend pursuant to Md. Rule BV 16. This

third suspension action appeared to be based on the

pre-July 1, 1978, version of BV 16. Prior to oral argument

on the third Petition, however, the action was voluntarily

dismissed by Bar Counsel.

On May 28, 1980, notwithstanding that Petitioner was

incarcerated out of state, Bar Counsel filed a Petition for

Disciplinary Action. This final Petition simply alleged

that Respondent had been convicted of mail fraud, that the

conviction was final, and that, accordingly, Respondent

had violated Disciplinary Rules 1-102, 2-103, 3-103, 7-101,

7-102, and 9-102. See, Md. Rule 1230 and Appendix F

thereto, Ann. Code of Md., Volume 9C (1977 Replacement

Volume). As with a suspension action, the Court of

Appeals has original jurisdiction. Pursuant to Md. Rule ©

BV 9(b), however, the matter was referred to the Honor-

able David Ross of the Supreme Bench of Baltimore City

for a fact-gathering hearing, the relationship between the

Court of Appeals and Judge Ross being that of a Chancel-

lor in Equity and a Master. See, Bar Association of

Baltimore City v. Marshall, 269 Md. 510, 515-17, 307 A.2d

677, 680-81 (1973).

On August 25, 1980, a hearing was held before Judge

Ross. On October 24, 1980, he issued Findings of Fact and

Conclusions of Law as well as an accompanying Memoran-

dum. In his findings, he ruled that mail fraud is an offense

which per se involves moral turpitude and that Respon-

dent, simply by dint of the conviction, had violated DR

1-102 (A) (3), (4), and (5). Those provisions prohibit an

attorney from engaging in conduct involving moral turpi-

tude, fraud, and conduct prejudicial te the administration

of justice, respectively.

Petitioner filed timely exceptions in the Court of

Appeals to the Master’s Findings, and Respondent filed a

Recommendation for Sanction. On January 16, 1981, oral

argument was held before the Court of Appeals. At that

time, it was abundantly clear that the Court understood

and preceived Klauber I in the same light as had

Petitioner. Moreover, Bar Counsel conceded in oral argu-

ment that Petitioner’s crimina! conviction may rest solely

on a jury determination that Petitioner, in the representa-

tion of personal injury claimants against the insurers of

those responsible for the injuries, failed to reveal to

insurance adjusters that the treating physicians would

accept a reduction of an otherwise legitimate medical bill.

In an apparent attempt to provide an opportunity to

cure the deficiencies in the case, the Court issued an

Order, dated January 16, 1981, requiring the parties to

brief whether the Court could, sua sponte, supplement the

record with the criminal trial transcript and the briefs and

joint appendix from the criminal appeal. Timely Memoran-

da were filed in accordance with that Order.

On February 10, 1981, the Court issued its Opinion

hoiding that Petitiuner had been convicted of a crime

necessarily involving moral turpitude and ordering that

he be disbarred. That Opinion not only failed to address

the supplemental questions but also purported to reverse

Klauber I upon which Petitioner had relied. See, Appendix

Petitioner then found himself disbarred for having

relied solely and completely on a reported decision of the

Court of Appeals at an earlier stage of the same proceed-

ings between the same parties on the same record.

Accordingly, on March 10, 1981 Petitioner filed a timely

Petition for Rehearing. On March 24, 1981, the Court

issued a Letter Order denying the Petition for Rehearing

without comment. See, Appendix I.

STATEMENT OF FACTS

Other than presenting the indictment, the judgment/

commitment order, and the jury instructions, Bar Counsel

made no factual showing whatsoever. Petitioner did not

contest proof of the fact of conviction itself, nor did he

attack the integrity of that conviction by attempting to

re-litigate the issues previously raised in the Fourth

Circuit. See Md. Rule BV 10 (e)(1). It was Bar Counsel’s

contention, however, that all of the various allegations in

the indictment were taken as conclusively proven by

operation of BV 10 (e)(1). It was Petitioner’s position, on

the other hand; that since the jury had been expressly

instructed that it need not find all of the various

allegations in the indictment to be true in order to convict,

it was now unfair, and in fact, unconstitutional, to take

each of those allegations as proven since the jury’s verdict

in no way represented an unambiguous finding as to the

acts which Petitioner was alleged to have committed.

The indictment itself, reproduced as Appendix III,

presented a range of behavior alleged to be fraudulent,

including: knowingly referring claimants to doctors who

then supplied inflated bills; encouraging clients to take

time off from work when such leave was unnecessary:

paying kickbacks to insurance adjusters; paying gratuities

to individuals who had referred cases; and failing to reveal

to the insurance companies that the physicians would

accept reduced payment for otherwise legitimate bills in

order to avoid the inconvenience of testifying in court. The

most serious allegation — that regarding payment of

kickbacks — was not even submitted to the jury since the

Government failed to adduce eVen a shred of evidence to

justify that charge. As to the other allegations, each was

hotly contested at the criminal trial, and the criminal jury

was not asked for, nor did it give any indication of, which

of those allegations was proven.

Given the absence of any factual development in the

instant case and given the Court’s prior holding in

Klauber I that Petitioner’s conviction, on the very same

record, did not involve moral turpitude, there was neither

an adequate record upon which to find that Petitioner had

violated the relevant Disciplinary Rules nor to impose the

sanction of disbarment.*

In short, Bar Counsel presented no evidence that had

not been previously presented at the rejected suspension

hearings. Since there were no “facts” presented, the Court

had no basis upon which to rely for its decision to sustain

its findings of violation of the Disciplinary Rules except to

rule, as it did, that a conviction for mail fraud, by the very

nature of that offenses, involves a violativa of DR1-102

(A)(3), (4), and (5). Moreover, even assuming a violation,

* Under Maryland law, for exampie, the payment of gratuities

or the use of runners is not a disbarable offense. See, Klauber I,

283 Md. at 602, 391 A.2d at 852; Attorney Grievance Commis-

sion uv. Freedman, 285 Md. 298, 402 A.2d 75 (1979).

the absence of a factual record left the Court without any

basis for knowing what sanction would be appropriate.

REASONS FOR GRANTING THE WRIT

THE USE OF A CONCLUSIVE PRESUMPTION TO TAKE THE

ALLEGATIONS IN THE CRIMINAL INDICTMENT AS CONCLUSIVELY

PROVEN, WHERE THE JURY HAD BEEN INSTRUCTED THAT IT

NEED NOT FIND EACH OF THOSE ALLEGATIONS AS PROVEN,

VIOLATES DUE PROCESS.

Md. Rule BV (10) (e)(1) provides, in pertinent part:

In a hearing of charges pursuant to this Rule, a final

judgment by a judicial tribunal in another proceeding

convicting an attorney of a crime shall be conclusive

proof of the guilt of the attorney of that crime.

From the inception of this action, Petitioner did not

controvert the fact of his criminal conviction. At the same

time, however, he vigorously contested the factual infer-

ences which could be legitimately inferred from that

conviction given that the jury had been instructed that it

need not find that all the allegations in the indictment had

been proven in order to convict. Since Bar Counsel made

no effort to develop the underlying facts, the Court of

Appeals’ disposition of the matter represents reliance upon

a conclusive presumption in violation of due process.

It is a now well established aspect of Fourteenth

Amendment due process that a conclusive presumption is

unconstitutional if there is an inadequate nexus between

the proven fact and the inferred fact. In Stanley v. Illinois,

405 U.S. 645 (1972), the Court was asked to review an

Illinois statute which provided that an unmarried father

could not retain custody of his own children upon the

death of the mother, unless he pursued formal adoption

procedures. In holding that there was an insufficient

connection between the proven fact (an unmarried father)

and the inferred fact (unfitness as a father) the Court

stated:

The establishment of prompt efficacious procedures to

achieve legitimate state ends in a proper state

interest worthy of cognizance in constitutional ad-

judication. But the constitution recognizes higher

values than speed and efficiency. (footnote omitted).

Indeed, one might fairly say of the Bill of Rights in

general, and the Due Process Clause in particular,

that they were designed to protect the fragile values

of a vulnerable citizenry from the overbearing con-

cern for efficiency and efficacy that may characterize

praiseworthy government officials no less, and

perhaps more, than mediocre ones.

Procedure by presumption is always cheaper and

easier than individualized determination. But when,

as here, the procedure forecloses the determinative

issues. . . it needlessly risks running roughshod over

the important issues. . . 405 U.S. 656-57

See, also, Vlandis v. Kline, 412 U.S. 441 (1973);

Cleveland Board of Education v. LaFleur, 414 U.S. 632

(1974); Bell v. Burson, 402 U.S. 5°5 (1972); Carrington v.

Rush, 380 U.S. 89 (1965); and Andrews v. Drew Municipal

Separate School District, 507 F.2d 611, cert. granted, *423

U.S. 820, cert. dismissed, 425 U.S. 559 (1975).

It is clear from Stanley and its progeny that a two-step

analysis is employed. First, it is necessary to insure that

the inferred fact flows inexorably from the proven fact.

Second, it must be determined that no reasonable alterna-

tive means exists by which the inferred facts may be

proven.

Applying that analysis to the instant case, it must first

be noted that it was not necessary for the Government to

prove each aspect of the indictment at the criminal trial.

See, e.g., United States v. West, 549 F.2d 545 (8th Cir.),

cert. den. 430 U.S. 956 (1977). Consequently, the jury

finding, i.e. the proven fact, does not necessarily lead to

the inferred fact, i.e. Petitioner engaged in disbarrable

conduct such as knowingly submitting false and fraudu-

lent medical bills to insurance carriers. All that can be

inferred is the minimum which would support conviction

-~— namely, that Petitioner failed to reveal to the insurance

carriers that the physicians would accept less than the bill

(legitimately) recited in order to avoi? the inconvenience

of litigation, or that he employed runners, neither of which

support disbarment.

Secondly, there is a reasonable alternative means by

which Bar Counsel could have proceeded: it could have

called witnesses and presented testimony. It is important

to note that not one witness was called and not one shred

of testimony taken. Consequently, the entire case against

Petitioner was created and “prover” by way of the

statutory conclusive presumption.

Because of the unfairness to Petitioner and the import-

ance of the principles relative to conclusive presumptions,

Petitioner respectfully submits that this Court should

grant the Petition to review the judgment of the Court of

Appeals.

Il.

REVIEW SHOULD BE GRANTED TO CLARIFY WHETHER A SHOW.

ING OF ACTUAL FRAUD, AS OPPOSED TO CONSTRUCTIVE FRAUD,

IS STILL REQUIRED TO SUPPORT A CONVICTION FOR MAIL

FRAUD.

It is Petitioner’s position that the crime of mail fraud

has been expanded in recent years to include activity not

heretofor believed to be within its purview. Given that

expansion, it can no longer be said that mail fraud

necessarily embraces actual fraud, and consequently it

cannot be said that that offense necessarily includes moral

turpitude under the State law definition of that term.

The most significant example of the broadened notion of

mail fraud relates to William A. Rodgers, one of the

co-defendants in United States v. Mandel, et al., 591 F.2d

1347 (4th Cir.) rev’d on rehearing, 602 F.2d 653, cert.

denied 100 S. Ct. 1647 (1979). Mandel involved the mail

fraud prosecution of Maryland’s former governor as well as

several of his associates, including Rodgers. The gist of the

prosecution against Rodgers was that he had failed to

reveal a beneficial interest in a Maryland racetrack. When

the Fourth Circuit reviewed the convictions on appeal, it

stated the following with respect to the nature of the case:

Based upon the indictments and record in this case,

Appellants could have been convicted of mail fraud

only if one or more of the following schemes to

“defraud were proven: a scheme involving the bribery

or attempted bribery of Governor Mandel; or, a

scheme involving the fraudulent misrepresentation of

facts to, or such concealment of true facts from, the

Maryland General Assembly and the Maryland Rac-

ing Commission for the purpose of obtaining legisla-

tion, racing days and other things financially benefi-

cial to those interested in Marlboro and later Bowie.

591 F.2d at 1365.

Since Rodgers, as well as the other Defendants, had

been acquitted of any and all bribery charges, and since

the judge’s instructions removed the concept of bribery

from the mail fraud counts, the defendants’ conviction was

based totally on a failure to reveal a beneficial interest in

the racetrack. Yet, it was undisputed that the practice of

holding such an undisclosed interest was not only legal

under state law, but moreover, was the accepted practice

at the time. Consequently, Rodgers’ conviction represents,

at most, a conviction for constructive fraud.

While many cases continue to recite that actual fraud

remains a requirement, the factual reality belies those

comments, and Petitioner’s own conviction represents a

further example. As expressly conceded by Respondent at

the January 16, 1980, hearing, Petitioner’s criminal

conviction may rest, simply, upon the following predicate:

1. Petitioner represented claimants in personal injury

cases and referred the claimants to physicians.

2. The physicians forwarded bills to Petitioner who, in

turn, mailed these bills to the insurance companies

representing the party purportedly liable for the

injury.

3. The claimants all had legitimate injuries, and the

bills represented proper charges.

4. In order to facilitate settlement, avoid filing suit, and

eliminate the need for the physicians to come to

court, Petitioner could forward to the physicians less

than the bills indicated.

5. The fact that the physicians would accept less than

the amount recited on the bill was not disclosed to

the insurance company.

Those allegations, even coupled with proof that Petitioner

may have paid gratuities to those who referred him cases,

constitute nothing more than constructive fraud. Since

under State law, moral turpitude embraces only actual

fraud and not constructive fraud, see, e.g. Maryland State

Bar Association v. Agnew, 271 Md. 543, 318 A.2d 811

(1974), the finding that Petitioner was convicted of an

offense necessarily involving moral turpitude is unequivo-

cally wrong. The decision of the Court of Appeals in which

Petitioner was disbarred rests fundamentally on language

referring to an antiquated notion of fraud. Accordingly,

this Court should grant the Petition in order to clarify the

kind of fraud necessary to sustain a conviction under 18

U.S.C. 1341.

III.

THE COURT SHOULD GRANT THE PETITION IN ORDER TO

CORRECT THE GROSS INJUSTICE IN THAT THE COURT OF

APPEALS, WITHOUT ANY NOTICE WHATSOEVER, REVERSED AN

EARLIER DECISION BETWEEN THE SAME PARTIES, ON THE SAME

RECORD, ADDRESSING THE SAME ISSUE, UPON WHICH PETITION-

ER HAD RELIED.

As detailed above, the only evidence presented in the

hearing on the Petition for Disciplinary Action was the

criminal indictment, the judgment/commitment order, and

the criminal trial jury instructions. This showing was

identical to the showing made in Klauber I in which the

Court of Appeals held that not only was mail fraud not

necessarily an offense involving moral turpitude, but also,

on that record, it could not be said that Petitioner’s offense

involved moral turpitude.

After the filing of the Petition for Disciplinary Action,

numerous conversations occurred between counsel for the

respective parties relative to Bar Counsel’s anticipated

evidentiary showing. Ultimately, Bar Counsel gave its

assurance that only the indictment, judgment/commitment

order, and jury instructions would be introduced. See

Appendix IV. Based on that assurance and based on

Klauber I, Petitioner made no evidentiary showing of his

own. That it was reasonable for Petitioner to rely on that

representation and that it was reasonable to reply on

Petitioner’s reading of Klauber I simply cannot be dis-

puted. However, the Court of Appeals first overruled

Klauber I in its opinion, see Appendix II, and then

penalized Petitioner for not making a factual presentation

in mitigation by ordering disbarment. Jd.

Further aggravating the situation is that Klauber I,

under State law principles, should have acted either as the

law of the case or as collateral estoppel. It is not entirely

clear whether the suspension action of Klauber I is the

same case as the instant one notwithstanding that all

parties treated it as such. Assuming, however, that it is an

earlier aspect of the instant matter, then its holding is,

and should have been, binding on the Court of Appeals.

See, Acting Director, Dept. of Forests and Parks v. Walker,

39 Md. App. 298, 301-02, 385 A.2d 806, 809 (1978),

affirmed sub nom, Walke; v. Acting Director, Dept. of

Forests and Parks, 284 Md. 357, 396 A.2d 262 (1979).

If, on the other hand, Klauber I is a distinct case,

collateral estoppel nonetheless dictates the same result:

there was identity of issues; a final judgment on the merits

in the first action; identity of parties; and the party

against whom the estoppel applies had a fair opportunity

to litigate the issue. See, Washington Suburban Sanitary

Commission v. TKU Associates, 281 Md. 1, 376 A.2d 505

(1977). Accordingly, whether the applicable principle be

the law of the case or collateral estoppel, the Court of

Appeals should have been bound by K/auber I. At the very

least, if the Court determined that Klauber I should be

overruled, it should have remanded the matter to the

Master to permit Petitioner to make a factual presenta-

tion. This argument was addressed by Petitioner in his

Petition for Rehearing which was denied without comment

by the Court of Appeals. See Appendix I.

Because the Court of Appeals exercises original jurisdic-

tion over attorney discipline matters, there is no court

available to which Petitioner has a right of appeal. The

Court of Appeals has significantly departed from sound

jurisprudential principles, and the only available forum in

which Petitioner can have the obvious unfairness rectified

is this Court. Accordingly, Petitioner most earnestly

requests the Court to grant the Petition.

CONCLUSION

For the foregoing reasons, Petitioner requests this Court

to issue a Writ of Certiorari to review the judgment and

opinion of the Court of Appeals of Maryland.

Respectfully Submitted,

Micuaet E. Marr

909 Charles Center South

36 South Charles Street

Baltimore, Maryland 21201

(301) 539-4250

Attorney for Petitioner

APPENDIX I

Court oF APPEALS OF MARYLAND

March 24, 1981

Michael E. Marr, Esquire

Attorney at Law

909 Charles Center South

36 So. Charles Street

Baltimore, Maryland 21201

Re: Attorney Grievance Commission of Maryland v.

Gerald Ney Klauber

Misc. Docket (Subtitle BV) No. 5

September Term, 1980

Dear Mr. Marr:

This is to advise that the petition for rehearing filed in

the above entitled matter has been denied by the Court

this date.

Judge Eldridge did not participate in the consideration

of this petition.

Very truly yours,

James H. Norris, JR.

Clerk.

APPENDIX II

In the Court of Appeals of Maryland

Misc. Docket (Subtitle BV)

No. 5

September Term, 1980

Attorney Grievance Commission of Maryland

Gerald Ney Klauber

Murphy, C.J., Smith, Digges, Cole, Davidson and Gilbert,

Richard P.., (specially assigned), JJ.

Opinion by Smith, J.

Filed: February 10, 1981

This is the third time we have considered issues growing

out of the mail fraud conviction of Gerald Ney Klauber, a

member of the Maryland bar. This time we shall disbar.

Bar Counsel, acting on behalf of the Attorney Grievance

Commission, filed a petition with us seeking disciplinary

action against Klauber because he had been convicted of

violating 18 U.S.C. $1341 (1970) (mail fraud) and 18

U.S.C. § 1962 (1970) (racketeering). It was alleged that

Klauber had violated Disciplinary Rules 1-102; 2-103 b, c,

d, and f; 3-103; 5-107 (A), 7-101 (A\(3); 7-102 (A) (2-8,

inclusive); and 9-102.

Pursuant to Maryland Rule BV9 we designated the

Honorable David Ross, an associate judge of the Eighth

Judicial Circuit of Maryland, to hear the charges. He

found as a fact that Klauber “was found guilty by a jury in

the United States District Court for the District of

Maryland of 16 counts of mail fraud. . . and one count of

racketeering . . . on April 21, 1978 and was sentenced to

concurrent terms of 5 years imprisonment as to each count

on June 21, 1978.” His conclusions of law were:

1. The federal crime of mail fraud (18 U.S.C.

§ 1341) is a crime involving moral turpitude.

2. A lawyer who is guilty of the federal crime of

mail fraud (18 U.S.C. § 1341) has violated the follow-

ing disciplinary rules:

DR 1-102(A)(3)

DR 1-102(A)(4)

DR 1-102(A)(5)

These disciplinary rules specify that a lawyer shall not

engage in illegal conduct involving moral turpitude;

conduct involving dishonesty, fraud, deceit, or misrepre-

sentation; or conduct that is prejudicial to the administra-

tion of justice.

In United States v. Klauber, 611 F.2d 512 (4th Cir.

1979), cert. denied, 446 U.S. 908, 100 S. Ct. 1835 (1980),

Judge Murnaghan summarized for the court the factual

basis for the conviction:

The scheme or artifice to defraud and the pattern of

racketeering activity asserted against Klauber grew

out of his conduct as a partner in the law firm of Fine

and Klauber, P.A. The evidence at trial permitted a

jury conclusion that Klauber was engaged in a

practice in which, with respect to personal injury

cases in which he or his firm represented plaintiffs,

Klauber sought inflated statements from doctors in

which charges were set forth for visits by the

plaintiffs which had not actually occurred. Subse-

quent to settlements with insurance companies based

on such inflated statements from doctors, Klauber

reduced the amounts actually remitted to the doctors

and sometimes diverted amounts received in settle-

ment with respect to one plaintiff's case to a doctor

not involved in the case but retained with respect to

some other plaintiff. [/d. at 513.]

In his effort to avoid disciplinary action Klauber has

filed a number of exceptions to the findings of fact and

conclusions of law of the trial judge. They are all bound

up, however, in his contention that the trial judge erred in

ruling that the offenses of which Klauber was convicted

“per se involve moral turpitude” and thus that it is

improper to discipline Klauber without a development of

the underlying issues. He says, “It is obvious that this

Court’s refusal to suspend Respondent for conviction of a

crime involving moral turpitude means ipso facto that

mail fraud need not, in every case, involve moral turpi-

tude,” referring to Attorney Griev Comm’n v. Klauber, 283

Md. 597, 391 A.2d 849 (1978) (Klauber I). Such is not the

case, We shall here attempt to dispel any false impressions

which may have arisen as a result of that opinion, that in

Attorney Grievance Comm'n v. Klauber, 284 Md. 306, 396

A.2d 253 (1979 (Klauber ID, and the one in Attorney

Grievance Comm’n v. Reamer, 281 Md. 323, 379 A.2d 171

(1977).

We shall first examine the federal statute and that

which has been written relative to it. The statute provides:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

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

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

furnish or procure for unlawful use any counterfeit or

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

anything represented to be or intimated or held out to

be such counterfeit or spurious article, for the purpose

of executing such scheme or artifice or attempting so

to do, places in any post office or authorized deposi-

tory for mail matter, any matter or thing whatever to

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

receives therefrom, any such matter or thing, or

knowingly causes to be delivered by mail according to

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

directed to be delivered by the person to whom it is

addressed, any such matter or thing, shall be fined

not more than $1,000 or imprisoned not more than

five years, or both. [18 U.S.C. § 1341 (1970).]

No significant change has been made in the statute since

1909.

The most recent opinion of the Supreme Court on this

statute is Pereira v. United States, 347 U.S. 1, 74 S. Ct.

358, 98 L. Ed. 435 (1954), in which Chief Justice Warren

said for the Court:

The elements of the offense of mail fraud under 18

U.S.C. (Supp. V) § 1341 are (1) a scheme to defraud,

and (2) the mailing of a letter, etc., for the purpose of

executing the scheme. It is not necessary that the

scheme contemplate the use of the mails as an

essential element. United States v. Young, 232 U.S.

155. Ud. at 8.]

In reviewing convictions under this statute the federal

appellate courts consistently have said that to convict

under this statute these elements must be established.

They usually cite Pereira to this effect. See, e.g., United

States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.), cert.

denied, USS., 100 S. Ct. 3026 (1980); United

States v. Wrehe, 628 F.2d 1079, 1082 (8th Cir. 1980);

United States v. Jordan, 626 F.2d 928, 930 (D. C. Cir.

1980); United States v. Rodgers, 624 F.2d 1303, 1306 (5th

Cir. 1980); United States v. Freeman, 619 F.2d 1112, 1117

(5thCir. 1980); United States v. Brien, 617 F.2d 299, 307

(1st Cir.), cert. denied, 446 U.S. 919, 100 S. Ct. 1854

(1980); DeMier v. United States, 616 F.2d 366, 369 (8th

Cir. 1980); United States v. Kent, 608 F.2d 542, 545) 5th

Cir. 1979), vert. denied, 446 U.S. 936 (1980); United States

v. Corbin, 590 F.2d 398, 402 (1st Cir. 1979); United States

v. McDonald, 576 F.2d 1350, 1359 (9th Cir.), cert. denied,

439 U.S. 830 (1978); United States v. Pearlstein, 576 F.2d

531, 537 (3d Cir. 1978); United States v. Foshee, 569 F.2d

401, 403 (5th Cir. 1978), cert. denied, 444 U.S. 1082 (1979):

United States v. McNeive, 536 F.2d 1245, 1247 (8th Cir.

1976); United States v. Bush, 522 F.2d 641, 648 (7th Cir.

1975), cert. denied, 424 U.S. 977 (1976); United States v.

Bryza, 522 F.2d 414, 421 (7th Cir. 1975), cert. denied, 426

U.S. 912 (1976); United States v. Payne, 474 F.2d 603, 604

(9th Cir. 1973); and United States v. Bessesen, 445 F.2d

463, 468-69 (7th Cir.), cert. denied, 404 U.S. 984 (1971). In

Jordan the court stated:

During its deliberations the jury sent the following

note to the court:

“The indictment in count seven, charge one, mail

fraud, cites approximately $110,000 as the pro-

ceeds involved in defendant's alleged scheme to

defraud. This is the first time such a sum has

appeared and the evidence does not account for

this total. Is this pertinent for the jury to know

in arriving at a decision? If so, what is the

explanation for the $110,000?”

In response the court instructed the jury:

The Government is not required to prove the

details of a scheme: it is, however, required to

prove beyond a reasonable doubt the following:

that the defendant . . . willfully and knowingly

devised a scheme or artifice to defraud. . . and,

secondly, that the defendant used the United

States Postal Service by mailing or by causing to

be mailed some matter or thing for the purpose of

executing the scheme to defraud.

The instruction as given was correct in all respects.

(Id. 626 F.2d at 930.)

In United States v. Grande, 620 F.2d 1026 (4th Cir.), cert.

denied, USS. 101 S. Ct. 98 (1980), Judge

Winter said for the court:

The thrust of § 1341 is upon misuse of the mails to

defraud, not the regulation of state and municipal

affairs. United States v. States, 488 F.2d 761, 767 (8

Cir. 1973), cert. denied, 417 U.S. 909, 94 S. Ct. 2605,

41 L. Ed. 2d 212, cert. denied, 417 U.S. 950, 94 S. Ct.

3078, 41 L. Ed. 2d 671 (1974). Defendants’ use of the

mails, principally to give notice to proceed on con-

tracts for demolition, to send checks in full or partial

payment under fraudulently obtained demolition con-

tracts and to mail a bill from one of the contractors for

work performed under one such contract are, in our

view, sufficiently related to the scheme to defraud to

bring defendants within the reach of § 1341. Pereira v.

United States, 347 U.S. 1, 8, 74S. Ct. 358, 362, 98 L.

Ed. 435 (1954); United States v. Mandel, supra, at

1360 n. 9; United States v. Brewer, 528 F.2d 492, 494

(4. Cir. 1975). Id. at 1029-30]

In Freeman the court observed, “The indictment need not

specifically charge, but the government must prove, ‘a

specific intent to commit fraud,’ United States v. Kent, 608

F.2d at 545 n.3.. ., id. at 546.” Jd. at 619 F.2d at 1117.

Law review articles upon the subject include Comment:

Federal Prosecution of Elected State Officials for Mail

Fraud: Creative Prosecution or an Affront to Federalism?,

28 Am. U. L. Rev. 63 (1978); Rakoff, The Federal Mail

Fraud Statute (Part I), 18 Dug. L. Rev. 771 (1980);

Comment: The Intangible-Rights Doctrine and Political-

Corruption Prosecutions Under the Federal Mail Fraud

Statute, 47 U. of Chi. L. Rev. 562 (1980); Comment, Survey

of the Law of Mail Fraud, 1975 U. of Ill. L. F. 237 (1975);

and Comment: A Survey of the Mail Fraud Act, 8 Mem. St.

U. L. Rev. 673 (1978). The comment in the University of

Illinois Law Forum and the article by Mr. Rakoff, former

Chief of Business Frauds Prosecutions of the United States

Attorney’s Office, contain comprehensive background in-

formation relative to the development of the mail fraud

statute and the court decisions thereunder. Although the

American University and University of Chicago articles

are somewhat critical of use of the statute for some of the

more recent prosecutions, no article disputes the fact that

fraud is one of the elements of the crime which must be

proved in order to obtain a conviction. Mr. Rakoff states,

“The truth. . . is that at least since the 1909 amendment,

the sole genuine purpose of the mail fraud statute has

been to prosecute fraud and the mailing has served

primarily as a basis for invoking federal jurisdiction.” Jd.

at 819.

Under Rule BV 16 as it existed prior to July 1, 1978,

Bar Counsel might petition us to suspend an attorney who

was convicted of a crime involving moral turpitude. A

petition for such a suspension was before us in Reamer,

281 Md. 323. He, too, had been convicted of violation of 18

U.S.C. § 1341 (1970). Chief Judge Murphy said for the

Court relative to Reamer’s contentions:

Reamer suggests that in recent years the mail

fraud statute has been broadened in scope by deci-

sions of the federal courts and, as a result, the

standards for establishing fraudulent intent have

been so relaxed that the offense can no longer be

considered a crime which, as a matter of course,

always involves moral turpitude. In this connection,

Reamer argues that the mere fact that he was

convicted of mail fraud does not mean that he

perpetrated a fraud or possessed a fraudulent or

dishonest intent. He claims that a conviction under

the mail fraud statute is now permissible in a case

similar to his own where, after the attorney settles

the claim with the insurance company, he prevails

upon the physician, in the best interests of his client,

to reduce his fee because the overall settlement was

not as advantageous as had been anticipated |[/d. 281

Md. at 328.]

He then went on to say for the Court:

We need not decide in this case whether a convic-

tion for mail fraud, in any and all circumstances, will

always involve moral turpitude. It is enough that we

determine in this case, from a review of the allega-

tions of the .indictment and the District Court’s

charge to the jury, and the jury’s verdict, that the

crimes of which Reamer was convicted plainly in-

volved moral turpitude. (Jd. at 328. |

Klauber I was decided on October 10, 1978. This was

prior to the decision of the Fourth Circuit on December 22,

1978, in United States v. Reamer, 589 F.2d 769 (4th Cir.

1978). In Klauber I, after quoting from our Reamer, we set

forth a part of the instruction of the trial judge in

Klauber’s case. We said that it “apparently did not limit a

conviction to a finding of moral turpitude as in Reamer.”

Id. 283 Md. at 598. We then said:

It may follow from this instruction that the jury could

have found Klauber guilty without finding an intent

on his part to defraud. His appeal is still pending.

Hence we cannot say at this point in time, particular-

ly before the Fourth Circuit speaks, that Klauber

necessarily stands convicted of a crime involving

moral turpitude.

It must be borne in mind that Rule BV 16 does not

make suspension mandatory, but makes it discretion-

ary in this Court pending resolution of an appeal. In

such a proceeding we do not have a full record before

us. There has been no testimony adduced under Rule

BV 10, and hence no finding of fact under Rule BV 11,

as to whether moral turpitude was involved. Since

suspension under Rule BV 16, as it was then worded,

could occur only upon conviction of a crime involving

moral turpitude and, under the same rule, we were

dealing with suspension as a preliminary matter,

without a full record, we held as we did in Reamer

because our preliminary determination awaited final

resolution of the moral turpitude issue upon appellate

review of the conviction. It was our intention in

Reamer under the rule as it then existed to make

plain that we would not — and should not — suspend

unless it was absolutely clear that the crime involved

moral turtpitude. In Reamer we came to recognize the

10a

difficulties inherent in this rule involving moral

turpitude. It was for that reason that on May 5, 1978,

effective July 1, 1978, we amended Rule BV 16 to

permit suspension of an attorney upon conviction of

certain crimes which include a conviction “in any

federal court of a felony, unless the same crime also is

a crime under Maryland law and is not a felony

.’ Ud. 283 Md. at 599-600 (emphasis in

original). |}

In the Fourth Circuit’s Reamer, decided after Klauber,

the court responded to the contention that had been made

to us in our Reamer. It said:

He objects primarily to the district court’s instruc-

tions to the jury that if it found from the evidence

that defendant (i) had attempted to suppress evi-

dence or (ii) had knowingly violated the Maryland

barratry statute or the professional code of ethics

incident to the submission of false medical reports,

then it could consider such findings as probative of

defendant’s criminal intent.

* * * * * *

We think there was ample evidence to support the

court’s instruction, and it was properly given. The law

is well established that, in a criminal case, evidence

of a defendant’s attempt to influence a witness to

testify regardless of the truth is admissible against

him on the issue of criminal intent. See Wilson uv.

United States, 162 U.S. 613, 620-21, 16 S. Ct. 895, 40

L. Ed. 1090 (1896); United States v. Jamar, 561 F.2d

' Attorney Grievance Comm’n v. Klauber, 284 Md. 306, 396

A.2d 253 (1979), Klauber II, sheds no light on this controversy.

There the Attorney Grievance Commission sought to have

Klauber suspended under the revised Rule BV16 which permit-

ted suspension of an attorney upon conviction “in any federal

court of a felony, unless the same crime also is a crime under

Maryland law and is not a felony ... .” We held that the

revised rule might not be used to suspend Klauber since it did

not become effective until July 1, 1978, after Klauber’s convic-

tion, and the order adopting the rule did not make it applicable

to a judgment entered prior to the effective date of the rule.

lla

1103, 1106-07 (4th Cir. 1977). Therefore, we think the

court properly instructed that, if the jury found that

the defendant attempted to suppress evidence, it

could consider such evidence against him on the issue

of consciousness of guilt. See Allen v. United States,

164 U.S. 492, 498-500, 17 S. Ct. 154, 41 L. EDD. 525

(1896); 1 Devitt and Blackmar, Federal Jury Practice

and Instructions, 3rd Ed. § 15.09.

Also, on the issue of criminal intent, the court

instructed that state law and the code of professional

conduct prohibit the solicitation of clients by attor-

neys, and the standards for violation of the profes-

sional code were read to the jury. The court concluded

its charge with the admonition that defendant was

not on trial for any conduct not alleged in the

indictment. We think this latter instruction was

supported by the evidence and was properly given.

See U.S. v. Keane, 522 F.2d 534, 553-57 (7th Cir.

1975), cert. denied, 424 U.S. 976, 96S. Ct. 1481, 47 L.

Ed. 2d 746 (1976). Ud. 589 E.2d at 770-71.]

When Klauber’s case reached the Fourth Circuit he

made no challenge to the instruction concering which we

had some doubt in Klauber I by reason of the representa-

tions then made to us. As his attorney put it at argument

before us in this case, they deemed it useless to attack the

instruction after the same attorney had been unsuccessful

on that issue in the Fourth Circuit’s Reamer.

In Attorney Grievance Comm’n v. Walman, 280 Md. 453,

374 A.2d 354 (1977), we considered the meaning of the

term “moral turpitude” in the context of an attorney

disciplinary action. Judge Levine there said for the Court:

The term “moral turpitude” has been defined

generally as importing “an act of baseness, vileness or

depravity in the private and social duties which a

man owes to his fellow men or to society in general,

contrary to the accepted and customary rule of right

and duty between man and man.” Braverman v. Bar

Assn. of Balto., 209 Md. 328, 344, 121 A.2d 473, cert.

denied, 352 U.S. 830 (1956). When applied to the

12a

context in which we deal with it here, the term

connotes a fraudulent, Jowa State Bar Association v.

Kraschel, 260 Iowa 187, 148 N.W.2d 621, 627 (1967),

or dishonest, Committee of Legal Ethics v. Scherr, 149

W. Va. 721, 143 S.E.2d 141, 147 (1965), intent. As

Justice Traynor said for the California Supreme

Court in Jn re Hallinan, 43 Cal.2d 243, 272 P.2d 768,

771 (1954), appeal after remand, 48 Cal.2d 52, 307

P.2d 1 (1957):

“Although the problem of defining moral turpi-

tude is not without difficulty (citations omitted),

it is settled that whatever else it may mean, it

includes fraud and that a crime in which an

intent to defraud is an essential element is a

crime involving moral turpitude. (Citations omit-

ted). It is also settled that the related group of

offenses involving intentional dishonesty for pur-

poses of personal gain are crimes involving moral

turpitude. . . .” (Citations omitted; emphasis

added).

lid. at 459-60.]

Any doubts we might have had as to the continued

viability of the concept that a violation of § 1341 is a crime

involving moral turpitude have been dispelled by the

Fourth Circuit’s Reamer and Klauber and the continued

statements by each United States Court of Appeals that

fraud is an essential element which must be proved in

order for there to be a conviction under this statute.

Hence, we have no hesitancy in saying once again, as we

did in Maryland St. Bar Ass’n v. Kerr, 272 Md. 687, 690,

326 A.2d 180 (1974), mail fraud is “a crime plainly

involving moral turpitude. . . .” Moreover, the summary

by Judge Murnaghan for the Fourth Circuit in its Klauber

makes plain that fraud was involved in this case.

Rule BV10 e 1 states in pertinent part:

In a hearing of charges pursuant to this Rule, a

final judgment by a judicial tribunal in another

proceeding convicting an attorney of a crime shall be

l3a

conclusive proof of the guilt of the attorney of that

crime.

In Maryland St. Bar Ass’n v. Rosenberg, 273 Md. 351,

354-55, 329 A.2d 106 (1974), Chief Judge Murphy said for

the Court that “other states provide, as we do, by rule,

statute, or case law, that a conviction of an attorney is

conclusive proof of guilt,” citing a number of cases, and

that “{t]he constitutionality of these procedures has not

been seriously questioned.” Judge Digges referred for the

Court to the very similar predecessor rule in Bar Ass’n of

Balto. City v. Siegel, 275 Md. 521, 340 A.2d 710 (1975):

Based on this rule and based on the cases which have

applied it, see Maryland St. Bar Ass'n v. Rosenberg,

273 Md. 351, 329 A.2d 106 (1974); Maryland St. Bar

Ass’n v. Kerr, 272 Md. 687, 326 A.2d 180 (1974);

Maryland St. Bar Ass’n v. Agnew, supra; see also

concurring opinion in Jn re Braverman, 271 Md. 196,

212, 316 A.2d 246 (1974), we must conclude, regard-

less of what the respondent suggests, that the final

judgment of the United States District Court for the

District of Maryland, entered after Mr. Siegel’s nolo

contendere plea, is conclusive proof of his guilt of the

crime charged. [Jd. at 528.]

Accordingly, under Rule BV10 e 1 and our prior cases

Klauber may not now attack the factual underpinnings of

his conviction. It becomes entirely proper to discipline him

without a development of the underlying issues. Thus, we

have before us for disposition the case of a lawyer who

stands convicted of fraud, a crime involving moral turpi-

tude.

We have repeatedly and consistently held that conduct

involving moral turpitude will result in disbarment in the

absence of compelling circumstances justifying a lesser

sanction. See, e.g., Attorney Griev. Comm’n v. Barnes, 286

Md. 474, 481, 408 A.2d 719 (1979); Bar Ass’n of Balto. City

uv. Siegel, supra, 275 Md. at 529; Maryland St. Bar Ass’n v.

Kerr, supra, 272 Md. at 690; Maryland St. Bar Ass’n v.

Agnew, 271 Md. 543, 553, 318 A.2d 811 (1974), and cases

l4a

there cited. No compelling circumstances justifying a

lesser sanction have been presented here. Thus, it follows

that the sanction to be imposed is disbarment.

IT IS SO ORDERED; RESPONDENT

SHALL PAY ALL COSTS AS TAXED BY

THE CLERK OF THIS COURT INCLUD-

ING COSTS OF ALL TRANSCRIPTS

PURSUANT TO MARYLAND RULE BV16

c FOR WHICH SUM JUDGMENT IS EN-

TERED IN FAVOR OF THE ATTORNEY

GRIEVANCE COMMISSION AGAINST

GERALD NEY KLAUBER.

Although participating in the hearing on this matter,

Judge Eldridge took no part in the consideration or

decision of this case.

l5a

APPENDIX II]

In The United States District Court

for the District of Maryland

Criminal No. H-77-0566

(Mail Fraud, 18 U.S.C. § 1341; Prohibited Activities, 18

U.S.C. § 1962; Aiding and Abetting, 18 U.S.C. § 2)

United States of America

Howard Fine and Gerald N. Klauber

The Grand Jury for the District of Maryland charges:

1. At all times pertinent to this indictment Howard

Fine and Gerald N. Klauber were attorneys-at-law en-

gaged in the practice of law in the City of Baltimore and

the State of Maryland.

2. At all times pertinent to this indictment Howard

Fine and Gerald N. Klauber were associated together in

the practice of law originally as Fine & Klauber, partnership

and as of April 22, 1971 as Fine & Klauber, P.A.

(professional association).

3. At all times pertinent to this indictment,

State Farm Insurance Company |

Maryland Indemnity Insurance Company

Aetna Insurance Company

16a

Government Employees Insurance Company

Transit Casualty Company

Nationwide Insurance

Allstate Insurance Company

Maryland Casualty

were companies which provided to owners of motor

vehicles in the State of Maryland automobile liability

insurance which covered claims for property damage

and/or bodily injury resulting from accidents involving

insured motor vehicles.

4. At all times pertinent to this indictment CNA

Insurance was a company which provided liability insur-

ance to persons in the State of Maryland which covered

claims for bodily injury occurring on or about the premises

of insured persons.

5. From a date unknown, but beginning prior to

January 1, 1971 and continuing up to and including May

28, 1975, and thereafter continuing to a date unknown, in

the State and District of Maryland, Howard Fine and

Gerald N. Klauber, the defendants, willfully and knowing-

ly devised and intended to devise a scheme and artifice to

defraud to obtain money and property by means of false

and fraudulent pretenses, representations and promises

from the insurance companies named in paragraphs 3 and

4 above, and attempted to do so, the defendants then well

knowing that the pretenses, representations and promises

were false and fraudulent when made.

6. It was a part of the scheme and artifice to defraud

that the defendants in the course of conducting the

practice of law represented persons who claimed to have

been injured in motor vehicle and other accidents

(hereinafter referred to as “clients”) caused by the negli-

gence of others.

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

defraud that the defendants referred their clients to

certain physicians who, in connection with the claims of

17a

the clients against the persons causing the accidents and

their insurance companies, prepared and supplied to the

defendants false and fraudulent medical reports and bills

which the defendants utilized to obtain and attempt to

obtain monetary settlements from the insurance com-

panies, knowing that the medical reports and bills were

false and fraudulent.

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

defraud that the medical bills and reports which the

defendants utilized to obtain monetary settlements were

falsified in one or more of the following ways:

a. The defendants utilized medical bills which had been

inflated by including in the bills charges for visits

purportedly made by clients to the physician’s office for

medical services and treatment when in truth and fact

those visits had not been made.

b. The defendants utilized medical bills and reports

which represented that certain medical treatment and

services had been rendered to clients when in truth and

fact those medical services had not been rendered.

c. The defendants utilized medical reports which falsi-

fied and exaggerated the injuries purportedly sustained by

certain clients.

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

defraud that the defendants, as their option, could pay and

the physicians would accept substantially reduced pay-

ments in full satisfaction of the charges set forth in the

bills for medical services rendered to the defendants’

clients, which option the defendants did not disclose to the

insurance companies.

10. It was a further part of the scheme and artifice to

defraud that the defendants, without the knowledge or

authorization of certain clients, retained a portion of the

settlement proceeds to which the clients were entitled.

18a

11. It was a further part of the scheme and artifice to

defraud that the defendants employed “runners”, indi-

viduals who procured persons allegedly injured in motor

vehicle accidents as clients for the defendants in return for

cash payments from the defendants.

12. It was a further part of the scheme and artifice to

defraud that for the purpose of procuring as clients persons

allegedly injured in motor vehicle accidents, the defen-

dants agreed to and did make cash payments to certain

employees of the Mass Transit Administration (Baltimore

City) and other persons who referred persons allegedly

injured in motor vehicle accidents to the defendants.

13. It was a further part of the scheme and artifice to

defraud that the defendants urged, induced, suggested,

counseled and caused certain clients to take time off from

work, which the clients would not otherwise have taken.

14. It was a further part of the scheme and artifice to

defraud that the defendants, to facilitate the settlement of

motor vehicle bodily injury claims, paid cash kickbacks to

certain insurance adjusters or employees of insurance

companies.

15. On or about the 16th day of January, 1973, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Howard Fine,

Attorney At Law, Equitable Building — Suite 44, Calvert

& Fayette Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

19a

COUNT TWO

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 8th day of March, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Maryland

Indemnity Insurance Co., 10 S. Calvert Street, Baltimore,

Maryland, 21202.

18 U.S.C. §§ 13841 and 2

COUNT THREE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 8th day of August, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

20a

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Michael H.

Simons, 44 Equitable Building, Baltimore, Maryland

21202.

18 U.S.C. §§ 1341 and 2

COUNT FOUR

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 11th day of May, 1973, in the State

and District of Maryland

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Aetna Casualty

& Surety, 1500 Maryland National Bank Bldg., Baltimore,

Maryland, 21202.

18 U.S.C, §§ 1341 and 2

COUNT FIVE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

2la

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictmen.

2. On or about the 7th day of June, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald N.

Klauber, Attorney At Law, Equitable Building — Suite

44, Calvert & Fayette Streets, Baltimore, Maryland

21202.

18 U.S.C. §§ 1341 and 2

COUNT SIX

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

i4 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 26th day of June, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Roger Powell,

. 22a

Attorney at Law, 44 Equitable Building, Calvert &

Fayette Streets, Baltimore, Maryland 21202.

18 U.S.C. §$ 1341 and 2

COUNT SEVEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 6th day of July, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to CNA Insurance

Co., 201 N. Charles Street, Baltimore, Md. 21201.

18 U.S.C. §§ 1341 and 2

COUNT EIGHT

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

23a

2. On or about the 11th day of July, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Fine &

Klauber, Attorneys at Law, Suite 44 Equitable Bldg.,

Baltimore, Md. 21202.

18 U.S.C. §§1341 and 2

COUNT NINE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 29th day of August, 1973, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Nationwide

Insurance Company, 2500 Riva Road, S.E., Annapolis,

Maryland 21401.

18 U.S.C. §§ 1341 and 2

24a

COUNT TEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 7th day of ee 1973, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald Klau-

ber, Attorney at Law, 44 Equitable Building, Baltimore,

Maryland 21202.

18 U.S.C. $$ 1341 and 2

COUNT ELEVEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 3rd day of October, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

25a

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Government

Employees Insurance Co., #1 Investment Place, Towson,

Md. 21204.

18 U.S.C. §§ 13841 and 2

COUNT TWELVE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 4th day of October, 1973, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald N.

Klauber, Attorney, Equitable Bldg. Suite 44; Calvert &

Fayette Sts., Baltimore, Md. 21202.

18 U.S.C. §§$ 1341 and 2

COUNT THIRTEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

26a

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 26th day of October, 1973, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction therein, a letter addressed to Mr. Edward

Hrica, CNA Insurance Company, 201 N. Charles Street,

Suite 810, Baltimore, Md. 21201.

18 U.S.C. §§1341 and 2

COUNT FOURTEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 4th day of March, 1974, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald N.

27a

Klauber, Attorney at Law, Suite 44, Equitable Building,

Calvert & Fayette Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT FIFTEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 11th day of December, 1973, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to State Farm

Mutual Automobile Ins. Co., 1715 Gwynn Oak Avenue,

Baltimore, Maryland 21207.

18 U.S.C. §§ 1341 and 2

COUNT SIXTEEN

And the Grand Jury for the District of Maryland further —

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

28a

2. On or about the 10th day of January, 1974, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Howard F tne,

Esq., Equitable Building — Suite 44, Calvert & Fayette

Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT SEVENTEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorpurated

herein as though fully set out in this count of the

indictment.

2. On or about the 11th day of January, 1974, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Allstate

Insurance Company, 8722 Loch Raven Boulevard, Balti- —

more, Maryland 21204.

18 U.S.C. §§ 1341 and 2

29a

COUNT EIGHTEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 23rd day of May, 1974, in the State

and District of Maryland,

HOWARD FINE

AND

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cuse to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald N.

Klauber, Esq., Suite 44 Equitable Building, Calvert and

Fayette Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT NINETEEN

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 30th day of January, 1974, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

30a

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Allstate

Insurance Company, 8722 Loch Raven Boulevard, Balti-

more, Maryland 21204

18 U.S.C. §§ 1341 and 2

COUNT TWENTY

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 3lst day of January, 1974, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Howard Fine,

Attorney at Law, 44 Equitable Bldg., Baltimore, MD

21202.

18 U.S.C. § § 13841 and 2

COUNT TWENTY ONE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

3la

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 28th day of February, 1974, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Maryland

Indemnity Company, 10 S. Calvert Street, Baltimore,

Maryland.

18 U.S.C. §§ 1341 and 2

COUNT TWENTY TWO

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 6th day of March, 1974, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to State Farm

32a

Mutural Automobile, Insurance Company, 1715 Gwynn

Oak Avenue, Baltimore, Md. 21207.

18 U.S.C. §§ 1341 and 2

COUNT TWENTY THREE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 10th day of April, 1974, in the State

and District of Maryland,

HOWARD FINE

and

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Gerald N.

Klauber, Atty. at Law, 44 Equitable Building, Calvert and

Fayette Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT TWENTY FOUR

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment. |

33a

2. On or about the 12th day of July, 1974, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Mr. Charles

Brocato, Maryland Indemnity Insurance Company, Mary-

land Indemnity Building, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT TWENTY FIVE

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 19th day of May, 1975, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Edward J.

Thompson, Esquire, 1515 Washington Boulevard, Balti-

more, Maryland 21230.

18 U.S.C. § § 13841 and 2

34a

COUNT TWENTY SIX

And the Grand Jury for the District of Maryland further

charges:

1. The allegations contained in paragraphs 1 through

14 of this indictment are realleged and incorporated

herein as though fully set out in this count of the

indictment.

2. On or about the 28th day of May, 1975, in the State

and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the aforesaid

scheme and artifice to defraud and attempting to do so,

knowingly did cause to be delivered by mail, according to

the direction thereon, a letter addressed to Howard Fine,

Esquire, 44 Equitable Building, Calvert and Fayette

Streets, Baltimore, Maryland 21202.

18 U.S.C. §§ 1341 and 2

COUNT TWENTY SEVEN

And the Grand Jury for the District of Maryland further

charges:

1. At.all times pertinent to this indictment, Fine &

Klauber, P.A. was a professional association with offices

located in Baltimore City, Maryland, and was formed for

the purpose of engaging in the practice of law in Baltimore

City and the State of Maryland, and more particularly,

was engaged in the business of representing persons in

connection with claims for bodily injuries resulting from

motor vehicle accidents and other accidents caused by the

negligence of others.

35a

2. At all times pertinent to this indictment Howard

Fine and Gerald N. Klauber were attorneys licensed to

practice law in the State of Maryland and were the

principal owners of Fine & Klauber, P.A., each owning

49% of the corporate stock.

3. At all times pertinent to this indictment Fine &

Klauber, P.A. was an “enterprise” within the definition

contained in 18 U.S.C. § 1961(4), and was engaged in

interstate commerce and in activities which affect inter-

state commerce.

4. From on or about April 22, 1971, up to and including

May 28, 1975, and thereafter continuing to a date

unknown, in the State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, being persons associated with Fine &

Klauber, P.A., did conduct and participate, directly and

indirectly, in the conduct of the affairs of Fine & Klauber,

P.A., through a “pattern of racketeering activity,” includ-

ing mail fraud as defined in 18 U.S.C. §§ 1961(1)(B) and

1961(5), and as hereinafter described.

5. The pattern of racketeering activity participated in

and conducted by Howard Fine and Gerald N. Klauber

included the following:

(a) Twenty-six federal mail fraud violations, which are

charged in counts 1 through 26 of this indictment and

which are realleged and incorporated herein by reference

as though fully set out in this count of the indictment.

(b) Two federal mail fraud violations, namely:

1. On or about the 13th day of September, 1972, in the

State and District of Maryland,

36a

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the scheme

and artifice to defraud alleged in count one of this

indictment and attempting to do so, knowingly did cause

to be delivered by mail, according to the direction thereon,

a letter addressed to Association of [ndependent Taxi

Operators, Inc., 1920 Ashburton Street, Baltimore, Mary-

land 21216.

2. On or about the 27th day of November, 1971, in the

State and District of Maryland,

HOWARD FINE

and

GERALD N. KLAUBER

the defendants, for the purpose of executing the scheme

and artifice to defraud alleged in count one of this

indictment and attempting to do so, knowingly did cause

to be delivered by mail, according to the direction thereon,

a letter addressed to Allstate Insurance Company, 8722

Loch Raven Blvd., Baltimore, Maryland 21204.

6. The respective 49% interests of Howard Fine and

Gerald N. Klauber in Fine & Klauber, P.A., an enterprise

the defendants established, operated, controlled, conducted

and participated in the conduct of, in violation of 18 U.S.C.

§ 1962(c), are to their full extent subject to forfeiture to the

Unite@ States of America under the provisions of 18 U.S.C.

§ 1963(a).

18 U.S.C. §§ 1961, 1962(c), 1963 and 2

JERVIS S. FINNEY,

| United States Attorney.

A TRUE BILL:

Francis X. Dorr,

Foreman.

37a

APPENDIX IV

ATTORNEY GRIEVANCE COMMISSION OF MARY-

LAND

July 18, 1980

PRIVATE AND CONFIDENTIAL

Joseph L. Evans, Esquire

Suite 909

Charles Center South

36 South Charles Street

Baltimore, Maryland 21201

RE: BC Docket No. 78-202-4

Dear Mr. Evans:

Here, as you requested, is my assurance that I will

introduce into evidence the Indictment, the Judgment/

Commitment Order and the docket entries, and that I will

present no live testimony in my case in chief.

This will also confirm that you and Mr. Marr will not

object to the introduction of these documents at the trial

and that it will not be necessary for me to produce the

Clerk of the U.S. District Court to authenticate these

documents.

Very truly yours,

Wa ter D. Murpsy, JR.

Assistant Bar Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.