Petition — George Mariscal v. United States

A * RECEIVED

OCT 2 8 1980

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES SUPREME COURT, U.S.

IN THE

numBeR YO-5/0/&

GEORGE MARISCAL,

Petitioner,

“¥S=

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

GEORGE MARISCAL

Petitioner

STEWART & McLEAN, LTD.

HARRY A. STEWART, JR.

WILLIAM H. McLEAN

3440 N. 16th St., Ste. 8

Phoenix, AZ 85016

Phone: (602) 248-8200

Attorneys for George Mariscal

IN THE

SUPREME COURT OF THE UNITED STATES

N“’ TER

GEORGE MARISCAL,

Petitioner,

~Vvs-

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner, George Mariscal, pursuant to Rule 46, Supreme Court Rules, and Title 18,

United States Code, §3006A (d) (6), respectfully moves this Honorable Court for leave to

file the attached Petition for Writ of Certiorari to the United States Court of Appeals for

the Ninth Circuit without pre-payment of costs and to proceed in forma pauperis, Counsel

undersigned was appointed to reriene the petitioner on appeal to the United States Court

of Appeals for the Ninth Circuit. wh

Respectfully submitted this yj | day of October, 1980.

STEWART & McLEAN, LTD.

WILLIAM H. McLEAN

3440 N. 16th Street, Suite 8

Phoenix, AZ. 85016

(602) 248-8200

Attorneys for Petitioner

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES 4

OPINIONS BELOW 5

JURISDICTION 5

QUESTIONS PRESENTED 6

STATUTORY PROVISIONS INVOLVED 6

STATEMENT OF THE CASE 6

REASONS FOR GRANTING THE WRIT 8

CONCLUSION ~ | : 14

AFFIDAVIT OF SERVICE. 15

APPENDIX : 16

TABLE OF CASES AND AUTHORITIES

CASES

Hirabayashi v. United States,

320 U.S. 81 (1943).

Kann v. United States

323 U.S. 88 (1944).

Parr v. United States

363 U.S. 370 (1960).

Pereira v. United States

3 -S..1 (1954).

United States v. Fleming, -

504 F.2d 1045 (7th itt 1945),

United States v. Holder.

560 F.2d 959 (8th Cir. 1977).

United States v. Maze

414 U.S. 395, 400-402, 404 (1974).

United States v. McLeod

~~ 493 F.2d 1186 (7th Cir. 1974).

United States v. Rubin,

559 F. 2d 975; modified, 572 F.2d 320 (Sth Cir. 1978);

vacated and remanded, U.S. ___» 99 S.Ct.67 (1978) (mem.);

opinion after remand, (aff'g in part, rev'g in part, 591 F.2d 278

Sth Cir. 1979). :

United States v. Tanner,

1 F. 8 (7th Cir.), cert. denied, 409 U.S. 949 (1972).

STATUTES

Title 18, United States Code, §3006A (d) (6)

Title 18, United States. Code, §1254 (1)

Title 18, United States Code, §1341

Title 18, United States Code, §2314

Rule 46, Supreme Court Rules

Rule 17 (1) (ce), Supreme Court Rules

Rule 28, Supreme Court Rules

Page

1]

13

12, 13

8, 9, 10, 11

13

13

11

IN THE

SUPREME COURT OF THE UNITED STATES

NUMBER

GEORGE MARISCAL,

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, George Mariscal, requests that a Writ of Certiorarj issue to review the

judgment and memorandum decision of the United States Court of Appeals for the Ninth

Circuit, No. 79-1564, entered on July 24, 1980, affirming the petitioner's conviction and

sentence in the United States District Court for the District of Arizona, Phoenix, Arizona.

OPINIONS BELOW

A copy of the memorandum of decision of. the United States Court of Appeals for the

Ninth Circuit affirming petitioner's conviction is attached and appears in the Appendix.

JURISDICTION

This Court's jurisdiction to review the decision of the Ninth Circuit is invoked under

Title 18, United States Code, §1254(1) and Rule 17 (1) (c) of the Supreme Court Rules.

Title

On March 9, 1978, a federal grand jury sitting in the District of Arizona (Phoenix)

indicted

QUESTIONS PRESENTED

I

WHETHER THE MAIL FRAUD PROVISIONS OF TITLE 18,

UNITED STATES CODE, § 134], APPLY WHERE THE ONLY

"MAILING". ALLEGED IN THE INDICTMENT, OR PROVED AT

TRIAL, WAS THE ROUTINE. ROUTING OF NEGOTIATED

CHECKS THROUGH THE FEDERAL RESERVE SYSTEM, BY

MAIL, DONE IN ORDER TO ADJUST ACCOUNTS BETWEEN

THE PAYEE AND DRAWEE BANKS?

: II

SHOULD THE JUDICIALLY CREATED "CONCURRENT

SENTENCE DOCTRINE” BE INVOKED BY AN APPELLATE

COURT TO AVOID DECIDING A "COMPLEX" ISSUE OF FIRST

IMPRESSION WHERE THERE IS A STRONG LIKELIHOOD THAT

ITS APPLICATION WILL EXPOSE THE PETITIONER TO THE

RISK OF ADVERSE CONSEQUENCES CAUSED BY INVALID BUT

UNREVERSED CONVICTIONS? ©

STATUTORY PROVISIONS INVOLVED

18, United States Code, § 1341, 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, exchange, alter, give away, distribute,

Supply, or furnish or procure for unlawful use any counterfeit or

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

represented to be or intimated or held out to be such counterfeit

or spurious article, for the 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 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 $1,000.00 or imprisoned not more than five (5) years,

or both." ;

STATEMENT OF THE CASE

petitioner, George Mariscal (hereinafter referred to as "petitioner" or

"Mariscal") charging him with thirteen counts of mail fraud in violation of Title 18,

[a

United States Code, § 1341, and ten counts of interstate transportation of property

obtained by fraud, in violation of Title 18, United States Code, § 2314. In its ten-page

preamble, the indictment alleged a rather complex scheme or artifice beginning about

May 2, 1972, and continuing until about December 31, 1975.

The indictment alleged that in 1973, Mariscal, as the lawyer for a hydroponic

farming operation ‘noted as Tolteec Agronomics, had approached the Industrial

Development Board for the City of Las Cruces and Donna Ana County, New Mexico,

about the availability of an industrial revenue bond program to finance a greenhouse

/farming complex. (Government Exhibit No. 55; RT A. 75)!, By December, 1973, the

Industrial Board had recommended, and the Las Cruces, New Mexico, City Council had

approved a $1.2 million: industrial bond issue to build the proposed greenhouse complex.

(RT E. 226). Security Trust Company of Albuquerque, New Mexico, was designated by

the parties as trustee for the bond funds. On December 15, 1973, the bond instruments

were signed and approximately $731,000.00 was paid to Security Trust as trustee and

designated by them as "construction funds". (RT A. 212). Over the next eleven months

requisitions for construction payments were presented to Security Trust by Mariscal, all

of which they paid, completely exhausting these funds. ‘The indictment alleged that the

scheme or artifice to defraud was ‘in connection with the presentment of false or

fraudulent requisitions.

Upon receiving construction payment checks from Security Trust, Mariscal would

transport them to Arizona and deposit them in a bank account at the First National Bank

of Arizona in Phoenix, Arizona. (RT C.18). An.employee of First National Bank testified

that when Mariscal deposited these checks he received immediate credit in the account.

After crediting the secount, the bank returned the negotiated checks by mail to the

drawee bank in Albuquerque through the Federal Reserve System. It was this series of

mailings that constituted the first ten even numbered mail fraud counts of the

indictment. The mailing of the checks back to Albuquerque was merely a routine and

incidental banking function to adjust the accounts between the payee and the drawee

1/ With the exception of the proceedings held July 23, 1979, the reporter's

transcript of the proceedings in this action have been labeled Volumes "A" through "H",

and the page numbers prefixed by the volume letter. Thus, the designation of record "RT

A.75", as used in this petition, denotes “Reporter's Transcript, Volume A, page 75." For

brevity and clarity, this simplified designation will be used throughout this petition.

-7-

~

banks. (RT C. 18; RTC. 20). Further, the bank employee testified that the procedure

used to process these checks was identical to the Procedure used by the bank for

processing credit card deposits. (RT F. 8).

Mariscal's Motion for Judgment of Acquittal as to the mail fraud counts made at the

Close of the government's case, and at the close of all of the evidence, was denied.

Twelve of the mail fraud counts were submitted to the jury for its consideration, and

after six days of deliberation, the jury convicted him on all counts. (Count 23 of the

indictment, alleging mail fraud, had been dismissed by the government previously).

On July 31, 1979, the petitioner was sentenced to the custody of the Attorney

General for a period of three years on each come, with the sentences to run concurrent.

He was released on his: own recognizance pending appeal to the Ninth Circuit Court of

Appeals and remains on this release Status pending this petition to this Honorable Court.

On July 24, 1980, the United States Court of Appeals for the Ninth Circuit, in a

memorandum decision, affirmed the convictions, but declined to review the twelve mail

fraud convictions solely because of the "concurrent sentence doctrine." A timely motion

for rehearing and suggestion of rehearing en banc was denied on September 29, 1980. A

Motion for yn of Mandate has been filed with the Circuit Court pending the filing of

this petition.

REASONS FOR GRANTING THE WRIT

BY ITS APPLICATION OF THE CONCURRENT SENTENCE

DOCTRINE THE NINTH CIRCUIT COURT OF APPEALS

IMPROPERLY REFUSED TO REVIEW THE PETITIONER'S

CONVICTIONS FOR MAIL FRAUD WHERE, IN A CASE OF

FIRST IMPRESSION:

A. THE GOVERNMENT FAILED TO ALLEGE OR PROVE A

"MAILING" THAT WAS SUFFICIENTLY RELATED TO THE

ALLEGED SCHEME OR ARTIFICE TO BRING THF PETI-

TIONER'S CONDUCT WITHIN THE MEANING OF TITLE 18,

UNITED STATES CODE § 1341; AND

B. WHERE THE UNRESTRICTED USE OF THE CONCURRENT

SENTENCE DOCTRINE CREATES A SUBSTANTIAL

LIKELIHOOD THAT ITS APPLICATION WILL EXPOSE THE

PETITIONER TO A RISK OF ADVERSE CONSEQUENCES

CAUSED BY AN INVALID BUT UNREVERSED CONVICTION.

Title 18, United States Code, §1341, makes it illegal to cause the mails to be used

for the purpose of "executing" a scheme or artifice to defraud. In United States v. Maze,

414 U.S. 395 (1974), the most recent decision of this Court to discuss the mailing aspect

of this section, the Court Stated:

"Congress could have drafted the mail fraud statute so as to

require only that the mails be in fact used as a result of the

fraudulent scheme. But it did not do this; instead, it required

that the use of the mails be 'for the purpose of executin such

scheme or artifice'***." 414 U.S. at 40 (emphasis Supp rede

In Maze, the defendant had been convicted of mail fraud arising out of his

unauthorized use of another's bank credit card at several out-of-state motels. The

"mailings" alleged in the indictment consisted of the routine routing of the credit card

invoices through the mails from the various motels back to the issuing bank and

eventually by the bank .to. the card owner. The Sixth Circuit Court of Appeals and this

Court assumed that the evidence adduced at trial Supported a finding that the defendant

"caused" the mailings. - However, as the Court noted, the more difficult question was:

"***Whether these mailings. were sufficiently closely related to

the respondent's scheme to bring his conduct within the statute.”

414 U.S.-at 399. ,

The Court held that these mailings were not sufficiently related to Maze's scheme to

invoke §1341, and affirmed the Circuit Court's reversal of the conviction. In so holding,

the Court analyzed its previous cases dealing with this issue as follows:

"In Kann [v.. United States, 323 U.S. 88 (1944) corporate

officers and directors were accused of having set up a dummy

‘The scheme in each case had reached

fruition. The persons intended to receive the

money had received it irrevocably. It was

immaterial to them, or to any consummation

of the scheme how the bank which paid or

credited the check would collect from the

drawee bank. It cannot be said that the

mailings in question were for ihe purpose of

executing the scheme as the statute requires."

"In Parr [v. United States, 363 U.S. 370 (1960)], the defendants

were charged inter alia, with having obtained gasoline and other

Products and other services for their own purposes by the

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because it was immaterial to the defendant how the oil company

went about collecting its payment.

"The defendant in Pereira [v. United States, 347 U.S. 1 (1954),

was charged with having defrauded a widow of her property after

marrying her. The Court described the conduct of the defendant

in these words:

‘Pereira asked his then wife if she would join

him in the hotel venture and advance

$35,000.00 towards the purchase price of

$78,000.00. She agreed. It was then agreed

between her and Pereira that she would sell

some securities that she possessed in Los

Angeles and bank the money in a bank of his

choosing in El Paso. On June 15, she received

the check for $35,000.00 on the Citizens

National Bank of Los Angeles from her brokers

in Los .Angeles and gave it to Pereira, who

endorsed it for collection to the State

National Bank of El Paso. The check cleared,

and on June 18, a cashier's check for

$35,000.00 was drawn in favor of Pereira.'

"Thus the mailings in Pereira, played a significant part in

enabling the defendant in that case to acquire dominion over the

$35,000.00 with which he ultimately absconded. Unlike the

mailings in Pereira, the mailings here [in Maze] were directed to

the end of adjusting accounts between the motel operator, the

Louisville Bank, and Meredith, all of whom had to a greater or

lesser extent been the victims of respondent's scheme.

Respondent's scheme reached fruition when he checked out of the

motel, and there is no indication that the success of his scheme

depended in any way on which of his victims ultimately bore the

loss." 414 U.S. at 400-402 (footnotes omitted) (emphasis

supplied). ;

To date, counsel has been unable to locate any reported decision wherein a routine

mailing of negotiated checks through the Federal Reserve System has been used by the

government as the basis for a mail fraud prosecution. We believe that this conviction is

the first of its kind inthe United States, and that solely because of the Circuit Court's

application of the judicially created concurrent sentence doctrine the petitioner has been

denied an appellate review of his conviction as to these counts.

Although the Court of Appeals characterized the issue we raise by this petition as

"complex", we believe that its resolution is found in a close analysis of this Court's

decisions in Kann, supra, Parr, supra, Pereira, supra, and Maze, supra. We believe that

an application of the Kann-Maze holdings to the instant case results in the obvious

conclusion that the government simply failed to allege or prove "mailings" that fall

within the scope of the mail fraud statute. The scheme or artifice that was alleged in

this case reached fruition upon celivery of the Security Trust checks to Mariscal or most

certainly upon their deposit and immediate receipt of credit at the First National Bank in

-10-

Phoenix. The success of petitioner's scheme was in no way dependent upon or affected

by the subsequent routine mailing of these checks through the Federal Reserve System

from Phoenix back to Albuquerque. To use the words of this Court in Maze, supra, there

simply is "no indication that success of his scheme depended in any way on which of his

victims ultimately bore the loss," or how the checks were returned to the drawee bank in

New Mexico.

We also believe that this Court should review this case because the court below

refused to consider the mail fraud issue solely because of the archaic concurrent

sentence doctrine.

The concurrent sentence doctrine, as approved by this Court in Hirabayashi v. United

States, 320 U.S. 81 (1943), holds that where concurrent sentences are imposed upon

conviction of more than one count of an indictment, and the conviction as to any single

count can be affirmed, review of the remaining counts is unnecessary. Although the

application of this judicially created ne has been approved by this Court, its use by

many circuit courts has been held to be inappropriate except in limited circumstances.

However, the Ninth. Circuit Court of Appeals has not, as of this date, limited or

restricted its use.

In United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949 (1972),

the Circuit Court thoroughly analyzed the concurrent sentence doctrine and concluded as

follows:

"Tanner and Pearl, who were charged under Count IV, joined in

Rice and Chipman's attack on this count. (Footnote omitted). In

addition, Pearl alleges that his conviction under Count I of the

indictment is barred by the Fifth Amendment prohibition against

double jeopardy. Neither of these appellants, however, has

directed any specific attack against the validity of the remaining

count of the indictment, Count VII (Footnote omitted).

"Until recently, the validity of Count VII would have rendered

unnecessary further inquiry into the validity of Count IV where

Tanner is concerned and Counts I and IV where Pearl is

concerned.. Appellate review would here be avoided since

Tanner's and Pearl's sentences under Count VII are concurrent

with the sentences assessed under all other counts of the

indictment. Lawn v. United States, 355 U.S. 339, 359 (1957);

Hirabayashi _v. United States, 320 U.S. 81, 85 (1942). The

Supreme Court's decision in Benton v. Maryland, 395 U.S. 784, 791

(1969), constitutes a re-evaluation of the ‘concurrent sentence

doctrine.' Benton holds that there is no jurisdictional bar

(stemming from the requirement of justiciability) to a

consideration of all counts under concurrent sentences. The

Court points out that an unreviewed count could increase an

appellant's future sentencing under an habitual offenders statute,

or adversely affect his chances for parole, or be used to impeach

-ll-

his testimony at a future trial. Benton suggests that review is

desirable where adverse collateral consequences of this nature

may flow from conviction. See, Davie v. United States, 447 F.2d

480 (7th Cir. 1971); United States v. Febre, 425 F.2d 107 (2nd Cir.

1970), cert. denied, 400 U.S. 849 (1971). Since we cannot say that

there no possibility of undesirable collateral consequences

attendant upon these convictions, we choose to consider the

validity of all the challenged counts." 471 F.2d at 140.

More recently, in United States v. Holder, 560 F.2d 953 (8th Cir. 1977), the court

reviewed, in an extremely thorough analysis, the continued viability of the concurrent

sentence doctrine. In rejecting the application of this rule in most cases, that Court

reasoned:

"Whether the [concurrent sentence) rule should be applied in a

particular situation is a matter of judicial discretion, Sanders v.

United States, 541 F.2d 190, 193 (8th Cir. 1976), cert. denied, 429

U.S. 1066 (1977), but. fa our judgment, it ought not to be invoked

where there is 2 iikelihood that its application may expose a

defendant to the risk of adverse consequences caused by an

invalid but unreversed conviction. See, United States v. Lindsay,

552 F.2d 263 (8th Cir. 1977); United States v. Neff, 525 F.2d 761

(8th Cir. 1975) (J. Lay concurring); United States v. Belt, 516 F.2d

873 (6th Cir. 1975), cert. denied 423 U.S. 1056 (1976). See also

Benton v. Maryland, 395 U.S. 784 (1969); United States v. Tanner

471 F.2d 128, 140 (7th Cir.), cert. denied 409 U.S. 949 (1972);

United States v. Febre, supra, at 113." 560 F.2d at 956.

Thereafter, the Eighth Circuit Court of Appeals analyzed the effect that the

unreversed but otherwise invalid convictions might have upon the appellant in several

evens First, the unreversed eonvietion may well have an adverse effect on the prisoner's

"offense severity rating" and his "salient factors score", as these factors are used by the

United States Board of Parole in computing a prisoner's time range for parole

eligibility. Not only may the unreversed, but invalid convictions affect Mariscal's parole

eligibility in the instant case, but also such additional convictions may adversely affect

parole computation in the future. Also, as suggested by the court in Holder, supra, there

may clearly be an effect on the individual in the future by the application of a recidivist

statute or, in attempting to impeach him with what would otherwise be an invalid "fraud"

conviction.

We believe that most, if not all, of these arguments apply in Mariscal's case and

weigh heavily against the Circuit Court's decision to sidestep the "complex" task of

resolving more than half of the counts of the indictment that Mariscal has been

convicted of. Most certainly, Mariscal's "salient factor score" will be affected by the

unreviewed affirmance of the mail fraud violations. As we understand it, the United

States Bureau of Prisons computes the "dollar value" of fraud related crimes based upon

-f2-

the allegations contained in the indictment on those counts that the petitioner was

convicted of. In the instant case, if the dollar value of the mail fraud counts are

included within this computation, either Mariscal's "salient factor score” or his “offense

Severity rating" will be increased. He will unquestionably fall into a category rated as

either "high" or "very high" unless these counts are also reviewed and reversed, as we

believe they should.

Additionally, we point out to this Honorable Court that until being convicted in this

case, the petitioner was a respected lawyer in his community in Arizona. It has been

both shame and punishment to him to be charged, much less convicted. He has claimed

throughout this case that he totally lacked the intent to defraud anyone. He has also

claimed throughout this case that the mail fraud charges against him were both untrue

and invalid. He should not now be denied a review of these counts because of an archaic,

discretionary doctrine. |

As the Court-held in Holder, supra:

"For many years, we have applied the concurrent sentence rule

in the interests of judicial economy with the reservation that it

not be followed where it might expose the defendant to

substantial risk of adverse consequences. Sanders v. United

States, supra at 193; United States v. Belt, supra, at .

ntil recently, we lacked evidence that applying the concurrent

sentence rule would influence parole status decisions. It now

appears that the United States Board of Parole's regulations for

determining perole eligibility necessitate a reassessment of this

doctrine. (Footnote omitted). Because we have identified the

possibility of adverse consequences, we will consider the validity

of Holder's evidentiary claim." 560 F.2d at 956.

It appears that there is a definite groundswell from some circuit courts throughout

the nation challenging the continued viability of routinely applying the concurrent

sentence doctrine. Among others, the following cases support our position that it should

not be followed in this case: United States v. Rubin, 559 F.2d 975, modified, 572 F.2d

320 (Sth Cir. 1978); Vacated and remanded, U.S. __-_, 99 S. Ct. 67 (1978) (mem.);

Opinion after remand, (aff'g. in part, rev'g. in part), 591 F.2d 278 (Sth Cir. 1979); United

States v. Fleming, 504 F.2d 1045 (7th Cir. 1945); United States v. McLeod, 493 F.2d 1186

(7th Cir. 1974).

In virtually every case found by the petitioner in which an appellate court rejected

the applicability of the concurrent sentence Coctrine, its use had been advocated by the

government. In the instant case, the government did not rely upon this doctrine in its

brief filed with the Circuit Court. Neither did the government urge its application at

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oral argument. The Circuit Court received virtually no guidance in applying this harsh

doctrine in this case. It seems especially unfair that this doctrine should now be invoked,

without the benefit of either written or oral argument, to deny the petitioner a

consideration of the substantial questions he raises concerning the validity of more than

half of the counts of the indictment upon which he has been convicted,

Based upon the above, we believe that although the issues raised by these mail fraud

convictions &e "complex", that they must be decided. The Circuit Court's unpublished

opinion should be reviewed by this Court in order to: (1) determine, in a case of first

impression, the applicability of the mail fraud statute to the routine mailing of

negotiated checks between banks to adjust their accounts; and (2) to determine the

continued viability of the judicially created concurrent sentence doctrine in a case where

its upplication will expose the petitioner to the risk of adverse consequences caused by

an invalid but unreversed conviction.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review the decision of the

United States Court of Appeals for the Nipth Circuit.

Respectfully submitted this dey of October, 1980.

STEWART & McLEAN, LTD.

L - MeL

3440 N. 16th Street, Suite 8

Phoenix, AZ. 85016

(602) 248-8200

Attorneys for Petitioner George Mariscal

-14-

IN THE

SUPREME COURT OF THE UNITED STATES

NUMBER

GEORGE MARISCAL,

Petitioner,

~vs-

UNITED STATES OF AMERICA,

Respondent.

STATE OF ARIZONA )

. AFFIDAVIT OF SERVICE

COUNTY OF MARICOPA}

WILLIAM H. McLEAN, being first duly sworn, deposes and says:

That in accordance with Rule 28, Supreme Court Rules, he has served a copy of the

following documents on the respondent, United States, by depositing them in a United

States post office or mail be, with first class postage prepaid, addressed to the Solicitor

General, Department of Justice, Washington, D.C. 20530, on this the 2 / day of

October, 1980:

1. Motion for Leave to Proceed in Forma Pauperis;

2. Petition for Writ of Certiorari to the United States court of Appeals for the

Ninth Circuit;

3. Affidavit of Service.

‘

WILLIAM H. McLEA

. 4), ;

Subscribed and sworn to before me this LL ogy of October, 1980 by

William H. McLean. /; ;

My Commission Expires:

95-31

— _~

APPENDIX

-16-

—

FILED

H 980

UNITED STATES COURT OF APPEALS JUL 241

. HARD #H. DEANE

FOR THE NINTH CIRCUIT fit pid.

UNITED STATES OF AMERICA,

No. 79-1564

Appellee,

vs. D.C. No. CR 78-80 PHX

GEORGE MARISCAL,

MEMORANDUM

)

)

)

)

)

)

)

)

Appellant,)

)

Appeal from the United States District Court

eo for the District of Arizona

“William E. Copple, District Judge, Presiding

‘ Argued and submitted May 14, 1980

Before; ‘SMODWIN, ALARCON and NELSON, Circuit ‘Judges.

George Mariscal appeals his conviction on twenty-two

counts arising out of fraudulent Promotion of a greenhouse

project financed by municipal bonds. The ten odd-numbered

counts of the indictment charge Mariscal with devising a

scheme to defraud bond purchasers by causing checks to be-

issued upon false requisitions and then transporting the

checks in interstate commerce between Albuquerque, New

Mexico, and Phoenix, Arizona, in violation of 18 U.S.C.

§ 2314. The twelve even-numbered counts charge Mariscal with

causing checks issued from the Security Trust Company account

to be sent through the United States Postal Service in

violation of 18 U.S.C. § 1341. A twenty-third count was

dismissed at trial. .

Mariscal raises Six issues On appeal. Our

disposition of four of the issues makes it unnecessary to

consider the remaining issues relating to twelve mail fraud

counts.

APPENDIX

aj.

> WwW RN

In 1972, Mariscal, an Arizona attorney, represented

two corporations, Franchise Funding, which traded its stock

over the counter, and Toltec Hydroponics, which needed

Capital to commence a greenhouse farming operation. In April

1972, on the advice of Mariscal, the two corporations merged

and became Toltec-Agronomics.

After several unsuccessfy1l attempts to raise capital

for the greenhouse project, Mariscal induced the Las Cruces,

New Mexico, Industrial Development Board to agree to a

municipal ‘bond issue to finance the project. Mariscal

represented to the Board that Toltec would build a 4.4-acre

sist es at a cost = $2.5 million. He further represented

that two hydroponic experts named Taylor and Becker would

serve as consultants and that Toltec owned land in Colorado

which, although the object of litigation, would be available

to Toltec ‘for future use.

hee Before the Board authorized the bond sale, Toltec

lost title to the Colorado property and Taylor and Becker

ceased to serve as consultants, becoming titular figures in

the corporation. Mariscal did not inform the Board of these

facts.

The bond closing took place in December 1973. The

Board had . recommended that the City of Las Cruces authorize a

$1.2 million bond sale to build a 4.4-acre greenhouse. In

April 1974, Mariscal signed a contract with a construction

company to build a 2.2-acre greenhouse. He did not inform

the city or the Board of the reduced size of the project

until September 1974.

Thewbend proceeds were held by Security Trust Company

with disbursements to be made for the costs of construction

when due and payable. Between January 1974 and sometime in

“e500

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7

1975, Mariscal requisitioned $752,000 for construction funds

which were deposited in an account in Phoenix held by "Toltec

Properties." These checks were routed through the Federal

Reserve System for collection. Of the $752,000, Mariscal

wrote checks to himself and his wife for personal use,

amounting to $110,100. In ‘late 1974, Mariscal made

contributions from personal funds to the nearly depleted

construction funds. These contributions ultimately amounted

to between $32,000 and $100,000.

In: the spring of 1976, Security Trust Company filed a

foreclosure against Toltec. By December 1977, the

construction funds ‘were exhausted. In March 1978, Mariscal

was indicted on thirteen counts of mail Fraud and ten counts

of interstate transportation of ooenerty obtained by fraud.

Our review On.appeal will be limited to the following

issues:

. A. Was the evidence of intent to defraud

sufficient to, convict?

B. Was the admission of evidence that Mariscal

signed the names of others on corporate

documents without their authorization

reversible error?

C. Did the trial court err in refusing to

preclude the government from impeaching

Mariscal's character witnesses with his prior

securities and fraud offenses?

D. Is it necessary, under the concurrent

. sentence doctrine, to review Mariscal's

‘conviction on twelve counts of violation of

18 U.S.C. § 1341?

A. Intent to Defraud.

Viewing the evidence in the light most favorable to

the government, as we must, Glasser v. United States,

315 U.S. 60, 80 (1942), we find that evidence presented at

trial supported the jury's finding that Mariscal had the

requisite intent to defraud, when he induced the City of Las

Cruces to fund the greenhouse project with a bond issue. The

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government introduced evidence that Mariscal misrepresented

to the City of Las Cruces: (1) the extent to which two

experts in hydroponic agriculture Participated in the

greenhouse projecc; (2) the size of the facility to be built

with the proceeds of the bond issue; and (3) the extent of

Toltec's assets. The government also presented evidence that

Mariscal misrepresented tbe! ceote of the. greenhouse

construction in requisitions he submitted to Security Trust

Company. Finally, although there was conflicting evidence

concerning the amount iieSenet purportedly "borrowed" from

the bond proceeds, he concedes that he owed over $6,000 to

the construction fund at the. time of trial.

When viewed in. the light most favorable to the

government, the evidence of deliberate-or reckless

misrepresentations is Substantial. The jury could have

inferred an intent to defraud, despite Mariscal's claim that

he acted in ‘good faith, and despite his production of

conflicting evidence.

B. Evidence of "Forged" Signatures.

Mariscal argues that the court erred in permitting a

handwriting expert to testify that Mariscal had signed the

names of two purported Toltec corporation officials on

documents filed with the Arizona Corporation Commission.

However, defense counsel did not object to this testimony at

trial. In the absence of an objection Mariscal must show

that the admission of the expert testimony constitutes "plain

error." ‘Fed. R. Cr. P. 52(b); United: States v. Lopez,

575 F.2d 681, 685 (9th Cir. 1978). There was no error, much

less plain error.

The evidence of forged Signatures was relevant to

show that Mariscal's false statements to city officials were

APPENDIX

a a

a 2. WwW RN

not inadvertent, but were Part of a larger plan or scheme to

“_

misrepresent the degree of his control of Toltec,

We also reject Mariscal's argument that the evidence

was more prejudicial than probative. It was not likely that

evidence of the alleged act of forgery would substantially

affect the jury's evaluation of the mass of other damaging

evidence introduced at bidad.

C. Character Evidence.

Mariscal contends that the district court erred in

denying his motion in limine through which he sought to

preclude the government from cross-examining his intended

character witnesses. The government planned to inquire about

a 1971 S.E.C. cease and desist order entered against Mariscal

for the unlawful Sale .of securities and about Mariscal'’s 1972

plea of nolo ‘contendere to a misdemeanor charge of

maintaining fraudulent corporate records. The court

- recognized ‘that specific instances of past conduct by a

defendant are admissible to impeach the testimony of a

character witness called by a defendant. Fed. R. Evid. 405.

Relevant instances of past conduct may be excluded, however,

if their probative value is outweighed by their prejudicial

effect on the jury. Fed. R. Evid. 403.

Mariscal argues unpersuasively that the two prior

offenses are not relevant to his reputation for honesty and

integrity. This is nonsense. Both involve instances of

deliberate misrepresentation. Moreover, neither is

sufficiently remote in time to distort Mariscal's current

reputation. These past events are particularly useful for

testing the quality of the "character" evidence.

Mariscal further argues that his plea of nolo

contendere is not relevant because it was not a "conviction"

APPENDIX

ofa

RT eases teen — =

Se ne ae i ~

under California law. Rule 405, however, sensibly does not

limit admissible instances of conduct to those resulting in

conviction. A Plea of nolo contendere is relevant to a

defendant's reputation and is therefore admissible under the

rule. Kilgore v. United States, 467 F.2d 2227 (Sth Cir.

1972). :

‘Mariscal argues that evidence of these prior offenses

was more prejudicial than probative and therefore .

inadmissible. His prior offenses are Plainly probative.

They ace also prejudicial, but the*prejudice is of his own

making. Both are closely related to the crimes for which

Mariscal -was on trial. Decisions by the trial court to admit

this kind of evidence -are subject to reversal Only for an

abuse of discretion. ‘See, e.g., United States v. Herrel,

588 F.2d 711, 7)4 (9th Cir. 1978), cert. denied, 440 U.S. 964

(1979). ‘The trial court's ruling was not an abuse of

discretion.

| Mariscal further argues that the court erroneously

denied him a hearing on ‘the relevance of the prior offenses

and, after denying the motion, refused to give cautionary

instructions to each witness. These contentions are without

merit. The record indicates that the trial court gave

Mariscal an opportunity to make further argument in support

of his motion. Nor was there any dispute concerning the

factual bases of the incidents which might have justified an

evidentiary hearing. Finally, the court indicates that it

would eoleide: a cautionary instruction if Mariscal submitted

one, but defense counsel failed to do so.

D. Concurrent Sentence.

We do not reach Mariscal's contentions that there was

insufficient evidence to support conviction on the

even-numbered mail fraud counts. Mariscal received a

APPENDIX

-6-

concurrent sentence on all counts, the ten transportation and

the twelve mail fraud violations. Because we affirm the

counts arising out’ of 18 U.S.C. § 2314, we need not reach the

rather complex issues presented by Mariscal's challenge to

the mail.fraud convictions. United States v. Costey,

554 F.2d 909, 910 (9th Cir.), cert. denied, 431 U.S. 968,

reh. denied, 434 U.S. 882 (1977). See Hirabayashi v. United

States, 320 U .S. 81, 85 (1943).

Affirmed.

APPENDIX

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