Opposition Brief — Meyer v. United States

a

No. 91-1074

Ju the Supreme Court of the Cuted States

OCTOBER TiRM, 1991

ALLAN F’.. MEYER, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W.STARR

Solicitor General

ROBERTS. MUELLER, III

Assistant Attorney General

NICOLE M. HEALY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

1. Whether the district court’s instruction that the jury

could neither convict nor acquit petitioner without unani-

mous agreement lessened the government’s burden of

proving all the elements of a conspiracy offense.

2. Whether the district court’s instruction describing

certain criminal acts disjunctively improperly broadened

and amended the indictment.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

E'stelle v. McGuire, 2S. Ct. 475 (1991). ecececceceececccceeeeee 7

Gerberding v. United States, 471 F.2d 55 (8th Cir. 1973) ....... i)

Griffin v. United States, 112 8S. Ct. 466 (1991) cece oy)

Turner v. United States, 396 U.S. 898 (1970) .o....ccccccccccccccccceee i)

United States vy. Arpan, 887 F.2d 873 (8th Cir. 1989) ...0.0........ 7

United States v. Ballard, 663 F.2d 534 (5th Cir. 1981) ........... ~

United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988),

cert denied, 493 U.S. 1025 (1990) ...........:cccccccccccsersesceeseevescecess §

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) oo... ~

United States v. UCO Oil Co., 546 F.2d 833 (9th Cir.

1976), cert. denied, 430 US. 966 (1977) .....ccccccccccccccccceceseeceeee i)

Pv cmamem, Fee Fe, SVT US. BAB (4GTO) ...cccceseevcvoveesesveeveceveevecsceessese 7

Statutes and rule:

Employee Retirement Income Security Act of 1974:

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(IIT)

Ju the Supreme Court of the Cinited States

OCTOBER TERM, 1991

No. 91-1074

ALLAN EF. MEYER, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

VO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1) is

unreported, but the judgment is noted at 943 I°.2d 1317

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

August 13, 1991. A petition for rehearing was denied on

September 24, 1991. Pet. App. 2. The petition for a writ

of certiorari was filed on December 23, 1991. The juris-

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

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of making false and fraudulent state-

ments in pension fund annual reports and in documents

required to be kept under the Employee Retirement

Income Security Act (ERISA), in violation of 18 U.S.C.

1027; and conspiracy to commit that offense, in violation

of 18 U.S.C. 371. He was sentenced to a one-year term

of imprisonment. The court of appeals affirmed. Pet.

App. 1.

1. In 1978, Joseph J. Higgins, a lawyer and former

state legislator, formed the Omni Group, a mortgage

brokerage company in Fort Lauderdale, Florida. In

1982, Omni entered into an agreement with the Inter-

national Brotherhood of Teamsters Local 701 Pension

fund, an employee benefit plan subject to ERISA. The

agreement provided that Omni would invest $20 million

of und assets in commercial and residential real estate

mortgages. The money was placed in a trust account

and Omni was named as the trustee. Gov’t C.A. Br. 2-4.

Petitioner is an owner of the Latado Fruit Company.

In July 1983, that company purchased and then

attempted to syndicate, as a tax-sheltered investment,

a working citrus grove. Gov’t C.A. Br. 5-6. In the fall of

1983, petitioner suggested to Higgins that he purchase

the grove, and Higgins unsuccessfully attempted to

obtain financing. Id. at 6-7. Higgins then turned to

Omni and the Fund to secure a loan. Id. at 8 Under

WRISA, Higgins was a fiduciary of the Fund and was

therefore prohibited from borrowing money through

Omni to purchase the grove. 29 U.S.C. 1002(21)(A),

1106(a)(1)(B). See Gov’t CLA. Br. 3, 30-34. To circum-

vent that restraint and conceal his involvement,

Higyins suggested that petitioner borrow the money

from Omni, and petitioner agreed. /d. at 8-9.

5)

Petitioner obtained a loan from Omni through Glades

Citrus—another of petitioner’s companies—and used

that money to purchase the citrus grove. Gov’t C.A. Br.

8-10. Glades Citrus then conveyed the property to

Glades Grove, an unincorporated company controlled

by Higgins. /d. at 10. After completing the transaction,

petitioner and Higgins took steps to conceal Higgins’

interest in the grove. Higgins’ name did not appear on

the loan documents, nor was Higgins’ interest in the

property ever disclosed to the Fund in any manner. /d.

at 9, 11-12. Higgins made payments to petitioner, who

then made the loan payments to Omni, camouflaging

Higgins’ involvement. /d. at 12.

In compliance with ERISA reporting requirements,

the Fund’s accountant prepared Form 5500 annual re-

ports for the 1988 and 1984 tax years identifying Fund

investments, including party-in-interest transactions.

Gov't C.A. Br. 21. The Fund’s accountant prepared

those forms using Omni’s monthly bank statements and

loan documents. As a result of Higgins’ and petitioner’s

actions, there was no disclosure of Higgins’ interest in

the Glades Citrus loan. /d. at 9, 21.

2. Count 1 of the indictment charged petitioner with

conspiring to: (1) make false statements and omissions

of fact in documents required to be kept by Title I of

RISA as part of the records of the Fund and in re-

ports required to be published, in violation of 18 U.S.C.

1027; (2) embezzle and unlawfully convert money and

property of the lund to his own use, in violation of 18

U.S.C. 664; and (3) use the mails in furtherance of a

scheme to defraud, in violation of 18 U.S.C. 1341. Count

2 charged petitioner with making false statements and

misrepresentations of fact “in the annual financial

reports [Form 5500s] required to be published by the

lund * * * and in documents required to be kept by

Title | of RISA as part of the records of the Fund,” in

4

violation of 18 U.S.C. 1027. See Gov’t C.A. Br. App. 1, at

12.

The district court instructed the jury that to convict

petitioner on Count 1, it “must unanimously agree upon

which one of the three offenses the defendant conspired

to commit.” C.A. Record Excerpts 26. The district court

also gave an instruction relating to multiple object con-

spiracies, based on the Eleventh Circuit’s Pattern Jury

Instruction 4.2 (see Gov’t C.A. Br. App. 3, at 12), which

stated in pertinent part as follows:

[I]t is not necessary for the Government to prove

that the Defendant under consideration willfully

conspired to commit all of those substantive of-

fenses. It would be sufficient if the Government

proves, beyond a reasonable doubt, that the Defen-

dant willfully conspired with someone to commit

one of those offenses; but, in that event, in order to

return a verdict of guilty, you must unanimously

agree upon which of the three offenses the Defen-

dant conspired to commit. If you cannot agree in

that manner, you must find the Defendant not

guilty.

C.A. Record Excerpts 21-22 (Instruction 12).

On Count 2, the ERISA violation, the district court

instructed the jury that it must unanimously agree that

petitioner had falsified either the annual reports or

other ERISA-required documents or both. The court

stated in pertinent part:

Now, ladies and gentlemen, in determining

whether the Government has proved the third ele-

ment—this is on count two—beyond a reasonable

doubt, you must be unanimous in your conclusion

whether the false statements or concealments of

fact were in the form 5500 annual reports or unani-

mous in your conclusion whether the false state-

~

o

ments or conclusions were in documents required to

be kept by ERISA or both.

C.A. Excerpts 29-80 (emphasis added). See also id. at 23

(Instruction 14).

Petitioner objected to the court’s instruction on

Count Z, which allowed the jury to convict on the basis

of false statements in the Form 5500 annual reports or

in other documents. Gov’t C.A. Br. 55. At petitioner’s

request, the district court instructed the jury that a

guilty verdict must be based on their unanimous

apreemeint as to which documents petitioner had falsi-

fied. Id. at 55-58. Except for that objection, petitioner

raised no objections to the court’s instructions prior to

the jury’s commencement of deliberations. /d. at 55-60,

On the fourth day of deliberations the jury sent a

note to the judge requesting clarification of the court’s

instructions. The note first laid out a portion of the mul-

tiple object conspiracy instruction and then stated:

We understand that if we unanimously vote guilty

on at least one offense, then the verdict would be

guilty. What we don’t understand is if that there is

no unanimous agreement on any one offense, then is

the Cefendant not guilty or do we continue to delib-

erate until there is an unanimous decision either

way?

Pet. App. 6-7; CLA. Record Excerpts 51-32. Petitioner

asked the court to instruct the jury that if it could not

unanimously agree on which offense he had committed,

it must return a verdict of “not guilty.” Gov’t CLA. Br.

61. The district court refused to give that Instruction on

the ground that it was not a “fair statement” of the law.

Ibid. The court answered the jury’s question by re-

reading its general unanimity instructions. The court

observed that the jury must agree unanimously on

which of the objects or offenses petitioner conspired to

6

commit, and it reread the previous jury instruction on a

multiple-object conspiracy (Instruction 12), adding:

Now, with regard to count one, in order to return a

verdict of guilty verdict as to count one, in addition

to the elements as laid out in instruction Number

11, you must also be unanimous that the Govern-

ment hals] proven beyond a reasonable doubt that

the defendant committed at least one of the objects

or offenses as charged in count one. You must all

agree in order to return a verdict of guilty upon

which of the three offenses the defendant commit-

ted. In order to return a verdict of not guilty as to

count one, you must all be unanimous in your find-

ing that the Government has not proven beyond a

reasonable doubt that the defendant committed any

of the objects of the conspiracy.

Now, if you are unable to reach unanimous agree-

ment as to count one, or indeed, as to any other

count, then you would be unable to return a verdict

as to that particular count.

Pet. App. 8-9; C.A. Record Excerpts 34-35. The jury

thereafter found petitioner guilty on the conspiracy and

false statement counts, and the court of appeals af-

firmed petitioner’s conviction without opinion. Pet.

App. 1.

ARGUMENT

1. Petitioner contends (Pet. 8-14) that the district

court responded incorrectly to the jury’s questions con-

cerning the need for unanimity. In particular, petitioner

contends that the court’s instruction lessened the gov-

ernment’s burden of proof. That claim is without merit.

The district court’s supplemental oral instruction sim-

ply clarified that the jury’s verdict—whether “guilty”

or “not guilty”—must be unanimous.

7

The crux of petitioner’s argument is that if the jury

“cannot agree unanimously that the government proved

a single object beyond a reasonable doubt, the only

permissible verdict is not guilty.” Pet. 12. That state-

ment is plainly incorrect. Rule 81(a) of the Federal

Rules of Criminal Procedure unambiguously states:

“The verdict shall be unanimous.” A verdict of guilty is

appropriate only if the jury unanimously finds that the

government has proved every element of the charged

offense beyond a reasonable doubt. See, e.g., In re

Winship, 897 U.S. 358 (1970). A verdict of not guilty is

appropriate only if the jury unanimously finds that the

government has failed to prove at least one such ele-

ment beyond a reasonable doubt. If the jurors cannot

unanimously agree, then the result is that no verdict is

rendered and the court must declare a mistrial. See,

e.g., United States v. Arpan, 887 F.2d 873, 877 (8th Cir.

L989).

Petitioner’s mistaken understanding of the unanimity

requirement leads him to take issue (Pet. 10-11) with a

portion of the court’s supplemental oral instruction.

Petitioner challenyes the sentence that stated:

In order to return a verdict of not guilty as to count

one, you must all be unanimous in your finding that

the Government has not proven beyond a reason-

able doubt that the defendant committed any of the

objects of the conspiracy.

Pet. App. &-9. Petitioner contends that this sentence

“substantially lessened the government’s parden of

proof.” Pet. 11. That statement, however, says nothing

about the burden of proof. Moreover, it “must be con-

sidered in the context of the instructions as a whole and

the trial record.” E’stelle v. McGuire, 1128. Ct. 475, 482

(1091). It is clear from its context that the instruction

had no such effect.

8

The sentence is one part of a longer oral passage, set

out above, in which the court first made clear that the

jury could convict only if it unanimously found that the

government proved one of the objects of the conspiracy

See Pet. App. 8 (“in order to return a verdict of guilty

** * you must also be unanimous that the Government

ha[s] proven beyond a reasonable doubt that the defen-

dant committed at least one of the objects or offenses as

charged”). The statement that petitioner challenges

simply expressed a corollary of that principle: the jury

could acquit if it unanimously found that petitioner did

not conspire to commit any of the identified objects or

offenses. In that circumstance, the government would

have failed to prove an essential element of the conspir-

acy offense. See 18 U.S.C. 371. Thus, read in context,

the instruction simply restated the incontestable

proposition that the jury’s verdict—whether guilty or

we guilty—must be unanimous.!

. Petitioner also contends (Pet. 14-16) that the

oe s instruction concerning the substantive violation

in Count 2— requiring unanimous agreement as to

whether the false statements existed in either the

Form 5500 annual reports or in documents required to

be kept by ERISA or both—diverges from the offense

described in the indictment. Petitioner observes that

| Petitioner’s contention (Pet. 8) that the appellate court’s de-

cision conflicts with decisions of other courts of appeals is not well

founded. In each of the cases petitioner cites, the appellant sue-

cessfully claimed that the district court committed reversible error

by refusing to instruct the jury that it had to agree that the defen-

dant had committed at least one of the charged offenses before re

turning a guilty verdict. See United States v. Duncan, 850 F.2d

1104, 1114 (6th Cir. 1988), cert. denied, 493 U.S. 1025 (1990); United

States v. Ballard, 663 F.2d 534, 544 (5th Cir. 1981); United States v.

Gipson, 553 F.2d 458, 458-459 (5th Cir. 1977). Here, by contrast,

the district court gave just such an instruction to the jury.

9

the indictment charged those acts conjunctively, and he

argues that the instruction’s disjunctive form “imper-

missibly broadened and constructively amended the

charge.” Pet. 15. That argument is without merit. It is

common—and entirely proper—for indictments to

charge in the conjunctive but the jury to be instructed

in the disjunctive, if the statute at issue is worded in

the disjunctive. See United States v. UCO Oil Co., 546

I’.2d 833, 838 (9th Cir. 1976), cert. denied, 480 U.S. 966

(1977); Gerberding v. United States, 471 F.2d 55, 59 (8th

Cir. 1973). Moreover, as this Court recently reiterated

in Griffin v. United States, 1128. Ct. 466 (1991), “when

a jury returns a guilty verdict on an indictment

charging several acts in the conjunctive, * * * the

verdict stands if the evidence is sufficient with respect

to any one of the acts charged.” /d. at 478, quoting

Turner v. United States, 896 U.S. 898, 420 (1970). The

court’s instruction was consistent with that settled rule.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W STARR

Solicitor General

ROBERTS. MUELLER, Ul

Assistant Attorney General

Nico.’ M. HEALY

Allorney

KEBRUARY 1992

MUS GOVERNMENT PRINTING OFFICE 1992-312 324/45316