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IN THE Cen, UAE

Supreme Court of the United States

October Term, 1983

JOHN CINA

Petitioner.

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

GIMBEL, GIMBEL & REILLY

FRANKLYN M. GIMBEL

270 East Kilbourn Avenue

Suite 900, MGIC Plaza

Milwaukee, Wisconsin 53202

(414) 271-1440

!

QUESTIONS PRESENTED

FOR REVIEW

Is it a per se violation of the

Fifth Amendment's grand jury interven-

tion clause when a federal trial court

permits a prosecutor to make a sub-

stantive amendment to a felony indict-

ment without resubmitting the indictment

to a grand jury?

TABLE OF AUTHORITIES

Berger v. U.S., 296 U.S.

(1934)

Ex Parte Bain, 121 U.S. 1

(1886)

Gaither v. U.S., 413 F.2d

692 (1969)

Heisler v. U.S., 394 F.2d

692 (1968)

Jervis v. Hall, 622 F.2d 19

(Ist Cir. 1980)

Krana v. U.S., 546 F.2d

785 (8th Cir. 1976)

Russell v. U.S., 369 U.S.

Stirone v. U.S., 361 U.S.

U.S. v. De Cavalcante,

é gs

1971)

U.S. v. Gammill, 421 F.2d

t r. 1970)

ii

Page

11

9, 10, 11

12,13,14

13

13

14

14

11,12

10,11,14

13

13

STATUTES

Page

15 U.S.C. §1983 5

15 U.S.C. §1984 Se, csc?

15 U.S.C. §1990 x Fe

15 U.S.C. §1990C (8) and (b) 5,6,7

is U.S.C. $2 7

18 U.S.C. #371

18 U.S.C. #1341 and 2 Pe

28 U.S.C. $1254 |

CONSTITUTIONAL PROVISIONS

United States

Constitution,

Amendment 5 4,8

iii

TABLE OF CONTENTS

Page

Reference to Opinion

Below 1

Jurisdiction 1

Statutes and Constitution

Provisions Involved 2

Statement of the Case 4

Reasons for Granting

the Writ 8

I. The 7th Circuit

Court of Appeals

Decided an Impor-

tant Question of

Federal Con-

stitutional Law

in a Way Which

Conflicts With

Applicable Deci-

sions of This

Court 8

II. There is confusion

among the Federal

Circuits with regard

to how Ex Parte Bain

and its progeny

should be applied 13

Appendix 15

iv

REFERENCE TO OPINION BELOW

The opinion of the Court of Appeals

for the 7th Circuit (Appendix A) is re-

ported at 669 F. 2d 853 (7th Cir. 1983).

JURISDICTION

The Order of the Court of Appeals

for the 7th Circuit affirming the trial

court's judgment of conviction on Count

One of the indictment herein was entered

on January 24, 1983. The Order denying

petitioner's Petition for Rehearing was

entered May 11, 1983.

The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254.

STATUTES AND CONSTITUTION

PROVISIONS INVOLVED

18 U.S.C. §371: Conspiracy to commit

offense or to defraud

United States.

If two or more persons conspire

either to commit any offense against the

United States, or to defraud the United

States, or any agency thereof in any

manner or for any purpose, and one or

more of such persons do any act to

effect the object of the conspiracy,

each shall be fined not more than

$10,000 or imprisoned not more than five

years, or both.

If, however, the offense, the com-

mission of which is the object of the

conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not

exceed the maximum punishment provided

for such misdemeanor. June 25, 1948 c.

645, 62 Stat. 701.

15 U.S.C. §1984: Change of mileage in-

dicated on odometer

prohibited.

No person shall disconnect, reset, or

alter or cause to be disconnected, reset,

or altered, the odometer of any motor

vehicle with intent to change the number

of miles indicated thereon.

(Pub. L. 92-513, Title IV, §404, Oct. 20,

1972, 86 Stat. 962; Pub. L. 94-364, Title

IV, §403, July 14, 1976, 90 Stat. 983.)

15 U.S.C. §1990: Injunctive relief to re-

strain violations; juris-

diction; venue; service

of process; subpoenas

for witnesses.

(a) The United States district courts

shall have jurisdiction, for cause shown

and subject to the provizions of rule 65

(a) and (b) of the Federal Rules of

Civil Procedure, to restrain violations

of this subchapter, or rules, regula-

tions, or orders issued thereunder. Such

actions may be brought by the Attorney

General in any United States district

court for a district wherein any act,

omission, or transaction constituting the

violation occurred, or in such court for

the district wherein the defendant is

found, is an inhabitant, or transacts

business. In any action brought under

this section, process may be served on a

defendant in any other district in which

the defendant resides or may be found.

(b) Im any action brought under this

subchapter, subpoenas for witnesses who

are required to attend a United States

district court may run into any other dis-

trict.

(Pub. L. 92-513, Title IV, §411, as added

Pub. L. 94-364, Title IV, §408(2), July

14, 1976, 90 Stat. 984.)

UNITED STATES CONSTITUTION, AMENDMENT 5:

Capital Crimes; Double

Jeopardy; Self-Incrimina-

tion; Due Process; Just

Compensation for Property.

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in case; arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be sub-

ject for the same offence to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just com-

pensation.

STATEMENT OF THE CASE

The Defendant, John Cina, appeals from

a judgment of conviction and sentence

entered in the District Court for the

Eastern District of Wisconsin by the

Honorable Robert W. Warren. A jury re-

turned a verdict of guilty on four counts

of an eleven count indictment.

The indictment was filed on July 14,

1981. Count 1 charged the Defendant with

conspiracy to reset and alter odometers

on motor vehicles in violation of 18 U.S.

C. §371 and 15 U.S.C. §§1984 and 1990 C.

Counts 2, 3, 4 and 5 charged the Defendant

with separate acts of mail fraud in viola-

tion of 18 U.S.C. §§ 1341 and 2. Counts

6, 7, 8, 9, 10 and 11 charged Defendant

with separate acts of resetting and alter-

ing odometers on motor vehicles in viola-

tion of 15 U.S.C. §§1983 and 1990 C(8) (b)

and 18 U.S.C. 2.

On the day that the grand jury return-

ed the indictment, Count 1 alleged a con-

spiracy which lasted "from on or about May,

1977 to on or about October, 1979 and

thereafter". However, the "Overt Acts"

section of Count 1 recited a number of

acts alleged to have occurred prior to May

1977. Specifically, Paragraphs 13-18 re-

cited acts and transactions occurring be-

tween December 6, 1975, and November 6,

1976. Paragraphs 24-26 recited acts and

transactions occurring between May 11,

1976, and April 14, 1977.

Immediately prior to trial, the Defen-

dant moved to strike the above paragraphs

from the indictment. The Defendant con-

tended that those acts were not alleged as

a part of the conspiracy, and therefore,

should not have been included in the

Overt Acts Section of Count 1. The Defen-

dant's motion brought this date discrepancy

to the prosecutor's attention, prompting

his motion to amend the indictment. When

i‘,

the trial court allowed the amendment, the

time period of the conspiracy was enlarged

by more than two years - the startifhg date

was changed from May, 1977, to May, 1975.

In ruling on the motions, the trial court

made the following specific findings:

I am persuaded that permitting

the proof to relate to '75 as

contrasted to '77 is more than

in the nature of a variance un-

der Rule 52A, and it is a sub-

stantive amendment of the indict-

ment.

So that it would be proscribed by

the Bain case, and, therefore,

the Court does herewith deny all

of the motions, well, I should

say both of the motions, the

motion to dismiss the Counts 2

and 4 and the motion to strike

has already been denied.

The Court will grant the Govern-

ment leave to correct the indict-

ment to read '75 and we will

proceed. (TR-23-24). (Emphasis

added)

The Defendant was subsequently con-

victed in a jury trial on four of the

eleven counts. He was convicted of:

Count 1 - conspiracy to wilfully

reset and alter the odometer on

a motor vehicle in violation of

18 U.S.C. §371 and 15 U.S.C.

§§1984 and 1990 C;

Count 4 - mail fraud, in viola-

tion of 18 U.S.C. §§1341 and

1342.

Counts 6 and 11 - wilfully re-

setting and altering the

odometer on a motor vehicle in

violation of 15 U.S.C. §§1984

and 1990 C(a)(b) and 18 U.S.C.

§2.

The jury acquitted the Defendant on

Counts 2, 3 and 5 which also charged mail

fraud, in violation of 18 U.S.C. §§1341

and 2.

He was also acquitted on Counts 7,

8, 9 and 10 which charged additional viola-

tions of 15 U.S.C. §§1984 and 1990(a) (b)

eo

and 18 U.S.C. §2. Defendant-Appellant,

John Cina, filed a Notice of Appeal with

the Clerk of the District Court for the

Eastern District of Wisconsin on April 8,

1981.

The Court of Appeals for the 7th Cir-

cuit reversed the conviction on Count 4

and affirmed the remaining convictions.

The Defendant subsequently filed a petition

for rehearing contending that the court

erred in affirming the conviction on Count

1, the amended conspiracy count. The

Petition for Rehearing was denied by Order

dated May 11, 1983. The Defendant now

appeals that part of the decision of the

Court of Appeals for the 7th Circuit

which affirmed the Defendant's conviction

reg ee

on Count l.

REASONS FOR GRANTING THE WRIT

I. The 7th Circuit Court of Appeals

Decided an Important Question of

Federal Constitutional Law in a

Way Which Conflicts With Ap-

plicable Decisions of This Court.

The single most important fact, indeed

the dispositive fact, which this Court must

bear in mind while considering this peti-

tion is that the trial court made a speci-

fic finding on the record that the prosecu-

tion's proposed amendment to the indict-

ment was "a substantive amendment of the

indictment". Once that particular finding

has been made, applicable decisions of

this Court strictly and absolutely forbid

an indictment to be amended or changed

without resubmission to a grand jury. The

-12-

trial court and the Court of Appeals

erred in proceeding beyond the "substan-

tive amendment" finding to consider

whether the Defendant was prejudiced in

his defense. Both lower courts failed

to realize that a substantive change from

what has been charged by a grand jury is

a per se violation of the Fifth Amend-

ment's "specific guaranty" that "[nJo

person shall be held to answer for a

capital, or otherwise infamous crime, un-

less on a presentment or indictment of a

Grand Jury. >

In the context of changes in indict-

ments the Court of Appeals decision con-

fuses violation of the Fifth Amendment pro-

tection of grand jury intervention with

i

the due process, double jeopardy and no-

tice protections of the Fifth and Sixth

Amendments. The Court of Appeals lumped

them all together and analyzed all

changes from the standpoint of trial pre-

judice to the Defendant. This overlooks

the fact that substantive changes in in-

dictments violate the grand jury inter-

vention clause per se whereas non-sub-

Stantive changes do not. Nonsubstantive

changes may only violate due process,

double jeopardy or notice protection.

The seminal case in this area is Ex

Parte Bain, 121 U.S. 1 (1886). This Court

disallowed an amendment in Bain which

deleted the ''Comptroller of the Currency"

7

as a party alleged in the grand jury's

indictment to have been deceived by false

reports submitted by the Defendant. Mr.

Justice Miller found such amendment to be

substantive, stating that "it is not im-

possible nor very improbable that the

grand jury looked mainly to [the Comp-

troller of the Currency] as the party

whom the prisoner intended to deceive by

a report which was made upon his requisi-

tion and returned directly to him." Ex

Parte Bain, 121 U.S. 1, 10. The effect of

such a substantive amendment was explained

by Mr. Justice Miller:

If it lies within the province of

a court to change the charging

part of an indictment to suit its

own notions of what it ought to

«15.

have been, or what the grand jury

would probably have made it if

their attention had been called

to suggested changes, the great im-

portance which the common law at-

taches to an indictment by a grand

jury, as a prerequisite to a pri-

soner's trial for a crime, and

without which the Constitution says

"no person shall be held to answer”,

may be frittered away until its

value is almost destroyed. Id.

The principle stated in Ex Parte Bain

was subsequently extended to "variances"

between the proof offered at trial and the

unamended charging terms of an indictment.

This Court treated a variance during trial

in the same manner as an amendment to the

indictment prior to the trial. Stirone v.

U.S., 361 U.S. 212, 217 (1960). The test

used is whether the amendment or variance

changes that which was charged by the

a

grand jury in the indictment. Such a

change is deemed substantive and violates

the Fifth Amendment's specific guaranty of

grand jury intervention.

Other case law has allowed amendments

and variances if they are merely a matter

of form, rather than substance. See

Berger v. U.S., 296 U.S. 78 (1934);

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

Russell defined a change that is merely a

matter of form as those which ‘amount to

no more than a technical deficiency of no

prejudice to the Defendant." Russell, 369

U.S. at 763. This Court found in Russell

that the amendment at issue was merely a

matter of form. Only after making such a

finding would the court proceed to analyze

sits

the prejudice to the Defendant under the

constitutional protections offered by the

due process, double jeopardy and notice

clauses in the Fifth and Sixth Amendments.

At the end of the Russell opinion, this

Court reaffirmed the principle of Ex

Parte Bain that a substantive change,

such as the change in Bain, Stirone, and

the instant case, is a per se violation

of the Fifth Amendment grand jury inter-

vention clause. Id.at 770.

In the instant case, the Court of

Appeals relied on a misapplication of the

Russell decision. The 7th Circuit mis-

takenly assumed that Russell treats all

indictment changes alike, regardless of the

ahs

constitutional provisions which the change

may affect. The lower court's decision

does not allow for separate treatment of

changes which violate only the grand jury

intervention clause. This is the basic

flaw in the opinion below. The Court of

Appeals failed to realize that Ex Parte

Bain retains all of its vitality in cases

where a change is substantive, a signifi-

cant departure from the charging terms of

the instrument returned by the grand jury.

In the instant case, the permitted amend-

ment lengthened the charged conspiracy by

two years. The trial court was clearly

correct in finding that such amendment was

substantive, not as Russell puts it,

"merely a matter of form". Id. at 770. A

ie

grave error was committed by both the

trial court and the Court of Appeals in

taking the further step to consider

whether the Defendant was prejudiced in

terms of due process, double jeopardy and

notice. Once the trial court found that

the amendment was ''substantive", the Defen-

dant's Fifth Amendment right to grand jury

intervention had been violated per se.

That should have been the end of the in-

quiry and the indictment should have been

ordered resubmitted to the grand jury.

II. There is confusion among

the Federal Circuits with

regard tc how Ex Parte

Bain and its progeny should

be applied.

The 9th Circuit Court of Appeals had

made the offhand remark that, "[W]Je think

-20-

that the progeny of Bain are out of joint."

Heisler v. U.S., 394 F.2d 692, 696 (1968).

This seems to still be the case in 1983.

In the instant case, the 7th Circuit ex-

pressed the belief that all changes in in-

dictments were to be analyzed from the

standpoint of whether they affect the

Defendant's due process, double jeopardy

or notice rights. And the Defendant never

objected on any of those grounds. No at-

tention was focused on the true basis for

the Defendant's objection, the denial of

his right to grand jury intervention.

Some Federal Circuits have recognized

that the first inquiry must focus on

whether the grand jury intervention clause

has been per se violated. See, e.g.,

-21-

Gaither v. U.S., 413 F.2d 1061, 1072 (D.C.

Cir. 1969); U.S. v. DeCavalcante, 440 F,

2d 1264, 1271 (3d Cir. 1971); U.S. v.

Gammill, 421 F.2d 185 (10th Cir. 1970).

This inquiry asks whether the change is

"substantive" or 'formal'’. Other Federal

Circuits, like the 7th Circuit in the in-

stant case, have ignored this first step

in analyzing changes in indictments,

thereby ignoring the Fifth Amendment's

grand jury intervention clause. See, e.g.

Jervis v. Hall, 622 F.2d 19, 22-23 (lst

Cir. 1980); Krana v. U.S., 546 F.2d 785

(8th Cir. 1976).

It is thus evident that the Federal

Circuits are having difficulty in applying

the Bain, Stirone and Russell cases in any

=22-

coherent analytical fashion. Some analy-

tical guidance from this Court which al-

lows for full consideration of all consti-

tutional issues raised when an indictment

is changed is needed. This analysis must

first deal with the right to grand jury

intervention, and then address the due pro-

cess, double jeopardy and notice issues.

If the Federal Circuits are permitted to

dispense with this initial inquiry, that

which Justice Miller most feared in Bain

may come to pass. The grand jury inter-

vention clause, and all that it was meant

to protect, "may be frittered away until

its value is almost destroyed", Ex Parte

Bain, 121 U.S. at 18.

Respectfully submitted,

a > Hint

Attorney for Petitioner

iu the

United States Court of Appeals

For the Seventh Cirentt

No. 82-1605

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

JOHN CINA,

Defendant-A ppellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin

No. 81 CR 102—Robert W. Warren, Judge.

ARGUED NOVEMBER 10, 1982—DEcIDED JANUARY 24, 1983

Before Woop and ESCHBACH, Circuit Judges, and

BARTELS, Senior District Judge.*

Woop, Circuit Judge. Defendant-appellant John Cina

appeals from his conviction in a jury trial of one count of

conspiracy to willfully reset and alter the odometer on a

motor vehicle in violation of 18 U.S.C. § 371 and 15

U.S.C. §§ 1984 and 199XC); one count of mail fraud, in

violation of 18 U.S.C. §§ 1341 and 1342; and two counts of

willfully resetting and altering the odometer on a motor

vehicle in violation of 15 U.S.C. §§ 1984 and 1990 CX 8b)

* The Honorable John R. Bartels, Senior District Judge of the

Eastern District of New York, is sitting by designation.

2 No. 82-1605

and 18 U.S.C. §2. This appeal raises three issues:

whether the trial court erred in permitting an amend-

ment of the indictment on the conspiracy count to allege

the commencement of the conspiracy two years earlier

than indicated in the initial indictment: whether the trial

court erred in denying defendant's motion to dismiss

count four for its failure to allege an offense under 18

U.S.C. §§ 1341 and 1342; and whether the trial court

erred in refusing to submit to the jury certain instruc-

tions proffered by the defendant. Because we conclude

that the trial court erred in refusing to dismiss count four

but that the court acted properly in allowing the amend-

ment of the conspiracy count and in refusing to tender to

the jury certain of the defendant's proposed instructions,

we reverse defendant's conviction under the mail fraud

count but affirm his conviction under the conspiracy and

tampering accounts.

I

The defendant, a usec car dealer, was charged initially

in an eleven count indictment. Count one alleged that he

had conspired to willfully reset and alter the odometer on

five separate motor vehicles between May, 1977 and Oc-

tober, 1979. Pursuant to this conspiracy, the government

alleged, the defendant employed a mechanic who

specialized in ‘rolling back” odometers to signify a lower

mileage, and instructed the mechanic to do so in relation

to specific vehicles, thus enabling the defendant to resell

those vehicles at enhanced prices. However, count one

also alleged that certain overt acts in connection with two

of the vehicles occurred in 1976 and early 1977, before

the conspiracy was alleged to have commenced.' When

All overt acts in relation to one of the vehicles were stricken

from count one. on defendant's motion, on the basis that the

mechanic-confederate had no contact with that vehicle. This,

however, left standing in count one certain alleged overt acts,

in connection with the other vehicle, which occurred outside of

the origina! temporal! scope of the alleged conspiracy.

No. 82-1605 3

this inconsistency was noted by the defendant in his mo-

tion to strike before trial, the government moved to

amend the indictment to antedate by two years the alleg-

ed starting time of the conspiracy, to May, 1975, claiming

that the inconsistency on the face of the indictment

appeared only as a result of a “typographical error.” The

court denied the defendant’s motion to dismiss, noting

that it had been made only a week prior to trial, and

granted the government’s motion to amend count one.

The defendant was convicted of this count.

Counts two through five of the indictment alleged that,

in connection with four of the five vehicles mentioned in

count one, the defendant had used the mails to send to the

Wisconsin Department of Transportation, Division of

Motor Vehicles, registration papers bearing the fraud-

ulent odometer readings of each vehicle. The indict-

ment charged that each of these mail frauds took place

between September, 1977 and July 28, 1978. However, in

the case of count four, upon which defendant was con-

victed, the actual mailing was alleged to have taken place

on August 22, 1978, nearly a month after the termination

of the alleged statutory violation. In count two, upon

which defendant was acquitted, the actual mailing was

alleged to have taken place on August 1, 1977, a month

before the commencement of the alleged statutory viola-

tion. When these inconsistencies were brought to the

attention of the court in defendant's motion to dismiss

counts two and four for failure to allege an offense under

the mail fraud statute, the government expressly moved

to amend count two to allege the commencement of the

mail fraud in 1975; the government, however, made no

such express attempt to amend count four to allege that

the mail fraud in that count extended to encompass the

August 22, 1978 mailing? The trial court denied the

2 A perusal of the record suggests that, although defendant

attem pted to point out the temporal incongruities of both count

two and four, the government did not take note of the disparity

in count four. As late as post-trial proceedings, the government

declined to respond to the defendant's argument on this point.

stating that it appeared to raise no cognizable problem.

4 No. 82-1605

defendant's motion to dismiss counts two and four. The

trial court, however, never explicitly addressed the

government's motion to amend count two, nor did it in-

dicate that it believed it had before it any motion to

amend count four. The defendant was convicted of the in-

cident of mail fraud alleged in count four and acquitted

of ry incidents of mail fraud alleged in counts two, three

and five.

Counts six through eleven alleged that the defendant

had altered or reset or caused to be altered or reset the

odometers of four of the five vehicles named in count one,

and one additional vehicle. The defendant was convicted

of counts six and eleven, and acquitted on counts seven,

eight, nine and ten.

At the close of trial, the defendant submitted proposed

jury instructions outlining certain defense theories to the

trial court. The court, before offering these instructions

to the jury, excised four sentences which stated the jury’s

obligation to acquit on various charges if it found certain

facts, e.g.. that the cdometer tamperings were concealed

from the defendant, that the defendant did not par-

ticipate in the odometer tamperings. or that the defen-

dant employed the mails for purposes of complying with

state law rather than completing a scheme to defraud.

After the jury found defendant guilty under counts one,

four, six and eleven, the defendant moved under Fed. R.

Crim. P. 2%c) for acquittal on the bases, inter alia, that

the court’s amendment of count one was in error, that

count four failed to allege an offense under the mail

fraud statute, and that the trial court’s excision of certain

portions of the defendant’s proposed jury instructions

deprived him of his right to have his defense theory

heard. Defendant's motion was denied. Defendant then

appealed to this court, requesting a reversal of his convic-

tion for the same reasons set forth in his post-trial mo-

tion.

No. 82-1605 5

Il.

A. The Amendment of Count One

The defendant first argued that the trial court's

amendment of count one to antedate the commencement

of the conspiracy by two years violated the Fifth Amend-

ment which provides, inter alia, “No person shall be held

to answer for a capital, or otherwise infamous crime, un-

less on a presentment or indictment of a grand jury....”

The government, by contrast, seeks to characterize the

present situation as a mere “variance” between allegation

and proof which is permissible in the absence of

“substantial prejudice” to the defendant. The trial court

itself apparently rejected the government's categoriza-

tion, ruling that the change was “more than in the nature

of a variance ... it is a substantive amendment of the in-

dictment.” The trial court, however, embraced the

government's basic rationale, holding the amendment

permissible in view of the defendant’s failure to

demonstrate “any prejudice” resulting from the amend-

ment, and citing the liberal amendment policy embodied

in United States v. Reece, 547 F.2d 432 (8th Cir. 1977),

and United States v. Powell, 564 F.2d 256 (8th Cir. 1977),

cert. denied, 435 U.S. 904 (1978). Although the trial court’s

expression of its rationale was somewhat imprecise, we

believe that it applied the correct test and properly found

no prejudice sufficient to bar the amendment in the par-

ticular circumstances.

We note at the outset that, while the existing juris-

prudence delineating the boundaries of permissible

amendments and variances is far from fully system-

atized, there has been a distinct merging of the standards

governing both. In general, either an amendment or a

variance will be allowed to stand if it does not change an

“essential” or “material” element of the charge so as to

cause prejudice to the defendant. Russell ». United States,

369 U.S. 749, 763-64 (1962); United States v. Nicosia, 638

F.2d 970, 976 (7th Cir. 1980); United States ». Joyner, 539

F.2d 1162, 1164 (8th Cir. 1976), cert. denied, 424 VS.

983 (1976); United States ». Goldstein, 502 F.2d 526,

528 (3d Cir. 1976); Wharton's Criminal Procedure, § 503

(12th ed. 1975).

§ No. 82-1605

It was not always the case that amendments were

amenable to “materiality” and “prejudice” analysis. The

seminal case, Ex Parte Bain, 121 U.S. 1 (1886), relied on

a strict construction of the Fifth Amendment and

appeared to forbid any express or tacit variation from the

initial indictment, holding that the accused “party can

only be tried upon the indictment as found by such grand

jury, and especially upon all its language found in the

charging part.” Ex Parte Bain, 121 U.S. 1, 9-10. Later,

the Supreme Court in Berger v. United States, 296 U.S.

78, 82 (1935), carved out an exception for a literal

“variance” between the proof offered at trial and the un-

amended charging terms of the indictment. Where the

variance is not “material” and does not “affect the sub-

stantial rights” of the accused, the Court held, there is no

violation of the Fifth Amendment. Berger, 295 U.S. at 81,

82. The Court indicated that “material” or “substantial”

variances were those which trammeled the defendant’s

rightful expectations (1) that he be “definitely informed

as to the charges against him, so that he may be enabled

to present his defense and not be taken by surprise by the

evidence offered at the trial; and (2) that he may be

protected against another prosecution for the same

offense.” /d. at 82.

The boundaries of the Berger “variance” exception

were somewhat more narrowly defined in the Supreme

Court's later decision in Sttrone v. United States, 361 U.S.

212, 217 (1960), which articulated the “constructive

amendment” and “essential elements” doctrines. Under

these doctrines, even where the “trial court did not per-

mit a formal amendment of the indictment, [but] the

effect of what it did was the same,” the variance would

not be permitted. /d. at 217. And a constructive amend-

ment will be held to have occurred where the variance in-

volved an “essential element” of the crime; in Stirone, the

“essential element” was the allegation of an effect on in-

terstate commerce which provided the court with

jurisdiction. Jd. at 258.

Soon thereafter. the Supreme Court appeared to

moderate the strictness of Ex Parte Bain and moved

No. 82-1605 7

towards allowing a “materiality” and “prejudice” analysis

to govern actual amendments as well as variances.

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

dictum that “an indictment may not be amended except

by resubmission to the grand jury, unless the change is

merely a matter of form.” Id. at 770 (emphasis added).

Russell appeared to consider the permissibility of

amendments and variances as one problem, whose solu-

tion was guided by the test of whether the changes

“amount to no more than a technical deficiency of no

prejudice to the defendant.” Russell, 369 U.S. at 763.

Subsequent cases in the various circuits, including our

own, have continued to apply the Supreme Court’s

Berger, Stirone, and Russell standards to both amend-

ments and variances with equal force; all changes. ex-

press or tacit, are scrutinized according to whether

they affect a “substantial” or “material” element of the

offense sufficiently to cause prejudice to the defendant.

See United States v. Nicosia, 638 F.2d 970, 976 (7th Cir.

1980); Jervis v. Hall, 622 F.2d 19, 21-23 (1st Cir. 1980):

United States v. Powell, 564 F.2d 256, 259 (8th Cir. 1977),

cert. denied, 435 U.S. 904 (1978); Krana v. United States,

546 F.2d 785, 786 (8th Cir. 1976); United States v. Gold-

stein, 502 F.2d 526, 528 (3d Cir. 1976). See also Wharton's

Criminal Procedure, § 503 (12th ed. 1975) (“unless the in-

consistency is material and prejudicial, the variance will

be disregarded or the trial judge will allow the indict-

ment or information to be amended to conform to the

proof.”).

The defendant has cited language in Gaither v. United

States, 413 F.2d 1061, 1072 (D.C. Cir. 1969), and United

States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir.

1971), suggesting that an actual “amendment” of an in-

dictment is prejudicial per se, and that only a “variance”

between written allegations and proof is amenable to a

“materiality” and BS phy mee analysis. But the term

“amendment” as u in those cases invokes a conceptual

category rather than a literal description: an “amend-

ment” occurs when the basic “charging terms” of the in-

dictment are altered either literally or in effect. Gaither,

P No. 82-1605

4:3 F.2d at 1072: DeCavalcante, 449 F.2d at 1271. In

other words, the distinction between amendment and

variances as articulated in these decisions is simply

another way of stating the question of whether the

modification worked to “change the basic theory” of the

offense or instead “did not alter the crime charged, nor

unfairly surprise the defendants, nor create an oppor-

tunity for the government to prosecute the defendants

again for substantially the same offense.” DeCavalcante,

440 F.2d at 1272. In any event, even if Gaither and

DeCavalcante could be interpreted to bar a “materiality”

or “prejudice” inquiry into any actual amendments, such

an interpretation would be flatly at odds with the

Supreme Court’s analysis in Russell, 369 U.S. at 770 and

this circuit's holding in L’nited States v. Nicosia, 638 F.2d

at 976 (7th Cir. 1980). We believe that our decision in

Nicosia reflects a sound judicial policy, for if we were to

depart from our previous refusal to scrutinize actual

amendments more strictly than variances, we would

simply discourage the government from forthrightly ad-

mitting to formal mistakes at the start of trial and en-

courage it instead to simply wait until later in the trial to

offer proof inconsistent with the indictment’s facial

allegations, even though the latter course of conduct ob-

viously contains a greater potential for prejudice to the

defendant.

Turning now more directly to the case at bar, we note

that within the parameters of the “essential elements”

and “prejudice” tests, corrections of misprinted offense

dates are frequently permitted. In United States v.

Nicosia, for example, this court permitted an amend-

ment to correct a typographical error in the indictment

which placed the consummation of the alleged witness-

tampering scheme two months earlier than it actually oc-

curred, on the basis that the “changes are immaterial to

the charge” and the “defendant showed no prejudice to

his defense.” Nicosia, 638 F.2d at 976. See also United

States v. Powell, 564 F.2d 256, 259 (8th Cir. 1977) (indict-

ment may be amended to extend time of conspiracy as

time is not an essential element of conspiracy and no pre}-

udice shown); Jerms v. Hall, 622 F.2d 19, 22-23 (1st Cir.

No. 82-1605 9

1980) (amendment of date of alleged larceny by several

weeks permissible where defendant failed to demonstrate

that he would have altered his defense had the indict-

ment read differently); Krana v. United States, 546 F.2d

785, 786 (8th Cir. 1976) (change of one year in date of

alleged offense permissible where defendant failed to

show that he was prejudiced thereby or that the date was

material to the offense); Stewart v. United States, 395

F.2d 484, 487, 488 (8th Cir. 1968) (amendment of date of

alleged theft permissible where time “is not of the es-

sence” in establishing the offense and the defendant was

unable to show that he was not fully apprised of the

charges against him).

We cannot say that the amendment of the alleged com-

mencement date of the conspiracy here affected a “ma-

terial element” of the conspiracy charge, causing pre}-

udice to the defendant. An “essential” or “material” ele-

ment of a crime is one whose specification with precise

accuracy is necessary to establish the very illegality of

the behavior and thus the court’s jurisdiction. Only in

rare cases is time a material element of the offense

charged, even where continuing offenses such as con-

spiracy are alleged. See Wharton's Criminal Procedure,

§ 511 (12th ed. 1975).

For example, in the two cases cited by the defendant,

United States v. Goldstein, 502 F.2d 526 (3d Cir. 1976),

and United States v. Annoreno, 460 F.2d 1303 (7th Cir.

1972), cert. denied, 409 U.S. 852, the precise date of the

behavior was determinative of the very existence of the

crime. In Goldstein, the defendant was charged with fail-

ing to file a tax return by April 15; when it had estab-

lished that no such duty to file accrued until May 7, the

court was held to be without the power to permit a con-

comitant amendment of the indictment. As the court

noted on appeal,

Ordinarily, a mere change in dates is not considered

a substantial variation in an indictment, but an ex-

ception exists where a particular day may be made

critical by the statute creating the offense... . The

statute involved here illustrates this exception to the

10 No. 82-1605

general rule. There was no duty imposed on the

defendant to file a return before April 15. By way of

contrast, a bank robbery really is a crucial offense at

all times, regardless of the date on which it takes

place.

Goldstein, 502 F.2d 528. Likewise, here the defendant's

conspiracy to alter odometers was a criminal offense

regardless of when it commenced. And unlike in An-

noreno, where the commencement date of the conspiracy

was held crucial because the statute proscribing the con-

spiracy was not in effect during the entire period encom-

passing certain alleged acts, Annoreno, 450 F.2d at 1307,

the statute involved here was in effect in 1975 as well as

in 1977.

Although the defendant strenuously argues that time

was a crucial element in the establishment of a con-

spiracy, given the necessity of establishing the temporal

coexistence of overt acts and the requisite unlawful in-

tent, it does not appear that the failure to establish the

simultaneity of existence of these conditions between

1975 and 1977 would have altogether eliminated the

criminality of the conspiracy as a whole, thus denying the

court of jurisdiction over the offense; in this sense, the

precise temporal scope of the conspiracy was not an

“essential element” necessary to constitute the offense. C/.

Stirone, 361 U.S. at 219. We believe the better rule to be

as stated in L/nited States v. Powell, 564 F.2d 256 (8th Cir.

1977), where, as here, a “clerical” amendment of the

dates within which a conspiracy was alleged to have oc-

curred was permitted. There, the court amended the in-

dictment to extend the alleged pendency of the con-

spiracy in order to encompass government offered proof

of later overt acts. /d. at 259. The court held as matter of

law that the terminal date of the conspiracy was not a

“material element of the crime charged.” /d.

Additional factors indicate that the amendment here

caused no prejudice to the defendant. The defendant had

adequate notice of the government's intent to introduce

evidence relating to acts occurring prior to the incorrect-

ly stated conspiracy commencement date. For example,

No. 82-1605 ll

count one of the indictment disclosed on its face the

government's reliance on certain alleged acts in connec-

tion with two of the vehicles which occurred in 1976 and

early 1977. In addition, the defendant had access to the

full range of the government's evidentiary arsenal under

the “open file” policy, and was also aware that the

government intended to prove, as testimony before the

grand jury and FBI reports indicated, that the defendant

employed a “roll back” mechanic as early as mid-1975.

Finally, although the defendant had the indictment in

hand for several months, the temporal discrepancy was

not raised by the defendant until his motion a week

before trial; he can therefore hardly be heard to complain

that the error prejudiced his defense if his detailed

scrutiny of the charging document came only at such a

belated stage. Following United States ». Powell, 564

F.2d at 259, where the court found no prejudice in the

alteration of the alleged time of the conspiracy in view of

the defendant's receipt, well in advance of trial, of

material indicating the government's reliance on overt

acts occurring outside of the time period indicated on the

face of the indictment, we find no violation of the defen-

dant’s Fifth Amendment rights in the present case.

B. Failure to Allege an Offense in Count Four

In count four, the defendant was charged with vio-

lating the mail fraud statute, 15 U.S.C. §§ 1341, 1342,

3 Section 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, ex-

change, 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 mai! matter,

(Footnote continued on following page)

12 No. 82-1605

between September, 1977 and July 28, 1978 by mailing

to the Wisconsin Department of Transportation official

registration and title documents containing the fraud-

ulent odometer information. However, as the defen-

dant noted to the court in his motion to dismiss the count,

the indictment alleged that the mailing itself occurred on

August 22, 1978, or nearly two months after the violation

was alleged to have been completed. The defendant main-

tained that count four therefore failed to allege the occur-

rence of a crucial element of the offense, .e., the mailing,

during the period of the offense, thus denying the court

of jurisdiction on that count. As a result, the defendant

maintains, the court erred in failing to dismiss the count.

On appeal, the government appears to offer two wholly

contradictory and thus mutually exclusive theories upon

which to base the court's jurisdiction over count four. On:

der one theory, set forth in the government's brief on

appeal, the government affirms that the actual mailing

date was August 22, 1978 as alleged but claims that this

mailing contained a “lulling letter” which need not be

mailed during the pendency of the scheme, under our

decision in L’nited States v. Galloway, 664 F.2d 161 (7th

Cir. 1981); alternatively, under this first theory, the

government argues that the allegation of a mailing out-

side the alleged period of the violation can be permitted

as a non-prejudicial variance. Under a second theory, ar-

ticulated by the government at oral argument, the actual

date of the mailing was August 22, 1/977, and appears

differently on the face of the indictment only due to a

typographical error. Since the government did not

specify at oral argument the full legal consequence of this

> continued

any matter or thing whatever to be sent or delivered by the

Post Office Department, or takes or receives therefrom,

~ 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 per

son 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.

No. 82-1605 13

fact, we can only interpolate that it intended to argue

that the proof of the August 22, 1977 mailing should be

accepted as a harmless variance, which is then encom-

passed by a putative amendment of count four which

places the start of the scheme in 1975. We conclude that

the first theory fails as matter of logic and that the sec-

ond theory fails on logic, proof and policy.

In proffering its first, “lulling letter” theory, the

government relies upon cases establishing that jurisdic-

tion under the mail fraud statute may lie even where

letters designed to assure victims are mailed subsequent

to the actual fraud. But here the government has alleged

more: it alleged that the crucial mailing took place out-

side of the period of the alleged statutory olation. This

allegation plainly does not support jurisdiction. As noted

in United States v. Brown, 583 F.2d 659 (5th Cir. 1978),

even where a lulling letter constitutes the crucial mail-

ing, “The completion of the scheme must depend in some

way upon the mailings charged.” 583 F.2d at 659. Here.

the government, by indicating on the face of the indict-

ment that ali acts necessary to the completion of the

offense had occurred by July 28, 1978, foreclosed its op-

tion of ae on subsequent ne This is not a case,

as in United States v. Sampson, 371 U.S. 75(1962), where

the indictment specifically alleged that the span of the

offense included within it the mailing of the lulling

letters subsequent to the underlying fraud. /d. at 80. By

contrast, here the government indicated that all unlawful

acts triggering the invocation of the statute had ended

before the crucial letter was mailed. Similarly, the defen-

dant’s reliance on United States v. Mandel, 415 F. Supp.

997 (D. Md. 1976), affd in part en banc, 591 F.2d 1347 (4th

Cir. 1979), cert. denied, 445 U.S. 461 (1979), is misplaced,

for there, unlike here, the indictment specified that the

period of statutory violation extended to the time of the

filing of the indictment, thus encompassing all mailings

~~ to the underlying fraud. Mandel, 415 F. Supp.

at ,

It would simply defy logic to permit the maintenance of

jurisdiction, as the government urges here, over an

offense whose crucial jurisdictional act the government

14 No. 82-1605

concedes occurred outside of the period in which the

offense took place. Nor can this lapse be justified as a

permissible “variance” of proof, for the occurrence of the

mailing within the period of the offense is a predicate for

the very existence of the crime, and is thus an “essential

element” of the offense. Stirone v. United States, 361 U.S.

212, 218 (1959); United States v. Nicosia, 638 F.2d 970,

976 (7th Cir. 1980).

The government's second theory, which purports to

base jurisdiction over count four upon the fact that the

August 22, 1978 date was a typographical error and

should have read August 22, 1977, was not fully ex-

plicated in oral argument, but we find that, even strain-

ing to supply for ourselves the necessary logical steps in

the theory, there is no record or policy basis for reaching

the proffered conclusion. While the record indicates that

the mailing alleged in count four was proved at trial to

have occurred on August 22, 1977, this proof. even if

accepted as a “variance,” would sfill not support juris-

diction, for the mailing would still be alleged to nave oc-

curred outside the period of the alleged offense, i.e., prior

to September, 1977. Thus, it appears that on either its

variance or “lulling letter” theory, the government missed

the jurisdictional mark at both ends.

Perhaps the government intended to argue that the

trial court amended count four to allege mail fraud com-

mencing in 1975, thus encompassing the variance which

would place the mailing in 1977. However, there would

be two objections to such an argument. First, the record

does not indicate that the government sought an amend-

ment in relation to count four. although it did so express-

ly in relation to count two; nor is there an indication that

the trial court believed that it had such a motion be-

fore it. Second, as a matter of judicial policy and Fifth

‘ In view of the crucial jurisdictional significance of the time

of the mailing, we could not in any event permit a variance in

relation to such an “essential” element of the offense. Stirone v.

United States, 361 U.S. 212, 218 (1959).

No. 82-1605 15

Amendment principle, we would decline to engage in

such acrobatic constructions to preserve the count. Es-

pecially where the government had one clear chance to

effect all the necessary amendments, in the course of

lengthy in-court proceedings focusing on the defendant's

motion to dismiss, but instead chose to effect only one

amendment,’ we cannot adopt the government's position.

- For_the government to attempt to attach a sar

apparently undiscovered u ral argument on appeal,

Oattal a nt, apparently never re-

; e nd enters

a realm of prejudice to eaten ere we

Nee en TT eee its in-

ictment and proof SS relying on mu ually con-

actual predica eories a e way to

the appettatetevel This 1s the sort of conduct “hich the

Supreme Court found violative of the defendant's Fifth

Amendment rights in Russell v. L’nited States, 369 U.S.

749 (1962) where

{a]t every stage in the ensuing criminal proceeding

[defendant] was met with a different theory, or by no

theory atall. .. . Far from informing [defendant] of

the nature of the accusations against him, the indict-

ment instead left the prosecutor free to roam at

large ... to shift its theory of criminality so as to

take advantage of each passing vicissitude of the

trial and appeal.

Id. at 768. At the first-sign of error in its indictment the

overnm ould have carefully scrutinized the entire

indictment, gathered all the errors and gone back to te

grand jury for a correct supplemental indictment. By not

GORE iE NPE Fras wasted the resources of all

concerned and forfeited a conviction by the careless draft-

wu _erimaimal -

process. We | reverse defendant’s conviction on count four.

5 Indeed, we are puzzled as to why the government seems to

have not even recognized the “typographical error” in count

four until appellate argument, since it so readily detected the

error in count one. See n.1, supra.

16 No. 82-1605

C. Omission of Certain Defense [nsiructions

At the close of trial, the defendant proffered the follow-

ing series of jury instructions to the trial court, which

were in turn read to the jury, with certain portions

(underlined below) omitted:

It is the Defendant's theory in this case that John

Cina and Russell Tolnai did not enter into an agree-

ment, express or implied, with Frank Combs, a/k/a

Arnold Schonscheck or Louis Torresin to cause

odometers to be tampered with or to cause a conceal-

ment of the actual mileage of the vehicles which they

offered to the public for sale.

Defendants contend that Combs/Schonscheck and

Torresin did conceal the fact of the actual mileage on

automobiles which they each sold to J.C. Motors

from John Cina and Russell Tolnai.

You are ji that Combs/

Schonschek an the al

ile on automobiles whic y_sold to J.C.

Motors and that Cina and Tolnai believed that they

could rely on the odometer $ rovided

9. and 10 of the indictment.

It is the further theory of Defendants that they were

unaware of the mileage on a 1973 Datsun automobile

which they claim was conveyed to J.C. Motors witha

Dealer Transfer form showing the mileage to be

38.500 miles.

If you find that ~——_~ were not p ovided wi h

actual evidence show! lleage < mann

to be greater tna 3,000 m 0 = the

Defends not guilty o oun ¢ (61 of the | ndictme

It is the further theory of the defense that a

odometer on a 1972 Cadillac DeVille automobile was

replaced while the vehicle was being operated by

Jonn Cina and his wife Linda Noonan. Ifyou find

No. 82-1605 17

that th n id not participate int

ing w dometer originally a part of the 1972

Vi mobile, ai should find the

ilty of Coun and of the in-

It is the further theory of the Defendants that the

mailing of forms necessary to cause the registration

of vehicles in the State of Wisconsin by automobile

buyers of J.C. Motors was required by law of the

State and was done in the same way for all

automobiles sold. The Defendants contend that they

did not cause the mails to be used for the purposes of

completing an alleged scheme to defraud, but rather

to — with State law.

raud ci rather to > comply with State

law. you shou d find the Defendants John Cina and

Russell Tolnai not guilty of Counts 2, 3, 4. and 5

On appeal, the defendant claims that the omission of

the underlined portions severely hindered the presenta-

tion of his theory of defense. However, we find no error

in the trial court’s excisions, for the pruned language

was either duplicative of earlier instructions pertain-

ing to requisite levels of defendant's knowledge, or posi-

tively misstated the law under which the defendant was

charged.

Defendant’s instruction pertaining to the jury's obliga-

tion to acquit the defendant of the conspiracy count if it

found that the actual mileage of the automobiles was con-

cealed from him or that he could have relied upon the

misrepresentation of others, for example, merely restates

the detailed knowledge and intent requirement spelled

out by the trial court.’ Perez v. United States, 297 F.2d 12

* As the trial court instructed the jury:

The Defendants are presumed to be innocent of the

charges. This presumption remains with each Defendant

throughout every stage of the trial, and during your

(Footnote continued on following page)

18 No. 82-1605

5 continued

deliberations on the verdict, and is not overcome unless

from all the evidence in the case you are convinced beyond

a reasonable doubt that a particular Defendant is guilty.

Unless the Governments [sic] proves beyond a reasonable

doubt that a Defendant has committed every element of the

offense with which he is charged, you must find him not

guilty.

What the evidence in the case must establish beyond a

reasonable doubt is that the alleged conspiracy was

knowingly formed and that one or more of the means or

methods described in the indictment were agreed upon to

be used in an effort to effect or accomplish some object or

purpose of the conspiracy as vee oo in the indictment,

and that two or more persons including one or more of the

accused were knowingly members of the conspiracy as

charged in the indictment.

When the word “knowingly” is used in these instructions,

it means that the Defendant realized what he was doing

and was aware of the nature of his conduct and did not act

through ignorance, mistake or accident.

... [A] person who has no knowledge of a conspiracy but

happens to act in the way that furthers some object or

purpose of the conspiracy does not thereby become a con-

spirator.

Before the jury may find the Defendant or any other per-

son has become a member of the conspiracy, the evidence

in the case must show beyond a reasonable doubt that the

conspiracy was knowingly formed and that the Defendant

or other person who is claimed to have been a member

willfully participated in the unlawful plans with the intent

to advance or further some object or purpose of the con-

spiracy.

To act or participate willfully means to act or participate

voluntarily and intentionally and with specific intent to do

something the law forbids or with age ic [intent] to fail to

do something the law requires to be done.

No. 82-1605 19

(5th Cir. 1961), cited by defendant, is inapposite, for

there, unlike here, the trial court refused to charge the

jury with any instruction pertaining to the requisite

eas oi and willfulness of the defendant. Perez, 297

2d at 15.

The meaning of defendant's proposed instruction re-

quiring the finding of “actual evidence” of greater

mileage on the vehicle named in count six’ is unclear.

There was documentary evidence pertaining to this court

which suggested that the higher pre-tampering mileage

was not indicated on the sale documents received when

defendant purchased the vehicle. But there was also

testimony that the defendant knew of the higher mileage

despite the absence of such information on the documents

and that he ordered the rolling back of the odometer on

the vehicle at issue. If the instruction was merely intend-

ed to state the requirement of knowledge of defendant of

the odometer tampering, it would have been mere sur-

plusage, in view of the court's instruction in relation to

this count that the jury, to convict, must find that “the

defendant knowingly and wilfully committed this act or

caused this act to be done.” If, on the other hand, the in-

struction was intended to suggest that the defendant

could not be convicted on this count unless the actual

documents indicated a greater mileage, it was clearly

inconsistent with the law, which requires only that

the defendant possesses knowledge, not documentary

knowledge.

Likewise, defendant's proffered instruction which

stated that defendant was to be acquitted if he did not

“participate” in the odometer tampering scheme was

properly excised, for it was also either mere surplusage

or misstated the applicable law. If the defendant intend-

ed to instruct the jury to acquit him unless his knowing

and willfull odometer alteration or causing of odometer

alteration was proven, this instruction merely reinstated

The instruction as originally proffered to the court mis-

takenly identified the relevant count as count five.

20 No. 82-1605

the knowledge requirement on which the jury was

properly instructed. If, however, the defendant intended

to require the jury to find actual physical participation in

the altering of the odometer, his instruction misstated the

law, which permits conviction upon merely causing such

alteration to take place.

Defendant's final instruction which would have re-

quired acquittal on count four if defendant was found to

have used the mails for the purpose of complying with

state law was properly eliminated, for it flatly misstated

the law. See United States v. Galloway, 664 F.2d 161, 164

n.4 (7th Cir. 1981).

In short, the full substance of the defendant's theory of

the case was before the jury, unlike in Strauss v. L’nited

States, 376 F.2d 416 (5th Cir. 1967), where the court

omitted language relating to the legal and factual basis

of the defendant’s position. Strauss, 376 F.2d at 418.

Here, by contrast, only surplusage or incorrect state-

ments of the law were omitted. We find no abuse of

discretion in the trial court’s judicious pruning of the

proffered instructions. Consequently. we find no reversi-

ble error to have occurred in connection with the jury in-

structions on counts one, four, six or eleven.

CONCLUSION

For the foregoing reasons, we affirm defendant's con-

viction on counts one, six and eleven of the indictment

and reverse his conviction on count four.

AFFIRMED IN PART AND

REVERSED IN PART.

A true Copy:

Teste:

See ee meee meee ee ee ee eeee

USCA 30224—Midwest Law Printing Co.. Inc., Chicago—1-24-83—400

Opinion by Judre Yood

IUDGMENT — ORAL ARGUMENT

United States Court of Appeals

For the Seventh Circuit 10

Chicago, IIlinos 60604

January 24 19_83

Before

Hon HARLINGTON WOOD, JR., Circuit Judge

Hon. JESSE £. SSCHBACH. Circuit Judge

Hon. JOHN R, BARTELS, Senior District Judge®

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Appeal from the United States

District Court for the Eastern

c Vise ‘

Judge Robert W. Warren

JOHN CINA,

Defendant-Appellant.

This cause was heard on the record from the United States District

Court for the. Eastern District of Wisconsin

and was argued *¥ counsel.

On concideration whereof, IT IS ORDERED AND ADJUDGED by

this Court that the judgment of the said District Court in this cause appealed

from be, and the same is hereby AFFIRMED in part and REVERSED in part,

in accordance with the opinion of this Court filed this date.

The Honorable John 8. Bartels, Senior District Judge for the

Eastern District of New York, is sitting by designation.

APPENDIX 8B

Anited States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Hoa. HARLINGTON WOOD, JR., Circuit Judge

Hom. JESSE ESCHBACH, Circuit Judge

Hom. JOHN &. BARTELS, Senior Diserics Judge*

Appeal from the United Scates

District Coure for the

UNITED STATES OF AMERICA, Eastern District of Wisconsin

Plainciff-appellee,

No, 482-1605 “ No. 81 CR 102

Robert W. Warren, Judge.

JOHN CINA,

Defendant-Appellanc.

ORDER

On consideration of the petition for rehearing filed in

the above-entitled cause by defendant-appellant John Cina,

— of the judges on the original panel having voted to deny

the same,

IT IS HEREBY ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

a

“The Honorable John 8. Bartels, Senior District Judge of the

Eastern District of New York, is sitting by designation.

APPENDIX C

MAY 1 3 1983