# Petitioners Brief — United States v. Lane

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 438

## Text

; APR 26 1065
(*) 77
Nos. 84-744 and 84-963 —

Bh prone Cont oe kund ate

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER
*.
JAMES C. LANE AND DENNIS R. LANE

JAMES C. LANE AND DENNIS R. LANE, PETITIONERS
V.
UNITED STATES OF AMERICA

ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

Rex E. Lee
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
Bruce N. Kuti
Assistant to the Solicitor General

JoeL M. GERSHOWITZ
Attorney

Department of Justice
Washington, D.C. 20530
(202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in reversing
defendants’ convictions on the basis of misjoinder un-
der Rule 8 of the Federal Rules of Criminal Proce-
dure without determining whether the misjoinder con-
stituted harmless error.

2. Whether there was sufficient evidence to sup-
port defendants’ convictions for mail fraud under 18
U.S.C. 1341.

(1)

TABLE OF CONTENTS

A. The factual backgroun lll

The El Toro restaurant fire
V 3
The flower shop conspiracy —........ 3
Dennis Lane’s perjury ....................................

PPP

B. The court of appeals’ decision
e è WT —
Argument:

I.

II.

A conviction may not be reversed on the basis
of misjoinder under Rule 8 of the Federal
Rules of Criminal Procedure if the error was
A. Federal appellate courts have a duty to dis-
regard all harmless errors, including mis-
r i

B. There is no basis on which to except mis-
joinder from the harmless error doctrine

C. The misjoinder of count 1 did not prejudice
the rights of the defendante

The evidence was sufficient to support defend-
ants’ convictions for mail fraud on counts 2

ä a

oe K K „ dc d

—
do

14

20

37

IV

TABLE OF AUTHORITIES

Cases: Page
Baker v. United States, 401 F.2d 958 16, 25, 28
Bliss v. United States, 354 F.2d 4558 32
Brown v. United States, 411 U.S. 2233222 17, 21
Bruton v. United States, 391 U.S. 1233 18, 21
Chambers v. Maroney, 399 U.S. .......................... 21
Chapman v. California, 386 U.S. 88s 17, 20, 26
Coleman v. Alabama, 399 U. S. 1112: 21
Gideon v. Wainwright, 372 U.S. 3333 . 20
Glasser v. United States, 315 U.S. 60 1 29
Gordon v. United States, 358 F.2d 11222 36
Harrington v. California, 395 U.S. 250 17, 21

Hermansen v. United States, 228 F.2d 495, reh’g
denied, 230 F.2d 173, cert. denied, 351 U.S. 924.. 33

Ingram v. United States, 272 F.2d 5777 16, 22
Kotteakos v. United States, 328 U.S. 750 ......17, 18, 19, 20,
21, 26
Lutwak v. United States, 344 U.S. 604 18
McElroy v. United States, 164 U.S. 7. 13, 25
Metheany v. United States, 365 F.2d 90, later ap-

peal, 390 F.2d 559, cert. denied, 393 U.S. 824.... 16
Milton v. Wainwright, 407 U.S. 311 17, 21
Moore v. Illinois, 434 U.S. 220 21
Parker v. United States, 404 F.2d 1193, cert. de-

— eG RR eee 18
Pereira v. United States, 347 U.S. 1 29
Schaffer v. United States, 362 U.S. 5111 20
Snyder v. Massachusetts, 291 U.S. 777 18
Tumey v. Ohio, 278 U.S. 610..........................-.....----- 20
United States v. Ajlouny, 629 F.2d 830, cert. de-

££ 2. f 15, 28
United States v. Angelilli, 660 F.2d 23, cert. de-

CQ . ae 33
United States v. Bibby, 752 F.2d 111 15, 23, 27
United States v. Bledsoe, 674 F.2d 647, cert. de-

ME | een 16
United States v. Bova, 493 F.2d 333 16

United States v. Buchanan, 633 F.2d 423, cert.
reer. 33

Cases—Continued: Page
United States v. Chappell, 698 F.2d 308, cert. de-

D . x 32, 36
United States v. Eagleston, 417 F.2d 111 16
United States v. Elkin, 731 F.2d 1005, cert. de-

nied, No. 83-1848 (Oct. 1, 1984) 32
United States v. Ellis, 709 F.2d 888 16
United States v. Gleason, 616 F.2d 2, cert. denied,

gg 32
United States v. Gougis, 374 F.2d 758. 16
United States v. Graci, 504 F.2d 11 16, 25
United States v. Granello, 365 F.2d 990, cert. de-

I ie 15, 20, 24, 25, 27
United States v. Hasting, 461 U.S. 499 12, 17, 18, 20, 23,

26, 27
United States v. Hatcher, 680 F.2d 43838 15
United States v. Jones, 712 F.2d 1316, cert. de

ne Me I ... . 32
United States v. Ledesma, 632 F.2d 670, cert. de-

a ß 35
United States v. MacClain, 501 F.2d 100 31, 32
United States v. Martin, 567 F.2d 8499 15-16, 28
United States v. Maze, 414 U.S. 395 ........ 14, 31, 34, 35, 36
United States v. Miller, No. 83-1750 (Apr. 1,

1 33
United States v. Miller, 664 F.2d 94, cert. denied,

EE, ...... 32
United States v. Moss, 591 F.2d 488 34
United States v. Ong, 541 F.2d 311 27
United States v. Sampson, 371 U.S. 75 10, 14, 31, 35

United States v. Seidel, 620 F.2d 1006 15, 20, 23, 25, 27
United States v. Shelton, 669 F.2d 446, cert. de-

ns I ̃ ..... ⅛ :-. 34, 36
United States v. Sutton, 605 F.2d 260, on reh’g,

642 F.2d 1001, cert. denied, 453 U.S. 912 16
United States v. Toney, 605 F.2d 200, cert. denied,

I ̃ 1»XA.. — 32
United States v. Turbide, 558 F.2d 1053, cert. de-

, . 15, 23, 28

United States v. Turkette, 632 F.2d 896, rev'd,
D è R . ee 16, 25

VI

Cases—Continued : Page
United States v. Vanderpool, 528 F.2d 1205, cert.
EE . = 32
United States v. Varelli, 407 F.2d 73 15
United States v. Wade, 388 U.S. 218 8 21
United States v. Werner, 620 F.2d 922 15, 18, 25
United States v. Wrehe, 628 F.2d 1079 32
Ward v. United States, 289 F.2d 877 7ʒ77 16
Constitution, statutes and rules:
U.S. Const. :
r ian lean etl Ati 21
r 21
Act of Fab. 26, 1919, ch. 48, 40 Stat. 1181, 28
r, eer 17, 25

Comprehensive Crime Control Act of 1984, Pub. L.
No. 98-473, 98 Stat. 1837 et seg. :

§ 218(a) (6), 98 Stat. 202 4

§ 218(a) (8), 98 Stat. 202ù/˖ e 4
D ̃ .. . 29
r x 2
D 2, 14, 29, 31, 32, 34, 35, 36
EE ˙ UT. ... 4
. — tiaaiiaiaaanls 4
aT aT Heo 4
e roommate et Saree 17
Fed. R. Crim. P.:

D n passim

D ES a 1 10, 15

F 8 9, 14, 15

. — Sr ie 12, 13, 22, 23, 24

17 3, 12, 15, 16, 17, 19, 22, 23, 24
Fed. R. Evid.:

er Eee ve es Ps 28

Rule 801 (d) (2) (E) E 32

Miscellaneous:

H.R. Rep. 352, 81st Cong., Ist Sess. (19499 17

8. J. Moore, Moore's Federal Practice (2d ed.
FE — eal 15, 19, 22, 23

Vil
Miscellaneous—Continued : Page
Note, Harmless Error and Misjoinder Under the

Federal Rules of Criminal Procedure: A Nar-
rowing Division of Opinion, 6 Hofstra L. Rev.

11 T— NER ee 20, 27
R. Traynor, The Riddle of Harmless Error
— —— ietesiaasidaablaenaiainenamniatte 17-18

1 C. Wright, Federal Practice and Procedure:
i ENE SET te SE EU ee 15

In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-744

UNITED STATES OF AMERICA, PETITIONER
Vv.

JAMES C. LANE AND DENNIS R. LANE

No. 84-963

JAMES C. LANE AND DENNIS R. LANE, PETITIONERS
V.

UNITED STATES OF AMERICA

ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-
20a) is reported at 735 F.2d 799.

The appendices to each petition are identical.

(1)

JURISDICTION

The judgment of the court of appeals (Pet. App.
21a) was entered on June 18, 1984. A petition for
rehearing was denied on August 22, 1984 (Pet. App.
22a-23a). On October 11, 1984, Justice White ex-
tended the time in which to file the government’s pe-
tition for a writ of certiorari to November 20, 1984,
and the petition was filed on November 6, 1984. The
defendants’ cross-petition for a writ of certiorari was
filed on December 7, 1984. The petitions were granted
on February 19, 1985 (J.A. 25, 26). The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

STATUTE AND RULES INVOLVED
18 U.S.C. 1341 provides:

Whoever, having devised or intending to de-
vise 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 arti-
cle, 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 mat-
ter, any matter or thing whatever to be sent or
delivered by the Postal Service, or takes or re-
ceives therefrom, any such matter or thing, or

. — 41 — toy eal —
ing to the direction thereon, or at the place at
which it is directed to 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.

Fed. R. Crim. P. 8 provides:

(a) Joinder of Offenses. Two or more offenses
may be charged in the same indictment or in-
formation in a separate count for each offense
if the offenses charged, whether felonies or mis-
demeanors or both, are of the same or similar
character or are based on the same act or trans-
action or on two or more acts or transactions
connected together or constituting parts of a
common scheme or plan.

(b) Joinder of Defendants. Two or more de-
fendants may be charged in the same indictment
or information if they are alleged to have par-
ticipated in the same act or transaction or in
the same series or acts or transactions constitut-
ing an offense or offenses. Such defendants may
be charged in one or more counts together or
separately and all of the defendants need not be
charged in each count.

Fed. R. Crim. P. 52(a) provides:

Harmless Error. Any error, defect, irregu-
larity or variance which does not affect substan-
tial rights shall be disregarded.

STATEMENT

After a jury trial in the United States District
Court for the Northern District of Texas, James C.
(J.C.) Lane was convicted on four counts of mail
fraud, in violation of 18 U.S.C. 1341, and one count of
conspiracy, in violation of 18 U.S.C. 371. He was sen-
tenced to concurrent terms of five years’ imprison-
ment on the first mail fraud count and on the con-
spiracy count, to be followed by concurrent terms of

4

two years’ imprisonment on the other three mail fraud
counts, and fined a total of $9,000. His son, Dennis
R. Lane, was convicted on three counts of mail fraud,
one count of conspiracy, and one count of perjury, in
violation of 18 U.S.C. 1623. Pursuant to the Young
Adult Offender Act, he was sentenced to concurrent
terms of custody under the Youth Corrections Act
(18 U.S.C. 4216, 5010 (b)) See Pet. App. Sa n.5.
The court of appeals reversed (id. at la-20a).

A. The Factual Background

Defendants were each charged in five counts of
a six-count indictment encompassing three arson-
for-profit schemes (J.A. 13-20). Count 1 charged
J.C. Lane with mail fraud in connection with a 1979
fire in the El Toro restaurant in Amarillo, Texas.
Counts 2 through 4 charged both defendants with
mail fraud in connection with a 1980 fire in a duplex
in Amarillo. Count 5 charged both defendants with
conspiracy in connection with the planned arson of
a flower shop in 1980 in Lubbock, Texas. Count 6
charged Dennis Lane with perjury before a grand
jury investigating the flower shop scheme in 1981.
Defendants’ motions for severance before and during
trial were denied. They were tried jointly and con-
victed on all counts. Pet. App. 8a.

1. The El Toro Restaurant Fire

The evidence at trial showed that J.C. Lane and
three partners opened the El Toro restaurant in
Amarillo in the summer of 1978. They leased the

The Young Adult Offender Act and the Youth Correction
Act were repealed by Section 218(a)(5) and (8) of the
Comprehensive Crime Control Act of 1984, Pub. L. No. 98-
473, 98 Stat. 2027.

5

building and restaurant equipment for a term of five
years. Pet. App. 2a; Tr. 35-37. A clause in the lease
provided that it would be terminated under certain
circumstances in the event of a fire (Tr. 37; GX 1).
The restaurant never operated at a profit, suffering
declining sales after September 1978 and sustaining
losses of $20,000 during 1978 and $9,000 during the
two months that it operated in 1979 (Pet. App. 2a,
Za n.1; Tr. 142-151).

J.C. Lane purchased fire insurance for the restau-
rant in November 1978, covering the contents and
improvements for $10,000 each and providing a maxi-
mum of $18,000 for business losses. At about the
same time he contacted Sidney Heard, a professional
“torch,” asking him how much it would cost to burn
the building and stating that he wanted to get out of
his lease and the pamership.“ Heard set a fire in the
building on February 27, 1979, which did not destroy
it but did damage its contents. Pet. App. 2a; Tr. 237-
242.

The insurance company settled with Lane for
$10,000 on the building’s contents and $9,200 on the
improvements. Drafts in these amounts were issued
by the company on April 23, 1979, and May 3, 1979,
respectively. Pet. App. 2a; Tr. 106-108; GX 9-12.
On June 1, 1979, the insurance adjustor mailed a
memorandum to the company’s regional headquarters
concerning settlement of Lane’s business-interruption
claim. Included with the memorandum was a list of
the restaurant’s monthly income and expenses sub-

Evidence of Heard’s prior dealings with J.C. Lane in
connection with two other arsons was excluded by the trial
court (Tr. 229, 370-376). Heard, who testified at trial, had

entered into a plea agreement with the government (Tr. 265-
275, 605-606) .

6

mitted and signed by J.C. Lane, falsely claiming a net
monthly profit of $2,500. Pet. App. 2a-3a; Tr. 74-76;
GX 13. This mailing was charged in count 1 of the
indictment (J.A. 14). On November 1, 1979, the bus-
iness-interruption claim was settled for $2,700, and
the insurance company issued to Lane a draft for that
amount on that date. Pet. App. 3a; Tr. 77-78; GX
15.

Dennis Lane was not involved in the restaurant
arson. At the time the evidence relating to this count
was received, the trial judge instructed the jury that
the evidence was not to be considered against him
(J.A. 21). The judge repeated this instruction in her
final charge, together with an instruction regarding
the separate consideration to be given each defendant
and each count (ibid.).

2. The Duplex Fire

In early 1980, J.C. Lane hired Heard to set fire
to a duplex that Lane was moving to a vacant lot in
Amarillo (Pet. App. 3a; Tr. 243-245). The duplex
was owned by Dennis Lane and Andrew Lawson,
doing business as L & L Properties. On January 22,
1980, J.C. Lane obtained a $35,000 fire insurance
policy on the building, which had been purchased for
$500. Pet. App. 3a; Tr. 50-52, 57. The duplex was
burned on May 1, 1980, by Marvin McFarland, an
employee of Heard’s (Pet. App. 4a; Tr. 246-250, 319-
320). A week or two later, J.C. Lane told Heard that,
as the building was not a total loss, he planned to
“ ‘stick it to’” the insurance company by submitting
repair invoices for reimbursement (Tr. 250).

On May 9, 1980, the insurance adjustor issued an
initial draft of $7,000 on the policy to Dennis Lane
and his partner Lawson as an advance for repairs to

7

the duplex. At the same time, Lane and Lawson
signed a proof-of-loss form claiming a partial loss of
$7,000 and stating that the loss did not originate
by any act, design or procurement on the part of your
insured or this affiant’” and that “‘no attempt to
deceive [the] company as to the extent of the loss has
been made. On May 15, 1980, the adjustor mailed
to the insurance company’s headquarters a report on
expected repair costs that had been submitted by
Dennis Lane along with his partial proof-of-loss form.
Pet. App. 4a; Tr. 165-168; GX 34A-34E, 35. This
mailing was charged in count 2 of the indictment
(J.A. 15-16).

On May 21 and 30, 1980, the adjustor issued addi-
tional drafts to the insured for $2,000 and $3,000,
respectively. Dennis Lane submitted to the adjustor
proof-of-loss forms corresponding to each payment.
On May 25, 1980, the adjustor mailed Lane’s $2,000
proof-of-loss form to company headquarters, together
with a memorandum indicating that repairs were in
progress and had exceeded the initial $7,000 advanced
earlier. On August 6, 1980, the adjustor mailed an-
other progress report to headquarters, along with
Lane’s $3,000 proof-of-loss form and an additional
$2,000 proof-of-loss form.“ Pet. App. 4a-5a; Tr. 171-
175; GX 37-38, 39A-39C. The August 6 mailing was
charged in count 3 of the indictment (J.A. 16).

On September 16, 1980, the adjustor issued to
Dennis Lane a draft for $12,250, representing final

* It is not clear from the record whether this claim is the
same as that represented by the $2,000 proof-of-loss form
mailed on May 25, 1980. The court of appeals
we do not dispute, that the proof-of
August 6, 1980 related to the
App. 5a n.3, 15a-16a n.10.

i

settlement of his claims relating to the duplex and
bringing the total amount paid to over $24,000 ( Pet.
App. 5a; Tr. 175-176; GX 40). Two days later, the
adjustor mailed a memorandum to company head-
quarters explaining the high total cost of restoration
(the original estimate had been for $14,000) on the
basis of roof damage that had required additional re-
pairs. The adjustor included in his report a number
of invoices supplied by Dennis Lane that listed vari-
ous materials and furniture purportedly purchased by
L & L Properties to repair and refurbish the duplex.
Pet. App. 5a; Tr. 176-183; GX 41A-41N. In fact, the
invoices had been fabricated by J.C. Lane together
with Heard and his secretary (Pet. App. 5a; Tr. 250,
256-262; GX 45-56). The September 18 mailing was
the subject of count 4 of the indictment (J.A. 16-17).

3. The Flower Shop Conspiracy

At a meeting with defendants and Lawson several
weeks after the duplex fire, Heard proposed that they
establish and burn a phony flower shop in Lubbock.
The Lanes agreed to participate in the plan. Heard’s
associate, William Lankford, who operated L & L De-
signs, an artificial-flower business in Amarillo, agreed
to stock the Lubbock shop with old flowers and broom-
weed. Heard and Dennis Lane picked out a suitabie
building in July 1980, which Lankford stocked in Au-
gust. Pet. App. 5a-6a; Tr. 251-255, 275-277, 286-287.
Lankford prepared fictitious invoices for merchandise
purportedly delivered to the shop. In November 1980,
J.C. Lane insured the contents of the shop for $50,000.

arson of the flower shop never took place.

9

shop conspiracy was charged in count 5 of the indict-
ment (J.A. 17-19).

4. Dennis Lane’s Perjury

In March 1981, a newspaper article connected
Dennis Lane to a scheme to burn the Lubbock flower
shop with Heard. The same day that the article ap-
peared, J.C. Lane cancelled the insurance policy on
the shop. Pet. App. 7a; Tr. 406, 416-417. On May 12,
1981, Dennis Lane appeared before a grand jury in-
vestigating Heard. He testified that Heard had noth-
ing to do with the flower shop or with his own deal-
ings with Lankford. Pet. App. 7a-Sa; Tr. 548-549;
GX 92A, at 68. On the basis of this testimony, Dennis
Lane was charged with perjury in count 6 of the
indictment (J.A. 19-20).

B. The Court Of Appeals’ Decision

1. The court of appeals reversed defendants’ con-
victions, holding (Pet. App. 9a) that count 1 “should
not have been joined with the others [under Fed. R.
Crim. P. 8(b)] because it was not part of the same
series of acts or transactions as Counts 2 through 6.”
The court reasoned that the El Toro restaurant fire
was entirely separate from the other crimes and that
it was not linked to them by any common scheme or
plan (Pet. App. 9a-13a). The court did conclude,
however, that counts 2 through 6 were properly joined
(id. at 13a).

The court refused to consider the government’s ar-
gument that the error, if any, was harmless. Stat-
ing only that “Rule 8(b) misjoinder is prejudicial
per se in this circuit” (Pet. App. 13a) and that mis-
joinder is “inherently prejudicial” (id. at 10a), the
court remanded for new trials on all counts. Under

10

the court’s ruling (id. at 13a), defendants on remand
may be tried jointly on counts 2 through 6, with a
separate trial for J.C. Lane on count 1.

2. The court of appeals rejected the Lanes’ con-
tention that the evidence was insufficient to support
their mail fraud convictions on counts 2 through 4,
which involved the 1980 duplex fire in Amarillo (Pet.
App. 15a-18a).° Defendants argued that the charged
mailings could not have been in furtherance of their
fraudulent scheme because each took place after the
insurance company had issued to them the draft re-
lated to the mailed proof-of-loss forms or invoices
(id. at 16a). In rejecting this argument, the court
of appeals relied on this Court’s decision in United
States v. Sampson, 371 U.S. 75 (1962), reasoning
that mailings occurring after payment may be “in
execution of fraud” where they are “designed to lull
the victims into a false sense of security and post-
pone investigation” (Pet. App. 17a). The court of
appeals concluded that the evidence supported a jury

5 Alternatively, although the court of appeals did not ad-
dress the issue, it seems clear under Fed. R. Crim. P. 8(a) that
count 1 could properly be joined with counts 2 through 5 at a
trial of J.C. Lane alone. Accordingly, each defendant may be
tried on all his charges at a trial separate from that of the
other defendant’s.

The court of appeals also rejected J.C. Lane's challenge to
the sufficiency of the evidence supporting his conviction on
count 1 (the restaurant fire) (Pet. App. 13a-15a) and Dennis
Lane’s challenge to the sufficiency of the evidence supporting
his conviction for perjury (id. at 18a-20a), challenges that
they do not renew in this Court (see 84-963 Cross-Pet. 3).
Defendants did not argue in the court of appeals, and do not
now argue, that the evidence was insufficient to support their
convictions for conspiracy in connection with the planned
flower shop arson (see Pet. App. 20a n.13).

11

inference that the charged mailings were intended
to and did have a lulling effect“ because they helped
to convince the insurance company that “the claims
were legitimate” (id. at 17a-18a (footnote omitted) ).’
The court reasoned (id. at 18a):

The Proofs of Loss declared that the “loss did
not originate by any act, design or procurement
on the part of [the] insured” and that no at-
tempt had been made to deceive the insurance
company. [The company] required the insured
to submit the forms; any failure to comply
might have alerted [it] to the possibility of
fraud.

Similarly, the invoices gave the impression of
a perfectly innocent claim. The building sup-
plies and furniture that Lane claimed to have
purchased for the duplex were set out in minute

The court of appeals noted (Pet. App. 17a n.11) that the
district court’s instructions accorded with this view of the
law. Defendants did not challenge the jury instructions in
the court of appeals and do not appear to do so in this Court.
The district court instructed the jury that each charged
mailing must be “for the purpose of executing the scheme to
defraud” (J.A. 22) and that “the use of the United States
mails [must be] closely related to the scheme in that the
accused either mailed something or caused it to be mailed in
an attempt to execute or carry out the scheme” (J.A. 23).
The district court further instructed the jury that a use of
the mails “can not be for the purpose of executing such
scheme as alleged in the indictment * * * if the alleged scheme
in its entirety was completed prior to the mailing alleged in
the indictment.” Ibid. (emphasis added). The district court
also stated to the jury that mailings “which relate to the
acceptance of the proceeds of the scheme or which facilitate
concealment of the scheme are mailings in furtherance of the
scheme” (J.A. 24).

12

detail. The invoices were dated randomly and
torn out of the invoice book at random points to
indicate that L & L Properties was not the sole
customer of the [alleged supplier]. A reasonable
jury could find that all of these details were
intended to lull [the insurance company] into a
false sense of security.

SUMMARY OF ARGUMENT

Rule 52 (a) of the Federal Rules of Criminal Pro-
cedure requires a reviewing court to disregard
„alu error * * * which does not affect substantial
rights” (emphasis added). This Court has similarly
made it clear that “it is the duty of a reviewing
court to consider the trial record as a whole and to
ignore errors that are harmless.” United States v.
Hasting, 461 U.S. 499, 509 (1983). There is no ra-
tional basis for holding that this duty does not ex-
tend to violations of Fed. R. Crim. P. 8—indeed, mis-
joinder is a garden variety technical error that,
while sometimes prejudicial to the defense, is not in-
herently associated with prejudice. Those courts of
appeals that review joinder errors for potential prej-
udice have had no difficulty in assessing on a case by
case basis the harmfulness of misjoinders under
Rule 8, just as they have routinely determined
whether a joinder of offenses or defendants that Rule
8 authorizes has in a particular case given rise to
such prejudice that a severance is mandated under
Fed. R. Crim. P. 14. Application of the harmless
error rule to questions of joinder will further the
purposes of both Rule 8 and Rule 52 (a) without sac-
rificing any interest of defendants in a fair trial.

13

There is no reason for excepting misjoinder ‘from
the operation of the harmless error requirement.
The Court has applied the harmless error rule even
to most constitutional errors, exempting only a nar-
row class of cases, such as deprivation of the assist-
ance of counsel or trial before a biased tribunal, in
which the error by its nature inescapably taints the
entire proceeding. It would be incongruous indeed to
conclude that misjoinder (which is not a constitu-
tional error) is somehow exempt from this funda-
mental principle of appellate review. The fact that
a trial court has no discretion to refuse a severance
of misjoined charges or defendants is immaterial to
the present inquiry; that may establish the existence
of error without regard to consideration of prejudice,
but of course the presence of error is an inevitable
ingredient of the harmless error doctrine, not a fac-
tor rendering the doctrine inapplicable. Recognition
of the duty to apply the harmless error doctrine here
will not render Rule 8 redundant with Rule 14, nor
ig it foreclosed by the Court’s decision in McElroy v.
United States, 164 U.S. 76 (1896), rendered before
the first statute prohibiting reversal of judgments
for nonprejudicial errors.

While the Court may wish to remand this case to
the court of appeals for consideration of the harmful-
ness of the error here, we think it plain that the
joinder of count 1 with counts 2 through 6 did not
materially prejudice defendants in light of the over-
whelming evidence of their guilt, the district court’s
limiting instructions, and the admissibility of the
same evidence on separate retrials.

14

II

The evidence is clearly sufficient to support de-
fendants’ convictions for mail fraud in connection
with the duplex arson. The charged mailings did
not take place after defendants had fully secured the
proceeds of their fraudulent scheme. Even if they
had, the mailings were “for the purpose of executing”
that scheme within the meaning of 18 U.S.C. 1341
because they helped to lull the insurance company
into believing that defendants’ claim was a valid one
and thereby served to make detection of the scheme
less likely. See United States v. Sampson, 371 U.S.
75 (1962). This Court’s decision in United States v.
Maze, 414 U.S. 395 (1974), is not to the contrary,
because the mailings there increased rather than de-
creased the likelihood that the defendant’s scheme
would be discovered, and so could not have been in
furtherance of that scheme. The policy behind Sec-
tion 1341, to prohibit all fraudulent uses of the fed-
eral mails and thereby to protect the public, clearly
would be contravened by creating the exception from
its provisions that defendants here seek to establish.

ARGUMENT

I. A CONVICTION MAY NOT BE REVERSED ON
THE BASIS OF MISJOINDER UNDER RULE 8 OF
THE FEDERAL RULES OF CRIMINAL PROCE-
DURE IF THE ERROR WAS HARMLESS

The court of appeals erred in refusing to consider
whether the misjoinder of count 1 under Fed. R.
Crim. P. 8(b)* constituted harmless error. Although

* Although we believe, as we argued to the court of appeals,
that the joinder here was permissible under Rule 8(b), we
have not presented that largely factual question to this

15

the circuits are divided on the question, the better
reasoned and more recent line of cases supports ap-
plication of the harmless error standard of Fed. R.
Crim. P. 52(a) to misjoinder under Rule 8.’ There

Court. Rather than treating the question solely under Rule 8(b)
(see Pet. App. 9a), the court of appeals arguably should have
determined under Rule 8(b) that the defendants were prop-
erly joined because they “participated in the same act or
transaction or in the same series of acts or transactions,” and
then determined under Rule 8(a) that the offenses charged
against each defendant were properly joined. Count 1 would
plainly have been properly joined on this analysis because the
El Toro restaurant fraud was, under Rule 8 (a), “of the same
or similar character” as the duplex fraud and flower shop
scheme. While it is “quite possible” that the Rule’s drafters
intended such an approach, the courts of appeals have con-
sistently analyzed all joinder questions involving multiple
defendants under Rule 8(b) alone. 1 C. Wright, Federal
Practice and Procedure: Criminal § 144, at 494 & n.1 (1982)
(citing cases) ; see also 8 J. Moore, Moore’s Federal Practice
* 8.05[1], at 8-19 (2d ed. 1984). In considering whether the
harmless error rule applies to misjoinder, it should make no
difference whether the joinder question arises under Rule
8(a) or Rule 8(b). See, e.g., United States v. Ajlouny, 629
F.2d 830, 843 (2d Cir. 1980) (treating issue as one under
Rule 8 and citing precedents addressing both sections of the
Rule), cert. denied, 449 U.S. 1111 (1981).

For the view that misjoinder may constitute harmless
error, see, e. g., United States v. Ajlouny, 629 F.2d 830, 243
(2d Cir. 1980), cert. denied, 449 U.S. 1111 (1981); United
States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980): United
States v. Turbide, 558 F.2d 1053, 1061 (2d Cir.), cert. denied,
434 U.S. 934 (1977) ; United States v. Granello, 365 F.2d 990,
995 (2d Cir. 1966), cert. denied, 386 U.S. 1019 (1967):
United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980):
United States v. Bibby, 752 F.2d 1116, 1121-1122 (6th Cir.
1985); United States v. Hatcher, 680 F.2d 438, 442 (6th
Cir. 1982); United States v. Varelli, 407 F.2d 735, 747-748
(7th Cir. 1969) ; United States v. Martin, 567 F.2d 849, 854

16

is nothing peculiar to questions of joinder that war-
rants excepting them from the general rule, em-
bodied in statutory directives, that courts of appeals
have a duty to disregard all trial errors that did not
affect a defendant’s substantial rights. Indeed, appli-
cation of the harmless error rule to misjoinder will
further the salutary purposes both of Rule 8 and of
Rule 52(a). This is shown especially clearly in this
case, as it is beyond question that the defendants
were not materially prejudiced by the trial of count
1 together with counts 2 through 6.
A. Federal Appellate Courts Have A Duty To Disre-
gard All Harmless Errors, Including Misjoinder
Rule 52(a) of the Federal Rules of Criminal Pro-
cedure directs that “[a]ny error * * * which does
not affect substantial rights shall be disregarded”

(9th Cir. 1977); Baker v. United States, 401 F.2d 958, 972-
974 (D.C. Cir. 1968). Except for the Second Circuit, each
of these courts of appeals reversed a previously taken posi-
tion that misjoinder is pre,udicial per se. See, e.g., Ingram
v. United States, 272 F.2d 567 (4th Cir. 1959) ; United States
v. Sutton, 605 F.2d 260, 272 (1979). on reh’g, 642 F.2d 1001
(eth Cir. 1980), cert. denied, 453 U.S. 912 (1981); United
States v. Gougis, 374 F.2d 758, 762 (7th Cir. 1967) ; Metheany
v. United States, 365 F.2d 90, 94-95 (1966), later appeal, 390
F.2d 559 (9th Cir.), cert. denied, 393 U.S. 824 (1968);
Ward v. United States, 289 F.2d 877, 878 (D.C. Cir. 1961).
For cases still adhering to that position, see, ¢.g., United
States v. Turkette, 632 F.2d 896, 906 & n.35 (ist Cir. 1980),
rev'd on other grounds, 452 U.S. 576 (1981); United States
v. Bova, 493 F.2d 33 (5th Cir. 1974) ; United States v. Bledsoe,
674 F.2d 647, 654, 657-658 (8th Cir.), cert. denied, 459 U.S.
1040 (1982); United States v. Eagleston, 417 F.2d 11, 14
(10th Cir. 1969); United States v. Ellis, 709 F.2d 688, 690
(11th Cir. 1983); see also United States v. Graci, 504 F.2d
411, 414 (3d Cir. 1974).

17

(emphasis added). To similar effect, 28 U.S.C. 2111
enjoins federal appellate courts to “give judgment
* * * without regard to errors or defects which do
not affect the substantial rights of the parties.“
In United States v. Hasting, 461 U.S. 499, 509
(1983), this Court made it clear that “it is the duty
of a reviewing court to consider the trial record as
a whole and to ignore errors that are harmless.”
See also, e.g., Brown v. United States, 411 U.S. 223,
230-232 (1973); Milton v. Wainwright, 407 U.S.
371 (1972); Harrington v. California, 395 U.S. 250
(1969) ; Chapman v. California, 386 U.S. 18 (1967);
Kotteakos v. United States, 328 U.S. 750 (1946).
The harmless error rule as expressed in Fed. R.
Crim P. 52(a), 28 U.S.C. 2111, and this Court’s de-
cisions admits of no exception for claims of improper
joinder. To carve out such an exception, requiring
a new trial even though the asserted misjcinder was
harmless error, would be inconsistent with the bene-
ficial purposes of both Rule 52(a) and Rule 8. As
the Court noted in Hasting, the purpose of the harm-
less error rule is “ ‘to conserve judicial resources by
enabling appellate courts to cleanse the judicial proc-
ess of prejudicial error without becoming mired in
harmless error.“ 461 U.S. at 509, quoting R. Tray-

” Congress intended that 28 U.S.C. 2111 would assure that
the harmless error rule apply in appellate as well as trial
courts. H.R. Rep. 352, 8ist Cong., Ist Sess. 18 (1949). Both
Rule 52(a) and Section 2111 are based on former 28 U.S.C.
(1946 ed.) 391, which provided that judgment be given
“without regard to technical errors, defects, or exceptions
which do not affect the substantial rights of the parties.”
Significantly, both Rule 52(a) and Section 2111 omit the
limitation that only “technical” errors be subject to the
harmless error standard. See generally Hasting, 461 U.S. at
509-510 n.7.

18

nor, The Riddle of Harmless Error 81 (1970); see
Kotteakos, 328 U.S. at 758-760. In the context of
a criminal prosecution, the harmless error rule rec-
ognizes that “justice, though due to the accused, is
due to the accuser also. The concept of fairness must
not be strained till it is narrowed to a filament. We
are to keep the balance true.” Snyder v. Massachu-
setts, 291 U.S. 97, 122 (1934) (Cardozo, J.); see
also Bruton v. United States, 391 U.S. 123, 135
(1968) (“‘A defendant is entitled to a fair trial but
not a perfect one,’” quoting Lutwak v. United States,
344 "J.S. 604, 619 (1953)). The interests of society,
victims, and witnesses are served by according final-
ity to convictions reached after trials that, though
imperfect, were not infected by materially prejudicial
error. See Hasting, 461 U.S. at 507.

The purposes of the joinder rules, to “conserve
state funds, diminish inconvenience to witnesses and
public authorities, and avoid delays in bringing those
accused of crime to trial” (Bruton, 391 U.S. at 134),
are fully consistent with the goals of the harmless
error doctrine—both are designed to promote effi-
ciency without sacrificing the rights of defendants.
See Parker v. United States, 404 F.2d 1193, 1196
(9th Cir. 1968) (footnote omitted), cert. denied, 394
U.S. 1004 (1969) (joinder “expedites the adminis-
tration of justice, reduces the congestion of trial
dockets, conserves judicial time, lessens the burden
upon citizens who must sacrifice both time and money
to serve upon juries, and avoids the necessity of re-
calling witnesses who would otherwise be called upon
to testify only once“); United States v. Werner, 620
F.2d 922, 928 (2d Cir. 1980) (“trial convenience and
economy of judicial and prosecutorial resources [are]
considerations of particular weight when the Govern-

19

ment and the courts have been placed under strict
mandate to expedite criminal trials [under the]
Speedy Trial Act“).

To remove such a significant category of cases as
those involving allegations of misjoinder from op-
eration of the harmless error rule would thus be at
odds with the intent behind both Rule 52(a) and
Rule 8. Indeed, the Court’s discussion of the harm-
less error standard in Kotteakos v. United States,
supra, which raised joinder as well as variance issues
(328 U.S. at 756 n.6, 774-775), demonstrates the
applicability of the harmless error doctrine to viola-
tions of Rule 8. The Court in Kotteakos clearly as-
sumed that the harmless error requirement is appli-
cable to questions of joinder, for it stated (328 U.S.
at 775) that the harmless error statute “carries the
threat of overriding the requirement of [the joinder
statute] * * *, unless the application of [the harm-
less error statute] is made with restraint.” The
Court concluded (ibid.) that the harmless error and
joinder rules “must be construed and applied so as
to bring them into substantial harmony, not into
square conflict.” That harmony is not achieved by
nullifying the harmless error principle, but by scru-
tinizing cases of misjoinder carefully; but if errors
in joinder, like almost any other errors, have not
affected the substantial rights of the defendants, re-

" Professor Moore has observed (8 J. Moore, supra,
* 8.02[1], at 8-2 to 8-3 (footnote omitted) ):

The criteria for joinder of offenses and defendants are
spelled out in three deceptively simple sentences of Rule
8. None of the Federal Rules has given rise to so much
misunderstanding, yet few of the Rules are so vital.

Certainly the Court should be chary of mandating automatic
reversal in an area where error is so common.

versal is improper. In Schaffer v. United States, 362
U.S. 511, 517 (1960), as in Kotteakos, the Court
appeared to recognize that the harmless error rule
is applicable to improper joinder, though the Court
found that the rule “is not even reached * * * since
joinder was proper under Rule 8(b) and

was shown.” See United States v. Granello,
F.2d 990, 995 (2d Cir. 1966) (“[i]n the Schaf-

the

1. In Hasting, the Court noted that “certain er-
rors may involve ‘rights so basic to a fair trial that
their infraction can never be treated as harmless
error (461 U.S. at 508 n.6, quoting Chapman v.
California, 386 U.S. at 23). Such fundamental
rights include the right to counsel “ and the right to
an impartial judge.” But the joinder standards of
Rule 8, which are not even of constitutional magni-
tude, obviously do not rise to the level of these fun-

Gideon v. Wainwright, 372 U.S. 335 (1963).
„ Tumey v. Ohio, 273 U.S. 510 (1927).

™“(N)o federal court has raised misjoinder to an error of
constitutional dimension.” Note, Harmless Error and Mis
joinder Under the Federal Rules of Criminal Procedure: A
Narrowing Division of Opinion, 6 Hofstra L. Rev. 533, 540
(1978) (footnote omitted). See, e. ., United States v. Seidel,
620 F.2d at 1013 (misjoinder only “a violation of a mere
procedural rule”) (footnote omitted) ; see generally Schaffer
v. United States, 362 U.S. 511 (1960). The Court’s discussion
of the harmless error standard for nonconstitutional viola-

damental rights. Moreover, while improper joinder
may give rise to constitutional violations, such as
Bruton problems, those violations themselves, like
other constitutional errors, are subject to the harm-
less error rule. See Brown v. United States, 411
U.S. at 231; Harrington v. California, 395 U.S. at
252-254; see also Moore v. Illinois, 434 U.S. 220, 232
(1977) (introduction of evidence from unconstitu-
tional identification may be harmless); Milton v.
Wainwright, 407 U.S. at 372 (introduction of im-
properly obtained confession may be harmless) ;
Chambers v. Maroney, 399 U.S. 42, 52-53 (1970)
(introduction of evidence seized in violation of the
Fourth Amendment may be harmless); Coleman v.
Alabama, 399 U.S. 1, 10-11 (1970) (denial of coun-
sel at preliminary hearing may be harmless) ; United
States v. Wade, 388 U.S. 218, 242 (1967) (tainted
in-court identification may be harmless).

Nor is the prejudice that may result from mis-
joinder so difficult to ascertain that it must be pre-

sumed always to be present. Trial courts routinely

tions in Kotteakos v. United States, supra, further suggests
that improper joinder does not, in itself, violate the Constitu-

fair trial in contravention of the Fifth Amendment. But

" Contrary to defendants’ argument (84-744 Br. in Opp.
8), Rules 8 does not represent a determination that a defend-
ant will be prejudiced in every case where its requirements
have been contravened in the slightest degree. At most, the
Rule is based on a prediction of when, in general, the danger
of prejudice will outweigh the gains joinder achieves in trial

See Ingram v. United States, 272 F.2d at 570-571. But where

But where a court is confident that no prejudice has
arisen—where, for example, the evidence of guilt is
overwhelming or the evidence admitted at the joint
trial would also be admissible at separate trials—
the harmless error rule is appropriately invoked.
Those circuits that have applied Rule 52(a) to mis-
joinder have engaged in the same sort of careful in-
quiry into the possibility of prejudice that has char-
acterized the proper application of the harmless er-
ror rule in other contexts. See, e.g., United States v.
Bibby, 752 F.2d 1116, 1122 (6th Cir. 1985); United
States v. Seidel, 620 F.2d 1006, 1009-1011 (4th Cir.
1980) ; United States v. Turbide, 558 F.2d 1053, 1061-
1063 (2d Cir.), cert. denied, 434 U.S. 934 (1977);
see also 8 J. Moore, Moore’s Federal Practice
78.04 [2], at 8-18 to 8-19 (2d ed. 1984) (application
of Rule 52(a) to misjoinder “is acceptable and even
desirable *[;] [dlefendants will suffer * only
if, in the name of ‘efficiency,’ the [harmless error]
doctrine is not carefully and strictly construed”).

2. In support of the view that the harmless error
standard is inapplicable to misjoinder, defendants
argue (84-744 Br. in Opp. 6-7) that application of
Rule 52(a) in these circumstances would effectively
make Rule 8 redundant with Rule 14, which expressly
addresses the issue of prejudicial joinder (see note

has of course consistently rejected such an approach, most
recently in Hasting (461 U.S. at 507):

The court [of appeals] appears to have decided to deter
future similar [prosecutorial] comments by the drastic
step of reversal of these convictions. But the interests
preserved by the doctrine of harmless error cannot be so
lightly and casually ignored in order to chastise what the
court viewed as prosecutorial overreaching.

24

16, supra). But this fallacious objection misses the
crucial fact that the rules are addressed to proce-
dures in the district court, where they are quite
clearly distinct in operation: Rule 8 requires the
court to grant a motion for severance unless its
standards are met, without regard to the question of
prejudice, while Rule 14 gives the court discretion
to grant such a motion in the case of oinder that,
though proper under Rule 8, is prejudicial. This dif-
ference goes to the question whether there has been
error at all—an indispensable prerequisite to any ap-
plication of the harmless error rule—not to the quite
distinct question whether the error requires setting
aside the convictions. Consequently, it is wholly fal-
lacious to contend that the difference in the rules is
eviscerated simply because, on appeal, a reviewing
court will not set aside a conviction for a violation
of Rule 8 in the absence of prejudice.

Moreover, even when Rule 52(a) is applied to vio-
lations of Rule 8, an important distinction remains
between appellate review of the denial of Rule 8 mo-
tions and of those brought under Rule 14: the for-
mer are reviewed as a matter of law, with affirmance
proper only if the government has carried the burden
of establishing the harmlessness of any error, while
the latter are reviewed under the highly deferential
abuse-of-discretion standard, with the defendant hav-
ing to shoulder the burden of a clear demonstration
of substantial prejudice. For these reasons, Rule 14
cannot be said to create an implicit exception to the
application of the harmless error standard with re-
spect to misjoinder. As Judge Friendly stated in
United States v. Granello (365 F.2d at 995), [wie
see no reason why the undoubted truth that an ap-
peal claiming misjoinder under Rule 8(b) raises a
question of law in the strict sense, whereas an ap-

25

peal from denial of severance under Rule 14 nor-
mally raises only one of abuse of discretion, should
carry exemption from the harmless error rule * * *
as a corollary.” See also United States v. Seidel, 620
F.2d at 1014-1015; United States v. Werner, 620
F.2d at 926; Baker v. United States, 401 F.2d 958,
973 (D.C. Cir. 1968).

3. Finally, this Court’s decision in McElroy v.
United States, 164 U.S. 76 (1896), while often cited
for the proposition that misjoinder is prejudicial per
se, in fact does not establish such a rule. In that
case, which was decided prior to either the adoption
of the Federal Rules of Criminal Procedure in 1946
or the enactment of the harmless error statute in 1919
(see Act of Feb. 26, 1919, ch. 48, 40 Stat. 1181, 28
U.S.C. (1946 ed.) 391)), the government argued
that the finding of misjoinder did not require rever-
sal of the convictions of those defendants who had
been charged in all counts “because there is nothing
in the record to show that they were prejudiced or
embarrassed in their defence by the course pursued”
(164 U.S. at 81). The Court rejected this argument
on the ground that “[i]t cannot be said * * * that all
the defendants may not have been embarrassed and
prejudiced in their defence, or that the attention of
the jury may not have been distracted to their in-
jury in passing upon distinct and independent trans-
actions” (ibid.). Thus, McElroy rests upon the con-
clusion that the misjoinder there might have been
prejudicial and so could not be presumed harmless.
See United States v. Granello, 365 F.2d at 995. To
whatever extent it might be thought that McElroy

8 See, e.g., United States v. Turkette, 632 F.2d at 906 n.35;
United States v. Graci, 504 F.2d at 413.

does establish a rule of per se reversal that survives
subsequent legislation barring reversal for harmless
errors, the decision should be reexamined in light of
the Court’s more recent precedents on both the harm-
less error and the joinder rules (see pages 16-20,

supra).

C. The Misjoinder Of Count 1 Did Not Prejudice The
Rights Of The Defendants

While this Court, if it agrees with us that mis-
joinder is subject to harmless error evaluation, may
prefer to remand to the court of appeals for consid-
eration of the harmfulness of the misjoinder of
count 1, we believe there can be no question that it
did not materially prejudice defendants’ rights in the
circumstances of this case. See Hasting, 461 U.S.
at 510 (this Court has authority to evaluate harm-
less error claims even where court of appeals has not
done so). To begin with, any error in joining count
1 to the others was at most marginal. Although there
may not have been a single overarching conspiracy
encompassing all three fraudulent arson schemes
(see Pet. App. 12a), their close relation in terms of
time, method, and participants suggests that it was
only the court of appeals’ narrow reading of Rule 8
that resulted in its conclusion of misjoinder here.“

/

1% Because violation of Rule 8 is not an error of constitu-
tional dimension (see note 14, supra), the harmfulness of
the error in this case is to be assessed under the normal
standard of Kotteakos (see 328 U.S. at 764-765) rather than
under the strict reasonable-doubt standard established by
Chapman for constitutional violations.

0 Although it has been suggested that those circuits that
refuse to apply the harmless error rule to misjoinder have, in
unacknowledged compensation, broadened the scope of per-

27

Moreover, the tes imonial and documentary evi-
dence against defendants, consisting of 29 witnesses,
including the Lanes’ “torches” (Heard and Lank-
ford) and more than 100 exhibits, was overwhelming
and countered by little more than Dennis Lane’s de-
nials and J.C. Lane’s character defense. There is
simply no reasonable probability in light of this evi-
dence that the joinder of count 1 materially con-
tributed to their convictions. See, e.g., Hastings, 461
U.S. at 512 (error was harmless in light of the
“overwhelming evidence of guilt and the inconsist-
ency of the scanty evidence tendered by the defend-
ants”) ; United States v. Ong, 541 F.2d 331, 338 (2d
Cir. 1976) (“where untainted evidence of guilt is
substantial, a greater demonstration of prejudice
from an erroneous failure to sever must be made be-
fore the error will be considered to require rever-
sal“). This conclusion is buttressed by the district
court’s instructions that the evidence in count 1—
which was distinct and easily segregated from the
evidence relating to the other five counts (see gen-
erally United States v. Bibby, 752 F.2d at 1122)—not
be considered against Dennis Lane and that the jury
give separate consideration to each defendant and
each count (J.A. 21). See, e.g., United States v.
Seidel, 620 F.2d at 1019; United States v. Granello,
365 F.2d at 995.

Finally, if any doubt remains as to the harmless-
ness of the joinder of count 1, it is dispelled by con-
sideration of the evidence that would be admissible
at separate trials on remand: the new trials of de-
fendants would, in fact, be so substantially similar to

missible joinder (see Note, supra, 6 Hofstra L. Rev. at 563),
the court of appeals in this case combined a crabbed reading
of Rule 8 with automatic reversal.

the trial that they have already had that any con-
clusion of prejudice can only be deemed wholly im-
plausible. At a joint trial of counts 2 through 6, evi-
dence of the El Toro restaurant arson and fraud
would still be admissible to establish J.C. Lane’s
intent or for similar purposes under Fed. R. Evid.
404(b). See, e.g., United States v. Ajlouny, 629 F.2d
830, 843 (2d Cir. 1980), cert. denied, 449 U.S. 1111
(1981) ; United States v. Martin, 567 F.2d 849, 854

(9th Cir. 1977). Defendants would receive limiting
instructions just as they did at the trial that has
already taken place. Any possibility of transference
of guilt is remote in light of the substantia! involve-
ment of both defendants and would not be reduced
on their joint retrial. See, e.g., United States v.
Turbide, 558 F.2d at 1061; Baker v. United States,
401 F.2d at 972.”

In short, defendants were convicted on overwhelm-
ing evidence following a lengthy trial. The court of
appeals reversed for a technical violation of the join-
der requirements without any determination of the
harmfulness of the error. At a time when the crim-
inal justice system is already overburdened,” such a

In any event, reversal of J.C. Lane’s convictions on counts
2 through 5 is wholly unsupportable, as those counts could
have been tried with count 1 (at a trial of J.C. Lane alone)
or with count 6 (at a trial with Dennis Lane). Surely, no
cognizable prejudice arose simply because counts 2 through 5
were tried with both of the other counts.

22 Incredibly, defendants argue (84-744 Br. in Opp. 9-10)
that application of the harmless error rule will add to the
burdens facing the courts. The effort expended by the courts
of appeals in assessing the harmfulness of trial errors pales
next to the time and resources that must be dedicated to
retrials if reversals need not be predicated on actual prejudice
to defendants.

result, which does nothing to contribute to the fair-
ness of the process, makes little sense indeed.

Il. THE EVIDENCE WAS SUFFICIENT TO SUPPORT
DEFENDANTS’ CONVICTIONS FOR MAIL FRAUD
ON COUNTS 2 THROUGH 4

The court of appeals correctly rejected (Pet. App.
15a-18a) defendants’ contention that the evidence was
insufficient to show that the mailings charged in
counts 2 through 4 of the indictment (J.A. 14-17)
were “for the purpose of executing” (18 U.S.C. 1341)
their fraudulent scheme. The charged use of the mails
need not be “an element” of the scheme. Rather, it is
enough that the mailing be “incident to an essential
part of the scheme.” Pereira v. United States, 347
U.S. 1, 8 (1954). The evidence at trial, viewed in
the light most favorable to the government, see, ¢.g.,
Glasser v. United States, 315 U.S. 60, 80 (1942),
plain.y satisfies this test.

Defendants do not now contend that they did not
engage in a scheme to defraud their insurance com-
pany by deliberately burning their duplex in order to
receive the proceeds of the fire insurance policy. Nor
do they deny that the proofs of loss and invoices they
caused to be mailed to the company were fraudulent.”
Rather, they argue only (84-963 Cross-Pet. 4-10) that
the mailings could not have been for the purpose of
executing their scheme because each mailing took
place after they had received the payment from the

*° A defendant “causes” a mailing under 18 U.S.C. 1341
where the use of the mails “can reasonably be foreseen, even
though not actually intended [by him].” Pereira, 347 U.S. at
9. Under 18 U.S.C. 2(b), it is of course not necessary that the
defendant himself have actually used the mails (347 U.S.
at 8).

HOHE
1
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the proof-of-loss forms (J.A. 14-
scheme obviously was still continuing when
charged in counts 2 and 3 took place.
convictions on these counts are therefore amply
supported by the evidence.

Although the September 1980 mailing charged in
count 4 took place two days after defendants had re-
ceived the final draft in payment from the insurance
company, they had not yet fully secured the proceeds
of that payment at the time of the mailing. Raymond
Thompson, the property manager for the insurance
company’s claims department (Tr. 208), testified that
the drafts issued by the company, unlike checks, are
not payable on demand but only upon authorization
from the home office when they arrive at the com-
pany’s bank for collection (Tr. 212-213). If “there
was something wrong with the claim” (Tr. 218), pay-

A!
7
3

|

in
tion. See United States v. MacClain, 501 F.2d 1006,
1012 (10th Cir. 1974) (mailing was in furtherance
of fraudulent scheme where victim could have stopped
payment on previously tendered check had mailing not

executing” a scheme to defraud under Section 1341.
To the contrary, this Court has held that letters de-
signed to lull victims into a false sense of security,
postpone their complaints, and delay discovery of the
defendants’ scheme are within the statute. United
States v. Sampson, 371 U.S. 75 (1962) (subsequent
mailings assured victims that the services they had
paid for would be performed); see United States v.
Maze, 414 U.S. 395, 403 (1974). The courts of ap-

peals have also consistently upheld convictions under
Section 1341 on the theory that subsequent mailings
furthered the defendants’ schemes because the mail-
ings lulled victims into believing that they had not
been defrauded. See, e. g., United States v. Elkin, 731
F.2d 1005, 1008-1009 (2d Cir. 1984), cert. denied,
No. 83-1848 (Oct. 1, 1984); United States v. Jones,
712 F.2d 1316, 1320 (9th Cir.), cert. denied, 464 U.S.
985 (1983); United States v. Chappell, 698 F.2d 308,
311 (7th Cir.), cert. denied, 461 U.S. 931 (1983);
United States v. Wrehe, 628 F.2d 1079, 1082-1083
(8th Cir. 1980); United States v. Toney, 605 F.2d
200, 206-207 (5th Cir. 1979), cert. denied, 444 U.S.
1090 (1980); United States v. Vanderpool, 528 F.2d
1205, 1207 (4th Cir. 1975), cert. denied, 424 U.S.
922 (1976); United States v. MacClain, supra; Bliss
v. United States, 354 F.2d 456, 457 (8th Cir. 1966)
(Blackmun, J.).“

The jury was properly instructed in accordance
with this theory that mailings “which facilitate con-
cealment of the scheme are mailings in furtherance of
the scheme” (J. A. 24), although mailings that occur
after “the alleged scheme in its entirety had been
completed” do not violate the statute (J.A. 23). See

note 7, supra. Under these instructions,
jury could surely have concluded that the scheme
not ended with the September 16, 1980 payment,
continued at least through the September 18 mail-
ing to the insurance company of the fraudulent in-

* Cf. United States v. Miller, 664 F.2d 94, 98 (5th Cir. 1981),
cert. denied, 459 U.S. 854 (1982) (co-conspirator’s statement
made to allay third party’s suspicions was in furtherance of
conspiracy and therefore admissible under Fed. R. Evid.
801(d) (2) (H); United States v. Gleason, 616 F.2d 2, 23
(2d Cir. 1979), cert. denied, 444 U.S. 1082 (1980) (same).

voices that formed the basis for that payment.” De-
fendants can reasonably be charged with having fore-
seen the subsequent mailing to the insurance company,
which followed the company’s normal business prac-
tice. And the mailing plainly contributed to the suc-
cess of defendants’ scheme; had it not taken place,
the company might well have immediately investi-
gated the circumstances of the claimed loss and dis-
covered defendants’ fraud. Indeed, following the mail-
ing the company conducted an on-site inspection of
the duplex in order to verify defendants’ claims and
took action in November 1980 to obtain reimburse-
ment when it appeared that some items of the claim
were not supported (Tr. 220-221).

The courts of appeals have upheld mail-fraud con-
victions in similar circumstances. In United States
v. Angelilli, 660 F.2d 23 (2d Cir. 1981), cert. denied,
455 U.S. 910 (1982), the defendants fraudulently
appropriated part of the proceeds from the sales of
debtors’ property and then mailed letters to creditors
with the remaining proceeds, falsely stating that the
creditors were receiving all of the funds obtained in
the sales. The court of appeals reasoned (id. at
36-37) that the defendants’ subsequent communica-
tions with their victims were a necessary part of
the scheme that served to lull the creditors into think-

The indictment properly charged that the mailings were
“for the purpose of executing” defendants’ fraudulent scheme
(J. A. 15, 16, 17). There was no need for the indictment to
state specifically that the letters were intended to “lull” the
insurance company. Hermansen v. United States, 228 F.2d
495, 499, reh’g denied, 230 F.2d 173 (5th Cir.), cert. denied,
351 U.S. 924 (1956); see also United States v. Buchanan,
633 F.2d 423, 426 (5th Cir. 1980), cert. denied, 451 U.S. 912
(1981); see generally United States v. Miller, No. 83-1760
(Apr. 1, 1985), slip op. 6-8.

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United States v. Maze, supra,
trary. There, the defendant had

and invoices to the insurance
stolen credit card. He was charged
eard’s issuing bank for payment. The Court rea-

trated without mailing of
cited at page 32, supra.

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122

In United States v. Ledesma, 632 F.2d 670 (7th Cir.),
ously relied on Maze in holding 632 F.2d at 677-678) that
the mailing of a proof-of-loss form after receipt of the insur-
ance company's check did not violate Section 1341. The court
of appeals failed to discuss Sampson and only adverted (with-
out discussion) to the possibility that subsequent mailings
may conceal a fraud (632 F.2d at 677-678 n.11). Nor did the
court mention the possibility that payment on the check could
have been stopped or the funds recovered by the insurance

1271

12

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3
abel 115 112144301

I

it
11

37

CONCLUSION

The judgment of the court of appeals should be
reversed insofar as it holds that the misjoinder of
count 1 was reversible error and affirmed insofar
as it holds that the evidence was sufficient to support
respondents’ convictions on counts 2 through 4.

Respectfully submitted.

Rex E. Lee
Solicitor General

STEPHEN S. TROTT
Assistant Attorney General

ANDREW L. FREY
Deputy Solicitor General

Bruce N. KUHLIK
Assistant to the Solicitor General

JoEL M. GERSHOWITZ
Attorney

APRIL 1985

„ &. GOVERNMENT PeINTING OFrice, 1905 461531 10211

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0363%3A5. Public record. Not legal advice.