Opposition Brief — Green v. United States

FILED

No. 84-2032 SEP 20 1008 iM

F. SPANIOL, ~

In the Supreme Court of the Hnited States

OctToper Term, 1985

JouN B. GREEN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

Joun F. De Put

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether, in a prosecution for mail fraud and making

false official statements, the trial judge adequately instructed

the jury on the element of intent.

(I)

TABLE OF CONTENTS

Page

PE Sacccccceccecescccccccsccccccccces l

Pt Sere seee ee eebecesocecoccccccceccccce I

tt EE ieeeEe Chee eeesdeodececccccecccecece l

DE Sebbebeeobocecesocoscccccccccocccecece 5

TT Cree eee akeeSSeeeescecccccccccces 17

TABLE OF AUTHORITIES

Cases:

Barnes v. United States, 412 U.S. 837 ......... 10

Bibbins v. United States, 400 F.2d 544 ........ 11

Bryson v. United States, 396 U.S. 64 ........... »

Cupp v. Naughten, 414 U.S. 141 ............. 16

Francis v. Franklin, No. 83-1590

(Apr. 29, 1985) 2.2.2... cece ccc c cece ce eeeeee 16

Liparota v. United States, No. 84-5108

DEE EEE Secccccccesccccccccccccccces 6

McElroy v. United States, 455 U.S. 642 ....... 12

Morissette v. United States, 342 U.S. 246 ....... 9

New England Enterprises, Inc. v. United States,

400 F.2d 58, cert. denied, 393 U.S. 1036 ...... 15

Ogden v. United States, 303 F.2d 724 .......... 9

Olar v. United States, 391 F.2d 773 ........... #

Overton v. United States, 405 F.2d 168 ........ 11

United States v. Allegretti, 340 F.2d 243,

modified, 340 F.2d 254, cert. denied,

eee ces eeccesceoccecec: 11

IV

Page

Cases—Continued:

United States v. Baker, 626 F.2d 512 ......... 6, 8

United States v. Bankston, 603 F.2d 528 ....... 10

United States v. Blassingame, 427 F.2d 329,

cert. denied, 402 U.S. 945 ..........6 cc eees 11

United States v. Bramblett, 348 U.S. 503 ...... 12

United States v. Cohn, 200 U.S. 339 ........... 7

United States v. Curry, 681 F.2d 406 .......... 16

United States v. Cusino, 694 F.2d 185,

cert. denied, 461 U.S. 932 ...........6 0005. 15

United States v. Diggs, 613 F.2d 988,

cert. denied, 446 U.S. 982 ...........600005- 14

United States v. Duncan, 693 F.2d 971,

cert. denied, 461 U.S. 961 ..............05.5. 10

United States v. Feola, 420 U.S. 671 ...... 8, 9, 10

United States v. Fowler, 735 F.2d 823 ......... 16

United States v. Freed, 401 U.S. 601 ........... 9

United States v. Gambler, 662 F.2d 834 ....... 15

United States v. Gilliland, 312 U.S. 86 ......... 8

United States v. Goss, 650 F.2d 1336 .......... 16

United States v. Hamilton, 726 F.2d 317 ...... 10

United States v. Hobson, 519 F.2d 765,

“ert. denied, 423 U.S. 931 ..........0000 eee 10

United States v. Hopkins, 744 F.2d 716 ....... 16

United States v. Horton, 503 F.2d 810 ........ 11

United States v. Howey, 427 F.2d 1017 ........ 11

Page

Cases—Continued:

United States v. Jennings, 471 F.2d 1310,

CR a ee Gs OED Sececcccceccccecce 11

United States v. Lewis, 587 F.2d 854 ........... 6

United States v. Licausi, 413 F.2d 1118,

cert. denied, 396 U.S. 1006 ..............5.. 11

United States v. Miller, 742 F.2d 1279,

cert. denied, No. 84-1088 (Feb. 19, 1985) ...... 6

United States v. Notarantonio,

PETE Sbncenbeecedeccscceoeccoceces 6, 10

United States v. Peskin, 527 F.2d 71,

cert. denied, 429 U.S. 818 ..............005. 10

United States v. Rothman, 567 F.2d 744 ....... 15

United States v. Schmidt, 376 F.2d 751,

cert. denied, 389 U.S. 884 .............0005. 13

United States v. Smith, 735 F.2d 1196,

cert. denied, No. 84-5629 (Dec. 3, 1984) ...... 15

United States v. Stanford, 598 F.2d 285,

cert. denied, 440 U.S. 983 ....... 6.6662 e ee 6,8

United States v. Suggs, 755 F.2d 1538 .......... 6

United States v. Urbana, 412 F.2d 1081,

cert. denied, 400 U.S. 821 .............5005- 13

United States v. White, 451 F.2d 559,

cert. denied, 405 U.S. 1071 ............6055. 11

United States v. Yermian, No. 83-346

CREED Bie GED ccccccccccccscceccesees passim

VI

Page

Statutes and rule:

Act of June 18, 1934, ch. 587, 48 Stat.

GEEEY cdedscccccccccescctosocosceccceece 7

Travel Act, 18 U.S.C. 1952 ............. cc cues 10

0 Gy EEE Sec cccdeccccccccesoseeseceoes 6

SP ie D accccecccccescccccds os Iftfrtre 11

SPE GEE? ceceveceveccosceséaccceéssese 11

SPU Sbccocectcdcsessoseceséectosces 10

SD Gee BEES cccccccccccs 2, 5, 6, 7,9, 10, 12, 14

PPG SEED USdcovecucécccesscedecedebees 10

SPUD EEE esccececcecccsosoccesecs 2, 14, 15

SPLEEED Gascececestesscceuseseéonsece 11

DUCA Bddedenesesecncecceesoocecess 11

PPD ED ebbbddosbeoesccedoecescoecées 11

BS Wa AGP. CREAMED .cccccccccccccccccs 11

Pe ED UE Seedccedoddsccescceces 13

Miscellaneous:

Model Penal Code (Proposed Official Draft

SoD GbGubencccdbeddedesecvescécsccceee< 10

S. Rep. 97-307, 97th Cong., Ist Sess.

GUUE Sccecceecccedeeseescoteséccoccocece 10

Jn the Supreme Court of the Hnited States

OcTosBer TERM, 1985

No. 84-2032

JOHN B. GREEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

The opinion of the court of appeals (Pet. App. Al-A10) is

reported at 745 F.2d 1205.

JURISDICTION

The judgment of the court of appeals, as amended, was

entered on January 14, 1985. A petition for rehearing was

denied on April 30, 1985. The petition for a writ of certiorari

was filed on June 27, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of California, petitioner was con-

victed on one count of making a false official statement, in

(1)

2

violation of 18 U.S.C. 1001; and on one count! of mail

fraud, in violation of 18 U.S.C. 1341. He was sentenced to

concurrent terms of three years’ probation and a $6,000

fine. The court of appeals affirmed.

1. The government's evidence at trial showed that in

1978 petitioner was the quality assurance director at Con-

Chem, Inc., a Los Angeles company that developed and

manufactured chemical coatings (Tr. 212, 357, 433). During

that year, Con-Chem attempted to obtain a contract with

Bechtel Power Corporation (Bechtel) to supply decontam-

inative coatings for use on the “Levei |” area of a nuclear

power plant being constructed by Bechtel in New Hope

Creek, New Jersey (Tr. 133-134, 186-187). Under guidelines

promulgated by the Nuclear Regulatory Commission

(NRC), coatings to be used in the Level | area of a nuclear

facility, which consists of a chamber housing the nuclear

reactor and cooling system, must pass several safety-related

tests designed by the American National Standards Insti-

tute (ANSI) to ensure that any coating so employed will not

peel or flake off the surfaces to which it is applied (Pet. App.

Al; Tr. 146, 171-175, 268-271).

At the time Con-Chem decided to bid for the Level |

coating contract, its product had not qualified for such use

in accordance with NRC and ANSI standards (Tr. 186).

Accordingly, under petitioner's supervision, Con-Chem

conducted a series of tests to obtain the necessary Level |

approval. As part of the test program, petitioner and his

staff prepared a number of concrete blocks with coatings of

Con-Chem materials which were then sent to the Oak Ridge

National Laboratory (Tr. 252, 312-313). Con-Chem's pro-

ducts did poorly on the tests. Instead of adhering to the

‘Petitioner was initially charged on four counts of mail fraud. One of

the counts was dismissed on the government's motion prior to trial, a

second count was dismissed when the jury was unable to reach a verdict,

and the jury acquitted petitioner on a third count (Pet. App. A2).

3

surface of the blocks when exposed to radiation, in many

instances the coatings cracked, blistered, and lost their

adhesion. The test results and sample blocks were returned

by the laboratory to petitioner in April 1979 (Tr. 252,

315-316, 321; GX 6).

Realizing that the unfavorable test results might preclude

tioner decided to falsify the test results (T1. 418). He altered

the test report by deleting references to cracking, blistering,

and peeling and substituting in their place the phrase “coat-

ings intact; no defects” (Tr. 418-445; GXs 4, 6). After alter-

ing the test results, petitioner met with the Bechtel staff

assigned to evaluate the coatings, told them that Con-

Chem's product had performed well on the tests, and deliv-

ered to them the falsified reports (Tr. 190-193). Shortly

thereafter, he mailed to Bechtel photographs which pur-

portedly depicted the tested sample blocks. In fact, the

photographs were taken of blocks which had not been

tuted for the biccks damaged in the test (Tr. 337-338,

365-370).

qualified for Level 1 use at the New Hope Creek project

under ANSI standards (Tr. 342-343). It therefore mailed a

letter to petitioner on June 5, 1979, informing him of this,

and a coating of Con-Chem's product was subsequently

applied to the Level | containment area of the power plant

(Tr. 198, 344-345; GX 8).

informed the FBI of the latter's activities (Tr. 365-372).

When confronted by FBI agents with the falsified test

results, petitioner initially denied involvement. Shortly

after the interview, however, he admitted his actions to

4

Con-Chem’s vice-president and attorney, informing the

attorney that he had altered the test results to ensure that

Con-Chem would be able to get into the nuclear business

(Tr. 418, 422, 481, 496).

At trial, petitioner admitted altering the test results and

fabricating the photographs submitted to Bechtel. He main-

tained, however, that in doing so he harbored no intent to

deceive Bechtel (Tr. 482). To substantiate this claim, he

attempted to show that, prior to submission of the test

results, Bechtel had already decided to use Con-Chem's

coatings, that he had been informed that Bechtel would not

rely upon the test reports except to make its file complete,

and that both his supervisor and Bechtel’s proyect manager

wanted a positive test report to be submitted to Bechtel even

if it had to be falsified (Tr. 471-480). Despite this story, he

was convicted.

2. On appeal, petitioner challenged the instructions

given the jury.’ He maintained that the instruction on the

false statement count was deficient because it lacked any

reference to his knowledge of whether his false statement —

the report to Bechtel — was a matter within the jurisdiction

of a federal agency. The court of appeals rejected this claim.

After noting that, in United States v. Yermian, No. 83-340

(June 27, 1984), this Court found it unnecessary to decide

whether some less culpable mental state than actual know|-

edge must be proven with respect to federal agency jurisdic-

tion, it concluded that “no mental state is required with

respect to federal involvement in order to establish a viola-

tion of section 1001” (Pet. App. A7-A8). In reaching this

?Petitioner also challenged the sufficiency of the evidence to convict

him, but the court of appe*!s rejected this argument as well and pet

tioner does not press that is. ¢ to this Court (Pet. App. A3-A5)

5

history of Section 1001, and rejected defendant's claim that

absent some state of mind requirement, the statute becomes

a “trap for the unwary” (Pet. App. A8-A10).

tion on specific intent (id. at A7).

ARGUMENT

Petitioner contends that this Court should grant certio-

rari because (1) this case raises a question reserved by this

Court's decision last year in United States v. Yermian,

supra, and (2) the Ninth Ciscuit's finding that the jury was

adequately instructed regarding willfulness and good faith

creates a conflict among the circuits.

1. Petitioner is correct in his assertion that this case

presents a question reserved in Yermian. whether a culpa-

ble mental state (albeit short of actual knowledge) must be

proved with respect to federal agency jurisdiction in order

to establish a violation of 18 U.S.C. 1001.

But, obviously, this Court does not grant certiorari in a

case simply because it presents an issue it has not yet

decided. And there is no reason to do so in this case.

Petitioner does not assert that any conflict among the cir-

cr its has yet developed on this issue. None may. This is

especially so in light of the fact, discussed below, that the

Lewis, 587 F 26 8$4(6th Cir. 1978) (per curiam). There is nothing in this

Court's decision in Yermian that would cause them to overturn these

7

a. The holding of the court of appeals that there is no

requirement of culpability with respect to federal jurisdic-

tion under Section 1001 is correct. The language of the

statute itself is enough. As this Court observed in Yermian,

“Any natural reading of § 1001 * * * establishes that the

terms ‘knowingly and willfully’ modify only the making of

false, fictitious or fraudulent statements,’ and not the predi-

cate circumstance that those statements be made in a matter

within the jurisdiction of a federal agency.” Slip op. 6

(footnote omitted). If “there is no basis for requiring proof

that the defendant had actual knowledge of federal agency

jurisdiction” (ibid.), then there is likewise no basis for

imposing some lesser requirement of scienter with respect to

the element of jurisdiction. If the phrase “knowingly and

willfully” does not modify the jurisdictional requirement,

theng fortiori neither does a phrase not in the statute at all.

“On its face, * * * § 1001 requires that the government

prove that false statements were made knowingly and will-

fully” but “contains no language suggesting any additional

element of intent * * *.” /bid:

Similarly, the Court's analysis in Yermian of the legisla-

tive history of Section 1001 and its precursors leads to the

conclusion that the jurisdictional language in question was

not intended by Congress to impose a requirement of scien-

ter. In United States v. Cohn, 200 U.S. 339 (1926), an

earlier version of the false statements statute was narrowly

interpreted to proscribe only those false statements made

with intent to cause pecuniary or property loss to the federal

government. In 1934, responding to this narrow construc-

tion, Congress undertook to amend the statute. The provi-

sion eventually enacted into law broadened’ ‘he scope of the

false statement statute by omitting the specific intent lan-

guage. In this regard, the statute, Act of June 18, 1934, ch.

587, 48 Stat. 996-997, provided:

[WJhoever shall knowingly and willfully falsify or con-

ceal or cover up by any trick, scheme, or device a

material fact, or make * * * any false or fraudulent

statements or representations ** * in any matter

within the jurisdiction of any department or agency of

the United States * * * shall be fined * * °.

As the Court observed in Yermian, slip op. 10, “[t}he juris-

dictional language was added to the [legislation] solely to

limit the reach of the false statements statute to matters of

federal interest.” If Congress, in amending the statute, had

intended to impose a requirement of scienter with respect to

the jurisdictional element, it plainly would have done so

more directly.

Moreover, as the court of appeals here observed (Pet.

App. A9), the congressional objective of the amending legis-

lation was to extend the reach of the false statements statute

“to those deceptive practices which might result in the frus-

tration of authorized government functions. United States

y. Gilliland, 312 U.S. 86, 93 (1941).” Imposition of a

uirement of some level of scienter with respect to the

jurisdictional element would plainly be contrary to that

objective. See United States Vv. Feola, 420 U.S. 671, 684

(1975). See also Bryson v. United States, 396 U.S. 64, 70

(1969) (jurisdiction “shculd not be given a narrow or tech-

nical meaning for the purposes of § 1001"). In furthering’

States v. Baker, 626 F.2d at 516, see also United States Vv.

Stanford, 589 F.2d at 297-298. This is especially compelling

nuclear power plants. But, more generally, requiring proof

that a defendant should have known his false statement was

in a matter within federal agency jurisdiction would narrow

9

significantly the scope of the protection provided by the

statute for federal functions. In many cases, statements that

are not made directly to a federal agency are elicited for the

purpose of affecting government actions and are transmit-

ted by their recipient to the federal government. For exam-

ple, individuals submit applications to state, local, or pri-

vate agencies in order to receive federal benefits or to secure

federally funded contracts, or, as in Yermian, they submit

information to a private defense contractor, which for-

wards it to the federal government for security clearance

If such statements are false, they can cause

serious harm to federal functions, quite without regard to

whether the maker of the false statement claims ignorance

of any federal connection.

401 U.S. 601, 609 (1971). Like the respondent in Feola, the

defendant here “[knew] from the very outset that his

planned course of conduct [was] wrongful,” 420 U.S. at 685.

There is, therefore, no need for any additional culpability

sequl ’ The of iuriedictional | =

Not all false statements that eventually find thew way to the federal

government constitute violations of Section 1001. In general, « false

statement is “in a matter within the jurisdiction of a department or

agency of the United States” only if the federal government has an

“official and immediate” interest in the subject matter of the statement

See Ogden v. United States, 903 F 2d 724, 743 (9th Cir. 1962). Thus, if

an individual gives false information to a neighbor, and the neighbor

defendant be aware dead team penet of asl

be of jeriedicti

knowledge is not an element of the government's case.’

!

i

E

stolen, not required under |§

n rye ty pay Aer tay 726 F.2d 17 319-320 (Oh

Cir 1984) (knowledge of federal meres, coStsioron, 603 F 2d

required under 18 U C. 665), United States \ Rand ston. —

not required under eae. et _—

076) Se Oe Te eo telienent under

use

see Ack 18 USC 1952), United States v. Hobson, S19 F.2d 765,

:

:

!

i!

In the aftermath of this Court’s rejection of a requirement

of actual knowledge in Yermian, the creation petitioner

now seeks of another state of mind requirement would have

escapee defendants aided had committed a federal crime and escaped

from federal prison not required to establish that they were accessories

after the fact under 18 U.S.C. 3); United States v. Horton, 503 F.2d

800, 813 (7th Cir. 1974) (knowledge that firearms had traveled in

unterstate commerce not required under !8 U.S.C. App. 1202(a\1));

United States v. White, 451 F.2d 559 (6th Cir. 1971), cert. denied, 405

US. 1071 (1972) (knowledge that goods crossed state lines not required

wader 18 U.S.C. 2314); United States v. Jennings, 471 F.2d 1310, 1312

(Qd Cir.), cert. denied, 411 U.S. 935 (1973) (knowledge that official

bribed is a federal official not required under 18 U.S.C. 201(bX1));

United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970) (knowl-

edge of federal ownership of property not required under 18 U.S.C.

641); United States v. Blassingame, 427 F.2d 329, 330-331 (2d Cir.

1970), cert. denied, 402 U.S. 945 (1971) (knowledge that interstate

communication is used not required under wire fraud statute, 18 U.S.C.

(643); United States v. Licausi, 413 F.2d 1118, 1121 (Sth Cir. 1969),

cert. denied, 396 U.S. 1006 (1970) (knowledge that money was stolen

18 U.S.C. 211Xc)); Overton v. United States, 405 F.2d 168, 169 (Sth

Cir. 1968) (knowledge of interstate transportation of stolen vehicle not

required under 18 U.S.C. 2313); Bibbins v. United States, 400 F .2d 544

(9th Cir. 1968) (knowledge that automobile would cross state lines not

required under 18 U.S.C. 2312), United States v. Allegretti, 340 F.2d

243, 247, modified on other grounds, 340 F.2d 254 (7th Cir. 1964), cert.

denied, 381 U.S. 911 (1965) (knowledge that goods are stolen from an

wnterstate shipment not required under 18 U.S.C. 659).

United States v. Blassingame provides a good example of the reason-

ing courts employ in concluding that the government need not prove a

Seeteass Caveat & aS appa federal jurisdiction (427

2d at 330):

The statute does not condition guilt upon knowledge that inter-

state communication is used. The use of interstate communication

is logically no part of the crime itself. It is included in the statute

merely as a ground for f jurisdiction. The essence of the

crime is the fraudulent scheme itself. Nothing is added to the guilt

of the violator of the statute by reason of his having used an

interstate telephone to further his scheme. There is consequently

no reason at all why guilt under the statute should hinge upon

knowledge that interstate communication is used. If the wire

12

to be “out of thin air.” See Yermian, slip op. 9 (Rehnquist,

J., dissenting). We note that petitioner does not even specify

what that standard should be. The closest he comes is saying

that there should be proof of “some culpability” (Pet. 11).

b. Moreover, petitioner did not request at trial an

instruction like the one he now seeks. Instead, he sought the

instruction, later held to be unwarranted in Yermian, that

the false statement alleged in the indictment is material “if

and only if, it was calculated to induce action or reliance by

the Nuclear Regulatory Commission” (Pet. App. B5-B6).

Neither court below, therefore, had any occasion to con-

sider in concrete form the propriety of an instruction requir-

ing proof of some degree of culpability (which petitioner

does not elaborate on) with respect to the jurisdictional

element short of proof of actual knowledge. In fact, peti-

tioner informed the trial court during a conference on the

court’s proposed instructions that “the only difficulty” he

had with the court’s instructions on Section 1001 pertained

to “the definition of ‘materiality’ ” (Tr. 513-514; see Pet.

App. B2). Because petitioner failed to make a timely objec-

tion, his conviction under Section 1001 must be upheld

is an interstate wire the requirements for federal juris-

diction are satisfied. It is wholly irrelevant to any purpose of the

statute that the perpetrator of the fraud knows about the use of

Petitioner briefly alludes to the “rule of lenity” in the construction of

‘minal statutes (Pet. 11). But here, as in Yermian, the lack of ambi-

not mean that every criminal statute must be given the narrowest

possible meaning in complete disregard of the purpose of the legisia-

ture”)).

13

unless he establishes that the failure to instruct the jury on

jurisdictional knowledge was plain error under Fed. R.

Crim. P. 52(b).

In this case, the absence of such an instruction was not

plain error since the direct and circumstantial evidence

establishing petitioner’s jurisdictional knowledge was strong

and undisputed.’ Unlike the defendant in Yermian, peti-

tioner was not a lower-level company employee or job

applicant, but was its quality assurance director (Tr. 357,

433, 467). As director, petitioner was in charge of the entire

safety test program for Con-Chem’s nuclear coatings (Tr.

311-313). He knew that the nuclear coatings which were the

subject of his falsified safety test reports were to be used in

the containment area of the New Hope Creek nuclear power

plant (Tr. 487-488). Even apart from petitioner's position as

quality assurance director at Con-Chem, there was direct

evidence at trial establishing his knowledge that the quality

and testing of Level | coatings were regulated by the NRC.

The vice-president of Con-Chem testified that prior to

directing this test program, petitioner had participated in

other test programs in which Con-Chem tried to obtain

Level | approval from Bechtel for its nuclear coatings.

Petitioner assisted the vice-president in sorting through

these past test reports and in preparing the reports for

submission to Bechtel (Tr. 444-445, 472, 478-479), and these

reports state on their face that Con-Chem's coating was

being tested “[i]Jn accordance with * * * Federal Regulatory

See United States v. Urbana, 412 F.2d 1081, 1083 (Sth Cir. 1969),

cert. denied, 400 U.S. 821 (1970) (failure to instruct on elements of

offense not plain error where identity was the only issue, defense counsel

lodged no objection, and elements of the crime were not contested);

United States v. Schmidt, 376 F.2d 751, 753 (4th Cir.), cert. denied, 389

U_S. 884 (1967) (same, though conviction reversed on other grounds),

Olar v. United States, 391 F.2d 773, 775 (9th Cir. 1968) (failure to

instruct on undisputed element of offense held harmless error).

14

Guide 1.54”—the regulation which adopts the ANSI test

requirements for Level | coatings (Defense Exhs. F, G, and

H). Petitioner's familiarity with these test reports further

establishes his awareness of the fact that the federal

government regulated the quality and testing of Level l

coatings. Finally, in his testimony at trial, petitioner never

denied knowledge that the NRC was responsible for ensur-

ing that materials used in critical areas of nuclear facilities

were safe (Tr. 471-497). Under these circumstances, no jury

could have reasonably concluded that petitioner should not

have foreseen that his false statements concerned a matter

within the jurisdiction of the United States. If the failure of

the trial court to give some sort of reasonable foreseeability

instruction was error, it was therefore not plain, and indeed

harmless.

2. Petitioner also claims (Pet. 11-13) that the courts

below erred and created a conflict among the circuits in

failing to require instructions on willfulness and good faith.

But, in fact, the instructions given covered these points.

The jury was told that a conviction for mail fraud'®

requires proof of a “specific intention to defraud, that is, to

deceive or mislead Bechtel in its selection or use of coatings,

rather than as a result of ignorance, mistake or accident.” It

was also told that “{t]o defraud someone is to deceive or

mislead him” (Pet. App. B1). It is not clear what petitioner

Pet. 11-13 involves Section 1001 except United States v. Diggs, 613

F.2d 988 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980), which did

not involve mens rea requirements for the false statement counts there).

15

finds lacking in these instructions. While any scheme to

defraud inherently entails willfullness, that is not in fact an

explicit statutory element in Section 1341. The mens rea

specified for mail fraud is intent to defraud, and the instruc-

tions here require that to be found. The cases cited by

petitioner (Pet. 11-13) require no more than this, and we are

aware of none thatdo. ~

Similarly confusing is petitioner's contention (Pet. 12-13)

that the instructions would allow convictions (1) where

defendant does not know he is violating the law, or (2)

where he did not intend anyone to rely on his statement, or

(3) where he contemplated no actual harm to the defrauded

party. But the instructions with regard to the mail fraud

charge did require the jury to find that petitioner intended

Bechtel to rely on his statements (Pet. App. Bl), which

obviates the latter two concerns, and there is no require-

ment that one who schemes to defraud have knowledge that

a statute proscribes his inherently wrongful conduct.

Finally, since good faith is the obverse of an intent to

defraud or deceive, the district court's instructions that the

jury had to find that petitioner acted deliberately to deceive

someone necessarily required it to consider petitioner's

good faith theory. United States v. Cusino, 694 F.2d 185,

188 (9th Cir. 1982), cert. denied, 461 U.S. 932(1983); United

States v. Gambler, 662 F.2d 834, 837 (D.C. Cir. 1981);

United States v. Rothman, 567 F.2d 744, 752 (7th Cir.

1977); New England Enterprises, Inc. v. United States, 400

F.2d 58, 71-72 (ist Cir. 1968), cert. denied, 393 U.S. 1036

(1969). It is well established that in giving a required instruc-

tion the trial court has substantial latitude in the manner in

which it is to be formulated and that the court is not bound

to deliver it in the particular manner requested by the

defense. See, e.g., United States v. Smith, 735 F.2d 1196,

1198 (9th Cir.), cert. denied, No. 84-5629 (Dec. 3, 1984).

16

Moreover, in assessing the sufficiency of any jury instruc-

tion, the instruction at issue must “not be judged in artificial

isolation, but must be viewed in the context of the overall

charge.” Cupp v. Naughten, 414 US. 141, 147 (1973) (cit-

ation omitted); see Francis v. Franklin, No. 83-1590 (Apr.

29, 1985), slip op. 11. Here, although the district court

declined to give the proffered instruction in haec verba, it

good

be given. United States v. Hopkins, 744 F.2d 716 (10th Cir. 1984) (en

banc). Some Fifth Circuit cases are similar, though they stop short of

the Tenth Circuit's more unequivocal rule. United States v. Fowler,

735 F.2d 823, 828-829 (Sth Cir. 1984); United Svates v. , 681 F234

406, 416-417 (Sth Cir. 1982), United States v. Goss, 650 F.2d 1336,

1344-1345 (Sth Cir. 1981). Petitioner does not specify this particular

point as meriting this Court's review, however, apparently conceding

that his rights would be safeguarded either “in. terms of a separate good

and good faith (so long as fraud is correctly defined) could ever affect .

verdict It is for this reason that we did not seek certioran in Hopaun

despite the requirement it makes that other corcuits do not

17

i

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SepTemsBer 1985

DO} is