Petition for Writ of Certiorari — Migdaleck v. United States

Supreme Court, U.S,

90-181 FILED

“ JUL 27 8

i JOSEPH F. SP ANIOL, JR.

CLERK

| ee

No.

In the Supreme Court of the United States

OCTOBER TERM, 1990

ANDERS MIGDALECK,

PETITIONER,

V.

United States of America,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS A. HOWARD (P15176)

Attorney for Petitioner

20830 Rutland Drive

Suite 101

Southfield, Michigan 48075

(313) 552-8900

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

i

QUESTIONS PRESENTED

A.

WHETHER THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT ERRED IN HOLDING

1) THAT DEFENSE COUNSEL FAILED TO PROPERLY

OBJECT TO A JURY INSTRUCTION ON ACCOMPLICE

TESTIMONY, AND 2) THAT THE TRIAL COURT'S

FAILURE TO SUA SPONTE INSTRUCT THE JURY ON

HOW TO EVALUATE EXCULPATORY ACCOMPLICE

TESTIMONY DID NOT CONSTITUTE PLAIN ERROR.

WHETHER THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT ERRED IN 1) HOLD-

ING THAT THE INTRODUCTION OF EVIDENCE OF

FRAUDULENT INFLATION OF INSURANCE CLAIMS

DID NOT CONSTITUTE A CONSTRUCTIVE AMEND-

MENT OR IMPERMISSIBLE VARIANCE, AND 2) FAIL-

ING TO ADDRESS DEFENDANT/PETITIONER’S

ALLEGATION OF ERROR WITH RESPECT TO A VIOLA-

TION OF FEDERAL RULES OF EVIDENCE 403 AND

404 (b).

c.

WHETHER THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT ERRED IN HOLDING

THAT THE TRIAL COURT DID NOT COMMIT REVERS-

IBLE ERROR AND DID NOT ABUSE ITS DISCRETION

IN DENYING DEFENDANT/PETITIONER’S MOTION

UNDER FEDERAL RULES OF CRIMINAL PROCEDURE

33 FOR THE REASON THAT THE GUILTY VERDICT

RENDERED BY THE JURY WAS MANIFESTLY

AGAINST THE GREAT WEIGHT OF THE EVIDENCE.

ii

D.

WHETHER THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT ERRED IN HOLDING

THAT THE TRIAL COURT DID NOT COMMIT REVERS-

IBLE ERROR BY VOUCHING FOR THE CREDIBILITY

OF THE PROSECUTION IN THE JURY’S PRESENCE,

THEREBY DEPRIVING DEFENDANT/PETITIONER OF

A FAIR AND IMPARTIAL TRIAL.

LIST OF ALL PARTIES IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellee.

vi.

ANDERS MIGDALECK:

OcELIA PERKINS;

DONALD J. MCQUEEN;

Joyce Scott;

PamiLa H. WILLIAMS; and

STeELctaA WARE,

Defendants/Appellants.

Nos. 88-1953; 1954; 1955; 1956; 88-2031; 88-2110

iv

TABLE OF CONTENTS

eb jp Ba 4.) | ) | Bae

LIST OF ALL PARTIES IN THE SIXTH CIRCUIT...

ee ES 6055 552 eee canibeniebs lee

CA ee PINT 6 wo vc ccc can canscssevscss

IS i 5s os bade se owtaasah khan Eee

SE 50 4 cis sb hd es ven Sa Oe eR aN ED ANAS

CONSTITUTIONAL PROVISION; STATUTES AND

es gg oF 8 a) |. ne

UPRU EOE GOO COME GIONS oc ees w ccc cescesesces

REASONS FOR GRANTING PETITIONERS’ WRIT

ARGUMENT:

A. THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT ERRED IN

HOLDING |!) THAT DEFENSE COUNSEL

FAILED TO PROPERLY OBJECT TO A JURY

INSTRUCTION ON ACCOMPLICE TESTI-

MONY, AND 2) THAT THE TRIAL COURTS

FAILURE TO SUA SPONTE INSTRUCT THE

JURY ON HOW TO EVALUATE EXCULPA-

TORY ACCOMPLICE TESTIMONY DID

NOT CONSTITUTE PLAIN ERROR ........

Vv

TABLE OF CONTENTS — (Continued)

Page

B. THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT ERRED IN

1) HOLDING THAT THE INTRODUCTION

OF EVIDENCE OF FRAUDULENT INFLA-

TION OF INSURANCE CLAIMS DID NOT

CONSTITUTE A CONSTRUCTIVE AMEND-

MENT OR IMPERMISSIBLE VARIANCE,

AND 2) FAILING TO ADDRESS DEFEN-

DANT/PETITIONER’S ALLEGATION OF

ERROR WITH RESPECT TO A VIOLATION

OF FEDERAL RULES OF EVIDENCE 403

eg PPPP PEPE eee ee eee 16

C. THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT ERRED IN

HOLDING THAT THE TRIAL COURT DID

NOT COMMIT REVERSIBLE ERROR AND

DID NOT ABUSE ITS DISCRETION IN DE-

NYING DEFENDANT/PETITIONER’S MO-

TION UNDER FEDERAL RULES OF

CRIMINAL PROCEDURE 33 FOR THE REA-

SON THAT THE GUILTY VERDICT REN-

DERED BY THE JURY WAS MANIFESTLY

AGAINST THE GREAT WEIGHT OF THE

ts PPP yr re er fe re 24

D. THE SIXTH CIRCUIT ERRED IN HOLDING

THAT THE TRIAL COURT DID NOT COM-

MIT REVERSIBLE ERROR BY VOUCHING

FOR THE CREDIBILITY OF THE PROSECU-

TION IN THE JURY'S’ PRESENCE,

THEREBY DEPRIVING DEFENDANT/

PETITIONER OF A FAIR AND IMPARTIAL

vi

TABLE OF CONTENTS — (Continued)

APPENDIX A:

APPENDIX B:

APPENDIX C:

OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE

SIXTH CIRCUIT AFFIRMING THE

CONVICTION OF PETITIONER

HEREIN FROM THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION .............

JUDGMENT AND COMMITMENT

ORDER DENYING APPELLANTS PE-

TITION FOR REHEARING..........

25a

vii

TABLE OF AUTHORITIES

CASES Page

Berger v. United States, 295 US. 79, 79 L.Ed 1314, 55

Se eS oe vemeawaharneeruer 18

Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34

a ol as ee dasa wad 8-10, 12-16

Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L-Ed.2d

bbs. onus cdoowues cauxwedacdaeetan 15-16

Ford v. United States, 273 U.S. $93, 71 L.Ed. 793, 475

ee a os sa ca cdbbukncbuaveh nate 18

Gagne v. Meachum, 406 F.Supp. 1213 (D. Mass 1978),

aff'd, 602 F.2d 471, cert. denied, 100 S.Ct. $24, 444 US.

Se I hwo cassb aw abo tadee hae sake 16

Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d

ee iced duke dh naedti« deehes b < 19

Goto v. Lane, 265 US. 393, 68 L.Ed 1070, 44 S.Ct. 525

COP ee ca has bacdus cos cshs wads danhenes ee cout 18

In Re Winship, 379 U.S. 358, 24 L.Ed.2d 160, 90S Cr 179

CRTs G4 a bd das 6 a wab nel maltese knee cele oe aiwaws 13-14

Peek v. Kemp, 784 F.2d 1479 (11 Cir). cert. denied, \00

S.Ct. 737, 44 U.S. 1047, 62 L.Ed.2d 733, reh denied. 107

ee. Pd, SP ET UE OUI ow ccc sccneesscce 15-16

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4

Bot oe £ BS er er eee ee 17-19

United States v. Arrington, 757 F.2d 1484 (4th Cir 1985) 25

United States v. Assi, 748 F.2d 62 (1948) ........... , 28

United States v. Atisha, 804 F.2d 920 (6th Cir. 1986)... 21

United States v. Beeler, 527 F.2d 340 (6th Cir. 1978)... . 19-20

United States v. Calfon, 607 F.2d 29 (2nd Cir 1979).... 15

United States v. Cusmano, 659 F.2d 714 (6th Cir. 1981) .. 20

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

Per rrr ee Reyne Fe 19

Vili

TABLE OF AUTHORITIES — (Continued)

CASES Page

United States v. Hickman, 592 F.2d 931 (6th Cir. 1979)... 28

United States v. Hook, 78\ F.2d 1166 (6th Cir.), cert.

GES Gre GE CUTIE so ceed ccc cdsssccnccse 13, 15

United States v. Ismail, 756 F.2d 1280 (6th Cir. 1984) .. 23

United States v. Johnson, 487 F.3d 1278 (4th Cir. 1978) .. 24

United States v. King, 513 F.2d 1001 (6th Cir. 1975) ... 23

United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970).. 22

United States v. Scales. 594 F.2d 558 (6th Cir.), cert.

denied, 441 U.S. 946, 60 L.Ed.2d 1049, 441 U.S. 946

DG dcGsanacaantanaelaueeenebertacent hakses 28

United States v. Schaffner. 77\ F.2d 149 (6th Cir. 1985) |. 23

United States v. Slone, 833 F.2d 595 (6th Cir. 1987) ..... 28

United States v. Sommers. 496 F.2d 723 (3rd Cir. 1974) 19

United States v. Stulga, §3\ F.2d 1377 (6th Cir. 1976)... 8-16

United States v. Vigi, 515 F.2d 290 (6th Cir.), cert. denied.

a ee a a ON sh oa as .. 13-15

STATUTES

eke ceeeenebuw ci l

oT oe ans palate gilaeg ae Gate eral |

RULES

Dee ee cbs keen 24-25

F.R.Crim.P. 52(b), IS USC,........ Se SR aD 12, 16

F.R.Evid. 403 and 404(b), 28 USC. ................. 23-24

OTHER AUTHORITIES

Soe: Ge SO =. cue wenecccccavess 20

Se PE cccccseswonndduee 13

ix

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

ANDERS MIGDALECK, by and through his attorney,

THOMAS A. HOWARD, petitions herein for a Writ of Certio-

rari to review the decision rendered in the United States Court of

Appeals for the Sixth Circuit denying Petitioner's Petition for

Rehearing of the Circuit Court’s Opinion affirming Petitioner's

Judgment of Conviction in the United States District Court for

the Eastern District of Michigan, Southern Division, on ten

counts of Mail Fraud, in violation of 18 U.S.C. sec. 1341.

OPINION BELOW

The Opinion of the United States Court of Appeals for the

Sixth Circuit, filed March 7, 1990, affirming the District Court's

conviction, is reprinted in full as Appendix A. The opinion of the

Sixth Circuit has not been recommended for full text publication.

The order of the United States Court of Appeals for the

Sixth Circuit denying Petitioner's Petition for Rehearing of Opin-

ion affirming Petitioner's conviction, filed May 1, 1990, is re-

printed in full as Appendix C

JURISDICTION

The Opinion and Decision appealed from was filed and

entered on March 7, 1990, by the United States Court of Appeals

for the Sixth Circuit. The Petition for Rehearing of the March 7,

1990, Opinion affirming Petitioner's Conviction was filed and

entered by the Sixth Circuit on May i, 1990. Jurisdiction is

invoked pursuant to 28 U.S.C. sec. 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES, AND COURT RULE

The Constitutionai provisions involved herein are the Fifth

and Sixth Amendments to the United States Constitution. The

Fifth Amendment states, in pertinent part:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury. ...

The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the nght

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation:

to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

The Statutory provision herein involved is 18 U.S.C. sec.

1341, which states:

Frauds and swindles

Whoever, having devised or intending to devise any scheme

or artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises, or to sell, dispose of, loan, exchange, alter, give

away, distribute, supply, or furnish or procure for unlawful

use any counterfeit or spurious coin, obligation, security, or

other article, or anything represented to be or intimated or

held out to be such counterfeit or spurious article, for the

purpose of executing such scheme or artifice, or anything

represented to be or intimated or held out to be such

counterfeit or spurious article, for the purpose of executing

such scheme or artifice or attempting so to do, places in any

post office or authorized depository for mail matter, any

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

Xi

Service, or takes or receives therefrom, any such matter or

thing, or knowingly causes to be delivered by mail according

to the direction thereon, or at the place at which it is directed

to be delivered by the person to whom it is addressed, any

such matter or thing, shall be fined not more than $1,000 or

imprisoned not more than five years, or both. If the violation

affects a financial institution, such person shall be fined not

more than $1,000,000 or imprisoned not more than 20 years,

or both. (As amended Aug. 9, 1989, Pub.L. 101-73, Title IX,

sec. 961(i), 103 Stat. 500.)

The Federal Rule of Criminal Procedure herein involved is

Fed.R.Crim.P. 33, which states:

New Trial

The court on motion of a defendant may grant a new trial to

that defendant if required in the interest of justice. If trial

was by the court without a jury the court on motion of a

defendant for a new trial may vacate the judgment if entered,

take additional testimony and direct the entry of a new

judgment. A motion for a new trial based on the ground of

newly discovered evidence may be made only before or

within two years after final judgment, but if an appeal is

pending the court may grant the motion only on remand of

the case. A motion for a new trial based on any other grounds

shall be made within 7 days after verdict or finding of guilty

or within such further time as the court may fix during the 7-

day period.

l

STATEMENT OF THE CASE

On or about January 6, 1988, Petitioner, Anders Migdaleck,

was charged with nineteen counts of Mail Fraud, contrary to 18

U.S.C. sec. 1341, and four counts of interstate transportation of

securities taken by fraud, contrary to 18 U.S.C. sec. 2134. The

Indictment named nine other co-defendants. It alleged that

defendants engaged in eight schemes to defraud insurance com-

panies by filing insurance claims for damages caused by eight

arson fires, which defendants allegedly procured.

The Indictment alleged that Petitioner, as owner of Town

and County Builders and Anders Construction Company, was the

primary facilitator of the schemes to defraud. It contended that

Petitioner paid cash to three arsonists, Al Meredith, Jr., Adar

Hassan and Willie Weems, to set the fires through a “‘program-

mer,” Al Meredith, Sr., who arranged the arsons.

Anita Vianueva Sackett, a liceiised public adjuster, was

charged an active participant in the Indictment. Ms. Sackett

operated the Damon Adjusting Company which negotiated and

submitted insurance claims to insurance companies on behalf of

various homeowners. Prior to trial, Ms. Sackett pled guilty to

Counts V and VI of the Indictment, in exchange for an agreement

that if she testified against Petitioner, her incarceration would be

no greater than eighteen months (Tr. 797-799).

On June 15, 1988, following a jury trial before United States

District Court Judge Horace Gilmore, Petitioner was found guilty

of ten counts of Mail Fraud. He was acquitted on the remaining

nine Mail Fraud counts, as well as on all of the four interstate

transportation of securities counts. On September 9, 1988, Peti-

tioner was sentenced to twenty years imprisonment, and ordered

to pay $171,127.00 in fines and restitution.

The prosecution's case-in-chief against Petitioner was based

upon the testimony of five government witnesses. Each of these

five witnesses agreed to testify in return for total immunity and/or

sentence leniency. Three of the five government witnesses totally

exonerated Petitioner of any wrongdoing.

2

Al Meredith, Sr. testified that he worked for Town and

Country Builders. He solicited fire repair contracts and was paid

by Petitioner on a commission basis (Tr.5-7). At the time of trial,

Al Meredith, Sr. was incarcerated, having served three of a four

to ten years prison sentence for three prior arson convictions

(Tr.4). He agreed to cooperate with Federal authorities only after

he was told that he would be charged with certain arsons, then

under investigation; that his son, Al Meredith, Jr. was giving

information to the authorities; and that he would receive full

immunity if he testified (Tr. 184-185; 272). By his own admis-

sion, Al Meredith, Sr. received $2-3,000 in payments from the

government during his incarceration. Al Meredith, Sr. testified

that although he had been involved in as many as 700 arsons, he

never became directly or personally involved in arsons due to his

high level of integrity (Tr.154,157). His trial testimony, however,

was wholly without integrity. It was totally uncorroborated by any

witnesses. Regarding all but one of the eight arsons, he testified

that he was approached by one of the three arsonists and informed

of a “programmed” fire. He stated that, in each case, he obtained

cash from Petitioner to give to the arsonist to purchase arson

materials for the fire. Interestingly, there were never any witnesses

to these alleged payments from Petitioner to Al Meredith, Sr.

His trial testimony was impeached on al] material points.

Defense counsel demonstrated that Al Meredith, Sr.’s trial testi-

mony was the direct opposite of his trial testimony given in a

December 20, 1985, Detroit Recorders Court arson trial (Tr. 226-

330). The Recorder’s Court trial had essentially the same parties,

to wit: Petitioner, Al Meredith, Sr., Al Meredith, Jr... Adar

Hassan and Willie Weams. Petitioner was acquitted of any

wrongdoing. Al Meredith, Sr. testified, in Recorders Court, that

he never spoke with Petitioner about any illegal activity (Tr.

226). He told the Recorder's Court jury that Petitioner would not

accept a fire repair contract if he knew it was an arson. Meredith,

Sr. stated that he always presented fire repair contracts to Peti-

tioner as legitimate fires and never, at any time, said a word to

Petitioner about arson activities (Tr.226-229). His exculpatory

a oe

. 3

Recorders Court testimony was completely corroborated by ar-

sonists, Adar Hassan, Willie Weems and Al Meredith, Jr.

Throughout the entire trial and with respect to each of the

eight arson incidents, the government’s own witnesses, Adar

Hassan, Willie Weems and Al Meredith, Jr. unequivocally con-

tradicted the testimony of Al Meredith, Sr. on every material

point:

COUNTS I AND II

On January 18, 1983, an arson fire occurred at Donald

McQueen’s residence on 17245 Westbrook, Detroit, Michigan.

Although Petitioner was acquitted of these charges, Al Meredith,

Sr. gave the following testimony:

A. My son came to me and told me he had a fire on

Westbrook and he needed some money in order to purchase

the material.... And I tried to find out as much as I could

about it and I found out he really had a fire. I went in the

back and told Mr. Migdaieck that I needed some cash

money to give Butch, Butch is the same as Al Meredith, Jr.,

so he could purchase some material for some liquids that he

could burn the house down...

Q. When you approached Mr. Migdaleck about some

money for your son to buy liquids for the fire, did he say

anything? Did he do anything?

A. He reached in his pocket and give me cash.

(Tr. 11-13)

In direct contradiction of his own father’s testimony, Al

Meredith, Jr. testified that the source of the funds for the

incendiary materials was not Petitioner (Tr. 404-406).

COUNTS III AND IV

On February 25, 1983, an arson fire occurred at the residence

of Ronald Pitts at 18331 Greydale, Detroit, Michigan. Al

4

Meredith, Sr. testified that his son advised him of his intention to

set a fire at the Greydale address. He testified that he, thereafter,

“went and got 20 bucks from Andy (Petitioner) to give to Junior

so he could set the house on fire.” (Tr.32). Al Meredith, Jr.'s

testimony was directly contrary to that of his father:

Q. (Mr. Howard) Now, the next fire you talked about was

on Greydale?

A. Yes.

Q. And did you get any money from your father for that fire?

A. No, I didn't.

(Tr.406) (emphasis added).

COUNTS V THROUGH IX

On July 27, 1984, an arson fire occurred at Michael White's

residence at 14992 Ferguson, Detroit, Michigan. Al Meredith, Sr.

testified that he obtained $50 or $100 in cash from Petitioner and

gave it to Willie Weems so he could purchase materials to burn

the house that night (Tr.34-35). He flatly denied going to the

Ferguson address prior to the fire. He stated that he went there

only after the fire (Tr.35). Willie Weems, testified to a very

different version of events. Not only was Al Meredith, Sr. at the

Ferguson address prior to the fire, but he actively participated in

the arson, contrary to his testimony that he never became directly

or personally involved in arsons, due to his high level of integrity.

Willie Weems testified that he met Michael White and Al

Meredith, Sr. at the Town and Country offices. He testified that.

thereafter, he and Al Meredith, Sr. drove to a local store and

purchased rubbing alcohol to start the fire (Tr. 529-533). Weems

testified that Al Meredith, Sr. then drove him to Michael White's

home and waited outside while Weems started the fire (Tr. 536-

537).

5

COUNTS X, XI AND XII

On October 20, 1983, an arson fire occurred at Pamela

Hatter William’s residence on 18335 Faust, Detroit, Michigan.

This was the only fire alleged in the indictment in which Al

Meredith, Sr. did not testify as to the source of the funds used to

ignite this fire. Petitioner was acquitted on these counts.

COUNTS XIII AND XIV

On May 11, 1983, an arson fire occurred at the home of

Ocelia Perkins on 613 Fildew, Pontiac, Michigan. Al Meredith,

Sr. testified that he approached Petitioner and stated “we're going

to need some money, Mr. Migdaleck, for Junior and Adar Hassan

to go burn a house in Pontiac.” He stated that Petitioner then

reached into his pocket and gave him between $75 and $100,

which he, in turn, gave to his son and Adar Hassan (Tr. 55).

Al Meredith, Jr. testified that his father gave him $10 or $15,

from his own pocket, in his private office at Town and Country for

materials to start the fire. No one else was present in his father’s

office. Al Meredith, Sr. never left the office to obtain the money

from anyone else prior to giving him the money (Tr.407-408).

COUNTS XV THROUGH XX

The arson fire at Doris Lauderdale’s home on 2983 Carter,

Detroit, Michigan, occurred on January 15, 1983. Al Meredith,

Sr. testified that Willie Weems advised him of his intention to set

this fire. Al Meredith, Sr. then stated that he approached Peti-

tioner and requested money to give to Willie Weems for the

purchase of incendiary materials. He testified that Petitioner gave

him money which he then gave to Weems (Tr.57-58). On cross-

examination, Al Meredith, Sr. materially altered his testimony.

He was uncertain whether he obtained the money from Peti-

tioner. (Tr. 209-210).

6

Willie Weems testified that Al Meredith, Sr. did not have

any advance knowledge of the Carter fire. Weems testified:

A. He (Al Meredith, Sr.) had gotten the call from the fire

department on the radio monitor box and he wanted to know

how come I was not moving faster going to the fire that was

only a couple blocks away, what was happening, was it

empty, was it vacant? He wanted to know, so I didn’t tell him

nothing. ... Because I knew something that he didn’t know.

(Tr.559). Both Petitioner and Doris Lauderdale were acquitted of

these five counts.

COUNTS XXI AND XXII

Petitioner was acquitted on the two counts which involved

the March 15, 1983 arson at the home of Joyce Manns. Al

Meredith, Sr. testified that prior to the fire, he asked Petitioner

for money to give to Adar Hassan for the purchase of incendiary

materials. He stated that Petitioner gave him $75 for this purpose

(Tr. 61-62, 204-207). Adar Hassan expressly denied that he ever

received any money from Al Meredith, Sr. for incendiary materi-

als (Tr. 732).

COUNT XXII

Petitioner was convicted relative to the arson which occurred

at 13908 Thompson, Highland Park, Michigan. Al Meredith, Sr.

testified that Petitioner gave him between $50 and $100 to give to

Willie Weems to purchase materials for starting the fire (Tr.64).

Willie Weams, however, testified that Al Meredith, Sr. was not a

party to the planning of this fire and did not give him any money,

whatsoever. He stated that “Willie Dale Young and myself got

together and pooled our monies together and came up with

materials to take care of the claim (Tr. 565).

All three arsonists who testified for the government all gave

separate, exculpatory, testimony. Each arsonist’s testimony was

separately corroborated by the other two arsonists. Each testified

7

that Petitioner was free of any wrongdoing. Each testified that

they presented themselves as legitimate salesmen, selling legiti-

mate fire repair contracts to Petitioner at all times. Each empha-

sized that it was well known that Petitioner would never

knowingly accept a fire repair contract on an arson fire. (Mere-

dith, Jr. Tr. 392-394; Weems, Tr. 580-592; Hassan, Tr. 692-693).

Anita Sackett testified that if there was any suspicion that a fire

repair contract was the result of arson, Petitioner would insist that

she telephone the fire department to verify the legitimacy of the

fire (Tr. 818,819).

Each of the three arsonists testified that Al Meredith, Sr.’s

reputation for truth and veracity in the community was poor

(Weems, Tr. 589-594; Meredith, Jr., Tr. 415; Hassan, Tr. 695-

697).

Anita Sackett was the only other government witness, be-

sides Al Meredith, Sr., to give inculpatory testimony, as set forth

more fully in Arguments II and III, infra. Her testimony, in no

way related to whether Petitioner had knowledge of the arson

character of the fires and was unrelated to charges in the

Indictment.

On July 22, 1988, Petitioner filed a Motion for New Trial

under Fed.R.Crim.P. 33, alleging that the guilty verdict returned

against him was manifestly against the great weight of evidence.

The trial judge denied this Motion on September 8, 1988,

following a court hearing. On September 16, 1988, Petitioner filed

a timely Notice of Appeal from his Judgment of Conviction and

Sentence. On March 7, 1990, the Sixth Circuit Court of Appeals

affirmed Petitioner's conviction. Petitioner timely filed a Request

for Rehearing which was denied by the appellate court on May |,

1990.

8

ARGUMENT !

THE SIXTH CIRCUIT ERRED IN HOLDING 1) THAT

DEFENSE COUNSEL FAILED TO PROPERLY OB-

JECT TO A JURY INSTRUCTION ON ACCOMPLICE

TESTIMONY, AND 2) THAT THE TRIAL COURT'S

FAILURE TO SUA SPONTE INSTRUCT THE JURY

ON HOW TO EVALUATE EXCULPATORY ACCOM-

PLICE TESTIMONY DID NOT CONSTITUTE PLAIN

ERROR.

The trial testimonies of admitted arsonists, Al Meredith, Jr.,

Adar Hassan and Willie Weems, were entirely exculpatory. The

Sixth Circuit's characterization of their testimony as “essentially

favorable to Defendant Migdaleck. . .” (March 7, 1990, Opinion

p.4a) was a gross understatement. Despite this wealth of exculpa-

tory evidence, the trial judge committed an egregious error by

instructing the jury on how it should treat inculpatory testimony,

without instructing the jury on how it should treat the substantia!

exculpatory testimony, under the principles articulated by the

United States Supreme Court in Cool v. United States, 409 US

100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) and by the Sixth

Circuit Court of Appeals in United States v. Stulga, 53\ F.2d

1377 (6th Cir. 1976)

In Cool, petitioner and her husband were arrested after a

third individual, named Voyles, passed two counterfiet bills at a

local store and then reentered the vehicle in which petitioner and

her husband were waiting. /d at 100. At trial, Voyles, the alleged

accomplice, gave completely exculpatory testimony as to the

petitioner. He stated that petitioner had no knowledge of the

presence of the counterfeit bills. /d. At trial the judge charged the

jury as follows:

.. 1 charge you that the testimony of an accomplice is

competent evidence and it is for you to pass on the credibility

thereof. If the testimony carries conviction and you are

convinced it is true beyond a reasonable doubt, the jury

should give it the same effect as you would to a witness not in

aera eaten aaa

9

ee

any respect implicated in the alleged crime and vou are not

only justified, but it is your duty, not to throw this testimony

out because it comes from a tainted source.

Id. at 102 (emphasis in original).

The Cool Court concluded that the implication of this

instruction was that “the jury should disregard Voyles’ testimony

unless it was ‘convinced it is true beyond a reasonable doubt.’ ”

Id. The Court reversed the petitioner's conviction, holding that

“{s]uch an instruction places an improper burden on the defense

and allows the jury to convict despite its failure to find guilt

beyond a reasonable doubt.” /d. at 102-103. The Court elaborated

on the special need for a proper exculpatory accomplice testimony

jury instruction:

In the next paragraph of his instruction, the judge stated: “I

further instruct you that the testimony of an accomplice may

alone and uncorroborated support your verdict of guilty of

the charges of the Indictment if believed by you to prove

beyond a reasonable doubt the essential elements of the

charges in the Indictment against defendants.” In light of the

fact that the only accomplice testimony in the case was

exculpatory, this instruction was confusing to say the least

But even if it is assumed that Voyles’ testimony was to some

extent inculpatory, the instruction was still fundamentally

unfair in that it told the jury that it could convict solely on

the basis of accomplice testimony without telling it that it

could acquit on this basis. Even had there been no other

error, the conviction would have to be reversed on the basis

of this instruction alone

Id at 1379

In Stulga, the defendant was charged with participation in an

unlawful conspiracy and transfer of stolen bonds between three

individuals, Garner, Spaniard and Byrnes. /d. at 1378. Garner and

Spaniard admitted to their involvement in the conspiracy, but

gave exculpatory testimony regarding the defendant's alleged

involvement in certain aspects of the scheme /d at 1379

a

10

Defendant chose not to testify at tral. The Court noted that “[i]n

view of the fact that Appellant presented no evidence in his

defense, the jury's evaluation of the testimony of Garner and

Spaniard was pivotal in Appellant's defense.” /d. at 1379-1380.

The Stulga trial court gave the following jury instruction:

There has been testimony in this trial from witnesses whom

you may find to have been accomplices. An accomplice is

one who unites with another in the commission of a crime,

voluntarily and with common intent. An accomplice does not

become incompetent as a witness because of participating in

the criminal act charged. On the contrary, the testimony of

an accomplice alone, if believed by you, may be sufficient

weight to sustain a verdict of guilty, even though not corrob-

orated or supported by other evidence. However, the jury

should keep in mind that such testimony is to be received

with caution and weighted with great care. You should not

convict a defendant upon the unsupported testimony of an

accomplice, unless you believe that unsupported testimony

beyond all reasonable doubt.

Id. at 1380 (emphasis in original).

The Stulga court reversed defendant's conviction. It ob-

served that the above instruction could have confused the jury as

to the burden of proof:

The judge instructed the jury on evaluating an accomplice’s

inculpatory testimony despite the virtual dearth of inculpa-

tory witnesses who could be considered accomplices, but

neglected to instruct the jury as to the appropriate testimony

furnished by accomplices. The lack of precision in the charge

could very well have confused the jurors, they might have

erroneously concluded that they had to believe the accom-

plice’s exculpatory testimony beyond a reasonable doubt

before it support a defense for Appellant. As the Supreme

Court noted in Cool, the imposition of such a burden could

allow “the jury to convict despite its failure to find guilt

beyond a reasonable doubt.”

11

Id. at 1380 (emphasis added).

A comparison of the Stu/ga instruction with the accomplice

testimony instruction given in the instant case reveals that the two

instructions are essentially the same. They are virtually identical

with respect to the critical last phase italicized by the Sru/ga

court. The trial court, in Petitioner's case, gave the following

instruction on accomplice testimony:

Now an accomplice is one who unites with another person in

the commission of a crime, voluntarily and with a common

intent. The testimony of one who asserts by his testimony

that he is an accomplice may be received in evidence and

considered by the jury even though not corroborated by other

evidence and given such weight as the jury feels it should

have. You should always keep in mind, however, that such

testimony is always to be viewed with caution and considered

with great care. You should never convict a Defendant upon

the unsupported testimony of an alleged accomplice un/ess

vou believe that unsupported testimony bevond a reasonable

doubt.

(Instructions, Tr. 1627) (emphasis added).

In response to the above jury instruction, counsel for Peti-

tioner voiced the following objection:

Secondly, I object in connection with the instruction, either

the accomplice or the other one where an individual! benefits

for the reason that the instruction says that if you believe that

accomplice, then you can go ahead and find guilt. | submit to

the court that the appropriate objection, the appropriate

aspect of the charge should be that if you believe the

evidence of the accomplice, and you feel that in and of itself

is sufficient to satisfy you that it is proof of guilt beyond a

reasonable doubt, then you may accept it... .

(Tr. 1631) (emphasis added).

On appeal, Petitioner argued, inter alia, that the trial court

committed reversible error by failing to give the jury an

12

instruction on exculpatory accomplice testimony. The Sixth Cir-

cuit Court of Appeals affirmed the trial court. In reviewing the

content of defense counsel's objection, the Sixth Circuit did not

restate the first sentence of Petitioner's objection. It chose to

quote only part of the objection, which must be read in its entirety

and in context. (See March 7, 1990, Opinion at p.4a).

While the Sixth Circuit clearly recognized that the tral

court has a duty to instruct a jury on the standard for evaluating

accomplice testimony pursuant to Cool and Stulga, it concluded,

despite the above quoted objection, that these cases were inappli-

cable to the instant case, because defense counsel failed to make a

proper objection under Cool and Stulga. The Sixth Circuit limited

its review to the plain error standard under Fed.R.Crim.P. 52(b),

“[c]onsequently, we review this assignment of error under the

plain error rule... .”’ (Opinion, p.6a).

Defense counsel did, in fact, record a sufficient objection

under Cool and Stulga. The Sixth Circuit erred in concluding that

defense counsel simply asked the court to instruct the jury that it

could accept inculpatory testimony if it believed the testimony

beyond a reasonable doubt. Defense counsel did not request

essentially the same instruction that was ultimately given by the

trial court. When read in context, defense counsel sought to

segregate the inculpatory testimony of Al Meredith, Sr. from the

exculpatory testimony of the other accomplices, Al Meredith, Jr.,

Adar Hassan and Willie Weems. In seeking to insert a clause in

the instruction that the accomplice testimony by itself would have

to be found by the jury to constitute proof of guilt beyond a

reasonable doubt in order to find guilt, defense counsel sought to

distinguish the substantial amount of credible, exculpatory, testi-

mony from the highly suspect and incredible testimony of Al

Meredith, Sr. Defense counsel’s objection addressed the very

constitutional concerns identified in Cool and Stulga.

Even assuming, arguendo, that defense counsel failed to

make a proper objection, the court of appeals erred in holding that

the omission of the exculpatory instruction did not constitute

plain error. In applying the plain error doctrine the court cited

13

United States v. Hook, 781 F.2d 1166, 1172 (6th Cir.}. cert.

denied. 470 U.S. 882 (1986), which set forth the standard for

review of a claimed error with respect to jury instructions:

Since Hook failed to object to the jury instructions at trial,

see, Fed.R.Crim.P. 30, reversal is only required in this case if

the omission of jury instructions constituted “plain error”.

Fed.R.Crim.P. 52(b). The Supreme Court and numerous

federal courts have repeatedly stated that the plain error

doctrine is to be used sparingly, only in exceptional circum-

stances, and solely to avoid a miscarriage of justice. ...

(Id. at 1172-1173)

The appellate court, relying on Hook, concluded that “‘it is

manifest that no miscarriage of justice resulted from the court’s

failure to instruct, sua sponte, on the manner in which the jury

might have evaluated the exculpatory accomplice testimony, and

defendants cite no authority to the contrary. See United States. v.

Vigi. 515 F.2d 290 (6th Cir.), cert. denied, 423 U.S. 912 (1975).”

(Opinion at p.6a).

Petitioner cites as fundamental error, the appellate court’s

failure to recognize that the instructional error was constitution-

ally defective and cannot be described as harmless or otherwise

trivialized. The instructional error did not relate to a mere

evidentiary or secondary matter. It struck at the heart of the very

constitutional concerns central to the Coo/ and Stulga rationales.

The Cool Court emphasized that there is a major difference

between instructing a jury with respect to exercising a degree of

Care or weighing certain evidence and “instructing a jury, as the

judge did here, that as a predicate to the consideration of certain

evidence, it must find it true beyond a reasonable doubt.’ Coo/ at

104. In addition to obstructing a defendant’s Sixth Amendment

right to present the exculpatory testimony of an accomplice, the

Cool Court also viewed the instruction’s effect as causing a

defendant to prove his innocence beyond a reasonable doubt, by

creating “an artificial barrier to the consideration of relevant

defense testimony” in violation of the principles of Jn Re Winship,

14

397 US. 358, 24 L.Ed.2d 160, 90 S.Ct. 179 (1970). Id. The

Court further held that to impose such a requirement on the

defendant was “plainly inconsistent with the constitutionally

rooted presumption of innocence. /d.

The appellate court failed to recognize the numerous consti-

tutional violations in the challenged instruction and their impact

on Petitioner’s right to a fair trial. The court’s citation of United

States. v. Vigi, 515 F.2d 290 (6th Cir.), cert. denied, 423 U.S. 912

(1975), is inapposite. The facts of Vigi were twice removed from

the instant case. They provide no support for the appellate court’s

decision. Unlike Cool, the Vigi accomplice testimony was self-

exculpatory. It did not demonstrate the innocence of any of the

other co-defendants. The Vigi Court specifically stated that “the

instruction which the district court gave in the present case was

sufficient in view of the nature of the accomplice testimony.” Id.

at 294. (emphasis added).

The nature of the accomplice testimony in the instant case

was comparable to Cool. The testifying accomplice inculpated

himself and exculpated the petitioner. It was also identical to the

nature of the accomplice testimony in Stu/ga, in which two of the

Government witnesses admitted to participation in criminal acts

but exonerated the defendant with respect to the alleged scheme.

The Stulga court stated that “[i]n view of the fact that Appellant

presented no evidence in his defense, the jury’s evaluation of the

testimony of Garner and Spaniard was pivotal to Appellant’s

defense.” Stulga, supra, at 1379. The Stulga court concluded that

the imprecision in the charge on accomplice testimony, which was

virtually identical to the charge in the instant case, could have

caused juror confusion and the jurors “might have erroneously

concluded that they had to believe the accomplice’s exculpatory

testimony beyond reasonable doubt before it could support a

defense for Appellant.” /d. at 1380. See, Cool, supra, at 103.

No meaningful distinction can be drawn between the nature

of the exculpatory accomplice testimony in Cool and Stulga and

the nature of the exculpatory accomplice testimony in the instant

case. Nor can meaningful distinction be drawn between the

aii

15

constitutionally erroneous portion of the instruction in Cool and

Stulga and the challenged portion of the instruction in the instant

case. They are virtually identical in their language. If the instruc-

tion recognized in Cool and Stulga was held to be devastating to

the defense and fundamentally violative of a number of different

rights, the degree of injustice to Defendant in the instant case and

the prejudicial impact on his right to a fair trial was not any less

devastating, due to the alleged absence of an objection. A viola-

tion of Cool and Stulga, in the manner evidenced in trial in the

instant case, which was marked by a wealth of exculpatory

accomplice testimony, must be considered a miscarriage of justice

and plain error, due to the importance of the constitutional rights

undercut by such an improper instruction.

The appellate court never focused on the constitutional

aspects of a violation of Stu/ga and Cool, as they relate to the

plain error doctrine. Their reliance on the nature of the accom-

plice testimony in Vigi was patently misplaced and factually

dissimilar to the instant case and Cool and Stulga. In analyzing

whether a jury charge was unconstitutional, the Second Circuit

Court of Appeals, in United States v. Calfon, 607 F.2d 29, 31

(1979), stated that “A nonconstitutional error is generally less

‘substantial’ within the meaning of Fed.R.Crim.P. 52(b), than a

constitutional error, and to be plain error it must therefore “go to

the very essence of the case...” /d. at 31.

Whether analyzed under the “‘miscarriage of justice” stan-

dard of Hook or the “very essence of the case” standard of

Calfon, the nature of the error in the instant case was both

inconstitutional and plain.

Courts have consistently recognized that an instruction in

violation of Cool is of constitutional magnitude, violating the

principles of presumption of innocence and reasonable doubt. In

Cupp v. Naughten, 414 US. 141, 146-147, 94 S.Ct. 396, 400, 38

L.Ed.2d 368 (1973), the Supreme Court expressly recognized

that Cool exemplified an instance, in which an instruction can rise

to the level of constitutional error. The Eleventh Circuit stated

that it is important to recognize that “[t]he ultimate question is

16

whether there is a reasonable possibility that the jury understood

the instructions in an unconstitutional manner.” Peek v. Kemp,

784 F.2d 1479, 1489 (11 Cir. 1986), cert. denied 100 S.Ct. 737,

44 U.S. 1047; 62 L.Ed.2d 733, reh denied, 107 S.Ct. 912, 93 L.

Ed.2d 862. In Gagne v. Meachum, a district court cited Cupp,

supra, and Cool, in stating that “[t]here may very well be

situations where a particular erroneous instruction is so offensive

as to require reversal without regard to the remainder of the

charge.” 406 F.Supp. 1213, 1218, n.8 (D. Mass 1978), aff'd 602

F.2d 471, cert. denied, 100 S.Ct. 524, 444 U.S. 992, 62 L.Ed.2d

422.

As in Stulga, Petitioner did not testify. The jury’s evaluation

of the exculpatory testimony of all three arsonists was pivotal to

Petitioner’s defense. Notwithstanding the fact that defense coun-

sel made an objection, the jury was given no basis for evaluating

the exculpatory accomplices testimony. Alternatively, Defendant

maintains that the constitutional errors were of such magnitude,

due to the absence of a proper instruction under Cool and Stulga,

that the trial court’s failure to instruct can only be characterized

as plain error under Fed.R.Crim.P. 52(b).

ARGUMENT II

THE SIXTH CIRCUIT ERRED IN 1) HOLDING THAT

THE INTRODUCTION OF EVIDENCE OF FRAUDU-

LENT INFLATION OF INSURANCE CLAIMS DID

NOT CONSTITUTE A CONSTRUCTIVE AMEND-

MENT OR IMPERMISSIBLE VARIANCE, AND 2)

FAILING TO ADDRESS DEFENDANT/PETI-

TIONER’S ALLEGATION OF ERROR WITH RE-

SPECT TO A VIOLATION OF FEDERAL RULES OF

EVIDENCE 403 AND 404(b).

Anita Sackett pled guilty to Counts V and VI prior to trial.

She agreed to testify against Petitioner in return for a guarantee

that her incarceration would not exceed eighteen months (Tr.

798-799). She testified that in September, 1982, she began

oe

17

working for Town and Country as a secretary. At Petitioner’s

suggestion, she became a licensed public adjustor to handle the

homeowner's losses which came into Town and Country. She set

up Damon Adjusting to handle these insurance claims on behalf

of various homeowners (Tr. 804-812). Ms. Sackett testified that

the building portion of insurance claims, submitted by Damon

Adjusting, were inflated as a general practice. She stated that the

insurance company regularly cut their claims by 30-50 percent

(Tr. 821, 950). She claimed that she instructed Paul Conrad who

prepared the estimated damage reports to “go heavy” on the loss

in preparing his estimates on the fire at Michael White’s property

(Tr. 823).

Defense counsel objected to Ms. Sackett’s testimony, stating

that the issue of inflated claims was not relevant to the charges in

the Indictment. (Tr. 819-820). The trial court overruled the

objection.

There was absolutely no allegation in the Indictment that

any of the claims submitted to the various insurers were inflated

by any of the defendants. The Mail Fraud counts were all based

on the alleged filing and processing of insurance claims through

the U.S. Mails with knowledge that the underlying fires were

arsons. Moreover, Ms. Sackett, originally a named defendant. did

not testify before the grand jury. There is no indication, from the

four corners of the Indictment, that the grand jury ever intended

to charge any of the defendants, based on an alternative or

additional theory of fraudulently inflated claims. It is clear that

the Prosecutor advanced an alternate theory of prosecution, which

constituted an improper constructive amendment or impermissi-

ble variance of the Indictment.

In Stirone v. United States, 361 U.S. 212; 80 S.Ct. 270; 4

L.Ed.2d 252 (1960), the defendant was indicted for unlawful

interference with interstate commerce as a result of causing sand

to be moved across state lines to his concrete manufacturing

plant. At trial, over defense counsel’s relevancy objections, the

government introduced evidence of defendant’s interference with

interstate shipments of steel. /d. at 214-214. The Supreme Court

18

reversed the appellate court’s affirmance of defendant's

conviction:

... Although the trial court did not permit a formal amend-

ment of the indictment, the effect of what it did was the

same. And the addition charging interference with steel

exports here is neither trivial, useless, nor innocuous. Com-

pare Ford v. United States, 273 U.S. 593, 602; Goto v. Lane.

265 U.S. 393, 402. While there was a variance in the sense of

a variation between pleading and proof, that variation here

destroyed the defendant’s substantial right to be tried only on

charges presented in such an indictment returned by a grand

jury. Deprivation of such a basic right is far too serious to be

treated as nothing more than a variance and then dismissed

as harmless error. Compare Berger v. United States, 295 U.S.

78. The very purpose of the requirement that a man be

indicted by grand jury is to limit his jeopardy to offenses

charged by a group of his fellow citizens acting indepen-

dently of either prosecuting attorney or judge. Thus the basic

protection the grand jury was designed to afford is defeated

by a device or method which subjects the defendant to

prosecution for interference with interstate commerce which

the grand jury did not charge.

Id. at 217-218

Recognizing that the admission of evidence related to the

steel shipments “... might have been the basis upon which the

trial jury convicted petitioner,” the Court held that the tral

court’s action was fatal error for the reason that the petitioner

may have been convicted of an offense never charged by the grand

jury. Id. at 219.

The admission of evidence of inflated claims at trial in the

instant case raised the identical dangers recognized by the Stirone

Court. The admission of this evidence might have been the basis

of Petitioner’s conviction for ten counts of mail fraud, even

though the Indictment makes no mention of inflated insurance

Cee | anes ee

Pt rte seen

19

claims and was limited solely to allegations of filing such claims

with knowledge of the arson character of the fires.

Counsel for Petitioner objected to the jury instructions on

Mail Fraud “for the reason that, in connection with the definition

of the scheme, the definition is in the abstract and is misleading to

the jury because it does not set parameters....” (Tr 1630).

Counsel further objected that the definition of scheme did not

adequately limit the jury to evaluating the evidence in accordance

with the charges in the Indictment (Tr. 1631). Given the admis-

sion of the evidence on inflated claims and the abstract nature of

the instructions, the jury may have found Petitioner nonculpable

on the question of his knowledge of the arson character of the fire,

but still guilty based on the submission of fraudulently inflated

insurance claims to the insurers.

In United States v. Beeler, 587 F.2d 340 (6th Cir. 1978), the

court articulated a definition of a variance and a constructive

amendment:

.A variance occurs when the proof introduced at trial

differs materially from the facts alleged in the indictment. In

contrast, an amendment involves a change, whether literal or

in effect, in the terms of the indictment. Amendments have

been held to be prejudicial per se while variances may be

subjected to the harmless error rule. Gaither v. United States.

134 US. App. D.C. 154, 413 F.2d 1061 (1969); United

States v. DeCavalcante, 440 F.2d 1264 (3rd Cir. 1971).

Variances which create “a substantial likelihood” that a

defendant may have been convicted of an offense other than

that charged by the grand jury” constitute constructive

amendments. Courts apply the prejudicial per se approach to

such variances. United States v. Somers, 496 F.2d 723, 744

(3rd Cir. 1974).

The Beeler Court noted that the purpose for the rule prohib-

iting amendments and constructive amendments included giving

notice to the defendant of the charges against him at trial, notice

to the trial court so that it may evaluate the sufficiency of any

20

evidence supporting a conviction, prevention of future prosecu-

tions for the same offense, and “of paramount importance,” the

“assurance that a group of citizens independent of prosecutors or

law enforcement officials have reviewed the allegations and deter-

mined that the case is worthy of being presented to a jury for a

determination of the defendant's guilt or innocence.” /d at 342.

In United States v. Cusmano, 659 F.2d 714 (6th Cir. 1981),

the indictment alleged only threats of economic loss. At trial,

however, witnesses were permitted to testify regarding physical

threats. Jd. at 715-717. The Court reversed defendant’s

conviction:

The events at Cusmano’s trial effectively altered the charg-

ing terms of the indictment, thus destroying his right to be

charged only on the charges set forth in the indict-

ment.... We cannot know whether the grand jury would

have included in its indictment an allegation of extortion

through threats of physical violence. The admission of evi-

dence of such extortion, together with the trial court’s

instructions indicate that this might have been the basis of

Cusmano’s conviction. If so, he was convicted on charges the

grand jury never made against him. This was fatal error.

Id. at 719.

The Fifth Amendment provides that “no person shall be held

to answer to a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury,” U.S. Const. Amend.

V. A review of the trial record clearly demonstrates that Peti-

tioner was forced to defend himself on two fronts, to wit: against

one theory that Petitioner knowingly participated in the filing of

insurance claims based upon arsons, as presented through Al

Meredith, Sr.’s testimony, and against an uncharged, theory that

he participated in the submission of fraudulently inflated insur-

ance claims, as presented through Anita Vianueva Sackett’s

testimony.

The Sixth Circuit Court of Appeals erred in holding that

there had been no constructive amendment or impermissible

a A Oe ete ntaitnagt

21

variance of the Indictment by the admission of Ms. Sackett’s

testimony regarding inflated insurance claims on the building

portions of the losses. (Opinion, p. 10a).

The appellate court’s reliance on United States v. Atisha, 804

F.2d 920 (6th Cir. 1986), was misplaced. The Afisha factual

circumstances are materially distinguishable from the instant

case. The Atisha indictment alleged a conspiracy to hijack trucks

filled with goods. It evidenced, as overt acts, the hijacking of one

truckload of chickens and one truckload of dry goods. /d. at 922.

At trial, evidence was admitted that defendant stole a truckload of

beef, during the same time period as the alleged conspiracy. The

Sixth Circuit held that the introduction of evidence of the theft of

the truckload of beef did not constitute a constructive amendment

or variance of the indictment, stating that “by admitting evidence

of another overt act, the theory of the case was not changed, the

defendant was not charged with a different substantive

crime,...” Jd. at 927.

In the instant case, the Sixth Circuit focused largely on

whether or not the elements of the crime charged were altered in

the instant case (Opinion p.10a). It ignored other concerns

articulated in Atisha, to wit: whether the theory of the case was

changed or whether the effect of the introduction of evidence (in

this case fraudulently inflated claims) resulted in charging the

defendant with a different substantive crime. Both dangers mate-

rialized in the instant case. The Prosecution did not introduce

evidence of fraudulent, inflated claims to evidence a mere overt

act in furtherance of the conspiracy. The Prosecutor maintained

that “all of these claims were being inflated.” (Tr. 1455-1446).

The Prosecutor emphasized Ms. Sackett’s testimony that it was

standard practice to inflate the insurance claims. He also dis-

cussed, at length, figures set forth on certain records showing that

the insurance company rarely paid the full amount of the losses

claimed. (Tr. 876-838, Ex.27; Tr. 1446-1447). He clearly set

forth an alternate theory of the case for consideration by the jury.

The evidence in no way related tangentially to some overt act. It

was intended by the prosecution to constructively amend the

22

indictment to charge Petitioner with a separate offense never

reviewed by the Grand Jury. The admission of this evidence

constituted an impermissible variance.

The Prosecutor advanced the erroneous argument that Ms.

Sackett’s testimony was properly admitted to show the fraudulent

nature of the alleged scheme, as well as how the Defendants were

related to, and profited from, it. At no time, however, did the

Prosecutor state that this evidence was only being introduced for

the limited purpose of demonstrating intent with respect to the

offenses charged in the Indictment. It is clear that the govern-

ment viewed the alleged fraudulent inflation of claims as an

alternative theory of criminal liability. Moreover, the government

never requested any limiting instruction that the evidence could

only be used to show intent or motive, and not as evidence of

commission of the offenses charged in the Indictment. A limiting

instruction is a necessary prerequisite in this Circuit to the

admissibility of evidence of uncharged crimes. United Siates v

Nemeth, 430 F.2d 704, 705 (6th Cir. 1970).

The Prosecutor erroneously stated that defense counsel! failed

to object to Ms. Sackett's testimony. This is simply untrue:

(Mr. Howard) I am going to object to that question, your

Honor. That is really unfairly leading. First of all. we have

gone through. evervthing we have gone through here. the

charge is arson. your Honor. This stuff is not relative. His

Suggestion to the witness now by asking a question that

assumes the existence of facts not in evidence, namely ‘are

you aware that contents lists were being inflated.” Your

Honor, Counsel knows that is wrong and I would ask the

Court to instruct him not to do that in front of this jury again

And, of course, I object.

(The Court) I see nothing improper. Overruled. You may

proceed... You made your objection

The government also contended that Petitioner lost his

ability to contest this issue on appeal since defense counsel made

no objection to the admission of Damon Adjusting documents

23

reflecting that the insurance company did not pay the full

amounts of claims submitted. (Ex.27, Tr.328). The government

failed to recognize, however, that, standing alone, the records

were not prejudicial. They became prejudicial only when Anita

Sackett testified that the figures contained therein were deliber-

ately inflated in a fraudulent manner. The records alone did not

support such an inference. The above stated objection clearly

preserves this issue for appellate consideration.

The Prosecutor erroneously argues that charges of fraudu-

lently inflation of claims were already included in the language of

the Indictment. The Indictment, however, omitted any mention

of fraudulently inflated claims. Alternatively, the government

contends that the evidence is admissible under Federal Rule of

Evidence 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent.

preparation, knowledge, identity, or absence of mistake or

accident

The evidence of fraudulently inflated insurance claims was

not admissible under Rule 404(b). Moreover, the trial court not

only failed to give any limiting instruction, but never conducted

any balancing test under Rule 403 to determine whether such

evidence should be excluded if its probative value was substan-

) tially outweighed by unfair prejudice, confusion of the issues or

the danger of misleading the jury. United States v. Schaffner. 77|

F.2d 149, 153 (6th Cir. 1985); United States v. Ismail, 756 F.2d

1280, 1286 (6th Cir. 1984). The trial court clearly abused its

discretion in admitting such evidence and overruling Petitioner's

relevancy objection. United States v. Schaffner, supra. at |54,

; United States v. King, $13 F.2d 1001, 1009 (6th Cir. 1975)

) The Sixth Circuit erred in never addressing Petitioner's

| argument that evidence of fraudulent, inflated, claims was inad-

missible as evidence of other crimes, wrongs or acts under Federal

_

24

Rule of Evidence 404(b). The appellate court never addressed

the trial court's failure to conduct a Rule 403 balancing test to

determine whether the evidence should have been excluded if its

probative value was substantially outweighed by unfair prejudice,

confusion or the issues of the danger of misleading the jury.

It is clear that the fraudulent inflated claims evidence was

inadmissible under Rules 403 or 404(b). The introduction of such

evidence by the government resulted in constructive amendment

of the Indictment. It constituted reversible error.

ARGUMENT III

THE SIXTH CIRCUIT ERRED IN HOLDING THAT

THE TRIAL COURT DID NOT COMMIT REVERS-

IBLE ERROR AND DID NOT ABUSE ITS DISCRE-

TION IN DENYING DEFENDANT/PETITIONER’S

MOTION UNDER FEDERAL RULES OF CRIMINAL

PROCEDURE 33 FOR THE REASON THAT THE

GUILTY VERDICT RENDERED BY THE JURY WAS

MANIFESTLY AGAINST THE GREAT WEIGHT OF

THE EVIDENCE.

Petitioner filed a motion for new trial under Fed.R.Crim_P.

33, alleging that the guilty verdict returned by the jury was

manifestly against the great weight of the evidence. After a

hearing on September 8, 1988, the trial court denied the motion.

While the trial court correctly acknowledged that the “mo-

tion goes totally to the credibility of Meredith, Sr.’s testi-

mony....” (Tr. 1707), it concluded, citing United States v

Johnson, 487 F.2d 1278 (4th Cir. 1978), that court was not

empowered to substitute it’s judgment for that of the jury in

weighing the credibility of Al Meredith, Sr. (Tr. 1708).

The trial court clearly misstated the applicable law regarding

its scope of discretion in ruling upon Petitioner's motion. The

Johnson court did not squarely address the extent of a judge's

discretion to evaluate the credibility of a witness on a Rule 33

—— —- -

25

motion attacking the weight of evidence. In United States v.

Arrington, 757 F.2d 1484 (4th Cir. 1985), the court stated:

Rule 33 allows a district court to grant a new trial in the

interest of justice. When the motion attacks the weight of the

evidence, the court's authority is much broader than when it

is deciding a motion to acquit on the grounds of insufficient

evidence.... Thus, it may evaluate the credibility of the

witness. When the evidence weighs so heavily against the

verdict that it would be unjust to enter judgment, the court

should grant a new trial. (citations omitted).

Id. at 1485 (emphasis added).

The Sixth Circuit correctly held that the trial court erred in

concluding that it had no authority to weigh the credibility of Al

Meredith, Sr, pursuant to Petitioner's motion for new trial. It

erred in concluding, however, that the trial court correctly denied

the motion based upon sufficiency of other evidence (opinion,

p 7a).

Apart from the testimony of Al Meredith, Sr., Anita Sackett

was the only other witness who gave inculpatory testimony, and

then only in relation to uncharged misconduct. As set forth more

fully in Argument II, defense counsel objected to the admissibil-

ity of this testimony contending that this evidence was irrelevant

to the charges set forth in the Indictment. The Sixth Circuit erred

in affirming the trial judge’s ruling which admitted Ms. Sackett's

testimony into evidence. The jury should not have been permitted

to consider Ms. Sackett’s statements in evaluating whether or not

Petitioner knowingly participated in filing insurance claims based

upon arson fires. Based upon the remaining evidence at trial, the

testimony of Al Meredith, Sr. was not sufficiently credible to

support the guilty verdict rendered by the jury. Each and every

statement made by Al Meredith, Sr. which tended to inculpate

Petitioner was squarely contradicted on all material points by

government witnesses, Adar Hassan, Willie Weems, Al Meredith,

Jr. and Anita Sackett. There was not a single instance where any

of the three arsonists or Anita Sackett corroborated Al Meredith,

26

Sr.’s testimony that Petitioner provided funds for the purchase of

incendiary supplies for the arsons or that Petitioner had any

knowledge of the arson character of the fires alleged in the

Indictment. (Weems, Tr. 580-592; Hassan, Tr. 692-695;

Meredith, Jr., Tr. 392-394; Sackett, Tr. 818-819).

The trial court misinterpreted the verdict as reflecting the

jury’s ability to decipher the evidence submitted at trial. It based

this belief upon the fact that the jury acquitted Petitioner on some

of the charges. “I think it is significant that the jury was quite

perceptive because it convicted Mr. Migdaleck on some of the

counts and it cleared him on the other counts, so it listened very

carefully.” (Tr. 1708)

It is this very nature of the jury verdict that demonstrates

that the jury was confused by the jury instructions and unable to

properly evaluate the testimony of Al Meredith, Sr. The “‘other”’

testimony from Ms. Sackett, which the jury heard and upon

which it based its determination of guilt, was inadmissible and not

related to the charges set forth in the Indictment.

- For all but one of the eight arson fires, Al Meredith, Sr. gave

the exact same testimony (he gave no testimony relative to

Petitioner on one fire). He consistently fabricated the same lie, to

wit: On seven separate occasions, he obtained money from Peti-

tioner, on behalf of one or more of the three arsonists, so that each

would be able to purchase incendiary materials and/or drugs. In

each such instance, there were no witnesses present to the

exchange to corroborate his testimony.

Even assuming, arguendo, that Al Meredith, Sr.’s testimony

were credible, and the jury correctly understood the jury instruc-

tions, it should have returned a guilty verdict for all but one of the

arson fires. Since Mr. Meredith’s testimony was the same for each

of the seven fires, it is unreasonable to conclude that the jury

would have believed this testimony as to some fires, but disbe-

lieved it as to the others. Al Meredith, Sr. was either credible or

he was not. Had the jury truly had the ability to evaluate his

credibility, there would not have been a split verdict. It is the

27

“split nature” of the jury verdict which is troublesome. It conciu-

sively demonstrates that the jury was totally confused and unable

to accurately evaluate the inconsistencies fundamentally apparent

in Al Meredith, Sr.’s testimony.

The evidence at trial, apart from the testimony of Al

Meredith, Sr., was insufficient to establish that Petitioner had

knowledge of the arson character of the fires which provided the

basis for the insurance claims and mailings relative thereto. The

case at bar is truly exceptional. The verdict was manifestly against

the great weight of the evidence.

The sworn testimony of Al Meredith, Sr. in the Recorder's

Court trial, coupled with consideration of his reputation for truth

in the community, persuasively demonstrates that he is a flagrant

perjurer entitled to no credibility in weighing the evidence. The

Sixth Circuit clearly erred in concluding that the trial court did

not commit reversible error by holding that the verdict was not

against the great weight of the evidence. The verdict was truly a

miscarriage of justice.

ARGUMENT IV

THE SIXTH CIRCUIT ERRED IN HOLDING THAT

THE TRIAL COURT DID NOT COMMIT REVERS-

IBLE ERROR BY VOUCHING FOR THE CREDIBIL-

ITY OF THE PROSECUTION IN THE JURY’S

PRESENCE, THEREBY DEPRIVING DEFEN-

DANT/PETITIONER OF A FAIR AND IMPARTIAL

TRIAL.

The trial judge, in the presence of the jury, stated: “I am

going to rely on the United States Attorney to be honest. He

always has been. He always will be.” (Tr. 29).

Counsel for Defendant Ware, after conferring with all coun-

sel, moved for a mistrial on the basis that the trial court had

vouched for the credibility of the prosecution in the presence of

the jury. The trial court denied the motion, stating “I have dealt

28

with Mr. Soisson for the last eight years and he has been a

reputable United States Attorney, and I certainly can tell the jury

that, and that certainly is not a basis for a mistrial.” (Tr. 1346).

A trial judge “must not give an impression of partisanship on

either side.” United States v. Scales, 594 F.2d 558 (6th Cir), cert.

denied, 441 U.S. 946, 60 L.Ed.2d 1049, 441 U.S. 946 (1979).

The Sixth Circuit has emphasized the importance of a trial judge

conducting himself in an appropriate manner and with an objec-

tive demeanor. United States v. Slone, 833 F.2d 595 (6th Cir.

1987). In United States v. Hickman, 592 F.2d 931 (6th Cir.

1979), the court stated that a trial judge must take great care to

“always be calmly judicial, dispassionate and impartial. He

should sedulously avoid all appearances of advocacy as to those

questions which are ultimately to be submitted to the jury.” Jd. at

933. The court in United States v. Assi, 748 F.2d 62 (1948),

provided a frame of reference for assessing improper judicial

remarks:

The basic errors in the charge were aggravated by other

conduct of the district judge. At one point in the trial, he

vouched for the credibility of the prosecutor by referring the

jury to “the words of the distinguished Assistant United

States Attorney who’s been handling this case before us.” It

is not proper for a court to refer to the high character of

counsel, especially of only one side (citations omitted).

Id. at 68.

The remarks made by the trial court in the instant case were

far more prejudicial than those examined in Assi. Measured by

the standards articulated by the Sixth Circuit in the cases cited

above, Petitioner was clearly denied a fair and impartial trial as a

result of the trial court’s remarks vouching for the Prosecutor’s

credibility. By endowing the Prosecutor with a presumption of

honesty, the trial court placed the full weight of its position and

authority behind the Prosecutor’s case. It impermissibly shifted

the burden of proof to Petitioner. The Sixth Circuit erred in

affirming the denial of the motion for mistrial.

ee ee er. es

29

CONCLUSION

For reasons stated above, Petitioner respectfully requests that

this Honorable Court grant his Petition for Writ of Certiorari, or

in the alternative, enter an order summarily reversing the Opinion

and Order of the Sixth Circuit Court of Appeals.

Respectfully Submitted,

THOMAS A. Howarp (P15176)

Attorney for Petitioner

20830 Rutland Drive, Ste 101

Southfield, Michigan 48075

(313) 552-8900

APPENDICES

la

Appendix A

Nos. 88-1953;1954;1955;1956; 88-2031; 88-2110

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintff-Appellee.

rs ON APPEAL FROM THE

OceELIA M. PERKINS; UNITED STATES DISTRICT

DONALD J. MCQUEEN; COURT FOR THE EASTERN

lovee Scorr. DISTRICT OF MICHIGAN

PAMELA H. WILLIAMS; FILED: MARCH 7, 1990

ANDERS MIGDALECK; and

STELLA H. Ware,

Defendants-Appeliants.

BEFORE: NELSON and RYAN, Circuit Judges; and MERE-

DITH, District Judge.*

RYAN, J., Circuit Judge Defendants Anders Migdaleck,

Donald J. McQueen and Pamela H. Williams appeal their con-

victions for mail fraud, 18 U.S.C. § 1341, and interstate transpor-

tation of securities taken by fraud, 18 U.S.C. § 2314. Defendants

Ocelia M. Perkins, Stella H. Ware and Joyce Scott appeal their

convictions for mail fraud, 18 U.S.C. § 1341. All convictions

arose from a scheme to defraud insurance companies by inten-

tionally setting fires to residentia! homes located in the Detroit

area in ordw® to collect insurance proceeds. Several issues are

raised on appeal but none require reversal. Accordingly, we

affirm.

* The Honorable Ronald E. Meredith, United States District Judge for the

4 en District of Kentucky, sitting by designation.

2a

Appendix A

(Nos. 88-1953-56;2031;2110)

Defendant Migdaleck, a licensed contractor and owner of

Town and Country Builders and Anders Construction Company

purportedly organized the arson scheme and paid the participants

from the insurance proceeds. Defendants McQueen, Williams

and Perkins were homeowners who arranged to have fires set at

their respective homes. Defendant Ware helped arrange the fire at

defendant Perkins’ home. In each case, claims were made with

the homeowners’ insurance carriers through use of mails.

On January 6, 1988, all the defendants and others were

charged with mail fraud, 18 U.S.C. § 1341, and interstate trans-

portation of securities taken by fraud. 18 USC § 2314, ina

twenty-three count indictment. Defendant Midgaleck was in-

dicted on al] twenty-three counts as was Anita Vianveva Sackett,

a licensed public adjuster, who worked for defendant Migdaleck.

Sackett entered into a plea agreement and testified at trial in

exchange for leniency. The arsonists who set the fires also

testified.

The first two counts involved the January 18, 1983 arson fire

at defendant McQueens’ residence Migdaleck and McQueen

were charged with mail fraud and interstate transportation of

securities taken by fraud. Migdaleck was acquitted and McQueen

was convicted.

Counts three and four involved the February 25, 1983 arson

fire at the residence of Ronald Pitts. Pitts, Migdaleck and

McQueen were charged with two counts of mail fraud. Pitts pled

guilty prior to tral and testified in exchange for leniency. Both

Migdaleck and McQueen were convicted.

Counts five through nine involved the July 27, 1984 arson fire

at White's residence. Migdaleck and White were charged with

five counts of mail fraud. Both were convicted

3a

Appendix A

(Nos. 88-1953-56;2031;2110)

Counts ten through twelve involved the October 20, 1983

arson fire at defendant Williams’ residence. Migdaleck, White

and Williams were charged with mail fraud and two counts of

interstate transportation of securities taken by fraud. Migdaleck

was acquitted and White and Williams were convicted.

Counts thirteen and fourteen involved the May 11, 1983

arson fire at Perkins’ home. Migdaleck, Perkins and Ware were

charged with two counts of mail fraud. All were convicted.

Counts fifteen through twenty involved the January 15, 1983

arson fire at the home of Doris Lauderdale. Lauderdale and

Migdaleck were charged with interstate transportation of securi-

ties taken by fraud and five counts of mail fraud. Both were

acquitted.

Counts twenty-one and twenty-two involved the March 15,

1983 arson fire at the home of Joyce Manns. Migdaleck and Scott

were charged with two counts of mail fraud. Migdaleck was

acquitted and Scott was convicted.

Count twenty-three involved the January 18, 1984 arson fire

at a residence owned by Willie Dash. Migdaleck and White were

charged with mail fraud. Both were convicted.

Following the imposition of sentences, defendants appealed.

Michael White’s appeal was dismissed as untimely.

Il. Defendant Migdaleck

A. Failure to Instruct Jury on Exculpatory Testimony.

Defendant Migdaleck contends the trial court erred in failing

to properly instruct the jury, pursuant to Cool v. United States,

409 U.S. 100 (1972), and United States v. Stulga, §3| F.2d 1377

(6th Cir. 1976), appeal after remand, 584 F.2d 142 (6th Cir.

1978), concerning evaluation of the exculpatory testimony offered

by the three arsonists

4a

Appendix A

(Nos. 88-1953-56;2031;2110)

The testimony of arsonists Al Meridith, Jr., Willie Weems

and Adar Hassan was essentially favorable to defendant

Migdaleck. The three testified that the arson fires were repre-

sented to Migdaleck as legitimate losses and all three witnesses

inferred that Al Meredith, Sr. operated the scheme. However, Al

Meredith, Sr. testified that Migdaleck knew about the scheme,

had made Sackett a public adjustor to further the scheme, paid

commissions to the arsonists, and provided the funds used tc

purchase the materials used to start the fires.

On appeal, the defendant Migdaleck asserts the trial court

erred in failing to give an instruction which would enhance the

effect of the exculpatory testimony of the three arsonists.

The court instructed the jury:

The testimony of one who asserts by his testimony that he is

an accomplice may be received in evidence and considered

by the jury even though not corroborated by other evidence

and given such weight as the jury feels it should have. You

should always keep in mind, however, that such testimony is

always to be viewed with caution and considered with great

care. You should never convict a Defendant upon the unsup-

ported testimony of an alleged accomplice unless you believe

that unsupported testimony beyond a reasonable doubt.

(Emphasis added.) This instruction was requested by defendant

McQueen and is based on Devitt and Blackmar, Federal Jury

Practice and Instructions, 34 ed, § 17.06 (1977)

At trial, after the court finished instructing the jury, counse!

for defendant Migdaleck objected to the foregoing instruction,

Stating that the instruction that should have been given is:

[1 }f you believe the evidence of the accomplice, and you fee!

that that in and of itself is sufficient to satisfy you that it is

proof of guilt beyond a reasonable doubt, then you may

accept it

Sa

Appendix A

(Nos. 88-1953-56;2031;2110)

On appeal, defendant contends that, based on his objection

and requested single-sentence instruction, the trial court should

have been alerted to its duty to instruct the jury on the standard

for evaluating accomplice testimony pursuant to Cool v. United

States, 409 U.S. 100 (1972), and United States v. Stulga, $3)

F.2d 1377 (6th Cir. 1976), appeal after remand, 584 F.2d 142

(6th Cir. 1978). We disagree.

In Cool, the accomplice testified for the defense and his

testimony was completely exculpatory. Over defense counsel's

objection, the district court instructed the jury to consider the

accomplice testimony if it found it true beyond a reasonable

doubt. 409 U.S. at 102. The Supreme Court reversed, finding the

; instruction placed an improper burden on the defense, obstructed

. the defendant's sixth amendment right to present exculpatory

accomplice testimony to the jury, and, in effect, reduced the

government's burden of proof. 409 U.S. at 103, 104. In a footnote,

the Court also found it confusing and unfair to instruct the jurors

that they could convict on the basis of accomplice testimony

without telling them they could also acquit on this basis. 409 US.

at 103, n.4.

In Stulga, several accomplices testified for the government.

Two of them partially exculpated defendant. The defense counse!

objected to the court's instruction on accomplice testimony and

specifically requested that the jury be instructed that exculpatory

testimony of an accomplice did not have to be believed beyond a

reasonable doubt or by a preponderance. /d. at 1380. The court

declined to do so. On appeal, this court held the trial court

committed reversible error in failing to instruct the jury on the

manner in which to evaluate an accomplice’s exculpatory testi-

mony in light of the “virtual dirth of inculpatory testimony” and

the “wealth of exculpatory testimony.” /d. at 1380. This court

concluded that the lack of precision in the charge could have

confused the jury and led it to conclude that in order to consider

VE

6a

Appendix A

(Nos. 88-1953-56;2031;2110)

the accomplice’s exculpatory testimony at all, it had to believe the

testimony beyond a reasonable doubt. /d.!

Here, unlike the situation in Stu/ga or Cool, defense coun-

sel’s requested instruction was not a request that the jury be

advised on how to evaluate exculpatory accomplice testimony

(Stulga), or a request to instruct the jury that accomplice

testimony can provide the basis of acquittal (Coo/). Rather.

defense counsel's objection and proposed instruction, in effect,

asked the court to instruct the jury that it could accept inculpa-

tory accomplice testimony if it believed the testimony beyond a

reasonable doubt. It was essentially the same instruction as was

given by the court, although the court's instruction stated the

matter more understandably and more accurately.

We are presented then with a situation in which the defen-

dant assigns error to the trial court's failure to instruct the jury as

to the proper manner in which to evaluate exculpatory accomplice

testimony, although no timely and understandable request for

such an instruction was made at trial and no objection registered

to its omission. Consequently, we review this assignment of error

under the plain error rule. Fed. R. Crim. P. §2(b). Where. as

here, no specific objection was registered at trial, reversal is

required only where a miscarriage of justice would result. United

States v. Hook, 781 F.2d 1166, 1172 (6th Cir.), cert. denied, 479

U.S. 882 (1986). We think it is manifest that no miscarriage of

justice resulted from the court's failure to instruct, sua sponte, on

the manner in which the jury might have evaluated the exculpa-

tory accomplice testimony, and defendants cite no authority to

' On appeal, following the conviction on remand, the defendant in Stu/ga

again contested the court's instruction on accomplice testimony The tnal court

left unchanged that portion of the instruction objected to here: instead, the court

merely added that exculpatory accomplice testimony should be considered and

weighed along with all other evidence and could be the bases of a not guilty

verdict. In L'nited States v Stulga, $84 F 2d 142, 144-145 (6th Cir 1978), this

court held the instruction given by the tnal court was sufficient

ant eg

— ee ee re et

es

7a

Appendix A

(Nos. 88-1953-56;2031;2110)

the contrary. See United States v. Vigi, 515 F.2d 290 (6th Cir.),

cert. denied, 423 U.S. 912 (1975).

B. Denial of New Trial.

Defendant Migdaleck also contends the trial court erred in

failing to recognize that it could weigh the credibility of witnesses

when reviewing a new trial motion on the ground that the verdict

was against the great weight of the evidence. Fed. R. Crim. P. 33.

The trial court’s authority in deciding a motion for a new trial

on the ground that the verdict is against the great weight of the

evidence, Fed. R. Crim. P. 33, is much broader than its authority

on a motion for acquittal based on the sufficiency of the evidence.

Fed. R. Crim. P. 29. United States v. Turner, 490 F. Supp. 583.

593 (E.D. Mich. 1979), affd (without opinion), 633 F.2d 219

(6th Cir. 1980), cert. denied, 450 U.S. 912 (1981); United States

v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). In the former,

the court may weigh the evidence and consider the credibility of

the witnesses. Turner, 490 F. Supp. at 593; Arrington, 757 F.2d at

1485.

Motions for new trial are disfavored and they are granted

only with great caution. Turner, 490 F. Supp. at 593. Ordinarily, a

new trial should be granted only where the evidence weighs so

heavily against the verdict that a miscarriage of justice would

result if the verdict were allowed to stand. Turner, at 593;

Arrington, at 1485. A decision on a motion for new trial will not

be upset on appeal absent an abuse of discretion. Arrington, 757

F.2d at 1486

The theory of defendant Migdaleck’s motion is that the

principal witness against him, Al Meredith, Sr., was completeiy

unworthy of belief. At the hearing on the motion, defendant

contended that without Meredith Sr.’s testimony, there was no

proof defendant participated in the arsons, and the arsons were

the whole crux of the case. The government contended that it had

shown by circumstantiai and direct evidence that defendant

8a

Appendix A

(Nos. 88-1953-56;2031;2110)

Midgaleck controlled the operation in that he paid all the partici-

pants and controlled the disbursement of insurance proceeds.

The trial court denied the new trial motion for two reasons:

first, the court did not believe credibility questions could be raised

by a new trial motion pursuant to United States v. Johnson,? 487

F.2d 1278, 1280 (4th Cir. 1973), and there was no basis to

substitute the court’s judgment for the jury in weighing the

credibility of Al Meredith, Sr.; second, the court found the other

evidence of Midgaleck’s guilt was sufficient to support the verdict.

The court noted that the jury was quite perceptive and found

defendant failed to present anything to establish that the evidence

preponderated heavily against the verdict.

Defendant is correct that the trial court failed to recognize

that, on a motion for new trial on the ground that the verdict is

against the great weight of the evidence, the court was indeed

entitled to consider the credibility of the witnesses. If the sole

basis for the district court’s denial of the new trial motion was that

credibility was not a proper subject for the court to examine, we

would be inclined to remand this case to the district court to

consider the credibility question. However, the court also found

that the other evidence inculpating Migdaleck was sufficient to

support the verdict, a conclusion well-supported in the record.

Moreover, the district court commented favorably on the jury’s

ability to evaluate the evidence since it acquitted defendant

Migdaleck on some of the charges.

Given the record supported alternative basis for the trial

court’s denial of the new trial motion, and the rule that a new trial

should be granted on the ground here asserted only when the

evidence preponderates heavily against the verdict, we cannot say

the trial court abused its discretion in denying defendant’s motion.

2 Johnson involves a new trial motion based on newly discovered evidence,

not based on a verdict that is against the great weight of the evidence

eS enone tie ers math

9a

Appendix A

(Nos. 88-1953-56;2031;2110)

C. Constructive Amendment of Indictment.

Defendants Migdaleck and Williams contend that the trial

court constructively amended the indictment when it allowed

Anita Sackett to testify that Migdaleck inflated the building loss

portion of insurance claims by directing the adjustor to “go

heavy” on the losses and testify that the claim for the fire at

White’s residence was indeed inflated.

At trial, counsel for defendant Migdaleck objected to Sack-

ett’s testimony on the inflation of the building loss portion of

insurance claims on relevancy grounds. The objection was

overruled.

The indictment against defendants Migdaleck and White

was based on the premise that defendants were involved in a

scheme to defraud insurance companies by intentionally setting

fires to residential homes and using the mails to collect the

insurance proceeds. The indictment did not allege that defendants

inflated the building portion of the insurance claims.

A court may not require a defendant to be tried on charges

that are not included in the indictment. Stirone v. United States,

361 U.S. 212 (1960). A constructive amendment occurs when

the charging terms of the indictment are, in effect, altered by the

prosecutor or the court. United States v. Atisha, 804 F.2d 920, 927

(6th Cir. 1986), cert. denied, 479 U.S. 1067 (1987) (quoting

United States v. Jones, 647 F.2d 696. 700 (6th Cir.), cert. denied,

454 U.S. 898 (1981)). A variance occurs when the charging

terms of the indictment are left unaltered but the evidence offered

at trial proves materially different from those alleged in the

indictment. /d.

A constructive amendment is per se prejudicial but a vari-

ance is not grounds for reversal unless the defendant's substantial

rights are affected. United States v. Goldfarb, 643 F.2d 422, 433

(6th Cir.), cert. denied, 454 U.S. 860 (1981). —

10a

Appendix A

(Nos. 88-1953-56;2031;2110)

To determine whether a constructive amendment occurred,

the court must decide whether the elements of the crime charged

were altered. Atisha, 804 F.2d at 927 (citation omitted). (Em-

phasis added. )

The elements the government is required to prove for mail

fraud are a scheme to defraud and use of the mails to execute or

further the scheme. United States v. Schilling, 561 F.2d 659, 661

(6th Cir. 1977).

Defendants contend the introduction of evidence that the

building loss portion of the claims were inflated, in effect, created

an alternate theory for the jury to find defendants had entered into

a scheme to defraud and, thus, constituted a constructive amend-

ment of the indictment. The prosecution contends the tral court

did not err in admitting the evidence to show the fraudulent

nature of the scheme. The government contends the evidence did

not change the fact that the scheme to defraud was based on

arson but, instead, showed defendants’ relationship to the scheme

and how they profited by it.

We find that the mail fraud charge in the indictment was the

same charge described to the jury and conclude that the introduc-

tion of the testimony on claim inflation did not change the basic

theory of the fraudulent scheme so as to constitute a constructive

amendment of the indictment. Atisha, 804 F.2d at 927. Moreover,

we hold that had the introduction of the evidence constituted an

impermissible variance, any error in admitting the evidence was

harmless, United States v. Mahar, 801 F.2d 1477, 1503 (6th Cir.

1986), since the testimony at trial centered on the scheme to

commit arson, the underlying basis for the mail fraud charge set

forth in the indictment.

a 5 om an TN CE OE

lla

Appendix A

(Nos. 88-1953-56;2031;2110)

III. Defendant Williams’ Denial of Effective

Assistance of Counsel.

Defendant Williams also contends that she was denied effec-

tive assistance of counsel because her attorney also represented

defendant White. Specifically, she contends an actual conflict of

interest existed because her counsel failed to cross-examine

Meredith, Sr. and arsonist Willie Weems, although their testi-

mony made the defense of shifting the blame to White a viable

option. Defendant claims the trial court failed to inquire about the

joint representation and failed to advise defendant about the right

to separate representation as required by Fed. R. of Crim. P.

44(c). Williams made no objection below to the joint

representation.

Multiple representation is not a per se violation of the sixth

amendment right to effective assistance of counsel. Holloway v.

Arkansas, 435 U.S. 475, 482 (1978). To establish a sixth amend-

ment violation, a defendant who raises no objection below must

show that an actual conflict of interest adversely affected his

lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348

(1980).

At oral argument, defendant conceded that the trial court's

failure to conduct a Fed. R. Crim. P. 44(c) inquiry did not

automatically require reversal. This is in accord with the position

of those circuits which have addressed the issue. See United

States v. Crespo de Llano, 830 F.2d 1532, 1539 (9th Cir.), reh.

den., 838 F.2d 1006 (9th Cir. 1987) (citations omitted). It is also

in accord with the advisory committee notes to Rule 44(c) which

state:

The failure in a particular case to conduct a rule 44(c)

inquiry, would not, standing alone, necessitate the reversal of

a conviction of a jointly represented defendant.

Williams argues that counsel’s failure to cross-examine Mer-

edith, Sr. and Weems demonstrated an actual conflict of interest

12a

Appendix A

(Nos. 88-1953-56;2031;2110)

because their testimony revealed that White was more culpable

then Williams thus enhancing the liklihood of success of the

shifting blame defense.

A conflict of interest must be actual, not hypothetical or

merely possible. Cuyler, 446 at 350; United States v. Carter, 721

F.2d 1514, 1537 (11th Cir.), cert. denied, 469 U.S. 819 (1984).

The defendant must demonstrate that the interests of the jointly

represented defendants were so inconsistent that the pursuit of a

plausible argument in favor of one would damage the defense of

the other. Carter at 1536; United States v. Romero, 780 F.2d 981,

986 (11th Cir. 1986). In order for a shifting blame defense to give

rise to an actual conflict of interest, the defense must be realisti-

cally available to defense counsel. United States ¥. Carter, 721

F.2d at 1537; Romero, at 986.

Defendant Williams relies heavily on the failure of her trial

counsel to cross-examine Meredith, Sr. and Weems on the roles

Williams and White played in connection with the fire at the

residence owned by Williams. At trial, Meredith, Sr. testified that

Williams wanted no part in the fire at first, but stood in line with

the rest of the perpetrators to collect her share of the commission

after the fire occurred. Weems, the arsonist, testified that prior to

the fire, Williams had him review the insurance policy to make

sure the property was adequately insured; Williams agreed to the

fire and paid Weems a deposit, a sum Weems required to insure

Williams was definite about the plan. Williams testified and

denied ever speaking with Meredith, Sr. or Weems prior to the

fire, and denied she was involved in any fraudulent scheme to set

her home on fire.

We agree that the evidence of defendant White's participa-

tion in the overall scheme, and in particular his involvement in the

Williams’ fire, was stronger than the evidence the government had

against Williams. However, that does not diminish the force of

13a

Appendix A

(Nos. 88-1953-56;2031;2110)

the evidence that Williams was identified as a participant in the

scheme to set the home she owned on fire.

We think defendant Williams has failed to show that she

stood to gain significantly by abandoning the defense pursued by

her trial counsel. She does not contend that her co-defendant

would have exculpated her. Her only allegation of actual conflict

relates to her contention that White is more blameworthy than

she is. She does not contend the evidence against her was

insufficient to convict. We conclude defendant Williams failed to

demonstrate an actual conflict of interest. See Carter, 721 F.2d at

1537, United States v. Benavidez, 664 F.2d 1255, 1260-61 (Sth

Cir.), reh. denied, 671 F.2d 1380 (Sth Cir.), cert. denied, 457

U.S. 1121 and 457 U.S. 1135 (1982).

IV. Defendant Scott

A. Admission of the Check Evidence.

Defendant Scott contends the admission into evidence of two

checks written by Anders Construction Company to Scott and a

1983 check registry from Anders Construction Company was

improper because the evidence was irrelevant, prejudicial, and

constituted inadmissible evidence of other crimes and bad acts.

Fed. R. Evid. 404(b). At trial, defendant contended the check

evidence was inadmissible because the checks were not issued

within the time period charged in the indictment and because the

checks and the check registry suggested the inference that she

was involved in other arson fires for which she was not charged

Defense counsel also contended that the evidence was used to

Suggest guilt by association.

The government contends that the relevance of the two

checks was to show that defendant Scott was not just Migdaleck’s

secretary, as was claimed, but was paid commissions for bringing

business to Anders Construction Company, as were other “pro-

l4a

Appendix A

(Nos. 88-1953-56;2031;2110)

grammers,” and the check registry was introduced to show the

relationship between the various parties to the fraudulent scheme.

The trial court held the checks were relevant and their

probative value was not outweighed by their prejudicial effect.

A trial court does not err in admitting evidence that has a

tendency to make more or less probable a material proposition for

which it is offered, unless it is shown that the probative value of

the evidence is substantially outweighed by its prejudicial effect.

Fed. R. Evid. 401, 403.

We conclude this evidence was relevant and its probative

value was not substantially outweighed by its prejudicial effect.

There was strong circumstantial evidence, specifically the testi-

mony of Meredith, Sr. and Hassan, that Scott was a principal in

the scheme to burn down the premises on Lauder Avenue on

March 15, 1983. The essence of Scott’s defense was that she was

merely a secretary at Anders Construction and was not involved

in the arson for profit scheme. The court admitted the challenged

checks upon the government’s argument that the checks were

admissible as proof that Scott was more than just a secretary, but

was a “programmer” being paid commission for bringing arson

repair business to Migdaleck, just as other “programmers” were.

The check register for 1983 was admitted in order to show that

commission checks were written to Meredith, Sr., and Jr.,

Weems, Hassan, Scott, and other defendants in the case at or

near the time of the fire to which each was connected in the

testimony, and to show the relationship between the various

defendants during 1983. An additional reason the check register

was offered and admitted is that the government had possession of

some, but not all, of the checks relevant to the arson schemes, and

wished to prove, by introduction of the check register, the pattern

of issuance of checks related to arson schemes.

We think both the two checks and the 1983 check register

were shown to be relevant and were therefore admissible. More-

15a

Appendix A

(Nos. 88-1953-56;2031;2110)

over, the defendant Scott has failed to demonstrate that the

relevance of the three exhibits was substantially outweighed by

the possible prejudicial effect of suggesting Scott’s involvement in

a still wider scheme of arson for profit than the March 15, 1983

Lauder Avenue fire, a point never argued by the government. We

conclude the trial court did not err in admitting the challenged

exhibits.

B. Sufficiency of the Evidence.

Defendant Scott’s second issue on appeal is tied to her first.

She contends there was insufficient evidence to convict her of

mail fraud because the government failed to prove she entered

into a scheme with Migdaleck to defraud on the dates charged in

the indictment. Scott contends the government’s case rested on

the two challenged checks and the testimony of immunized

convicted arsonists, whose credibility was highly questioned. She

notes that defendant Migdaleck was acquitted of the charges on

which she was convicted.

In order to convict a defendant of mail fraud, the prosecution

must prove a scheme to defraud and use of the mails to execute or

further the scheme. United States v. Schilling, 561 F.2d 659, 661

(6th Cir. 1977). Defendant Scott does not contest the sufficiency

of the evidence on the use of the mails element of the mail fraud

charge.

This court reviews a sufficiency of the evidence claim by

determining whether, in viewing the evidence in a light most

favorable to the prosecution, a rationale trier of fact could have

found the essential elements of the crime proved beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979),

reh. denied, 444 U.S. 890 (1979).

Al Meredith, Sr. testified that he spoke with defendant Scott

about the March 15, 1983 fire at Joyce Manns’ house before it

occurred. Scoit introduced Manns as a “customer.” During the

conversation between Meredith, Sr., Manns and Scott, Meredith,

l6a

Appendix A

(Nos. 88-1953-56;2031;2110)

Sr. checked Manns’ insurance policy and discussed Manns’ po-

tential recovery from the fire and where Manns would stay while

repairs were being made.

Adar Hassan testified that Meredith, Sr. asked him to meet

Scott at Manns’ home and set the fire. Hassan met Scott at

Manns’ home on the day of the fire, went in and, while Scott and

the occupants remained downstairs, went upstairs and set the fire.

The two checks were admitted to show defendant Scott was

paid commissions by defendant Migdaleck.

The evidence, taken in a light most favorable to the prosecu-

tion, establishes defendant Scott was a participant in the scheme

to defraud the insurance company and is sufficient to convict her

of two counts of mail fraud, 18 U.S.C. § 1341.

V. Defendant McQueen’s objection to the Jury Instruction.

Defendant McQueen contends the trial court failed to in-

struct the jury that the interstate movement of the securities must

have been reasonably foreseeable by defendant in order to convict

him of interstate transportation of securities taken by fraud, 18

U.S.C. § 2314. The court instructed the jury:

If the evidence establishes to your satisfaction beyond a

reasonable doubt that a Defendant knowingly caused the

securities ... to be transported from one state to another,

then the Defendant caused -the securities to be transported in

interstate commerce within the meaning of the statute... .

[I]t is not necessary that the Defendant knew the

security would be transported in interstate commerce.

Of course, it is common knowledge that checks or drafts

drawn on an out-of-state bank will be sent to that bank for

collection. If...a Defendant knowingly caused the

checks... . to be put in interstate commerce, then _. . he has

17a

Appendix A

(Nos. 88-1953-56;2031:2110)

caused it to be transported in interstate commerce within the

meaning of the law.

(Emphasis added.) Defendant objected to the instruction, stating

that the instruction should have included language that the

interstate transportation of the documents must have been rea-

sonably foreseeable to defendant.

The majority of courts addressing the matter have held that

the interstate transportation requirement of § 2314 is merely to

insure federal jurisdiction and does not impose a requirement that

the government prove that the interstate transportation was in any

way reasonably foreseeable. United States v. White, 451 F.2d 559,

560 (6th Cir. 1971), cert. denied, 405 U.S. 1071 (1972); United

States v. Kibby, 848 F.2d 920, 923 (8th Cir. 1988); United States

v. Squires, 58) F.2d 408, 409-10 (4th Cir. 1978).

Therefore, we conclude the trial court did not err in failing to

instruct the jury that the foreseeability of the interstate transpor-

tation of the securities is required to convict defendant of inter-

state transportation of securities taken by fraud, 18 U.S.C. § 2314.

VI. Defendants Perkins and Ware Denial

of Severance Motion.

Defendants Perkins and Ware argue that joinder was im-

proper under Fed. R. Crim. P. 8(b) since they did not participate

in the “same series of acts or transactions” as the other defend-

ants. Alternatively, defendants argues that even if joinder was

proper under Rule 8(b), severance should have been granted

under Fed. R. Crim. P. 14 because of the substantial prejudice to

defendants resulting from the jury considering the evidence

against other persons in order to convict the defendants.

At trial, all defendants joined in the motion asserting im-

proper joinder, Rule 8(b), and requesting severance due to

prejudice, Rule 14; however, only Perkins and Ware address this

18a

Appendix A

(Nos. 88-1953-56;2031;2110)

issue On appeal. The district court held that there was a factual

similarity in the counts; the proofs overlapped; the participants

had the same objective, to burn homes and collect the insurance;

and judicial economy would best be served by joinder. The court

further held that the defendants failed to make a strong showing

of substantial prejudice and declined to sever the trial under Rule

14.

Joinder of multiple defendants under Rule 8(b) is proper if

each count in the indictment arises out of the same series of acts

or transactions. United States v. Hatcher, 680 F.2d 438, 441 (6th

Cir. 1982). A group of acts or transactions constitutes a series if

they are logically rélated and involve overlapping proofs. United

States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987) (citing United

States v. Johnson, 763 F.2d 773, 776 (6th Cir.), cert. denied, 474

U.S. 862 (1985)). Rule 8(b) is broadly construed in favor of

joinder because Rule 14 provides protection against prejudicial!

joinder. Swift, at 322. A significant consideration is whether

joinder would promote judicial economy. /d. Review of a district

court's refusal to sever pursuant to Rule 8 is reviewed for an error

of law but is subject to the harmless error standard. Hatcher, 680

F.2d at 442.

We conclude joinder was proper. All twenty-three counts of

the indictment involved a series of schemes to defraud insurance

companies by intentionally setting fire to residential dwellings in

order to collect insurance proceeds. The record reveals that

defendants Perkins and Ware, as well as the other defendants,

were connected to the kingpin of the entire scheme to defraud,

defendant Migdaleck, and the mail fraud counts against Perkins

and Ware were logicaily interrelated with the other acts charged

in the indictment. See Johnson, 763 F.2d at 776. Moreover,

joinder served the interest of judicial economy. See, Swift, 809

F.2d at 322. We conclude, therefore, that joinder was proper

under Rule 8(b).

—

19a

Appendix A

(Nos. 88-1953-56;2031:2110)

Under Fed. R. Crim. P. 14, the trial court may order

severance if a defendant is prejudiced by joinder of defendants or

claims. Swift, 809 F-2d at 322. This court reviews the district

court's denial of a severance motion under Rule 14 for an abuse of

discretion, and to establish an abuse of discretion the defendant

must make a strong showing of prejudice. /d. The defendant must

show the jury was not able to separate and treat distinctively

evidence relevant to each defendant and even if some potential

jury confusion is established, this must be balanced against

society's need for speedy and efficient trials. /d. (quoting United

States v. Gallo, 763 F.2d 1504, 1525 (6th Cir. 1985), cert. denied,

474 U.S. 1068, and 474 U.S. 1069, and 475 U.S. 1017 (1986))

Defendants’ basic contention on appeal is that they were

prejudiced by the spillover of evidence relating to the other arson

fires because the evidence against them was not overwhelming.

Albert Meredith, Jr. testified that defendant Ware contacted

him and told him that defendant Perkins wished to speak to him

about burning a dwelling Meredith, Jr. spoke to Perkins in

Ware's presence and discussed the arson, the fire repairs, and the

monetary advancement. They proceeded to Perkins’ home where

Meredith, Jr. examined Perkins’ insurance policy and determined

where the fire should be set. Thereafter. the fire was set by Adar

Hassan. Perkins admitted Meredith, Jr. Hassan and Ware into

her home and then Perkins and Ware left. Hassan set the fire.

Adar Hassan testified that he, Meredith, Jr. and Ware drove

to Perkins home on the day of the fire. They discussed what type

of fire was required At Perkins’ home, Hassan discussed the

location of the fire with defendant Perkins and then asked

everyone to leave while he prepared the fire.

“Absent a showing of substantial prejudice, spillover of

evidence from one case to another does not require severance.”

Johnson, 763 F.2d at 777 (quoting Gallo, 763 F.2d at 1526)

20a

Appendix A

(Nos. 88-1953-56;2031;2110)

In view of the foregoing evidence, any spillover evidence of

other schemes to intentionally set fire to residential dwellings

cannot establish substantial prejudice. Moreover, the district

court gave the jury cautionary instructions regarding the separate

consideration to be given to each defendant. A jury is presumed

capable of sorting out evidence and considering each count and

each defendant separately. Swift, 809 F.2d at 323. That the jury

did so in the instant case is evidenced by the fact that one

homeowner was acquitted and defendant Migdaleck was acquit-

ted in part.

As this court said in Swift, “even if there is some potential

for jury confusion, it is small and does not outweigh ‘society's

need for speedy and efficient trials.’ ” /d. (quoting Gallo, 763 F.2d

at 1525). The trial court did not abuse its discretion in denying

defendants’ severance motion under Rule 14.

VIL. Defendant Perkins’ Co-conspirator

Hearsay Objection.

Defendant Perkins contends that the trial court erred in

admitting the hearsay testimony of Adar Hassan and Albert

Meredith, Jr.

Defendant did not object to the testimony by Hassan that he

spoke to Perkins at her home on the day of the fire and Perkins

had told him she wanted the fire set in the kitchen. Thus, we are

not obligated to address this issue. In all events, the testimony

appears admissible as an admission under Fed R. Evid

801(d)(2)(A).

Defendant did object to the testimony of Albert Meredith,

Jr. regarding Perkins’ agreement to proceed with plans to set a fire

at her home.

Meredith, Jr. testified that he had spoken with defendant

Perkins and defendant Ware about the possibility of setting a fire

at Perkins’ residence. He reviewed Perkins’ insurance policy and

2la

Appendix A

(Nos. 88-1953-56;2031;2110)

inspected her home to select a location for the fire. He testified

that Perkins took some time to think about it but eventually he

heard from defendant Ware that Perkins was ready to have a fire.

Defendant objected to Meredith, Jr. testifying as to what

defendant Ware told him Perkins said as the testimony was

hearsay. The court stated the testimony was admissible under

Fed. R. Evid. 801(d)(2)(E) as a statement of a co-conspirator.

On appeal, defendant Perkins contends the trial court failed

to make the preliminary determination required for the admission

of a co-conspirator’s statement; namely, that a conspiracy existed,

and that the statement was made during the course of and in

furtherance of the conspiracy.

Fed. R. of Evid. 801(d)(2)(E) provides:

(d) A statement is not hearsay if —

(2) The statement is offered against a party and is

(E) a statement by a co-conspirator of a party

during the course and in furtherance of

the conspiracy.

In United States v. Enright, 579 F.2d 980 (6th Cir. 1978),

this court held that the admissibility of a co-conspirator’s state-

ment under Rule 801 (d)(2)(E) is for the court to decide under

Fed. R. Evid. 104(a) and the preliminary question to be answered

is whether the co-conspirator’s statement falls within the Rule,

that is, whether a conspiracy existed and whether the statement

was made in the furtherance of the conspiracy. /d at 984, 985.

The United States Supreme Court in Bourjaily v. United

States, 483 U.S. 171 (1987), agreed that Rule 104(a) governs the

admissibility of a co-conspirator’s statement and a preponderance

22a

Appendix A

(Nos. 88-1953-56;2031;2110)

of the evidence standard applies. /d. at 175. The Court also held

that the trial court may consider the out-of-court statement of the

alleged co-conspirator sought to be admitted when making its

preliminary determination on whether the co-conspirator state-

ment is admissible under 801 (d)(2)(E). Jd. at 180. However, the

court declined to decide whether the lower court could rely solely

upon the co-conspirator’s hearsay statement to establish that a

conspiracy existed by a preponderance of the evidence under Rule

104(a). Id.

In this case, defendant Perkins contends that Meredith, Jr.’s

hearsay testimony that Ware told him that Perkins said she was

ready to have the fire was the only testimony linking Perkins to

the conspiracy. That is not the case. Meredith, Jr. testified that he

spoke with Perkins about a plan to set fire to her home prior to the

time the alleged statement by Ware was made, and Hassan

testified that he discussed the location of the fire with Perkins the

day the fire was set.

In light of the above testimony, the hearsay statement of

Meredith, Jr., that Ware said that Perkins said she was ready to

have the fire, is a statement in furtherance of the conspiracy,

made by a co-conspirator during the course of the conspiracy. Nor

is the Meredith, Jr. testimony challengeable as double hearsay,

since the Perkins statement to Ware is “not hearsay” under Fed.

R. Evid. 801(d)(2)(A), since it is a statement of admission.

Therefore, the trial court did not abuse its discretion in admitting

the co-conspirator statements as evidence. See United States v.

Rios. 842 F.2d 868, 874 (6th Cir. 1988), cert. denied, 109 S.Ct.

840 (1989).

Defendant Perkins also contends that the trial court failed to

make a determination on the record that sufficient testimony

existed to connect Perkins with the conspiracy charge, when the

court held that Meredith, Jr. could testify as to what Ware told

him Perkins said under the co-conspirator exception to the

na et ne

23a

Appendix A

(Nos. 88-1953-56;2031;2110)

hearsay rule, 801(d)(2)(E). The short answer to Perkins’ con-

tention is that the court, in passing upon the challenge to the

Meredith, Jr. testimony, was not obligated to announce on the

record the preliminary finding of fact which conditioned the

admissibility of the testimony under Fed. R. Evid. 801 (d)(2)(F).

See United States v. Curro, 847 F.2d 325, 328 (6th Cir.), cert.

denied, 109 S.Ct. 116 (1988).

VIII. Trial Court Vouched for Prosecutor.

All defendants except Scott contend the trial court abused its

discretion in failing to grant a mistrial on the basis that the court

vouched for the credibility of the prosecution when, in response to

a request by counsel for defendant Ware that she be allowed to

verify after each day of trial that each exhibit admitted that day

was actually received in evidence, the court said it would rely on

the honesty of the prosecutor and denied counsel’s request.

“The decision to order a mistrial rests in the trial court’s

discretion.” Hamm v. Jabe, 706 F.2d 765, 767 (6th Cir. 1983).

During the direct examination of Al Meredith, Sr., the

prosecution moved to admit certain documentary evidence.

Counsel for one defendant asked permission to examine the

documents. It was revealed that not all defense counsel were

given a copy of the prosecution’s proposed exhibits; instead, the

exhibits were delivered to Migdaleck’s attorney to circulate

among defense counsel. The court required the prosecution to

provide each defendant with a copy of all the exhibits. Counsel for

defendant Ware then inquired if counsel could, after each day of

trial. verify that each admitted exhibit was used.* The court said:

[ am going to rely on the United States attorney to be honest.

He always has been. He always will be.

3 Counsel for defendant Ware explained at oral argument that “used”

meant “received.”

24a

Appendix A

(Nos. 88-1953-56;2031;2110)

Outside the presence of the jury, defendants moved for

mistrial asserting the court vouched for the credibility of the

prosecution. The court denied the motion.

As the Supreme Court said in Glasser v. United States, 315

U.S. 60 (1942), reh. denied, 315 U.S. 827 (1942):

Perhaps the court did not attain at all times that

thoroughgoing impartiality which is the ideal, but our exami-

nation of the record as a whole leads to the conclusion that

the substantial rights of the petitioners were not affected. The

trial was long and the incidents relied on by petitioners few.

We must guard against the magnification on appeal of

instances which were of little importance in their setting.

Id. at 83. (Citations omitted; emphasis added.)

This was an isolated comment in a rather lengthy trial and

the comment was made during a general discussion regarding the

identification and introduction of the prosecution’s exhibits.

Moreover, the court, in its instructions to the jury, favorably

commented upon the professionalism of every attorney. We do

not think the cited comment by the trial court denied defendants

a fair trial.

We AFFIRM.

25a

Appendix B

en re a United States District Court i:-

_ Anders Migéaleck

~T DU Clenvood

tn the presence of the aniernes *9° <* ¢ gover>ment ’ oo

ne - @ mm Gate

deter com aaseeret = pene - ——Ge~' September 9, 1968

Led WITHOUT COUNSEL Sour he ct séened Grlender of ng™ w cor 674 bed ehethe Grienden: Gri:-¥E 10 bs.

Cw seem ered by the (ae 18d Fe br! eden De-wrge 0 owed ssenusnte of (mere!

X witn coun —_____ Thomas A. Howard (Retained)

heed GUILTY. and :Se COwM Beg satisfied tha: Lat MOLOCOMTEMOERE CU mOTCUILTY

thore 5 6 lectus! Baws for the ples

bee MOT CUILTY. Deleratiant mi dine har ged

There Deng 6 fimding/ verdict of

WX cuury. ? =

Delendant has been convicted as charged of the ofenmisio! Mail Fraud: 18:U$C:1341-

=a) heer & spOReed We Ihe CO “Re COUN BCE gPe “he Co’ Or Gat gots ay Chargec ams 138 ee One Orde ee (Me Te ce emcee

here, Comm et 10 the Cus.0ds © hr 4 comme. Comers! a het. iher.ced “forme tiatiee fe =~ emer: ler 6 per od of

; Counts: 3,4,5 and 6 - Defendant is committed to the custody of the

Attorney General for a period of five (5) years on each count. Each

- count is tp run consecutive to each other, for a total of 20 years.

ae

mar

osama’

eis i: Tre Cow’! ested ew herher Gelenden! Rad acvthing fo tay eh. (tg er Ne. So Beet. ot Boca. te cet Caen oe hes

Erect

i

ea Re

et

- Counts: 7,6,9,13,14 and 23 - Defeodaot is committed to the custod”

of the Attorney General for a period of five (5) years on each count

Each count is to run concurrent with each other and to the sentence

wre imposed on Counts 3,4,5 and 6.

ome °

bd Further, defendant is to pay $1,000. on each of the ten counts fore

total of $10,000.08.

-. Also,-as_to Count 23_restitution is ordered for $161,127.00 which is

tobe paid et a rate of $268.55/monthly to begis 30 Gays of release

2 abbas © Oe Gwoe (embasn of ebsites memat shen « «herve, entered Det Oa greet! cmt of preks ian on a

wer ee of im pebgmest be omgmed The Com ey (henge Ow Lomi of prebeie eEror © Send the pres of EBL -

Ot omy temo Gorey Ow pubs grad © eh 8 Mem webeian pores of ie wit Seemed by lew Mor awe 0 eomerg:

+e oe ol me te OT premise po ad

Tomer ae te the dy of the Atiorney Ceners! ond recemmes ¢s

Gefendant was placed in custody ismediately

following sentencing.

BEST

AVAILABLE COPY

26a

Appendix C

NO. 88-1956

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed: May 1, 1990)

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VS. ORDER

ANDERS MIGDALECK,

Defendant-A ppellant

BEFORE: NELSON and RYAN, Circuit Judges; MEREDITH,

District Judge*

This matter is before the court upon consideration of the

appellant’s petition for rehearing of the court’s March 7, 1990

opinion, affirming the decision of the district court.

Having carefully examined the petition and the record, the

court finds it missaprehended no question of law or fact in its

opinion.

It is therefore ORDERED that the petition be, and it hereby

is, denied.

ENTERED BY ORDER OF THE COURT

(s) Leonard Green, Clerk

*The Honorable Ronald E. Meredith, United States District Judge,

Western District of Kentucky, sitting by designation.