Petition for Writ of Certiorari — Lagattuta v. United States

PO IE CARTE AS INTE OY am ee <u INE TY :

a COURT. U- &

‘BUPREME sili AUG 16 1973

SRAEL AL PAK, JR.,C1 4

IN THE all

Supreme Court of the United States

October Term, 1973

No....7.3.- 309

ANTHONY LAGATTUTA and CARL LUICK,

Petitioners,

vs.

THE UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MARTIN M. SHEINMAN,

Attorney for Petitioners.

1801 Law & Finance Bldg.,

Pittsburgh, Pa. 15219,

(412) 281-4346.

=—=—-— — ————————————————E >

BATAVIA TIMES, APPELLATE COURT PRINTERS pe

EDWARD UW. SHANNON, REPRESENTATIVE

1701 PARELINE DR., PITTSBURGH, PA. 18227

412-081-7463

oe whee: No heating ts eR a oe

Statement of Facts

Reasons for Granting the PPPOE rer te 6

I. The substance of a scheme must be proven be-

fore anyone could be convicted for violation of

the Mail Fraud Statute .....--------s70007"" 6

II. The Court of Appeals for the Third Circuit

misconstrued the necessity of proof of intent to

use the mails to defraud in a conspiracy count

and has made a decision contrary to the deci-

sion in the Fifth Circuit ...-.---------777°"" 10

TIT. Whether a persor may be found guilty when

the Court of Appeals says the evidence is

BL ty cactensecerentsxcsoesse= "ere * 2

TV. The Government in a criminal case commits

prejudicial error when they know the only

witness to the alleged scheme will claim the

privilege against self incrimination and they

place such witness on the witness stand know-

ing that he will claim the privilege of self in-

crimination and immediately preseniing an

order for immunity in open court and the

court granting immunity and ordering him to

testify in the presence of the jury :....--:--- 1-:

V. This Honorable Court must clearly establish

that it is prejudicial error to fail to charge a

jury on-a defandant’s theory of defense to

‘an indictment if there is evidence to support it

and a proper request for such an instruction

cca recenedn nee roneserersee a+ 16

nan

ioe VL Whether petitioners’ convictions must be re-

PAGE

versed because the Court committed reversible

error in summarily rejecting their motions for

new trial on after discovered evidence without

requiring the Government to answer the alle-

gations in their motion and without securing

any affidavits or without holding a meeting ... 21

ow chsabecocceeceosccecsepoacesegess 24

IE nx cwsicsnnecssccccesencensdbile dyes ease la

Judgment Order ........----seeeeeeeeererereeees la

CNN i555 wed Sc sind darewvie nin Ha deiteninicne reece 3a

Lili elite picaalieagtat ss SRP ey ene Tee Lee Le 10a

TABLE OF CASES.

Abbott v. U. S., 239 F. 2d 310 (Sth Cir. 11

Commonwealth v. Leslie, 424 Pa. 331, 997 A. 2d 900

Commonwealth v. Pogach, 180 Atl. 126 (1935) (Pa.

Semperbue Ch). 5. os see weer cee e cece see see ees

Commonwealth v. Winter, 174 Pa. Super. 35, 98 A. 2d

RE MUD civ cescapengercsevsatsessavessvesenes 9

Giglio v. U.S. 405 U.S. 150 ....--- eo ee ares 16, 22, 23

Gordon v. The United States, 178 F. 2d 896 (Sixth Cir-

Serr re a 3g

Guardaldini v. U. S.. 128 F. 2d 984 (5th Cir. 1942) .... 11

Mazurosky v. U. S., 100 F. 2d 958 .....---+ 2-2 ++ 10, 11

Politano v. U. S., 220 F. 2d 217 (10th Cir. 1955) ...... 13

Richardson v. United States, 360 F. 2d 366 ( Fifth Cir-

TS ) eer er ee 23

Salley v. United States, 353 F. 2d 897 (C. A. 1965) .. .16, 21

Strauss v. United States, 376 F. 2d 416 (Sth Cir.

EE Kr ieee errr rir Te eta se. 17, 21

Tatum v. United States, 8 U. S. App. D. C. 386, 190

Ee ear eee 17

United States v. Grimes, 413 F. 2d 1376 (7th Cir.

inky «anki dee ye es tae eee 18. 21

seseawes eee we So

United States v. Kram, 247 F. 2d 830 (3d Cir. 1957) .. 6, 7

U. S. v. Mazurosky, 100 F. 2d 958 .......6--2 eee eee 20

Weiss v. United States, 122 F. 2d 675 (5th Cir. 1941) 11

Title

Title 18,

i Code,

Title 28, U. S. Code, 1254 (1) .....--

Wifth Amendment ...........cccccccceccccccecee eekly 1D

Vol. 6 Corpus

See. Land

Sec. 29

Vol. 2, W

page

hE ie nd vesreages ees

. 8.

ConsTITUTION.

MjscELLANEOUS. .

a Secumdum, Arson:

right Fed. Practice & Procedure, Sec. 482,

Eee et Ce ed i ee A AIL A

eS

api foe

eT CN OE

é

~* In THE

Supreme Court of the United States

October Term, 1973

DI nncsididuinios “

ANTHONY LAGATTUTA and CARL LUICK,

Petitioners,

vs.

THE UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, Anthony Lagattuta and Carl Luick, pray

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Third Circuit

entered in this case on June 20, 1973. A timely petition

for rehearing was filed and it was denied by Order dated

July 24, 1973.

Opinions Below

The United States Court of Appeals for the Third Cir-

cuit entered a judgment order dated June 20, 1973. It is

reprinted in the Appendix at Page A-1, infra. The United

States District Court for the Western District of Penn-

sylvania filed an opinion and it is reprinted in the Appen-

dix at Pages 3a-10a.

—_ ES

Comet ert Poets rei

| Sacttowini ‘a jury trial, the petitioners were found guilty

4n Count One of Conspiracy in Violation of Title 18, U. S.

Code, Sec. 371, and petitioner Lagattuta was found guilty

in Counts Two through Twelve of substantive violations

of Sec. 1341, Title 18, U. S. Code. Petitioner Carl Luick

was found guilty of substantive violations of Counts Five

through Twelve of the Indictment charging violations of

Sec. 1341, Title 18, U. S. Code.

On November 28, 1972, petitioner Anthony Lagattuta

was sentenced on Counts One and Two to the custody of

the Attorney General for a period of five years to run con-

currently and on Counts Three through Twelve sentence

was suspended and he was placed on probation for a period

of five years on each Count to run concurrently.

On November 28, 1972, defendant Carl Luick was sen-

tenced to the eustody of the Attorney General on Counts

One and Two for a period of two vears and to be placed

in a jail type institution for a period of ninety days and

the remainder of the sentence was suspended and he was

placed on probation for the remainder of that sentence.

He was also sentenced to pay a fine of 5000.00. The

sentence on Counts One and Five on imprisonment were to

run concurrently. On Counts Six thronch Twelve the sen-

tence was suspended and he was placed on probation fora

period of five vears to run concurrently.

On June 20, 1973, the Court of Appeals for the Third

Cireuit affirmed petitioners’ judement of conviction. A

petition for a rehea ring was timely filed and that petition

was denied by Order dated July 24, 1973.

The jurisdiction of this Court is invoked under Title 28,

U. S. Code, See. 1254 (1).

ee

Questions Pre-snted :

1. In a mail fraud indictment, where the Government

charges that the substance of the scheme was to inten-

tionally destroy a building by fire and then to collect the

proceeds of the fire insurance policy, is not the Govern-

ment required to prove that the building was in fact inten-

tionally destroyed by fire.

9. In an indictment charging conspiracy to violate the

Mail Fraud Statute, niust not the Government prove that

defendants at least intended to use the mails to carry out

their scheme.

3. Whether a person may be found guilty when the

Court of Appeals finds the evidence is slight.

4. Whether it is prejudicial error for the Government’s

Attorneys, who know that a witness will take the Fifth

Amendment and refuse to testify, to call that witness to

the stand and in front of the jury offer him immunity and

have the Court order him to testify in front of the jury.

5. Whether in a Criminal trial defendants are denied

the right to a trial by jury by the Court’s refusal to set

forth their theory of the case and their defense in a clear

charge to the jury.

6. Whether the petitioners after the trial having

acquired new evidence indicating that a key witness against

them was made substantial promises by the Government

in exchange for the testimony, were they not entitled to

have the Court at least require the Government to answer

their allegations and determine whether there is any sub-

stance to their allegations and not have their application

summarily denied.

Ce

oe, kk J eee i

a aS i .

FL EON ERE RELA ALIBI Se as

4

Statute Involved |

18 U.S. C. Section 371.

“If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manncr

or for any purpose, and one or more of such persons

do any act to effect the object of the conspiracy, each

shall be fined not more than $10,000 or imprisoned

not more than five years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only,

the punishment for such conspiracy shall not exceed

the maximum punishment provided for such mis-

demeanor.”

18 U.S. C. Section 1341.

“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 he intimidated or held out to

be such counterfeit or spurious article, for the pur-

pose of executing such scheme or artifice or attempt-

ing so to do, places in any post office or authorized de-

pository for mail matter, any matter or thing what-

ever to be sent or delivered by the Post Office Depart-

ment, or takes or receives therefrom, any such matter

or thing, or knowningly 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.”

So OS,

> ier Ree ree

Statement of Facts

This case arose as a result of an Indictment filed in the

United States District Court for the Western District of

Pennsylvania. Basically, what the Government charged in

the Indictment was a conspiracy to use the mails to defraud

an insurance company by burning down a building. In

Count One they charged the conspiracy and in Counts Two

’ through Twelve they charged that the scheme was to inten-

tionally burn down the building to defraud the insurance

company and for the purpose of executing this scheme they

caused various letters to be mailed. The Government

charged that the defendants Jones, Petrone and Lagattuta

caused the building to be destroyed by fire or procured it,

and that Luick, Jones, Lagattuta and Petrone all knew that |

the building was intentionally destroyed by fire by them

and that the insurance con:pany was not liable. Mr.

Petrone died prior to the trial and this petition for

certiorari is being requested by petitioners Luick and

Lagattuta.

In very simple terms, the Government has charged that

the petitioners caused the property to he destroyed by fire

in order to collect the fire insurance poliev and mailing

various items in furtherance of the scheme.

At the trial the petitioners requested the Court to enter a

judgment of acquittal heeanse there was no proof that there

was an intentional destruction of this building by fire. To

the contrary. we argued that there was only evidence that

the building was destroyed by fire. The investigator for

the insurance company testified that he did cheek with the

Bomb and Arson Squad and that the Bomb and Arson

Sanad fonnd no evidence that the hnilding was intentionally

destroyed hy fire. The trial eonrt indieated that the whole

SE eS RO ap OREN AL NRE EAS Fe As

SO Be a a bie tone,

indictment wraps up this case as a “torch case” in effect and

that the defendants were to collect the money.

We argued to the Court that the Government did have to

prove what was tantamount to Arson to defraud an insur-

ance company and without proof of an Arson type fire,

there could not be a finding of guilt in this case.

The trial court rejected this argument and would not

give a charge in support of this contention and did not

submit defendants’ theory to the jury by a charge that

would have outlined their theory of defense.

In defendants’ motion for a new trial they raised various

substantial issues, but the trial court refused to give them

oral argument on their motion and when an appeal was

taken to the Court of Appeals, again the appellants were

denied an oral argument and the Court of Appeals did not

file an opinion, but merely entered a judgment order.

REASONS FOR GRANTING THE WRIT

The substance of a scheme must be proven before anyone

could be convicted for violation of the Mail Fraud Statute.

The system of justice will function most efficiently in the

United States if the Courts will follow their own decisions.

We submit that the law applicable in a mail fraud prosecu-

tion has heen thoroughly analyzed by the United States

Court of Appeals many vears ago in the case of United

States v. Kram, 247 F. 2d 830 (3d Cir. 1957). However, the

current Court of Appeals failed to follow its own decision

and refused to apply the law as enunciated in the Aram

case.

FGI abe Cia

7

In the instant case the Government has elected to set up

in the Indictment as the substance of the offense that the

petitioners with the intent to collect money provided for in

the insurance policy procured the destruction of the build-

ing and also pretended that the fire which destroyed the

building was of unknown origin, when the Government

charges that the petitioners knew that the fire was neither

accidental nor unknown but one which was originated by

the acts, design and procurement on the part of certain- of

the defendants.

The United States Court of Appeals for the Third Circuit

previously held in the case of the United States v. Kram,

247 F. 2d 830, 833,

“But in this case the United States has elected to set

up in the indictment as the substance of the offense

that the printed material, with which the religious ob-

ject was enclosed, was drawn up in such a manner as

to mislead the persons who received it from Kram

into thinking it was a solicitation from a religious

organization. If the United States has failed to prove

this allegation it has failed to prove, in the words

of the indictment, ‘the substance of * * * (the) scheme’,

and, hence to prove Kram guilty as charged in the

indictment. This is true whether or not Kram in fact

devised and executed a fraudulent scheme to mulect

the public by the use of the mails. In other words

the United States has cast its whole case on the proof

of an intentionally misleading solicitation. It need

not have done so but it so chose and must stand or

fall on its choice. To try Kram upon some other

theory of guilt in view of the charge of the indictment

would be to deny him due process of. law.”

We submit that the Government did not prove the scheme

that they alleged because they did not prove that this build-

ing was, in fact, intentionally destroyed by fire. On cross

examination it was developed that the cause of the fire

had been investigated by the Bomb and Arson Squad of

the City of Pittsburgh and the insurance company investi-

gator filed his report stating that the Bomb and Arson

Squad found no evidence of Arson and, in fact, the insur-

ance company investigator told the Grand Jury that the

Bomb and Arson Squad had told him that they had no

reason for suspicion concerning the fire.

The intentional burning of a building with the intent

to defraud an insurer or the intentional burning of a build-

ing are two types of arson and whether the word “arson”

is used or whether the words “intentional burning of a

building” is used the effect is the same. What is needed

to prove arson and what is needed to prove the intentional

burning of a building is the same. See Vol. 6 Corpus Juris

Secundum, Arson, Sec. 1 and Sec. 2. While perhaps it

is true we are not trying an arson case in the Federal

Courts, we are trying a case in which the scheme alleged

was an intentional destruction of a building with the intent

to defraud an insurance company. The question then is

was there proof of an intentional destruction of a huild-

ing.

A leading case in Pennsylvania should be looked at as

persuasive authority as to what is needed to prove in-

tentional destruction of a building. This case is the case

of Commonwealth v. Leslie, 424 Pa. 331, 227 A. 2d 900

(1967). In that case the Court set forth what is necessary

to prove the intentional destruction of a building, that is:

(1) There must be a fire

(2) It must be of incendiary origin, and

(3) The defendant must be the guilty party.

We recognize in this case that there was, of course, a

fire. However, we submit there is absolutely no proof

that this fire was of incendiary origin. The decision in

Commonwealth v. Leslie supra, pointed out the necessity

of the proof of an incendiary origin of a fire. In that case

there was a fire and a confession that the defendant

caused the fire. Yet the Court would not sustain a con-

vietion because there was not proof of incendiary origin

without the confession.

We submit that in the Leslie case as in the case of Com-

monwealth v. Winter, 174 Pa. Super. 35, 98 A. 2d 221

(1953) the Jury here must be able to find that there was

an intentional fire. An intentional fire means an incendi-

ary origin.

We ask where is the proof of incendiary origin. There

was evidence of motive and there was even evidence of

plan, and there was evidence of a fire, but that is not

proof that the fire was, in fact, set by the defendants or

even set by anyone. In Vol. 6 Corpus Juris Secundum

Arson, Sec. 29, page 749, the authorities point out that,

“The evidence must also disclose that it was burned

by the wilful act of some person criminally responsi-

ble for his acts and not by natural or accidental

causes.”

The authorities there continue and point out,

“Ina prosecution for statutory crime of burning in-

sured property with the intent to defraud the insurer,

the State must establish that the fire was incendiary

in origin and that the accused was criminally respon-

sible for it as well as that the insured intended to de-

fraud the insurer thereof.” See also Commonwealth

v. Pogach, 180 Atl. 126 (1935) (Pa. Superior Ct.).

If we look at the evidence in this case, all we have is that

a few people said they heard some sounds at or about the

——

10

time of the fire and that some of them said they saw the

fire break out. Other persons said they saw an automo-

bile or persons in the area, but no one gave any testimony

as to what was the cause of this fire.

Several fire companies were on the scene. Many fire-

men fought the fire. Not one fireman was called to the

stand to be questioned as to what he found at the fire. No

expert testimony was given as to what was the cause of

the fire. We have only the bare isolated testimony of

one woman who said she smelled gasoline, but we do not

know where that gasoline came from or whether it had

anything to do with the fire. We submit on that bare testi-

mony alone, it is insufficient to find an incendiary origin

when we see that no fireman testified to this and this

woman did not even tell the Bomb and Arson Squad in-

vestigator anything about it.

il

The Court of Appeals for the Third Circuit misconstrued

the necessity of proof of intent to use the mails to defraud

in a conspiracy count and has made a decision contrary

to the decision in the Fifth Circuit.

It was submitted to the trial court in an argument for

judgment of acquittal and in the Points for Charge that

as to the conspiracy count there had to be a specific proof

of intent to use the mails to defraud besides proving the

scheme.

It would not be sufficient that the mails were only used

incidentally or happened to be used by somehody else.

We called to the Court’s attention the case of Mazurosky

v. U. S., 100 F. 2d 958, 962. This case arose in the Fifth

Cireuit. The Court of Appeals in that Circuit pointed out

that,

ll ;

“The Courts have drawn a distinction in the pre

of intent necessary in a conspiracy charge and a

of the substantive offense of using the mails to de-

fraud. Farmer v. United States, Supra, 223 F. Hin

907. Where the charge is conspiracy to use the

to defraud, in addition to proving a scheme to defraud,

it is necessary to show an intent to use the mails to ef-

fect the scheme.” Mazurosky v. United States, Supra,

at 962.

The Court held in the Macurosky case that since there

was no evidence that it was part of the scheme of those

engaged in the fraudulent scheme to use the mails, an es-

sential element was lacking and a judgment of conviction

was reversed.

The Court of Appeals also in the case of Weiss v. United

States, 122 F. 2d 675, 680 (5th Cir. 1941) held,

“Where a conspiracy to commit the offense is charged,

there is a third element, not involved in the commis-

sion of the substantive offense, an intent to use the

mails in execution or attempted execution of the fraud-

ulent scheme.”

More recently the Court of Appeals in the Fifth Cir-

cuit discussed this distinction in the case of Abboit v. U. S.,

239 F. 2d 310, 314 (5th Cir. 1956). The Court in that case

pointed out that there is a distinction between a conspiracy

count, which requires actual proof of intent to use the

mails, as distinguished from the substantive count where

it is sufficient that it could be expected that the mails would

be used. The Court in the Abbott case also referred to

ease of Guardaldini v. U. S., 128 F. 2d 984, 985 (5th Cir.

1942). The Court pointed out there that in a conspiracy

charge intent to use the mail is a necessary element and

proof of this must be given, whereas in a substantive count

such specific proof of intent is not needed.

oe Ae —

12

The Court below we submit would not recognize this

important element of proof and the Court of Appeals for

the Third Circuit by their judgment order obviously re-

jected this argument and made a decision contrary to the

decision in the Fifth Circuit, because in paragraph 2 of

the Judgment Order the Court misconstrued the argu-

ment and never passed on the contention whether there

has to be proof of an intent to use the mails to carry out

a scheme to defraud as distinguished from a mere inci-

dental use of the mails in a substantive count. In fact,

the Court of Appeals in that sub-paragraph indicated that

the Court merely submitted a general charge as to whether

there was a conspiracy and not whether there was a con-

spiracy to use the mails to defraud and the importance of

intent to use the mails.

We submit that the Court of Appeals for the Third

Cireuit has made a decision contrary to the decision of

the Court of Appeals in the Fifth Circuit and that is an-

other reason why this Court should grant Certiorari.

Ill

Whether a person may be found guilty when the Court

of Appeals says the evidence is slight.

As to petitioner Carl Luick, he was a publie fire ad-

juster. The. Government did not charge that he had any-

thing to do with the causing of the fire in question. They

merely charged that he submitted a false invoice and

wanted the jury to infer that he knew what was the cause

of the fire. At page 551 of the trial transcript, the District

Court asked the Government this question:

“Ts there any proof at all that Mr. Luick knew this

was a set fire?”

nae ae PGR OI ANCE ARSED DN SARE

EUS MA ARE IOI LEM

13

The Government did not prove that this was a set fire,

let alone that Mr. Luick knew that it was a set fire. Since

the Government failed to prove an essential element of

the crime, Mr. Luick’s knowledge, he should be entitled

to a judgment of acquittal. See Politano vs. U. S., 220

F. 2d 217 (10th Cir. 1955).

The Trial Court in an opinion stated that there was no

direct evidence that Mr. Luick knew the club was “torched”.

There was no evidence that Mr. Luick had anything to do

with this club until after the loss in May of 1970 and then

his only function was to adjust the loss with the adjuster

for the insurance company.

The Trial Court in its opinion stated that there was

no direct evidence that Mr. Luick knew the club was

“torched”. However, the Court below thought that a

casual remark by Mr. Luick allegedly made to a witness

was circumstantial evidence of guilt and was sufficient to

find him guilty of knowing that the fire was set.

The Court below placed great significance on a casual

remark a witness said Mr. Luick made, a casual remark

one time when he was speaking to Mr. Waldo, either in

May or October, using the phrase “Jewish Lightning”.

The Witness Waldo said that it didn’t mean anything to

him and thought it merely a jovial expression that he had

grown up with over the past fifteen years. He expressly

stated that it didn’t mean anything to him. Transcript,

pp. 205 and 206. :

The Court below at the time of argument on motion for a

judgment of acquittal at the conclusion of the Govern-

ment’s case at page 551 of the Transcript, asked,

“Was there anv evidence to show that Mr. Livek knew

anything about the fire being intentionally set?”

ee Hany heeiynely

BLS HTT PAT BRENT) UBS Fee ae

14

At Transcript 551, the Government’s only reply was the

isolated remark using the word “Jewish Lightning”.

The Court of Appeals for the Third Circuit has com-

pounded this error and established, we submit, a very dan-

gerous principle by holding that the evidence, while slight,

was sufficient. See paragraph 4 of the Judgment Order of

the Court of Appeals entered in this case. The Court of

Appeals has established a principle that slight evidence is

sufficient to find someone guilty in a criminal case and has

effectively abolished the necessity of finding someone

guilty beyond a reasonable doubt. Such a dangerous prece-

dent must not be permitted to exist in the United States

for if it does, our cherished freedoms will be jeopardized

and we will change from a Government of Law and Justice

to a Police State where slight inferences are sufficient to

find someone guilty of serious criminal charges.

IV

The Government in a criminal case commits prejudicial

error when they know the only witness to the alleged

scheme wil! claim the privilege against self incrimination

and they place such witness on the witness stand knowing

that he will claim the privilege of self incrimination and

immediately presenting an order for immunity in open

court and the court granting immunity and ordering him

to testify inthe presence of the jury.

The only witness in this case as to the alleged scheme

and the only witness against Lagattuta was Frank Teny.

Frank Teny was the first witness called by the Government

at the time the Government called him they knew he was

going to refuse to testify and claim his privilege under

the Fifth Amendment. He answered his name and address

SalI LER LEAT I yh BMI ENED TAI ICAL ONS ie

15

but when asked his occupation and if he knew Anthony

Lagattuta he refused to answer on the grounds that it

might incriminate him (T. 31). Immediately thereafter

the Government produced a Motion to grant Mr. Teny

immunity and presented it in open Court. We moved at

that time for a withdrawal of a juror because we felt it

was prejudicial to the defendants due to the fact that the

Government put a witness on the stand knowing that he

was going to take ‘the Fifth Amendment and then went

through what we contend was a dramatic exhibition of

asking the Court to grant him immunity in the presence of

the Jury. He was granted immunity in the presence of the

Jury and he was ordered to testify. The Court ordered in

open Court in the presence of the Jury that he must tes-

tify and that he would be immune from prosecution from

anything he said except for contempt or perjury.

With this setting in the case the Jury obviously had to

get the impression that since the man was ordered to tes-

tify and that he would be prosecuted for contempt if he did

not testify or perjury if he testified falsely that what he

said had to be the truth. This was unnecessary dramatics

on the part of the Government and prejudiced the defend-

ants.

The Court made an explanation to the Jury of what it

was doing and while the explanation was technically aceu-

rate we think its effect was to do more harm than good

hecause here again the Jury was being told that the wit-

ness had to testify. We submit the Jury did not have to

see this and the dramatic presentation that the Govern-

ment carried out.

We did ask for a withdrawal of a Juror at that point and

since it was the first witness called by the Government very

—s— -— «

little would have been lost by granting our Motion and de-

fendants’ rights would have been easily protected. Never-

theless, our Motion was overruled.

This prejudicial error instead of being condemned by

the Court of Appeals appears to have been approved by

the Court of Appeals. We submit that the rational of the

case of Giglio v. U. S., 405 U. S. 150, does permit the Gov-

ernment to engage in such dramatics.

Vv

This Honorable Court must clearly establish that it is

prejudicial error to fail to charge a jury on a defendant’s

theory of defense to an indictment if there is evidence

to support it and a proper request for such an instruction

is made.

The petitioners did submit various points for charge and

their basis intention was that the Government had to prove

that this fire was an intentional fire and that it had to have

an incendiary origin. Specific points setting forth this

theory were submitted in the Points for Charge as well as

points relative to the importance of finding an intent to use

the mail in the conspiracy count as distinguished from the

substantive counts.

The authorities are clear that “a party is entitled to a

specific instruction on his theory of the case if there is evi-

dence to support it and a proper request for an instruction

is made.” Vol. 2, Wright Fed. Practice ¢ Procedure, Sec.

482, page 279. The authorities are set forth in footnote 20

to Prof. Wright’s Treatise and he cites authorities from

many Circuit Courts of Appeal in this country which have

discussed the subject. Circuit Judge J. Skelly Wright

in an Opinion in the case of Salley v. United States, 353 F.

2a 897, 898 (C. A. 1965) held,

Priddy STAKE Ei Wee

“Since v. Uni

281, 282, 261 F. 2d 747, 748 (1958),

despite the trial judge’s correct

ment must be proved beyond a reasonable doubt, ‘it is

reversible error for the court to refuse on request to

instruct also as to defendant’s theory of the case. This

rule * * * applies as well to situations where special

facts present an evidentiary theory which if believed

defeats the factual theory of the prosecution * * *.”

See also Tatum v. United States, 88 U. S. App. D. C.

386, 391, 190 F. 2d 612, 617 (1951).

The importance that the defendants are entitled to have

instructions presented is also discussed by the United

States Court of Appeals for the Fifth Circuit in the case

of Strauss v. United States, 376 F. 2d 416, 419 (5th Cir.

1967) where the Court held:

i

“*It is elementary law that the defendant in a criminal

case is entitled to have presented instructions relating

to a theory of defense for which there is any founda-

tion of the evidence.’ Perey v. United States, 5 Cir.

1961, 297 F. 2d 12, 13-14. ‘emphasis added). We find

no requirement that a requested charge encompass, in

the trial judge’s eyes, a believable or sensible defense.

The judge is the law-giver. He decides whether the

facts constituting the defense framed by the proposed

charge, if believed by the jury, are legally sufficient to

render the accused innocent. The jury is the fact-

finder. If the trial judge evaluates or screens the

evidence supporting a proposed defense, and upon

such evaluation declines to charge on that defense,’

he dilutes the defendant’s jury trial by removing the

issue from the jury’s consideration. In effect, the tris!

judge directs a verdict on that issue against the de.

fendant. This is impermissible.- Bryan vy. United

States, 5 Cir. 1967, 373 F. 2d 408. The judge must,

therefore be cautious and unparsimonious in present-

ing to the jury all of the possible defenses which the

jury may choose to believe. We hold that where the de.

fendant’s proposed charge presents, when properly

framed, a valid defense, and where there has heen

Ric NE ei EPG ELL ROS A EE

some evidence relevant to that defense adduced at

trial, then the trial judge may not refuse to charge

on In v. United States, 1950, 88

U.S. App. D. C. 386, 190 F. 2d 612, 617, the D. C. Cir-

“We do not intend to characterize the case for the

defense as either strong or weak. That is unneces-

sary for “‘in criminal cases the defendant is entitled

to have presented instructions relating to a theory

- of defense for which there is any foundation in the

evidence, even though the evidence may be weak, in-

sufficient, inconsistent, or of doubtful credibility. He

is entitled to have such instructions even though the

sole testimony in support of the defense is his

own.”’”

This rule has also been followed by the United States

Court of Appeals for the Seventh Circuit in the case of the

United States v. Grimes, 413 F. 2d 1376, 1378 (7th Cir.

1969) where the Court of Appeals for that Circuit pointed

out:

“We start with the propesition that the defendant in a

criminal case is entitled to have the jury consider any

theory of the defense which is supported by law and

which has some foundation in the evidence, however

tenuous. Tatum v. United States, 88 U. S. App. D. C.

386, 190 F. 2d 612, 617 (D. C. Cir. 1951): United States

v. Phillips, 217 F. 2d 435, 443-443 (7th Cir. 1954).”

Our theory of defense was clearly set forth not only in

our written Points for Charge but in our trial brief that

we filed prior to trial and in our argument to the Court on

our Motion for Judgment of Acquittal. In addition, when

we took exceptions to the Court’s Charge, we again tried

to get the Court to charge on our theory of the defense

to the accusations made against the defendants. (Tr. p.

639). The Court said it would give in substance request

No. 12, but it did not do so.

19

Throughout our requested Points for Charge, we tried

to get a clear and definite charge to the Jury, that the

Court should tell the Jury what was necessary to find an

intentional set fire that was either set by these defendants

or caused to be set by these defendants. The Court in-

stead of granting the defendants a fair charge on this

issue, that all the Court told the jury in this regard as to

our theory was set forth on page 625 of the Transcript

when the Court merely stated : ;

“Defendants contended there is absolutely no proof

that they knew of the origin of the fire.

Now. if you find that any of them did not procure

the fire or know that it had been procured by someone

else or of its origin as alleged in the Indictment, then

the Government would have failed to prove the allega-

tions as to that individual and that defendant should

be found not guilty.”

This, we submit, certainly did not in any way present

defendants’ theory of the case. That not only was defen-

dants’ theory of defense not submitted to the Jury, but

the Jury was practically told that there wasn’t anything

to our theory of defense as the Court told the Jury in its

charge (Tr. 626) that,

“This is not a ease in which Arson is the charge. We

are not trying an Arson case. Arson cases are tried up

the street in State Court. We are charging that the

crime of an intentional burning which involved the use

of the mails.”

In addition the Court failed to adequately charge the

Jury concerning the conspiracy. The conspiracy was a

conspiracy to use the mails. There had to be proof that

the defendant intended to use the mails in the conspiracy

count and we submit that the importance of proof of this

element was not set forth clearly to the Jury.

We specifically asked the Court for an instruction in

this regard in point Eight of our requested Points for

Instruction as follows:

“In Count One of the Indictment, the defendants are

charged with conspiracy to use the mails to defrand:

in addition to proving the scheme to defraud, it is

necessary for the Goverment to show an intent to use

the mail to effect the scheme.” See also U. S. v. Mazu-

rosky, 100 F2d 958, 962.

This requested point for charge was refused by the Court

at page 585 of the Transcript where the Court stated:

“Eight is denied.”

At the conclusion of the Court’s charge, specific exception

was taken to the Court’s failure to charge the necessity

of proof of intent to use the mails in order to sustain a

finding of guilt under conspiracy charges. We submit

the Court did not really cover this in its charge and did

not make the point clear to the jury. The Court’s charge

was approximately 40 to 44 pages in length, but we sub-

mit it did not cover the defendants’ theory of the case,

it did not adequately tell the jury the importance of find-

ing an intent to use the mails as the real basis of the con-

spiracy charge, but rather it dealt on the responsibilities

of each person for an act of a conspirator if it found a

conspiracy. It failed to get to the real issue involved, that

of an intentional fire set or caused by these defendants to

defraud an insurance company. It failed to adequately

charge the jury about an incendiary origin as distinguished

from an accidental fire and the importance of proof of

finding an incendiary origin. We tried to bring this out

in our points for charge, but they were rejected by the

Court.

Ae ratte tne ee a nteeeene,

The Court of Appeals, again we submit, instead of

answering the contention of the petitioners herein merely

stated that the charge was sufficient and did not pass on

the importance of charging as to the theory of defense.

The Court of Appeals for the Third Circuit has created a

situation in which they have, we submit, rejected the

principles of a fair trial and a proper charge to a jury

as enunciated in the Court of Appeals for the District of

Columbia in the case of Salley v. United States, 353 F- 2d

897 (1965); in the Court of Appeals for the Fifth Cireuit

in the case of Strauss v. United States, 376 F. 2d 416

(1967); and in the Court of Appeals for the Seventh Cir-

cuit in the case of United States v. Grimes, 413 F. 2d 1376

(1969). Thus three Courts of Appeal have clearly set

forth that the defendants are entitled to have their theory

of defense submitted to the jury under proper instructions.

The Court of Appeals for the Third Cireuit has rejected

this rule.

VI

Whether petitioners’ convictions must be reversed

because the Court committed reversible error in summarily

rejecting their motions for new trial on after discovered

evidence without requiring the Government to answer

the allegations in their motion and without securing any

affidavits or without holding a meeting.

The key witness in this case was Frank Teny. Without

his testimony, there would be no case against any defendant

hased on the Indictment filed. His reliability was deter-

minative of the guilt or innocence of the defendants. The

defendants were certainly entitled to have a full disclosure

of all evidence known by the Government that would affect

his credibility. Shortly after the Court overruled peti-

tioner’s motion for a new trial, and a date was set for

a, EL CI es RE SE BR ed OF A Se)

sentence, a story appeared in the Pittsburgh Press, the

leading newspaper in the City of Pittsburgh, which was

published on November 22, 1972, which stated that the

Strike Force lawyer in charge of the case came to know |

Teny well during the preparation of the trial, and the

story went on to state that following his day in Court, the

Strike Force had arranged to change his identity by aequir-

ing for him a new Social Security number, a home in

California, and a job.

At the time of the trial we did not know of these things

and this information, we submit, was not furnished to the

defendants although we tried to inquire whether there

were any promises made to this witness by the Government,

which he denied.

This Court in the case of Giglio v. United States, 405

U. S. 150, required that there be full disclosure to the

defense of any factors known by the Government and any

agreements made with the witness. In the Giglio case,

this Court pointed out that the Government’s case there

depended almost entirely on the witness’s testimony and

without it there could have been no indictment and no

evidence to carry the case to the jury. The credibility of

the witness was therefore an important issue in the case

and the jury was entitled to know all of the circumstances.

Similarly, we submit that here the Government’s case

rested entirely on Teny’s testimony. Without it, there

could have been no indictment and no evidence to carry

the case to the jury. Teny’s credibility as a witness was

therefore an important issue in the case and the evidence

of any understanding or agreement by the Government as

to changing the witness’s identity, getting him a job, and

acquiring a home for him would be relevant to his credi-

bility and the jury was entitled to know of this. We

Bo PCR TEE Lt BO SLA EE SE RG

specifically asked the witness this question: “Do you

expect you are going to get any help from the Government

for the testimony you have given today?” The Government

objected to this question, which objection was overruled.

The witness answered: “I tried to ask them for help and

they said their hands are tied with that help.” Transcript

pages 129 and 130. The net effect of his testimony was that

he said the Government wasn’t going to do anything for

him. Nevertheless, it appears that the Government did

make various promises to him and did do things for him.

The very least that the Court below could have done would

have been to direct that the Government answer our

petition.

In the case of Richardson v. United States, 360 F. 2d

366 (Fifth Circuit 1966), the Court of Appeals for the

Fifth Circuit held that the failure to conduct a thorough

inquiry to determine what occurred before overruling

Defendant’s Motion for a New Trial was an abuse of discre-

tion. The Court there stated that inasmuch as the alleged

impropriety was not denied and since no hearing was con-

ducted, the Appellate Court said that an improper con-

versation was being confessed by the failure to deny or

hold a hearing. Prejudice was assumed in the form of a

rebuttable presumption. The Court there vacated the

order denying a motion for a new trial and remanded the

case to the District Court with directions to hold a hearing.

In the case of Gordon v. The United States, the Court of

Appeals ‘for the Sixth Cireuit, at 178 F. 2d 896 (1949),

held that a decision on a Motion for a New Trial should

be based only on evidence by affidavit, deposition or on

sworn testimony in open Court. In the instant case, none

of these occurred. We had a situation very similar to the

situation before the Supreme Court of the United States

in the case of Giglio.

or ne ta aa sl Be Se PP PE oh Mie A oes Se EN EP -

The District Court and the Court of Appeals for the

Third Circuit refused to do anything about petitioners’ mo-

tion despite the fact that the witness involved here was the

key witness against them and without his testimony there

could not be a conviction. To summarily reject the appli-

cation for a new trial on after discovered evidence creates

a situation in which the rules in the Third Circuit are con-

trary to the decision of the Supreme Court of the United

States and contrary to decisions in the Fifth and Sixth

Circuits.

Conclusion

For all of these reasons, the petition for certiorari should

be granted.

Respectfully submitted,

MARTIN M. SHEINMAN,

Attorney for Anthony Lagattuta

and Carl Luick,

1801 Law & Finance Bldg.,

Pittsburgh, Pa. 15219,

Phone (412) 281-4346.

iat SOE a SP EER ELE REL TN SE EE

. la

APPENDIX

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

Submitted Under Third Cireuit Rule 12(6) June 12, 1973.

Before: GIBBONS, ROSENN and WEIS, Circuit Judges.

Judgment Order

Appellants were convicted of mail fraud and conspiracy

to violate the mail fraud statute. 18 U.S. C. $§ 1341, 371.

The case involved the obtaining of proceeds of a fire insur-

ance policy as a result of arson of an insured building.

The appellants contend:

(1) That the Government failed to prove that appel-

lants intentionally destroyed the building. There

was sufficient evidence to submit the question to

the jury.

(2) That the Government’s evidence failed to establish

a conspiracy to use the mails to defraud. There

was evidence that appellant Luick mailed to an

insurance adjuster a false proof of loss. See

United States v. Marine, 413 F. 2d 214, 219 (7th

Cir. 1969), cert. denied, 396 U. S. 1001 (1970). On

all the evidence in the Government’s case there

was a jury question, and the court correctly charg-

ed that in determining whether there was a con-

spiracy the jury would have to find “(t)hat the

conspirators would place and cause to be placed

in the post office and authorized depositories for

for mail matters . . .”

(3) That on the substantive count the Government did

not prove mailing. There was evidence that Luick

mailed a falsified proof of loss, and there was evi-

dence from which the jury could find a reason-

able expectation that the mails would be so used.

2a

Judgment Order

See Pereira v. United States, 347 U.S. 1, 8 (1954) ;

Bannister v. United States, 379 F. 2d 750, 753 (5th

Cir. 1967).

(4) That the Government did not connect Luick to the

conspi . The evidence, while slight, was suffici-

ent. United States v. Kenny, 462 F. 2d 1205, 1226

(3d Cir.), cert. denied, 409 U. S. 914 (1972).

(5) That prejudicial error occurred when a co-defend-

ant was called to the stand and granted immunity

in front of the jury. The witness in question did

testify, and the fact that he had been granted im-

munity was, if anything, helpful to the defense on

his credibility. See Giglio v. United States, 405 U.

S. 150 (1972).

(6) That authorization for the grant of immunity to

a witness was not properly authenticated. The

appellants lack standing to assert a violation of

the witness’ privilege against self-incrimination.

(7) That the court took judicial notice that the GAA

Club, whose building was burned, was privately

owned. The ownership is not in dispute and the

court properly took steps to prevent the trial from

becoming enmeshed in detail.

(8) That the Government’s summation was prejudicial.

It was not. The factual arguments advanced were

permissible inferences from the evidence.

(9) That the court did not charge the jury on the

‘appellants’ theory of the defense. The charge is

sufficient.

(10) That the appellants’ motion for a new trial based

on newly discovered evidence should have been

granted. The evidence related to an issue bearing

on the credibility of one witness who had been

granted immunity. His credibility was explored

in the trial, and his evidence was cumulative.

There was no error in denying the motion.

pai Aa th

Opini

It is therefore ORDERED and ADJUDGED that the

judgment of the district court is affirmed.

BY THE COURT,

/s/ JOHN J. GIBBONS,

Circuit Judge.

Attest

/s/ THOMAS F. QUINN,

Clerk.

Dated: June 20, 1973.

Opinion

(Filed November 16, 1972.)

HUBERT I. TEITELBAUM, District Judge.

Two of the three defendants in this criminal case,’ An-

thony Lagattuta and Isaac Roddie Jones, were convicted on

all twelve counts of the twelve count indictment. Carl Luick,

the other defendant, was convicted on only nine of the

twelve counts, the second, third and fourth counts against

him having been dismissed by the court.’

The first count charged a conspiracy to commit mai!

fraud, in violation of 18 U.S. C. § 371; the remaining eleven

1 John Petrone was also named in the indictment as a defendant,

but he died before the case was tried.

2'The court reserved decision on the nine remaining counts as to

Luick under the authority of F. R. Cr. P. 29 (b).

ri a ee

4a

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eounts charged actual mail fraud, in violation of 18 U.S. C.

§ 1341° Specifically, the indictment alleged (1) that Jones

obtained an insurance policy on the German American

Association of Allegheny County (“the club”) and its con-

tents in the amount of $160,000.00, (2) that Petrone, Jones

and Lagattuta procured the destruction of the club with

the intent to collect the proceeds of the insurance policy,

(3) that all the defendants obtained the proceeds by falsely

representing that the fire which destroyed the club was of

unknown origin, when they knew that it was neither ac-

cidental nor of unknown origin, but was set by their own

acts, designs and procurements, (4) that they submitted

false and fraudulent claims, including back-dated invoices

for fictional merchandise and services, to the insurance com-

pany, and (5) that after they received the proceeds, they

divided them among themselves. In the conspiracy count

of the indictment, it was alleged that the defendants op-

erated under an agreement which they had among them-

selves to perpetrate the fraud.

The defendants have filed motions (1) for a new trial,

(2) for arrest of judgment and (3) for judgment of acquit-

tal. In support of the motions, they have offered over

twenty reasons. Many are frivolous and do not merit com-

ment. Those few which do will be reviewed seriatim.

First, relying on [ ™ited States v. Kram, 947 F. 2d 830

(3rd Cir. 1957), the defendants argue that the Government

failed to prove what it alleged in the indictment. In Kram,

which similarly involved a charge of mail fraud, it was

visthiebbacenaaomn

3 Fach use of the mails related to the mail fraud is a separate

offense, notwithstanding the singleness of the scheme. Badders v.

United States, 240 U.S. 391 (1916).

oars eee i

cnet ns at Maasai

A RATA AR Oa YO NATTA

5a

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held that the Government must prove what it alleges, not-

withstanding the superfluity of its allegations to the ele-

ments of the offense. There, the Government needlessly

charged in the indictment that a certain document that

_was sent through the mails was “so drawn as to be inten-

tionally misleading”. The rationale of the court in Kram

was that since the Government had “cast its whole case on

the proof of an intentionally misleading solicitation”, its

failure to prove the misleading character of the solicitation

was fatal.

Here, the Government gratuitously and needlessly charg-

ed that the defendants conspired to procure and procured

the intentional burning of the club. The defendants con-

tend that this was not proved by sufficient evidence. They

contend, specifically, that there was no proof that the fire

which destroyed the club was set intentionally, or that even

if there was proof that the fire was set intentionally, that

there was no proof that it was procured by the defendants.

The testimony was extensive. Frank Teny, one of the

original owners of the club, testified that when the club hit

upon hard financial times, Petrone suggested that the club

be burned down for the purpose of obtaining the insurance

proceeds. He testified that the suggestion was made to and

accepted by, in addition to himself, Jones and Lagattuta,

and that the four of them, including Petrone, thereafter

agreed to split the proceeds “four ways”. ‘Tle testified fur-

ther that in preparation for burning the elub down, he.

4 Since the jury was charged that the Government must have proved

that the defendants conspired to procure and procured the burning

of the club, I take the contention as not that the charge of the court

was in error, but only that the evidence was insufficient.

Jones and Lagattuta went around and punched holes in

the walls of the club sometimes in April 1970 for the pur-

pose of providing “air ventilation” for the fire. Lastly,

Teny testified that after the club burned down, he received

his share of the proceeds from Jones.

The fire occurred on May 5, 1970. Several witnesses,

mostly local residents, testified as to events at the scene of

the fire. There was testimony that two men were in the

club in the early morning hours of May 5, shortly before

the fire started; that a crashing noise which sounded like

breaking glass was heer’ contemporaneous with the start-

ing of the fire; and that from the time of the first flicker

at the club until it was engulfed in flames a seant five to

ten minutes elapsed. There was testimony, too, that a

short, stock man with black, bushy hair was seen jumping

into a big car that had a light colored bottom and a black

top in the immediate vicinity of the club; that the car was

running at the time the man jumped into it; and that after

he was in, it sped away with its lights off. Finally, there

was testimony that there was a heavy odor of gasoline in

the air at the scene.

Although the man seen jumping into the car could not be

positively. identified, the inference was that it was Lagat-

tuta who is short, stocky and has black, bushy hair. Wheth-

er or not that testimony alone is sufficient to link the

defendants to the procuring of the fire is academic, since

there were additional circumstances. The desk manager at

a local motel testified that a “Mr. Late” was registered as

a guest from May 2 to May 7, 1970; that “Mr, Late” was

Lagattuta; that Lagattuta was driving a white Buick; that

enn es

5 aT DETR I RT LAT RRR LDva NA Hs NBM

- Ta

Ovins

it was not in the motel’s parking lot between 3 A. M. and

4 A. M. on May 5, but that it was in the lot between those

hours on May 2, 3, 4, 6 and 7; and that the morning of May

5, it did not take a long time to clean the room oceupied by

Lagattuta. In view of all the testimony, bearing in mind

that the evidence must be viewed in the light most favorable

to the Government, Glasser v. United States, 315 U. S. 60

(1942), I conclude that the evidence was more than sufficient

to provide a basis for the jury’s verdict.

Secondly, the defendant Luick contends that as to him

there is no proof that he knew the fire was set intentionally.

Luick’s role in the scheme was as an independent public fire

adjuster. While there is direct evidence of his participation

in the falsification of the invoices presented to the insurance

company, there is, as he contends, no direct evidence that

he knew that the club was “torched”. There is, however,

circumstantial evidence. Luick was a professional fire

adjuster. He was participating in the falsification of in-

voices to substantiate a claim when, on March 23, 1970, a

suspiciously short time before, the imsurance coverage 01

the club had been increased from $55,000.00 to $160,000.00.

Moreover, and most important, was the testimony regard.

ing Luick’s reference during a conversation with an insur-

ance agent, to the cause of the fire as “Jowish lightning”,

the trade term for arson. | think, as obviously did the

jury, that the evidence is sufficient to infer Luick’s knowl-

edge. Cf. Blumenthal v. United States, 332 U.S. 4389

(1947).

Thirdly, the defendants argue that they were prejudiced

by the Government’s having Teny, who was the principal

8a.

Ovini

prosecution witness, immunized in open court in the pres-

ence of the jury, after he invoked the Fifth Amendment.®

They characterize the proceedings as “unnecessary drama-

ties” by which they were “extremely” prejudiced. Since

the tone and manner of the proceedings were unspectacu-

lar, am treating the defendant’s argument as an objection

to the mere occurrence of the proceedings.

To support their contention, the defendants cite United

States ex rel. Fournier v. Pinto, 408 F. 2d 539 (3rd Cir.

1969). I think Fournier is clearly inapposite. There, the

prosecution called a witness who invoked the Fifth Amend-

ment. But thereafter he was not afforded immunity, and

he did not testify. The error, it was held, was in the

creating of “inferences arising from the use of the testi-

monial privilege”. Here, no inference was created; indeed,

the affording of immunity was for the purpose of compelling

the witness’ testimony, and the witness did in fact testify.

No prejudice, then, extreme or otherwise, inured from the

immunization proceeding to the detriment of the defend-

ants.

Lastly, the defendants maintain that while as to the sub-

stantive counts the proof need be only that it could have

been reasonably expected by them that the mails would be

used, as to the conspiracy count, the proof must be that it

was actually intended and contemplated that the mails

would be used. Assuming, without holding, that to be the

5 The defendants contend in addition that the immunity request

was improperly executed. They clearly, however, have no standing

to attack the propriety of the immunity request, and consequently

their contention must be rejected, and the coincident motion to

compel admissions from the Government denied.

RE

oA LA A ae le BN Nl "pie

9a

Opin

law,° the conspiracy count was submitted to the jury on the

charge that it was a part of the conspiracy that “the con-

spirators would place and cause to be placed in the post

office and authorized depositories for mail”, matter to be

sent and handled by the post office. Aagin, then, the con-

tention is not that the charge was improper, but that the

evidence was insufficient to sustain the convictions.

The defendant’s contention ignores the duration of the

conspiracy. It was proved that it continued at least through

October 1970. And on September 29, 1970, the defendants

Jones and Petrone executed a “Sworn Statement In Proof

Of Loss” which was the same day mailed or caused to be

mailed’ by Luick to the adjuster representing the insurance

company. In Pereira v. United States, 347 U.S. 1 (1954) it

was held that an agreement to use the mails need not date

from the inception of the conspiracy, and that it is proper

to allow a jury to determine from the circumstances wheth-

er or not an intent to use the mails was shared by the con-

spirators. I think the letter of September 29, although

there is evidence of other mailings on other oceasions, is

sufficient to support the jury’s finding that it was intended

by the conspirators that the mails would be used,

An appropriate Order denying the defendant's motions

will be entered.

—

® See Pereira v. United States, 347 U. S. 1 (1954): but cf. Blue r.

United States, 138 F. 24 351 ( 6th Cir. 1943).

7 It is stated in Pereira rv. United States, supra, n. 5. that “TW Jhere

one does an act with knowledge that the use of the mails will follow

in the ordinary course of business . . . then he causes the mails to

be used.”

-_—_——_—_

10a

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ORDER.

AND NOW, to wit, this 16th day of November, 1972, in

consideration of the foregoing Opinion, IT IS ORDERED

that the defendants’ Motion For New Trial, Motion For

Arrest Of Judgment and Motion For Judgment Of Acquit-

tal all be and the same hereby are denied.

IT IS FURTHER ORDERED that the defendant’s

Motion To Compel Admissions be and the same hereby is

denied.

IT IS FURTHER ORDERED that the defendants appear

with counsel before this member of the Court in order that

sentence may be imposed on Tuesday, November 28, 1972 at

2-00 P. M. in Court Room No. 12, 10th Floor, U. S. Post

Office and Courthouse.

HUBERT I. TEITELBAUM,

United States District Judge.