867 F.2d 47 (1st Cir. 1989), 87-1682, United States v. Doherty

Docket Nº:87-1682, 87-1739, and 87-1686.
Citation:867 F.2d 47
Party Name:UNITED STATES of America, Appellee, v. Thomas K. DOHERTY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Nelson E. BARNER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Nicholas SALERNO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Arthur J. PINO, Defendant, Appellant. UNITED STATES of America, Appellee,
Case Date:February 01, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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867 F.2d 47 (1st Cir. 1989)

UNITED STATES of America, Appellee,


Thomas K. DOHERTY, Defendant, Appellant.

UNITED STATES of America, Appellee,


Nelson E. BARNER, Defendant, Appellant.

UNITED STATES of America, Appellee,


Nicholas SALERNO, Defendant, Appellant.

UNITED STATES of America, Appellee,


Arthur J. PINO, Defendant, Appellant.

UNITED STATES of America, Appellee,


Robert W. CLEMENTE, Sr., Defendant, Appellant.

UNITED STATES of America, Appellee,


John A. DELIERE, Defendant, Appellant.

UNITED STATES of America, Appellee,


Gerald W. CLEMENTE, Defendant, Appellant.

UNITED STATES of America, Appellee,


Frank RAY, Defendant, Appellant.

Nos. 87-1681, 87-1740, 87-1683, 87-1685, 87-1687, 87-1688,

87-1682, 87-1739, and 87-1686.

United States Court of Appeals, First Circuit

February 1, 1989

Heard Oct. 7, 1988.

As Amended on Denial of Rehearings March 16, 1989.

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Richard M. Egbert, Boston, Mass., for defendant, appellant John A. deliere.

George F. Gormley, by Appointment of the Court, with whom Ellen A. Howard and Gormley & Keefe, Boston, Mass., were on brief, for defendant, appellant Nicholas Salerno.

Frederic C. Harris, Waltham, Mass., and John Baccari, Reading, Mass., with whom Thomas C. Troy, by Appointment of the Court, and Law Offices of Troy and Baccari, Wakefield, Mass., were on brief, for defendant, appellant Thomas K. Doherty.

MaryEllen Kelleher, for defendant, appellant Arthur Pino.

Francis K. Morris, Southboro, Mass., with whom Thomas E. Finnerty, P.C., Boston, Mass., by Appointment of the Court, was on brief, for defendant, appellant Nelson E. Barner.

Thomas P. Noone, Malden, Mass., for defendant, appellant Robert W. Clemente, Sr.

Richard E. Bachman with whom Charles E. Chase and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on brief, for defendant, appellant Gerald W. Clemente.

Thomas J. May with whom Johnson, Mee & May and John J. O'Connor, Boston, Mass., were on brief, for defendant, appellant Frank Ray.

Robert S. Mueller, III, Deputy U.S. Atty., Weston, Mass., with whom Frank L.

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McNamara, Jr., U.S. Atty., and Alexandra Leake, Asst. U.S. Atty., Boston, Mass., were on consolidated brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

These eight appeals arise from a single prosecution, of nine Boston policemen and a state legislative aide, for conspiring to steal advance copies of civil service examinations and sell them to policemen so they could cheat and obtain promotions. These eight defendants appeal from convictions for conspiracy to commit mail fraud, racketeering, and perjury. See 18 U.S.C. Sec. 371 (conspiracy), Sec. 1341 (mail fraud), Secs. 1961-68 (Racketeer Influenced and Corrupt Organizations Act (RICO)), and Sec. 1623 (perjury). The most significant legal claim (advanced by five appellants) is that the Supreme Court's recent interpretation of the federal mail fraud statute, set forth in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), decided after the appellants' trial, shows that the government tried this case using an incorrect legal theory about "fraud." Appellants add that McNally therefore requires the government to try them again.

The appellants point out that the indictment and jury instructions in this case told the jury it could find them guilty of mail fraud conspiracy under the commonly accepted, pre-McNally theory that the statute's definition of mail fraud includes within its scope an effort fraudulently to deprive citizens of honest public services. In McNally, however, the Supreme Court held that this interpretation of the mail fraud statute, 18 U.S.C. Sec. 1341, is not correct. It said that that statute "does not refer to the intangible right of the citizenry to good government." Rather, it protects only property rights; the "original impetus behind" the enactment of the statute was "to protect the people from schemes to deprive them of their money or property." Id. at 2879.

The pre-McNally indictment and jury instructions in this case contain language that McNally now holds to be erroneous. We have therefore read the record to determine whether the erroneous language prejudiced the defendants in any way. We have concluded, as did the district court in its post-trial, post-McNally review of the record, 675 F.Supp. 726, that the errors were harmless beyond any reasonable doubt. We therefore reject the appellants' McNally claims. For reasons that we shall elaborate, we reject all but one of the appellants' other legal claims as well.

I. Background

To understand this case, the reader must keep in mind the following: First, the government charged (among other crimes) both a general conspiracy to violate the mail fraud statute and several subsidiary mail fraud conspiracies. It claimed that Gerald L. CLEMENTE was the mastermind of the whole scheme, a scheme to steal copies of examinations and sell them to policemen seeking promotions. (We shall print the names of appellants in capital letters to distinguish them from other witnesses and other participants.) Thomas K. DOHERTY, Nelson E. BARNER, and Nicholas SALERNO joined CLEMENTE in the general conspiracy. The government charged Arthur J. PINO, Frank RAY, John A. DELIERE, and Robert W. CLEMENTE (whom we shall refer to as R. CLEMENTE) with having participated in separate, subsidiary conspiracies to buy particular exams, which helped them obtain promotions.

Second, the mail fraud statute in question reads as follows:

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 ..., for the purpose of executing such scheme or artifice or attempting so to do ... knowingly causes [anything] to be delivered by mail ... shall be ... imprisoned not more than five years....

18 U.S.C. Sec. 1341. The jury convicted six defendants of conspiring to violate this statute. 18 U.S.C. Sec. 371 (forbidding conspiracies "to commit any offense against

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the United States"). It also convicted one of these six of racketeering, and another for perjury. The remaining two appellants pled guilty, CLEMENTE to racketeering, and RAY to mail fraud conspiracy and perjury. Both CLEMENTE and RAY testified as witnesses at the trial of the others.

Third, appellants raise an unusually large number of separate legal arguments, almost all of which depend on a detailed examination of the record for their proper resolution. We shall discuss the record evidence and our reasoning in detail in respect to appellants' most important claims, those concerning McNally and the statute of limitations. We shall treat the remaining claims more briefly, indicating our reasons with no more than enough specificity to permit the appellants to understand the basis for our conclusions.

The evidence presented at trial consisted mainly of CLEMENTE's testimony. We shall summarize that evidence. Unless we indicate otherwise, its source is CLEMENTE's testimony:

1. CLEMENTE said that he was a Metropolitan District Commission (MDC) police officer, and an amateur locksmith. In 1976 and 1977, with the help of Richard Madden, an officer who patrolled the state's McCormack office building, CLEMENTE entered and explored the offices of the Massachusetts Department of Personnel Administration (MDPA). He learned where it kept police promotional examinations before the exams were given, and he made master keys to the locks. CLEMENTE said that DOHERTY helped him explore the MDPA offices and obtain access to the exams. CLEMENTE and DOHERTY then decided to make photocopies of upcoming exams, prepare answer sheets for the exams, and sell the exams with answers for $3000 each. Joseph Bangs, an MDC policeman, corroborated CLEMENTE's story by testifying that CLEMENTE told him he had access to the exams, as early as 1977.

2. CLEMENTE said that he and DOHERTY stole a copy of an October 21, 1977 Wilmington police sergeant exam, shortly before the exam was given. (Although CLEMENTE did not provide the exact dates when he stole various exams, other evidence showed that exam copies did not arrive at the McCormack building offices until a week or two before the exam date.) They sold the exam to Frank Thorpe, a Wilmington policeman. Thorpe testified that he bought the exam, and tried to resell it to a policeman named David McCue. McCue testified that he told his superiors about the attempt, and this led to an investigation by the state Attorney General's office.

3. CLEMENTE said that in early 1979 he entered the MDPA offices to look for information about the state investigation. He learned that the investigation "came up with nothing."

4. CLEMENTE said that he and DOHERTY stole copies of a March 3, 1979 Somerville police captain exam, an April 21, 1979 MDC sergeant exam, and an April 21, 1979 statewide sergeant exam. (On statewide exams, applicants could choose which towns' police departments, and which open positions, they wished to apply for.) They sold the Somerville exam to Arthur PINO. They gave or sold the MDC exam to Joseph Bangs, Robert CLEMENTE (Gerald's brother), Richard Nazzaro, Frederick Lebert, and Robert Spencer. Bangs testified that he paid CLEMENTE $3000 for his own exam and $3000 for Spencer's. DOHERTY himself took the statewide exam, got a high score, and obtained a promotion to sergeant in the Medford police force.

5. CLEMENTE said that, shortly after the MDC examination took place...

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