Gradsky v. United States

• Decision Date: 29 May 1967
• Docket Number: No. 19974.,19974.
• Citation: 376 F.2d 993
• Parties: Norman GRADSKY, George Levine, B. J. Gradsky, Robert B. Roberts, Alfred Schiff, Robert Grene, Leonard L. Glaser and E. E. Gibbons, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 993 (1967)

Norman GRADSKY, George Levine, B. J. Gradsky, Robert B. Roberts, Alfred Schiff, Robert Grene, Leonard L. Glaser and E. E. Gibbons, Appellants, v. UNITED STATES of America, Appellee.

No. 19974.

United States Court of Appeals Fifth Circuit.

May 2, 1967.

Rehearings Denied May 29, June 5 and June 29, 1967.

E. David Rosen, Miami, Fla., for Norman Gradsky and B. J. Gradsky.

Max Lurie, Leonard R. Mellon, Miami, Fla., for George Levine.

Thomas F. Call, Los Angeles, Cal., for Robert B. Roberts.

A. Allen Saunders, New York City, for Alfred Schiff.

Robert Grene, pro se.

Sam E. Murrell, Jr., Orlando, Fla., for E. E. Gibbons.

J. Michael Gottesman, Atty., S. E. C., Washington, D. C., William A. Meadows, Jr., U. S. Atty., Miami, Fla., Herbert Edelhertz, Chief, Fraud Section, Dept. of Justice, Mahlon M. Frankhauser, Atty., S. E. C., Washington, D. C., for appellee.

Before COLEMAN and DYER, Circuit Judges, and ESTES, District Judge.

DYER, Circuit Judge:

Appellants were tried and convicted by a jury in the District Court for violating the anti-fraud provisions of the Securities Act of 1933, 15 U.S.C.A. § 77q(a), the Mail Fraud Statute, 18 U.S.C.A. § 1341, and for conspiring to violate those laws, 18 U.S.C.A. § 371.

The indictment charged the appellants with a fraudulent scheme to offer and sell promissory notes of Credit Finance Corporation to the public by use of the mails, and then divert the investors' funds to the appellants' personal use. Numerous false and misleading statements by the appellants induced people to purchase the notes. Count one of the indictment alleges in detail the fraudulent scheme. Each of the succeeding eight substantive counts alleges a separate employment of the scheme on a different investor by use of the mails. Count ten alleges a conspiracy to do the acts charged in Counts one through nine.

The jury found each appellant guilty on all ten counts. This court in Gradsky v. United States, 5 Cir., 1965, 342 F.2d 147, reversed sub. nom. Levine v. United States, 1966, 383 U.S. 265, 86 S.Ct. 925, 15 L.Ed.2d 737, affirmed the convictions of Norman Gradsky, B. J. Gradsky, Gertrude Hogue, Robert Grene, George Levine and Leonard L. Glaser. It affirmed the conviction of Robert B. Roberts as to Counts 3, 6, 8 and 10 and reversed as to the remaining Counts 1, 2, 4, 5, 7 and 9; it affirmed the conviction of Alfred Schiff as to Counts 2, 8, 9 and 10 and reversed as to the remaining Counts 1, 3, 4, 5, 6 and 7; and it affirmed the conviction of E. E. Gibbons as to Counts 6 and 10 and reversed as to the remaining Counts 1, 2, 3, 4, 5, 7, 8 and 9.

Appellants Levine, Roberts, Grene, Norman Gradsky and B. J. Gradsky petitioned the Supreme Court for and were granted writs of certiorari, and as to them this court's mandate was stayed. Appellants Gibbons, Hogue, Schiff and Glaser did not petition for certiorari, and this court's mandate issued as to them on April 22, 1965, so they are now serving their sentences. Before reaching the merits, therefore, we must decide whether the appellants as to whom the mandate has already issued may be heard in this remand proceeding.¹

Usually the issuance of a mandate by this court means that the litigation has come to an end. Hines v. Royal Indemnity Co., 6 Cir., 1958, 253 F.2d 111. This court can, however, recall its mandate to prevent injustice.² Rules of the Fifth Circuit Court of Appeals, Rule 32; Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374; 28 U.S.C.A. § 452. In view of the unusual circumstances of this case, the government's expression of non-opposition, and our desire to avoid further protracted litigation by appellants not presently participating in this remand proceeding, we recall our mandate as to appellants Gibbons, Schiff and Glaser and allow them to join in this proceeding.

The Supreme Court granted the petitions for writs of certiorari "* * * limited to the issue whether petitioners were improperly convicted of substantive offenses committed by members of the conspiracy before petitioners had joined the conspiracy or after they had withdrawn from it." The petitions were denied in all other respects. Levine v. United States, 383 U.S. at 266, 86 S.Ct. at 926. In disposing of the case the Supreme Court said:

"In response to specific questions addressed by this Court, the Solicitor General has made a two-pronged concession: First, he concedes that an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy; and second, he concedes that in this case some of the convictions for the substantive offenses must be reversed because they are inconsistent with this principle.1 On the basis of this concession, and upon consideration of the entire record, we vacate the judgment of the Court of Appeals insofar as it affirms petitioners\' convictions for the substantive offenses. We remand the case to that court with instructions to reverse the convictions the Solicitor General concedes must be reversed, and to determine, in light of the concession, the evidence, the instructions to the jury, and the applicable principles of law, whether in addition to the relief conceded by the Solicitor General petitioners are entitled to further relief regarding the convictions for the substantive offenses." Id. at 266-267, 86 S.Ct. at 926. Footnote omitted

The Solicitor General conceded that appellant Levine's convictions on Counts 1, 3, 4, 5, 6, 7 and 8, and appellant Grene's convictions on Counts 1 and 7 must be reversed; therefore, this court on remand reversed the convictions on the stated counts and vacated the sentences; denied a motion by the Gradskys to remand to the District Court; and directed all of the appellants to file motions urging such further consideration as they might deem appropriate.

Notwithstanding the limited issue upon which the writs of certiorari were granted and thus our narrow scope of review on this remand, the appellants seek a re-review of alleged errors presented to and decided by us on the appeal³ and attempt to assert now for the first time other errors, none of which are within the purview of the mandate of the Supreme Court. Except that which we are mandated to review, our previous rulings are the law of the case and will not now be reconsidered. United Industrial Workers v. Board of Trustees of Galveston Wharves, et al., 5 Cir., 1966, 368 F.2d 412. We thus direct our attention to whether, in light of the Solicitor General's concession as to applicable legal principles, the members of the conspiracy "are entitled to further relief regarding the convictions for the substantive offenses."

In determining whether the evidence is sufficient to sustain a conviction on the substantive offenses we must view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Ruiz et al. v. United States, 5 Cir., 1967, 374 F.2d 619 (March 24, 1967). A party to a conspiracy is liable as a principal for all offenses committed in furtherance of the conspiracy while he is a member of it. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, but a latecomer cannot be convicted as a principal for substantive offenses which...