U.S. v. Contenti, 83-1746

• Citation: 735 F.2d 628
• Decision Date: 01 June 1984
• Docket Number: No. 83-1746,83-1746
• Parties: 15 Fed. R. Evid. Serv. 1665 UNITED STATES of America, Appellee, v. Dino CONTENTI, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 628

735 F.2d 628

15 Fed. R. Evid. Serv. 1665

UNITED STATES of America, Appellee, v. Dino CONTENTI, Defendant, Appellant.

No. 83-1746.

United States Court of Appeals First Circuit.

Argued April 3, 1984.

Decided June 1, 1984.

John F. Cicilline, Providence, R.I., for defendant, appellant.

William C. Bryson, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., and Edwin J. Gale, Sp. Atty., Dept. of Justice, Providence, R.I., were on brief, for appellee.

Before BOWNES and ALDRICH, Circuit Judges, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

Appellant Dino Contenti was indicted on December 9, 1982, by a grand jury convened in April, 1982, in a multi-count indictment charging six counts of mail fraud in violation of 18 U.S.C. 1341. The theory of the government's case at trial was that appellant, the owner of a financially failing wholesale food business, burned down the building in which his business was housed in order to collect the insurance proceeds. As a result of jury trial he was convicted of six counts of mail fraud and sentenced on the first three counts to concurrent terms of three years' imprisonment. On the remaining counts the district court suspended sentence in favor of a two year term of probation.

On this appeal appellant claims the district court erroneously denied his trial motion to dismiss the indictment because Rule 6(e) of the Federal Rules of Criminal Procedure had been violated by the prosecutor improperly disclosing matters presented to the earlier grand jury that had been convened in April, 1981, and whose term had expired in October, 1982. The investigation of appellant was begun by the April, 1981, grand jury which heard the testimony of a number of witnesses and presumably obtained other evidentiary material. However, that grand jury did not complete its investigation before its term ended, and "transferred" the investigation to the successor grand jury by having the prosecutor provide the product of the first grand jury to the successor grand jury without first having a court order authorizing him to do so.

At the time of the disclosure of the matters before the first grand jury to the successor grand jury Rule 6(e)(2) provided that "an attorney for the Government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules...." Effective August 1, 1983, Rule 6(e) was amended to expressly permit a prosecutor to disclose matters occurring before a grand jury to another grand jury without a prior court order. Fed.R.Crim.P. 6(e)(3)(C)(iii); reprinted, 97 F.R.D. 248. It is noteworthy that the Advisory Committee on Criminal Rules in transmitting its proposal to amend Rule 6(e) to the Committee on Rules of Practice and Procedure stated, "Rule 6(e)(3)(C)(iv) which will be renumbered as (iii), providing for disclosure by an attorney for the government to another grand jury, has been adopted as being consistent with existing practice, although not heretofore covered by a specific rule." (Emphasis added.) 97 F.R.D. at 260. In its Advisory Committee Note, 97 F.R.D. at 269, it is reported, "New subdivision (e)(C)(iii) recognizes that it is permissible for the government to make disclosure of matters occurring before one grand jury to another federal grand jury. Even absent a specific provision to that effect, the courts have permitted such disclosure in some circumstances. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Garcia, 420 F.2d 309 (2nd Cir.1970). In this kind of situation, 'secrecy of grand jury materials should be protected almost as well as by the safeguards at the second grand jury proceedings, including the oath of the jurors, as by judicial supervision of the disclosure of such materials.' United States v. Malatesta, 583 F.2d 748 (5th Cir.1978)."

Prior to the enactment of the new rule, the Second and Fourth Circuits had upheld the practice of disclosing matters occurring before a grand jury to a successor grand jury, even without a prior court order. See, United States v. Penrod, 609 F.2d 1092, 1097, (4th Cir.1979), cert. denied 446 U.S. 917 (1980) and United States v. Garcia, 420 F.2d 309 (2nd Cir.1970). The Fifth Circuit appears to take a different view of the practice. See, United States v. Malatesta, 583 F.2d 748 (5th Cir.1978). However, as stated in Malatesta, loc. cit. 754, "Violation of Rule 6 by disclosing grand jury testimony to another grand jury does not per se invalidate an indictment. We reserve for another day whether that would be the result if there were an abuse of the grand jury process." Thus, the Fifth Circuit takes the position that dismissal is appropriate only if the defendant can show that there was such an abuse of the grand jury process that one or more substantial rights of the defendant were impaired or that the integrity of the grand jury proceedings were impugned. United States v. Phillips, 664 F.2d 971, 1043-44 (5th Cir.1981), cert. denied 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Kabbaby, 672 F.2d 857, 863 (11th Cir.1982); United States v. Malatesta, 583 F.2d at 753-54.

We have carefully examined the record before us. There is nothing in it to indicate that there was such an abuse of the grand jury process that any of the substantial rights of the defendant was impaired or that the integrity of the grand jury proceedings was impugned. In fact, the record does not demonstrate any abuse of the grand jury process or of defendant's rights.

Since appellant is not entitled to his requested relief based on his reliance on the Fifth Circuit's rulings, we are not required to decide between the views of the Second and Fourth Circuits and the Fifth Circuit on this subject. ¹

Appellant challenges the sufficiency of the evidence to convict in two respects. He argues, first, the various mailings that formed the basis of the six charges were not in furtherance of the fraudulent scheme, and, second, it was not reasonably foreseeable that the mails would be used in the execution of the scheme.

The mail fraud statute provides it is a violation of federal criminal law to use the mail in furtherance of a scheme to defraud or to obtain money by false pretenses. 18 U.S.C. 1341. Each separate use of the mails in furtherance of the scheme constitutes a separate offense. In order for a particular mailing to be within the statutorily proscribed conduct it is required that the mailing be "for the purpose of executing such [fraudulent] scheme or artifice or attempting to do so...." 18 U.S.C. 1341.

In essence the Government's charges were that appellant used the mail or caused the mail to be used six different times in furtherance of the scheme to defraud. The scheme to obtain the insurance money by false pretenses contemplated that (1) appellant would cause the premises of his business location and its contents to be insured by Lloyds of London through its agents and brokers; (2) he would thereafter cause a fire in order to cause damages to the premises and its contents; (3) he would report to or cause the reporting to Lloyds of London, its agents and brokers, the fact of the fire loss; (4) he would provide an insurance claim under the insurance policy; and (5) he would make false statements in a deposition taken of him by Lloyds of London in support of his fraudulent claim.

It is settled law that an accused causes a letter to be delivered by mail where he does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where he could reasonably foresee that use of the mails would result. It is not necessary to prove that the accused mailed anything himself, or personally received anything through the mail, or actually intended that the mail be used. United States v. Moss, 591 F.2d 428 (8th Cir.1979). The mailed letter need not itself disclose any intent to defraud. It is necessary only that the letter be a part of or incident to some essential step in the execution of the scheme. ² United States v. Maze, 414 U.S. 395, 400 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1975); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Lea, 618 F.2d 426 (7th Cir.) cert denied 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980). The fact that the scheme ultimately may not succeed does not render the mailings any less violative of the statute. See, United States v. Pecora, 693 F.2d 421, 425 (5th Cir.1982), cert. denied --- U.S. ----, 103 S.Ct. 3087, 77 L.Ed.2d 1348 (1983); DeMier v. United States, 616 F.2d 366, 369 (8th Cir.1980).

Examination of the evidence convinces that the six separate mailings were in furtherance of the scheme to defraud and that each of the mailings was made either by the appellant or caused by him to be made by his broker or by the agents and brokers of...