U.S. v. Cross

• Decision Date: 21 October 1997
• Docket Number: No. 96-3239,Nos. 96-3239,No. 96-3241,No. 96-3240,96-3239,96-3240,96-3241,s. 96-3239
• Citation: 128 F.3d 145
• Parties: UNITED STATES of America v. Walter V. CROSS, a/k/a Bobo, Appellant inJules C. Melograne, Appellant inNunzio Melograne, Appellant into 96-3241.
• Court: U.S. Court of Appeals — Third Circuit

Page 145

128 F.3d 145

UNITED STATES of America v. Walter V. CROSS, a/k/a Bobo, Appellant in No. 96-3239 Jules C. Melograne, Appellant in No. 96-3240 Nunzio Melograne, Appellant in No. 96-3241.

Nos. 96-3239 to 96-3241.

United States Court of Appeals Third Circuit.

Argued Aug. 12, 1997.

Decided Oct. 21, 1997.

Philip A. Ignelzi (argued), Samuel J. Cordes, Michael A. Murphy, Ogg, Jones, Cordes & Ignelzi, Pittsburgh, PA, for Appellant in No. 96-3239.

J. Alan Johnson, Swensen, Peror & Johnson, Pittsburgh, PA, for Appellant in No. 96-3240.

Kevin G. Sasinoski, Pittsburgh, PA, for Appellant in No. 96-3241.

Frederick W. Thieman, U.S. Attorney, Paul J. Brysh (argued), Assistant U.S. Attorney, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: STAPLETON, GREENBERG and COWEN, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

A jury in the U.S. District Court for the Western District of Pennsylvania found Appellants Walter Cross, Jules Melograne, and Nunzio Melograne guilty of one count each of conspiracy to deprive Pennsylvania residents of their civil right to fair and impartial trial, 18 U.S.C. § 241, and conspiracy to commit mail fraud, 18 U.S.C. SS 371 and 1341. All three defendants appeal both convictions. They assert that the civil rights conviction is based on a vague and undefined theory that cannot support a criminal conviction, and that the only mailings involved were not sufficiently connected to the fraudulent scheme to bring it within the federal mail fraud statute. We hold that established precedent provided clear notice to the defendants that their agreement would constitute a conspiracy to violate a civil right of the victims of that agreement; therefore, we affirm the convictions for conspiracy to violate civil rights. We reverse the mail fraud conspiracy conviction, however, because none of the mailings contemplated in the conspiracy was undertaken "for the purpose of executing" the scheme to defraud Pennsylvania and its citizens of honest government services.

I. Background

From December 1990 through July 1993, Cross and the Melogranes conspired to "fix" cases coming before the Statutory Appeals Division of the Court of Common Pleas of Allegheny County, Pennsylvania (the "Statutory Appeals Court"). In statutory appeals, the court exercises de novo review of the decisions of courts of the "minor judiciary" on matters such as traffic offenses and municipal ordinance violations. Jules Melograne was a District Justice who presided over one of the courts of the minor judiciary. Cross was the supervisor of the Statutory Appeals Court in Allegheny County, where he performed a number of duties, including (1) determining when defendants, attorneys, and witnesses (most often police officers) were present to begin hearings, (2) controlling the order of hearings, (3) handling requests for postponements, and (4) signing pay vouchers for police officers who had appeared as witnesses. Nunzio Melograne was the "tipstaff" for the judge assigned to hear statutory appeals. He kept the court calendar, maintained the case files, called the cases, and swore the witnesses.

Viewing the evidence at trial in the light most favorable to the government, the record indicates that Cross and the Melogranes conspired to influence the decisions of the court in a variety of ways. Most frequently, they would utilize their authority and access to the decision maker to assure resolution of the case in the defendants' favor. Cross repeatedly procured the absence of police officer witnesses at hearings by telling them that they were not needed, asking them to leave, or by calling the hearings early, before the police witnesses had arrived. These tactics led to automatic not-guilty verdicts. See Pa. R.Crim. P. 86(f). Cross asked the judge not to rule on certain cases during the hearing, but to take them under advisement, or "c.a.v." After the hearings had concluded, Cross and Nunzio Melograne would accompany the judge to his chambers with the c.a.v. cases, and after fifteen to twenty minutes they would emerge with several not-guilty verdicts. FBI surveillance also recorded Cross discussing defendants being found not guilty "because Jules wants it," App. at 929, presumably referring to Jules Melograne. Witnesses reported that they had observed stars, check marks, or "c.a.v." notations by defendants' names on Cross's trial calendar before they had appeared; such defendants normally were found not guilty or received reduced sentences at their hearings. In addition, Cross was observed accepting food, tickets to sporting events, fruit baskets, and other items despite his office's policy against employees accepting gifts. Witnesses testified that the gifts had been offered in exchange for promises by Cross to reduce or eliminate citations and to influence hearings.

On other occasions, Cross and the Melogranes would work to assure that a case would be decided against the defendant--as the government called them, the "to be found guilty" cases. One witness testified that she had overheard Cross telling the judge in one case to "find this sucker guilty," and on another occasion, the defendant was found guilty after Cross's prompting to the judge even though the assistant district attorney at the hearing had attempted to withdraw the charge on the ground that the evidence did not demonstrate a violation. In yet another case, FBI agents recorded one of Cross's telephone conversations in which the husband of an accident victim called Cross and asked that the case against the woman who had caused the accident be heard first on its scheduled hearing date. In the course of their discussion, Cross asked, "You want her guilty, right?" and after the caller replied affirmatively, Cross assured him, "Guilty? No problem." App. at 915. Cross later told the victim's husband that "we'll burn her ass." App. at 925.

Nunzio Melograne also was seen speaking to police witnesses on at least one occasion before the police left the court before their hearings. In addition, he kept a notebook listing approximately 170 cases, and the name "Jules," again referring to Jules Melograne, appeared in connection with 82 of those, many of which had been marked on Cross's trial list. At least three cases in which defendants were found not guilty were marked on Cross's trial calendar and listed in Nunzio Melograne's notebook with the name "Jules." And at least three cases in which a defendant was found guilty appeared in Nunzio Melograne's notebook with the word "guilty," including the one described above where the district attorney attempted to withdraw the charge.

The government based its civil rights charge on matters in which the conspirators had procured guilty verdicts--the "to be found guilty" cases. In these cases Cross and the Melogranes, the government charged, conspired to deprive defendants appearing before the Statutory Appeals Court of their fundamental due process right to a fair hearing before an impartial tribunal. The mail fraud convictions were based on the conspirators' agreement to deprive Pennsylvania and its citizens of their own honest services as public employees. ¹ It was alleged that, in furtherance of this agreement, they caused the mail to be used to transmit notices of case dispositions to parties and the Pennsylvania Department of Transportation.

The district court properly exercised jurisdiction under 18 U.S.C. § 3231, and we invoke jurisdiction under 28 U.S.C. § 1291 to review the district court's final order of conviction. Because each of Appellants' challenges is based on the district court's construction of statutes and case law, we will exercise plenary review. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.1994).

II. Conspiracy to Violate Civil Rights

The statute under which the defendants were convicted, 18 U.S.C. § 241, makes it a crime for "two or more persons [to] conspire to injure ... any person in any state or Commonwealth ... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." The evidence indicates that Cross and the Melogranes agreed to use their best efforts to cause the judge in the "to be found guilty" cases to consider factors other than the merits of the case and to find against the defendant. Cross and the Melogranes insist that they had no fair notice that this agreement would violate § 241. Because the fundamental due process right of a defendant in a criminal case to an impartial tribunal is so well established, and because that right is so clearly subverted by an agreement of this kind, we reject the defendants' contention that they had no fair notice.

The right to a fair and impartial trial for the resolution of guilt lies at the very heart of the constitutional guarantee of due process, as the case law of the Supreme Court and this circuit reflects. In In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), a Michigan judge who had presided over a one-person "judge-grand jury" later, in separate proceedings, adjudged witnesses in contempt for their conduct before him at the hearing. Id. at 133-34, 75 S.Ct. at 624. The Supreme Court held this to be a violation of due process, opening its discussion of the law with the following passage: "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness." Id. at 136, 75 S.Ct. at 625. The Court warned that " '[e]very procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.' " Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927)). Similarly, the Court held in ...