U.S. v. Mandel
| Decision Date | 05 June 1979 |
| Docket Number | Nos. 77-2487,s. 77-2487 |
| Citation | 602 F.2d 653 |
| Parties | UNITED STATES of America, Appellee v. Marvin MANDEL, Appellant. UNITED STATES of America, Appellee, v. W. Dale HESS, Appellant. UNITED STATES of America, Appellee, v. Harry W. RODGERS, III, Appellant. UNITED STATES of America, Appellee, v. William A. RODGERS, Appellant. UNITED STATES of America, Appellee, v. Irvin KOVENS, Appellant. UNITED STATES of America, Appellee, v. Ernest N. CORY, Jr., Appellant. to 77-2492. . Heard En Banc |
| Court | U.S. Court of Appeals — Fourth Circuit |
Arnold M. Weiner, Baltimore, Md., for appellant Marvin Mandel (Eugene Gressman, School of Law, University of North Carolina, Chapel Hill, N. C., on brief), for appellants in 77-2487 through 77-2491; (D. Christopher Ohly, M. Albert Figinski, Baltimore, Md., on brief), for appellant Marvin Mandel; (William G. Hundley, Washington, D. C., on brief), for appellant W. Dale Hess; (Thomas C. Green, William W. Taylor, III, Washington, D. C., on brief) for appellant Harry W. Rodgers, III (Michael E. Marr, Baltimore, Md., on brief), for appellant William A. Rodgers; (Norman P. Ramsey, William F. Gately, Baltimore, Md., on brief), for appellant Irvin Kovens; (Charles G. Bernstein and Michael Schatzow, Baltimore, Md., William C. Brennan, Jr., DePaul, Willoner & Kenkel, College Park, Md., on brief), for appellant Ernest N. Cory, Jr..
Daniel J. Hurson, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Barnet D. Skolnik and Elizabeth H. Trimble, Asst. U. S. Attys., Baltimore, Md., on brief), for appellee United States of America.
Before HAYNSWORTH, Chief Judge, and BUTZNER, RUSSELL, WIDENER, HALL and PHILLIPS, Circuit Judges, sitting En banc.
The judgments of conviction are affirmed by an equally divided court.
A majority of the members of the En banc court would affirm the judgments of conviction against all of the contentions of the appellants except the claim of error in the charge to the jury which was the point upon which there was equal division.
AFFIRMED.
I respectfully dissent for all of the reasons discussed in the majority opinion of the panel, United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979), and would add the following additional comments.
The point of difference on which the en banc court is evenly divided relates to the denial by the trial judge of requested instructions. As indicated in the panel opinion, I would have reversed because of what I consider error in failing to give a bribery instruction in connection with the mail fraud counts of the indictment, and also for failure to give an instruction concerning Governor Mandel's knowledge of other defendants' financial interests. Without de-emphasizing the latter, I think that affirming despite the lack of a bribery instruction for the mail fraud counts is so far from settled precedent that the reasoning should be stated in the opinion of the court. On that account, I state my reasons for considering such denial reversible error.
The mail fraud counts of the indictment had for a substantive basis a charge of bribery. However carefully one may comb the record, one can unearth no basis for wrongdoing by All the defendants, 1 which would be violative of the mail fraud statute, other than the charge of the acceptance on the part of defendant Mandel and the giving by the other defendants of a bribe or bribes. It is clear that such bribery was an essential element of the crime stated in the mail fraud counts of the indictment. 2
Such was the construction given the indictment at the first hearing before Judge Murray, when one of the issues was a construction of the charges in the indictment. Judge Murray's ruling on this point was clear:
United States v. Mandel, 415 F.Supp. 997, 1005 (D.Md.1976) (Emphasis added).
And that ruling accorded with the position taken by the government itself at the hearing.
At the first trial, the government asserted that bribery was at the heart of its mail fraud prosecution. Thus, counsel for the government at that trial stated to the jury:
"Ask yourselves the question, as the evidence comes in, did the benefits that these men were giving to Marvin Mandel really have nothing to do with the benefits that they wanted to get out of the State Government and that to a substantial extent they were getting out of the State Government because that is the question Ultimately that you are going to have to be deciding." (Emphasis added)
And throughout and until the end of the second trial, although the government may have begun to shift its position with regard to bribery in connection with the mail fraud counts of the indictment, it continued to emphasize the importance of bribery in connection with those counts by introducing a mass of evidence on the alleged flow of benefits to Governor Mandel from the other defendants in return for official preference, without limiting such evidence to the racketeering counts of the indictment. The pervasive influence of bribery on the whole case is shown by the charge of the trial court to the jury with respect to the mail fraud counts, when, although it had just refused the bribery instruction of the defendants with respect to the mail fraud counts, in stating the charge against the defendants, it related the charge that Governor Mandel had not performed his office "free from bribery." The government at that time did not disclaim the bribery charge, as in fact it should have as a matter of common fairness if indeed it had abandoned the charge. Rather, it stayed silent when it had a duty to speak, and thus had its cake and ate it too.
Despite all this background, the government strenuously objected to any bribery instruction in connection with the mail fraud counts, as requested by the defendants at the conclusion of the testimony. Contrary to the position taken by it essentially at all times prior, the government argued that bribery was not an element of the mail fraud charges and that it was improper to include a bribery instruction in connection with the mail fraud counts. The trial judge accepted this argument and denied the requested instruction.
Even in argument to the jury, counsel for the government argued that bribery was not relevant to the mail fraud counts. They did this on the basis of the trial judge's ruling denying defendants' requested instruction.
On this appeal, however, the government has made a complete flip-flop. It now concedes contrary to its argument to the trial judge at trial, not to mention to the jury that bribery is included in the charge under the mail fraud counts. But, contrary to its position at trial when it induced the trial judge to deny the defendants' request for a bribery instruction, it argues on this appeal that there was no error in the denial of an instruction on bribery under the mail fraud counts because:
(a) The trial judge did define bribery in connection with the racketeering counts and this was sufficient (1) to tell the jury what bribery was and (2) to tell the jury that bribery was included in the mail fraud counts (even though the trial judge specifically refused to so instruct the jury at the instance of the Government itself); and
(b) The trial judge did tell the jury, in summarizing the positions of the parties, that the defendants denied bribery.
This argument was accepted by those of my brothers who would affirm the judgment.
I cannot accept the argument. The government cannot blow hot and cold at the same time. It cannot argue that bribery is not involved in the mail fraud counts at trial and secure a ruling to that effect from the trial judge in connection with the jury instructions and use that ruling as a basis for the argument to the jury that the "whole concept of bribery is relevant only in Counts 21 and 23" (the racketeering counts), and then on appeal shift completely its position and contend that an instruction on bribery was to be treated as having been given, even though such an instruction was not only not included in the instruction on the mail fraud counts but had been specifically ruled to be improper. I cannot agree to such sophistry in a case where a defendant's right to a fair trial is involved.
The government and the trial judge agreed that bribery was an element in the crime charged in the racketeering counts. For that reason, a bribery instruction was given in connection with those counts. Neither the government nor the trial judge...
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