U.S. v. Mangieri

• Decision Date: 23 November 1982
• Docket Number: No. 82-1294,82-1294
• Citation: 224 U.S.App.D.C. 295,694 F.2d 1270
• Parties: UNITED STATES of America v. Nicholas J. MANGIERI, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1270

694 F.2d 1270

224 U.S.App.D.C. 295

UNITED STATES of America v. Nicholas J. MANGIERI, Jr., Appellant.

No. 82-1294.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 16, 1982.

Decided Nov. 23, 1982.

Lynne Bernabei, Washington, D.C. (appointed by the Court), for appellant.

Katherine Winfree, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., at the time the brief was filed, Judith Hetherton and Charles H. Roistacher, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before WRIGHT, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Nicholas J. Mangieri appeals his conviction by a jury on nine counts of making false statements on applications for loans from a federal credit union, in violation of 18 U.S.C. Sec. 1014. Appellant attacks his conviction on six grounds:

(1) selective prosecution;

(2) illegal amendment of the indictment during trial;

(3) an improper jury instruction on unanimity;

(4) failure to suppress illegally obtained evidence;

(5) failure to grant a new trial on the ground of newly discovered evidence; and

(6) materials withheld in violation of the Brady rule.

After painstaking review, we reject all six arguments and affirm the judgment of the district court.

I. BACKGROUND

This prosecution took place against a bureaucratic backdrop of fierce infighting, threatening accusations, and "whistleblowing" claims within the Department of Labor's (DOL) Office of the Inspector General. Because of the potential for abuse inherent in the prosecution of a disgruntled employee for a relatively minor crime, we reviewed the record of this case with particular care. As a result of that review, we find no reversible error--despite any concerns we may have about the government's extensive allocation of resources to this case, and the summary manner in which the district court handled some of appellant's objections.

Appellant began working at DOL as a criminal investigator on July 2, 1978. Trial transcript (Tr.) at 220, 313. ¹ Facing numerous expenses after a period of unemployment and relocation, id. at 335, appellant promptly applied to the Department of Labor Federal Credit Union (DOLFCU) for nine small loans between July 5, 1978, and October 1, 1979. On all nine loan applications, appellant failed to disclose thirteen outstanding debts (totaling over $30,000), as well as the fact that he had twice "taken bankruptcy." ² He listed other debts amounting to about $5,500. Id. at 221. DOLFCU granted appellant four loans, totaling approximately $7,300. Id. at 219-36. Appellant has made the payments due on these loans through payroll deductions. See 2-11-82 Tr. at 7.

On January 15, 1981, a grand jury indicted appellant on nine counts of making a false statement to a federal credit union for the purpose of obtaining a loan--one count for each loan application. R. at 1:1-3; see 18 U.S.C. Sec. 1014. At the jury trial, which began on April 27, 1981, appellant acknowledged the existence of the thirteen debts listed in the indictment, and that he had twice been declared bankrupt. Appellant's Opening Brief at 6. His defense was that he had not intended to defraud the DOLFCU. He testified that he did not list certain debts from Alaska because he had a "mental block" about that period of his life. Tr. at 335-36. He ignored other debts because he believed that property had been sold or repossessed to satisfy them, that debts "written off" by the lender were no longer legal obligations, and in one case that a judgment against him for money was not final. Id. at 343-53, 371-76, 387-93, 406, 437, 441-43. He also testified that he did not believe it necessary to report the bankruptcies because a lawyer had told him that they were legally expunged from the record after seven years. Id. at 336, 415-16. Appellant offered experts in psychiatry and bankruptcy law to support portions of his testimony.

On May 1, 1981, after a five-day trial, the jury convicted appellant on all nine counts. Appellant filed his first motion for a new trial on May 15, 1981; the court denied this motion on May 28. ³ On November 3-4, 1981, the court conducted an evidentiary hearing on appellant's motion to dismiss for selective prosecution. Appellant made this motion prior to trial, but the court delayed the hearing so that it would have the benefit of the Internal Revenue Service's (IRS) independent investigation of appellant's charges. ⁴ On February 3, 1982, the district court denied the selective prosecution motion. R. at 32:4. On February 11, the court suspended the imposition of sentence and placed appellant on probation for two years. Id. at 34:1. Appellant filed a second motion for new trial on February 19, 1982, this time on the ground of newly discovered evidence. The court denied this motion without hearing on March 8. Id. at 41:1. Appellant then appealed his conviction to this court. Each of his six contentions are discussed below.

II. SELECTIVE PROSECUTION

Appellant asserts first that the trial court erred in denying his motion to dismiss the indictment on the ground of selective prosecution. To prevail on a defense of selective prosecution, appellant has to prove both that he was singled out for prosecution among others similarly situated and that the decision to prosecute was improperly motivated. Attorney General v. Irish People, 684 F.2d 928, 932 (D.C.Cir.1982) (per curiam); United States v. Wilson, 639 F.2d 500, 503 (9th Cir.1981); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). This is a rigorous test; "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). To show improper motivation, appellant has to establish "that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification," id.; United States v. Diggs, 198 U.S.App.D.C. 255, 613 F.2d 988, 1003 (1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980), or was designed to prevent or paralyze his exercise of constitutional rights, Irish People, 684 F.2d at 932 n. 11 (quoting Berrios, 501 F.2d at 1211); Wilson, 639 F.2d at 503-04.

Appellant asserts that he was prosecuted in retaliation for "whistleblower" activities protected by the first amendment. Those activities, however, were only strands in a tangled web of acrimonious accusations between appellant and his supervisors in the Inspector General's Office. A brief exposition of this intrigue is necessary to understand the theory of appellant's defense.

In July 1978, appellant started work as an investigator with DOL's Office of Special Investigations, which became the Inspector General's Office later that year. He experienced no difficulties until Marjorie Knowles became Inspector General of DOL in early 1979. H. Tr. at 86-90. Appellant asserts that his troubles with Knowles and others began soon thereafter as a result of his investigation of sexual harassment in the Comprehensive Employment Training Program (CETA), and in particular, his probe of District of Columbia CETA programs. He alleges that when his investigation turned toward prominent local officials his supervisors told him to slow down, impeded his work by shifting him from a field office to the headquarters office, charged him with minor violations of departmental rules, and prevented him from testifying before a Senate subcommittee. Id. at 90-100. After the chief auditor of the Inspector General's Office told appellant that Knowles had terminated an audit of CETA and Youth Pride, see id. at 100-01, 209, a program with which Mayor Marion Barry, Jr. had been affiliated previously, appellant filed obstruction of justice charges against Knowles and others with the Attorney General. Id. at 102. According to appellant, when the press printed the story of the "coverup," his supervisors harassed him further, removed him from the case, and reassigned him to "menial workmen's compensation duties." Id. at 102-08. He also asserts that he received an implicit threat that he would be fired if he did not stop talking to the press. Id. at 121-22.

The CETA investigation was not the only source of friction between appellant and his supervisors. Late in February 1980, appellant said he received a tip that Ronald Goldstock, the Deputy Inspector General, had used travel vouchers improperly. Without informing his supervisors, appellant obtained Goldstock's travel vouchers, examined them, and referred the information to the FBI (which did not subsequently bring charges). He was later interrogated by a supervisor about these acts, his office safe was "ransacked," and a supervisor and another agent came to appellant's home to relieve him of his "credentials," pursuant to a written request by Goldstock. Id. at 108-14. Appellant was then relieved of his investigative responsibilities and reassigned to duty as a legislative analyst. Id. at 116.

As a culmination to this conflict, appellant claims that his supervisors instigated an intensive investigation into his background in order to "get him." That investigation, he asserts, produced the evidence about deficiencies on his credit union loan applications that formed the basis of his indictment. To support his claim, appellant points out that the officers of the DOLFCU had not requested his referral for criminal prosecution. App. at 62-63, 163-65. Indeed, one officer did not know of any other criminal referral from the credit union for a fraudulent loan application during his fourteen years of service, id. at 163-64, and former United States Attorney Charles F.C. Ruff. recalled only two prosecutions under 18 U.S.C. Sec. 1014 during his term, id. at 193.

The government dismisses appellant's claims as figments of an overactive imagination and a disputatious...