U.S. v. Margiotta

Citation646 F.2d 729
Decision Date10 April 1981
Docket NumberNo. 1279,D,1279
PartiesUNITED STATES of America, Appellant, v. Joseph M. MARGIOTTA, Defendant-Appellee. ocket 81-1084.
CourtU.S. Court of Appeals — Second Circuit

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., for appellant.

Daniel J. Hurson, Washington, D. C. (William G. Hundley, Larry S. Gondelman, Washington, D. C., and Edward Hart, Merrick, N. Y., on brief), for defendant-appellee.

Before LUMBARD and NEWMAN, Circuit Judges, and METZNER, * District Judge.

NEWMAN, Circuit Judge:

This interlocutory appeal from an order in a criminal case presents the issue of whether an indictment charging mail fraud is impermissibly duplicitous because it alleges numerous mailings in a single count. The District Court for the Eastern District of New York (Charles P. Sifton, Judge) ordered the Government to select in advance of trial one mailing on which the mail fraud count could go to the jury. From that order the Government appealed. Because of the imminence of the scheduled trial, we announced our decision at the conclusion of oral argument, reversing the District Court's order. This opinion sets forth our reasons.

Defendant Joseph M. Margiotta was at all relevant times the chairman of the Republican Committee of both Nassau County, New York, and the Town of Hempstead, New York. The grand jury indicted Margiotta on one count of mail fraud in violation of 18 U.S.C. § 1341 (1976) and six counts of extortion affecting interstate commerce in violation of 18 U.S.C. § 1951 (1976). The mail fraud count (Count One) alleged a scheme to defraud the Town of Hempstead, Nassau County, and New York State, and their citizens (1) of the right to have the affairs of the Town, County, and State conducted honestly and free from corruption, and (2) of the honest participation of Margiotta in the governmental affairs of the Town, County and State. The crux of the scheme was an arrangement whereby Town and County insurance was placed with an insurance broker (the Williams Agency) and the broker paid portions of his commissions to various persons designated by Margiotta. From 1969 to 1978 the payments are alleged to total more than $500,000, including $5,000 paid indirectly to Margiotta. Count One also alleged that numerous items were mailed in execution of the scheme from 1969 to 1979. The mailings were grouped into seven categories, e. g., "Checks for Insurance Premiums" mailed by Nassau County and Town of Hempstead to the Williams Agency. In addition the mailing of two specific letters was alleged, identified by dates of each letter and names of the sender and addressee.

By pre-trial motion Margiotta sought dismissal of Count One. 1 He alleged, among other grounds, that Count One failed to state an offense under § 1341, that the count was duplicitous for including more than one mailing, and that the count was unconstitutionally vague. In response to this motion, the Government filed a bill of particulars, signed by the foreman of the grand jury, which reported that the grand jury was providing additional specificity concerning the mailings alleged in Count One. The bill of particulars supplied details for hundreds of separately listed mailings, including dates and names of sender and addressee. It also reported the grand jury's statement that although the mails were used in furtherance of the scheme on "countless" occasions, the grand jury could not be more specific as to which items were mailed and which were not because on occasion some items were hand-delivered, even though the "normal manner of effectuating the transmittal of the items which are specified" was to mail them.

The District Court ruled that Count One stated an offense, but that a remedy was required because of the allegation of numerous mailings in a single count. Judge Sifton ordered the Government to elect within seven days of his ruling "the single mailing which the jury will be informed the Government undertakes to prove." The Government was given the option of selecting either one of the two letters specifically described in Count One or a single mailing within any one of the seven categories of mailings described in that count. 2 On motion to reconsider, the Court reemphasized "that there be a single letter that the jury considers and that the case be submitted to it on that ground." The Court advised the Government that if it identified in advance of trial a group of approximately 30 particular letters, and if at trial the Government encountered unanticipated difficulty in proving the facts concerning the one letter it had selected pursuant to the Court's direction, the Court would then "consider" whether under the circumstances then existing the Government could go to the jury on another letter from the group of 30 letters to be designated. The force of the order limiting Count One to a single mailing remained. From that order the Government appealed.

Appellate jurisdiction over this interlocutory appeal is asserted under 18 U.S.C. § 3731 (1976), which permits appeal by the United States in a criminal case from an order of a district court "dismissing an indictment or information as to any one or more counts," unless further prosecution is barred by the Double Jeopardy Clause of the Constitution. The Government acknowledges Count One has not been dismissed, but views the situation as governed by United States v. Alberti, 568 F.2d 617 (2d Cir. 1977). Alberti permitted the Government to appeal pursuant to § 3731 from a trial ruling striking portions of a one-count indictment. See also United States v. Sanabria, 548 F.2d 1, 5 (1st Cir. 1976), rev'd on other grounds, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), construing "count" in § 3731 to include "any discrete basis for the imposition of criminal liability."

We agree with the Government that each of the mailings is a "discrete basis" of criminal liability and may clearly be considered a count for purposes of § 3731. 3 What is slightly less certain is whether all of the mailings other than the single one that the District Court required the Government to elect have been "dismissed" within the meaning of § 3731. In Alberti and Sanabria, the order appealed from had ruled portions of a count legally invalid. By contrast, Judge Sifton's ruling in this case implies that every one of the mailings is a valid basis for conviction because it permits the Government to elect to proceed on any one of them. Nevertheless, we conclude that the election the Government was obliged to make would have effectively dismissed all of the mailings other than the one the Government would have selected. Unlike an election for misjoinder of counts, which leaves the Government free to proceed upon the severed counts in a subsequent prosecution, the election here would not have permitted the Government to "sever" each of the other mailings and prosecute them subsequently as separate counts. Since each of the counts thus separated would constitute a separate offense, normally carrying penalties capable of being imposed consecutively, Albernaz v. United States, -- U.S. --, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), a defendant could not be subjected to such liability in the absence of an indictment setting forth multiple counts. The Fifth Amendment assures the defendant that the grand jury will consider how many counts to include in an indictment. A prosecutor could not circumvent this protection by inviting a grand jury to include several offenses in one count and then, after being obliged to elect a single offense, prosecute the other offenses as separate counts. The Government seeks no such authority here. Its characterization of this case as "simply indistinguishable" from Alberti (Govt. Br. 17) implicitly recognizes that prosecution for all of the mailings, other than the one selected, has been as effectively barred by Judge Sifton (absent re-indictment) as was prosecution on the portions of the count "struck" by the District Court in Alberti. We therefore conclude that Judge Sifton's order is appealable pursuant to § 3731. 4

In assessing the merits, we must set forth additional facts that unfolded during the course of this appeal. At oral argument on March 20, the Government was asked whether it was asserting the right to include within a single count all of the letters set forth in the indictment. In response, the Government offered to limit Count One to 50 mailings, to be selected from those previously identified in the grand jury's bill of particulars. On March 24, the Government supplied defendant with a list of 50 mailings, identified as to content, sender, addressee, and approximate date of mailing. Of these 50 mailings, 47 had been identified to appellant on March 18. At oral argument appellant acknowledged that the detail concerning those 47 mailings provided sufficient notice. The three mailings added on March 24 are identified in equal detail. Thus the issue is whether these 50 mailings may be included in a single count.

We have recognized that "(i)f the doctrine of duplicity is to be more than an exercise in mere formalism, it must be invoked only when an indictment affects the policy considerations" that underlie that doctrine. United States v. Murray, 618 F.2d 892, 897 (2d Cir. 1980). These include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice,...

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