U.S. v. Pintar

• Decision Date: 02 September 1980
• Docket Number: 79-2060,Nos. 79-2059,s. 79-2059
• Parties: 6 Fed. R. Evid. Serv. 1132 UNITED STATES of America, Appellee, v. Michael A. PINTAR, Appellant. UNITED STATES of America, Appellee, v. Barbara PINTAR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1270

630 F.2d 1270

6 Fed. R. Evid. Serv. 1132

UNITED STATES of America, Appellee, v. Michael A. PINTAR, Appellant.

UNITED STATES of America, Appellee, v. Barbara PINTAR, Appellant.

Nos. 79-2059, 79-2060.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1980.

Decided Sept. 2, 1980.

William J. Mauzy, Minneapolis, Minn., for appellant, Barbara Pintar.

Peter J. Thompson, Delaney & Thompson, Ltd., Minneapolis, Minn., argued, John W. Lundquist, Minneapolis, Minn., on brief, for appellant Michael Pintar.

Andrew J. Reich, Dept. of Justice, Public Integrity Section, Criminal Div., Washington, D.C., argued, for appellee. Philip B. Heymann, Asst. Atty. Gen., and Nancy L. Simmons, Atty., Washington, D.C., S. Cass Weiland, Atty., U.S. Dept. of Justice, Washington, D.C., on brief, for appellee.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, ^* Senior District Judge.

LAY, Chief Judge.

Michael and Barbara Pintar were convicted of conspiracy to defraud the United States, 18 U.S.C. § 371, violation of the Hatch Act, 18 U.S.C. § 600, and four counts of embezzlement, 42 U.S.C. § 3220. Michael Pintar was also convicted of seven counts of mail fraud, 18 U.S.C. § 1341. ¹ Michael Pintar was given concurrent sentences of five years of imprisonment for conspiracy, embezzlement and mail fraud and a one year concurrent sentence for the Hatch Act violation. Barbara Pintar received concurrent sentences of 30 months for conspiracy and embezzlement and a 12 month concurrent sentence for violation of the Hatch Act. All but six months of Barbara Pintar's sentence were suspended.

The Pintars jointly and severally attack the sufficiency of the indictment, the sufficiency of the evidence and the prejudicial effect of evidence of a kickback scheme not charged in the indictment. ² We vacate the conviction of Michael Pintar on counts II-VII involving mail fraud violations on the ground that the evidence was insufficient to sustain the convictions. We find the evidence was sufficient to convict Michael of mail fraud on count VIII and sufficient to convict both Michael and Barbara Pintar for violation of the Hatch Act. We likewise find sufficient evidence to convict both defendants for conspiracy to defraud the United States and four counts of embezzlement. However, we find that both defendants were denied a fair trial due to the overall effect of prejudicial evidence; we remand for a new trial for both defendants.

The Upper Great Lakes Regional Commission (Commission) is a federally-funded agency designed to encourage economic development in certain areas of Minnesota, Wisconsin and Michigan. The Commission consists of one federal member, known as the federal co-chairman, and three state members, the governors of the three states. 42 U.S.C. § 3182(b). Each governor is authorized to appoint an alternate to the Commission. 42 U.S.C. § 3182(d). The governors and their alternates are compensated from state funds. 42 U.S.C. § 3182(e).

The Commission provided funds for each governor to appoint a principal staff person to work on that state's regional commission program. Michael Pintar was hired with these funds as Minnesota's governor's representative to the Commission from 1971 to 1977. He was responsible for initial review of grant proposals and recommendation of projects for funding. His assistant project director, also involved in project evaluation, was Freeman Johansen. Barbara Mategko was employed in 1971 as a secretary for the Commission; she married Michael Pintar in May 1972. The salaries for Johansen and Barbara Pintar were paid directly by the Commission rather than through a grant to the state.

The projects funded by Commission grants included the Northern Minnesota Small Business Development Center (NMSBDC) and Duluth Area Economic Development (DAED). NMSBDC's director was Donald C. Boyd. DAED was directed by Robert Beaudin from December 1973 until his appointment as Mayor of Duluth in January 1975. Michael Pintar then appointed Donald Boyd to fill the DAED vacancy.

Boyd's organizations received approximately $1 million in Commission funds from 1971 to 1977. These grants were given with the recommendation of Michael Pintar, and the grantee was directly responsible to Michael Pintar. Barbara Pintar kept NMSBDC's financial records and was a signatory on NMSBDC's checking account. This was the only grantee for which she wrote checks. On several occasions, NMSBDC hired James Manos as a consultant. Checks to Manos for $11,000 and $25,000 were introduced into evidence; these checks were signed by Mrs. Pintar. ³

The Pintars and Johansen had offices in a suite in Duluth, Minnesota which they shared with DAED and the Area Redevelopment Administration (ARA), a state-funded economic development agency. Barbara Pintar and the secretaries for DAED, ARA, and NMSBDC shared a common work area in the suite. There was evidence that the Pintars were involved in the hiring and supervision of several secretaries for these other agencies.

The indictment and the evidence at trial focused primarily on allegations that Commission funds were used to pay for partisan political activities. The conspiracy count alleged that the Pintars:

(K)nowingly and willfully combine(d), conspire(d), confederate(d) and agree(d) . . . to defraud the United States of its right to have programs of an agency financed . . . by the United States Government, namely, the Upper Great Lakes Regional Commission, administered honestly, fairly, without corruption or deceit, and free from the use of federal funds to accomplish political objectives, for personal uses, or for other purposes unrelated to legitimate Commission business.

The mail fraud counts alleged a similar effort that included state funds. Both the conspiracy and mail fraud counts enumerated certain activities in furtherance of these schemes, and there was extensive testimony at trial to support many of these allegations. These descriptions of the schemes did not refer to kickbacks.

The Hatch Act count alleged that Sharon Backstrom was hired by the Pintars as a secretary for NMSBDC in consideration for performing political work. The embezzlement counts charged that office space, federal grants, state funds and the services of agency secretaries Shirley Baker, Sheila Ballavance, and Sharon Backstrom were diverted for political functions.

Although we find that there is sufficient evidence to sustain one mail fraud conviction, as well as the Hatch Act, embezzlement and conspiracy convictions, particularly in view of the equivocal evidence on some of those counts, we have concluded defendants' challenge to the overall fairness of their trials based upon the government's introduction of improper evidence requires us to reverse the convictions and grant new trials.

A. Conspiracy.

The indictment alleges the conspiracy included improper travel claims by Michael Pintar; funding recommendations by Michael Pintar for the Boyd organizations; the hiring of secretaries Shirley Baker and Sharon Backstrom by the Pintars; the hiring of secretary Ann Zweber by Michael Pintar; the Pintars' instructions to Baker, Backstrom and Zweber to perform political functions; political work by the Pintars themselves; and concealment of political activity by the Pintars. The indictment then listed twelve overt acts in furtherance of this scheme. These include the trips by Michael; the interview of Baker by Barbara and her hiring by Michael; Baker distributing Democratic Farmer Labor Party (DFL) raffle tickets, typing DFL precinct caucus lists, collecting Anderson gubernatorial contributions, assisting with an "Octoberfest" campaign function for James Oberstar, and preparing Mayor Beaudin's inaugural invitations, all on the Pintars' directions; and Barbara's offer of employment to Sharon Backstrom and use of Backstrom to obtain lists and address and stuff envelopes for Thomas Berkelman's legislative campaign.

1. Existence of a Conspiracy.

Under 18 U.S.C. § 371 conspiracy is defined as an agreement to commit an offense or to defraud the United States, attended by an act of one or more of the conspirators to effect the object of the conspiracy. See United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971). The agreement need not be formal or express, United States v. McCarty, 611 F.2d 220, 222 (8th Cir. 1979), cert. denied, 4452 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 764 (1980); United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974), and may consist of nothing more than tacit understanding, Nilva v. United States, 212 F.2d 115, 121 (8th Cir.), cert. denied, 348 U.S. 825, 75 S.Ct. 40, 99 L.Ed. 650 (1954). The existence of the agreement may be shown by circumstantial evidence, including the conduct of the conspirators and any attending circumstances, particularly circumstances indicating that the defendants "acted in concert to achieve a common goal," Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974). See United States v. Cox, 580 F.2d 317, 323 (8th Cir. 1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979); United States v. White, 562 F.2d 587, 589 (8th Cir. 1977); United States v. Hutchinson, 488 F.2d at 490. Although the defendants need not have knowledge of every detail or phase of a conspiracy, the evidence must show that the conspirators agreed to the "essential nature" of the conspiracy. Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947); United States v. McCarty, 611 F.2d at 222; United States v. Rosenblatt, 554 F.2d 36, 39 (2d Cir. 1977). ⁴

On review, the evidence of agreement must be viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and the court must accept all reasonable inferences...