United States v. Mandel

• Decision Date: 21 January 1977
• Docket Number: Crim. No. 75-0822.
• Citation: 431 F. Supp. 90
• Parties: UNITED STATES of America v. Marvin MANDEL et al.
• Court: U.S. District Court — District of Maryland

431 F. Supp. 90

UNITED STATES of America v. Marvin MANDEL et al.

Crim. No. 75-0822.

United States District Court, D. Maryland.

January 21, 1977.

COPYRIGHT MATERIAL OMITTED

Barnet D. Skolnik, Ronald S. Liebman, Daniel J. Hurson, Asst. U. S. Attys., Baltimore, Md., for the U. S.

Arnold M. Weiner, M. Albert Figinski, D. Christopher Ohly, Baltimore, Md., for defendant Mandel.

William G. Hundley, Carey M. Feldman, Washington, D.C., for defendant Hess.

Thomas C. Green, William W. Taylor, III, Washington, D.C., for defendant Harry Rodgers.

Michael E. Marr, Phillip M. Sutley, Susan Myerberg, Baltimore, Md., for defendant William Rodgers.

Joseph A. DePaul, College Park, Md., Charles G. Bernstein, Baltimore, Md., for defendant Cory.

Norman P. Ramsey, William F. Gately, Baltimore, Md., for defendant Kovens.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Defendants have filed a number of motions and supporting memoranda since a mistrial was declared in this case on December 7, 1976. The Government has filed responses to each defense motion and has moved for a prompt retrial and a consolidation of the trial of defendant Kovens with the trial of the other defendants. The Court carefully examined the motions and briefs of all parties, and on January 12, 1977, heard oral arguments on all pending motions. On that date the Court issued an Oral Memorandum from the Bench concerning those motions and set a trial date of April 13, 1977. This Memorandum supplements the Memorandum issued from the Bench.

History of the Case

A special grand jury for the District of Maryland returned a twenty-four count indictment on November 24, 1975, against Marvin Mandel (the present Governor of Maryland), Irvin Kovens, Ernest N. Cory, Jr., W. Dale Hess, Harry Rodgers, III, and William Rodgers. The defendants were charged with twenty counts of mail fraud under 18 U.S.C. § 1341, and various combinations of the defendants were charged in four separate counts with violating the anti-racketeering statutes, 18 U.S.C. § 1961 et seq.

The case originally was assigned to the Honorable Herbert F. Murray of the United States District Court for the District of Maryland. Arraignments were conducted on December 4, 1975, and each defendant entered a plea of not guilty. Judge Murray, in several comprehensive Memorandum Opinions, ruled on approximately twenty-five pretrial motions between December of 1975 and May of 1976. Judge Murray's rulings included, among other things, the dismissal of count 22 of the indictment and the striking of paragraph 12 of the indictment. A number of the motions presently before the Court are renewals of motions previously made before Judge Murray.

After a ruling by the Fourth Circuit Court of Appeals, the Honorable John H. Pratt of the United States District Court for the District of Columbia was designated to preside over the trial in Baltimore.¹ Judge Pratt ruled on several additional pretrial motions, some of which have recently been renewed. Trial began on September 8, 1976. Motions for judgment of acquittal were made at the close of the Government's proof by all defendants, and after hearing oral argument, Judge Pratt denied each motion. An unfortunate sequence of events, which will be discussed more fully herein, led to the declaration of a mistrial on December 7, 1976.

Government's Motion for Prompt Retrial and Defendants' Motions for Continuance

The Speedy Trial Act provides in pertinent part that retrial following a mistrial "shall commence within sixty days from the date of mistrial." 18 U.S.C. § 3161(e). The Government has moved for a prompt retrial and has requested that the trial be scheduled to commence no later than February 5, 1977, which is sixty days from the date that the mistrial was declared. Defendants Mandel, Hess, and Harry Rodgers have resisted the Government's request for a prompt retrial and have moved for a continuance because, among other things, a reasonable delay is needed to permit the "air to clear" of publicity surrounding the previous trial, and defendant Mandel and many of the witnesses are scheduled to participate in the present session of the Maryland Legislature, which will adjourn on April 11, 1977. Defendants Cory and William Rodgers have joined in this motion. For the reasons stated below, the Court finds that the "ends of justice served" by scheduling the trial to commence on April 13, 1977, "outweigh the best interest of the public and the defendants" in having the trial commence on or before February 5, 1977. See 18 U.S.C. § 3161(h)(8)(A).²

The Court has been advised by counsel that as many as four members of the Maryland Legislature can be expected to be called as witnesses for both the Government and the defense on any given day of the trial. These officials were elected by the citizens of Maryland to serve them in government. The Court is of the opinion that the legislators cannot adequately serve the citizenship unless the Governor is present at the legislative session to confer with them from time to time. In addition, a trial date which would require legislators to be absent from the present session may serve to disrupt the legislative process. The Court agrees with those who contend that this case should be tried as soon as possible. However, the Court is of the opinion that it would be inappropriate to begin the trial before the Legislature adjourns. Accordingly, it is ORDERED that the trial be scheduled to commence on April 13, 1977, which is the second day after the Legislature adjourns.

A second reason exists for scheduling the trial to begin on April 13 rather than the February 5 trial date requested by the Government. As will be discussed below, several of the defendants contend that much of the publicity surrounding the first trial will dissipate if the trial is delayed for a reasonable time. The Court has examined many of the newspaper clippings and television and radio transcripts submitted by defendant Mandel. An April 13 trial date will result in a four month period between the date the mistrial was declared and the date of the retrial. In the opinion of the Court, it is likely that much of the publicity surrounding the first trial will dissipate during this time.

Motion to Dismiss Indictment Because of Alleged Change of Theory

Defendant Mandel^* has moved that the indictment be dismissed on the ground that the theory of the prosecution, insofar as it relates to the mail fraud counts, has undergone a dramatic change since the time of indictment. Defendant contends that Judge Murray upheld the indictment on the ground that the alleged scheme to defraud consisted of bribery and the channeling of state business while the bribe was actively concealed. Defendant maintains that, as the trial progressed, the Government changed its theory to state that the mail fraud counts of the indictment did not require proof of bribery. The Government contends that it has not changed its theory, and "that this case is and always has been a mail fraud prosecution, instituted in accordance with the law which has evolved in recent years in the Seventh Circuit and elsewhere, and secondarily a prosecution alleging, within the limited context of the racketeering counts . . . bribery in addition to mail fraud."

Defendant cites, as support for his position, an excerpt from Judge Murray's Memorandum Opinion denying defendants' motions to dismiss the mail fraud counts of the indictment. This excerpt summarizes the "thrust" of the scheme to defraud and reads as follows:

"While the factual allegations in the indictment make the scheme appear to be a complex and subtle one, the thrust of the charges is simple. In essence, the indictment charges that the defendants devised a scheme to defraud the citizens and the state of Maryland by bribing the Governor to assist legislation which would be financially beneficial to the owners of Marlboro (and later Bowie), the identities of such owners being deliberately concealed from the public, the legislature and the Racing Commission by all the defendants. The indictment also charges that it was further a part of the scheme that defendant Mandel use his powers as Governor to channel state business to business entities in which defendants Hess, William A. and Harry W. Rodgers had financial interests, without revealing to the public or the governmental bodies involved his own business involvement with those defendants, including those interests in Security and Ray's Point which he had received from those defendants as bribes, and the existence of which was actively concealed by defendants Mandel, Hess and William A. and Harry W. Rodgers."

United States v. Mandel, 415 F.Supp. 997, 1005 (D.Md.1976).

This summary was preceded by a lengthy outline, covering over two pages of the Court's reported opinion, of the scheme to defraud alleged in the indictment. Id. at 1003-05.

The Court's summary of the scheme to defraud must be read in the context of the entire Memorandum Opinion and the issues addressed therein. The challenge to the indictment did not involve the question of whether bribery was an essential component of the scheme to defraud. At issue was whether the indictment sufficiently charged an intentional use of false or fraudulent representations by defendants, and whether the scope of the mail fraud statute was limited to schemes to defraud resulting in economic harm. Id. at 1005.

The mail fraud statute prohibits the unlawful use of the mails in the execution of "any scheme to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises . . .." 18 U.S.C. § 1341. (emphasis added) There are two elements essential to the offense: (1) the intentional devising of a scheme to defraud, and (2) a use of the mails in its furtherance. E.g., Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Linden v. United States, 254 F.2d 560 (4th Cir. 1958). Judge Murray held that the...