US v. Slay

Decision Date04 November 1987
Docket NumberNo. 86-67CR(1).,86-67CR(1).
Citation673 F. Supp. 336
PartiesUNITED STATES of America, Plaintiff, v. Eugene SLAY, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri

COPYRIGHT MATERIAL OMITTED

David Rosen, Asst. U.S. Atty., St. Louis, for plaintiff.

Edward R. Joyce, St. Louis, Mo., and Bobby Lee Cook, L. Branch S. Connelly, Summerville, Ga., for defendant Slay.

Jim J. Shoemake, Kurt Odenwald, St. Louis, Mo., and Thomas M. Utterback, Washington, Mo., for defendant Tyus.

Barry Short, St. Louis, Mo., for defendant Cullen.

Burton Shostak, St. Louis, Mo., for defendant Zych.

MEMORANDUM

NANGLE, Chief Judge.

By way of indictment (the "Archway" indictment), the Grand Jury charged defendants Eugene Slay, Leroy Tyus, and James Cullen, together with Tom Zych, with violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341 & 1343.1 The indictment charged that, "by means of false and fraudulent pretenses, representations and the deceitful concealment of material facts," defendants Slay, Tyus, and Cullen, together with Zych, Paul Skulsky, and Sorkis Webbe, Sr.,

intended to devise a scheme and artifice to defraud:
The City of St. Louis and its citizens of their right to the conscientious, loyal, faithful, disinterested and unbiased services and actions in the performance of official duties of certain members of the Board of Aldermen of the City of St. Louis and their right to have those duties performed free from corruption, extortion, bribery, partiality, willful omission, dishonesty, official misconduct, conflict of interest and fraud; and
The City of St. Louis, its officials and employees, including the Mayor, the City Counselor, the Board of Aldermen and the Comptroller, of their right to be aware of all material and relevant facts when analyzing and entering into contracts with entities seeking the award of a cable television franchise for the City of St. Louis, in particular Archway Cablevision; * * *

(Archway Indictment, No. 86-67CR(1), ¶ 11). The indictment further charged that, "by means of false and fraudulent pretenses, representations and the deceitful concealment of material facts," defendants "intended to devise a scheme and artifice to defraud * * * and to obtain money and property, specifically a cable television franchise from the City of St. Louis; ..." (Archway Indictment, ¶ 11). Thus, the indictment charged in the "conjunctive" that defendants intended to devise both an intangible rights scheme and a tangible property scheme.

After an eight-week jury trial, the Court instructed the jury that both mail and wire fraud consisted of two elements and that the first element of each could be established if the government proved either that "defendants wilfully, knowingly and intentionally intended to devise a scheme or artifice to defraud the City of St. Louis, its citizens, its officials and its employees, ..." or that "defendants wilfully and knowingly intended to devise a scheme to obtain property from the City of St. Louis by means of false or fraudulent pretenses, representations or promises or the deceitful concealment of material facts, ..." (Instructions Nos. 37 and 39). Thus, the instructions were in the "disjunctive." The instructions permitted the jury to find the first element of mail and wire fraud if it found either an intangible rights scheme or a tangible property scheme.

By Instructions Nos. 40 and 40-A, the Court instructed the jury of the circumstances in which it could find that defendants intended to devise a scheme to defraud St. Louis, its citizens, its officials and its employees. By Instruction No. 40-B, the Court instructed the jury of the circumstances in which it could find that defendants intended to devise a scheme to obtain money or other property by means of false representations and deceitful concealment.

By Instructions Nos. 37, 39, 40, and 40-A, the Court submitted the so-called "intangible rights"/"good government" theory to the jury. On June 2, 1987, the jury returned a verdict finding defendants Slay, Tyus, and Cullen guilty of mail and wire fraud in violation of 18 U.S.C. §§ 1341 & 1343, as charged in the Archway indictment. The jury acquitted defendants Slay, Tyus, and Cullen on all charges in the related TCI/Melhar indictment. The jury acquitted Tom Zych on all charges in both the Archway indictment and the TCI/Melhar indictment.

On June 10, 1987, defendant Tyus obtained an extension of time in which to file, and on June 16, 1987, pursuant to Fed.R. Crim.P. 29(c) and 33, defendant Tyus filed a motion for judgment of acquittal after discharge of jury or in the alternative a motion for new trial. Subsequently, on June 24, 1987, the United States Supreme Court decided McNally v. United States, ___ U.S. ___, 107 S.Ct. 2875, 97 L.Ed.2d 292 1987), in which the court held that the mail fraud statute, 18 U.S.C. § 1341, does not protect the intangible right of the citizenry to good government. Thereafter, on the basis of McNally and contending that the jury's guilty verdicts must be set aside and that the Archway indictment must be dismissed, on July 6, 1987, defendant Tyus supplemented his earlier motion, and on July 15, 1987, defendants Slay, Tyus, and Cullen all moved pursuant to 28 U.S.C. § 2255, and pursuant to Fed.R.Crim.P. 12(b), and in the nature of a writ of error coram nobis, to set aside the jury's guilty verdicts and to dismiss the indictment. The Court postponed sentencing defendants in order to consider defendants' motions and the impact of McNally on the jury's guilty verdicts and on the indictment. The Court now concludes that the jury's guilty verdicts must be set aside, that the Archway indictment evaluated in light of McNally still charges an offense and therefore need not be dismissed, and that defendants are entitled to a new trial on the charges in the Archway indictment.

I. Jurisdiction.

The United States contends that, notwithstanding the conceded relevance of McNally to the jury's guilty verdicts and to the Archway indictment, this Court lacks jurisdiction to consider defendants' challenge to the jury's guilty verdicts and to the indictment on the basis of McNally at this time. The United States contends that defendants must use the appellate process to challenge the jury's guilty verdicts. Specifically, the United States contends that defendant Tyus' motion pursuant to Rules 29(c) and 33 was not timely filed, that defendants Slay and Cullen did not file any motions pursuant to Rules 29(c) and 33, that a motion pursuant to 28 U.S.C. § 2255 does not lie because defendants are not in custody, and that a motion in the nature of a writ of error coram nobis does not lie because defendants can proceed by way of appeal. The United States does not specifically contend that motions pursuant to Fed.R.Crim.P. 12(b) are unavailable.

a. Defendant Tyus' motion pursuant to Rules 29(c) and 33 was timely filed. Rules 29(c) and 33 both provide that motions pursuant to these rules must be made within seven days after the jury verdict or within such further time as the court may fix during the seven-day period. Fed.R.Crim. P. 29(c) and 33. As Rules 29(c) and 33 allow less than 11 days to file motions, intermediate Saturdays, Sundays, and holidays are excluded from the computation of time. Fed.R.Crim.P. 45(a). As June 6 and 7, 1987, were a Saturday and a Sunday, the last day to file a Rule 29(c) or 33 motion, or to obtain further time to so file, was June 11, 1987. As defendant Tyus timely obtained further time to file a Rules 29(c) and 33 motion on June 10, 1987, and as his Rules 29(c) and 33 motion was filed within the further time so obtained, defendant Tyus' Rules 29(c) and 33 motion was timely filed. Therefore, the Court has jurisdiction to consider defendant Tyus' Rules 29(c) and 33 motion.

b. Defendants Slay and Cullen contend that they should obtain the benefit of defendant Tyus' timely filed motion pursuant to Rules 29(c) and 33. The Court agrees. During the pre-trial proceedings, the in-chambers conferences, the side-bar conferences, and the trial of this case, often as many as ten attorneys for the parties were present.2 Therefore, throughout the proceedings in this case, the Court repeatedly advised the attorneys for the defendants that an objection or motion made on behalf of one defendant would be deemed to be made on behalf of the other defendants, unless the other defendants specifically declined to join in the objection or motion. Defendant Tyus timely filed a motion pursuant to Fed.R.Crim.P. 29(c) and 33. Defendants Slay and Cullen did not specifically decline to join in the motion. Accordingly, pursuant to the Court's repeated indication to the attorneys that the objection or motion made on behalf of one defendant would be deemed to be made on behalf of the other defendants, the Court deems defendant Tyus' timely filed motion pursuant to Rules 29(c) and 33 to have been timely made on behalf of defendants Tyus, Slay, and Cullen. Therefore, the Court has jurisdiction to consider defendants Slay and Cullen's Rules 29(c) and 33 motions.

c. The United States contends that defendants are not "in custody" and therefore cannot proceed pursuant to 28 U.S.C. § 2255. Defendants counter that they can proceed pursuant to 28 U.S.C. § 2255 because they are "in custody" for the purposes of that section in that they are free on bonds, have an obligation to appear in court when haled, have restrictions on their freedom of movement and travel, and could be confined if the Court revokes their bonds. Defendants cite Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), and McCray v. Abrams, 750 F.2d 1113 (2nd Cir.1984), cert. granted and judgment vacated, ___ U.S. ___, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986) (remanding for further consideration in light of Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (19...

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