UNITED STATES OF AMERICA, PETITIONER V. MARVIN MANDEL, ET AL. No. 88-1759 In the Supreme Court of the United States October Term, 1988 The Acting Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PARTIES TO THE PROCEEDING In addition to the named parties, W. Dale Hess, Harry W. Rogers, III, William A. Rodgers, Irvin Kovens, and Ernest N. Cory are respondents. TABLE OF CONTENTS Question presented Parties to the proceeding Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-26a) is reported at 862 F.2d 1067. The opinion of the district court (App., infra, 27a-57a) is reported at 672 F. Supp. 864. JURISDICTION The judgment of the court of appeals was entered on December 7, 1988. A petition for rehearing was denied on March 1, 1989 (App., infra, 58a-60a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioners are entitled to writs of error coram nobis vacating their 1977 mail fraud convictions, even though the indictment states an offense and the evidence presented at trial supports their convictions, because the jury instructions were erroneous under McNally v. United States, 483 U.S. 350 (1987). STATEMENT In 1977, respondents were convicted of mail fraud, in violation of 18 U.S.C. 1341, and racketeering, in violation of 18 U.S.C. 1962. The convictions resulted from a scheme under which respondent Marvin Mandel, while he was Governor of Maryland, supported legislation favorable to a race track owned by the other respondents in return for gifts worth more than $380,000. All of the respondents had completed their sentences by 1982. In 1987, this Court decided McNally v. United States, 483 U.S. 350, in which it held that the mail fraud statute did not prohibit schemes to defraud citizens of their "intangible right" to honest government services. Respondents subsequently sought a writ of error coram nobis in the United State District Court for the District of Maryland. They asked to have their convictions vacated and the fines that they had paid returned. The district court granted that relief. App., infra, 27a-57a. The court of appeals affirmed. Id. at 1a-26a. 1. In May 1971, respondent Marvin Mandel, then Governor of Maryland, vetoed legislation that would have increased the number of racing days allocated to Marlboro Race Track from 18 to 36. The other five respondents then began negotiating to purchase the track. They completed the purchase at the end of 1971. While arranging to buy the track, the other respondents began to bestow gifts on Mandel. By May of 1982, they had given him a $45,000 interest in a land venture known as Ray's Point and a $140,000 interest in the Security Investment Company. /1/ Mandel, in return, had made known shortly after the other respondents purchased the track that he would not mind if his veto of the race track legislation was overridden, and it was. Doubling the number of racing days at the track substantially increased its revenues. Mandel subsequently sought to increase the number of racing days at Marlboro to 94, but that legislation did not pass. However, the State Racing Commission allowed Marlboro to run its races on a mile track, rather than a half-mile track, which further increased its revenues. United States v. Mandel, 591 F.2d 1347, 1354-1357, vacated, 602 F.2d 653 (4th Cir.) (en banc), second rehearing en banc denied, 609 F.2d 1076 (4th Cir. 1979), cert. denied, 445 U.S. 961 (1980). The indictment described the scheme in detail and alleged that as a result of the scheme the citizens of Maryland had been deprived of their intangible right to Mandel's honest services. App., infra, 2a-3a. The charge to the jury included an instruction providing that a "citizen's right to have his Government conducted honestly and impartially, and to the faithful and loyal services of public officials, are things of value whose fraudulent deprivation may fall within the meaning of scheme to defraud as used in the mail fraud statute." Id. at 5a. The respondents challenged the "intangible rights" aspects of the indictment and the instructions in the trial court and on direct appeal. The court of appeals rejected that challenge, although it vacated the convictions on other grounds. That decision was subsequently vacated by the en banc court, which affirmed respondents' convictions by an equally divided vote. 602 F.2d at 653. 2. In McNally, this Court held that mail fraud convictions could not be based on the theory that public officials' conduct had deprived the citizens of their intangible right to honest and impartial government. That interest, the Court concluded, was not a property interest of the sort protected by the mail fraud statute. /2/ Thereafter, respondents sought writs of error coram nobis, asking that their convictions be set aside and that the government return the fines they had paid. The district court granted that relief. App., infra, 27a-57a. A divided court of appeals affirmed. App., infra, 1a-26a. The government had argued that the convictions could be upheld because the indictment alleged and the evidence showed that respondents had engaged in a scheme to deprive the citizens of Maryland of interests in property within the meaning of McNally. More specifically, the government had alleged that the bribes given to Mandel rightfully belonged to the State under a constructive trust theory and that the racing days, which are in essence a state license, are intangible property under McNally and Carpenter v. United States, No. 86-422 (Nov. 16, 1987). The court held, however, that "in a case in which the jury considers alternative theories of liability, we must reverse the convictions if either theory is an improper basis for punishment." App., infra, 13a. The court continued: "In order not to apply the rule, we must be able to say 'with a high degree of probability' that the jury did not rely on a legally incorrect theory." Ibid., quoting United States v. Alexander, 748 F.2d 185, 189 (4th Cir.), cert. denied, 472 U.S. 1027 (1985). Since "the jury was quite free, and indeed instructed, to return a guilty verdict solely on the theory that the State of Maryland had been denied the 'faithful and loyal services of public officials,'" the court could not conclude with certainty that it had not based its mail fraud convictions on the impermissible intangible rights theory. App., infra, 13a. /3/ The court of appeals noted that the government had relied on the Seventh Circuit's recent decision in United States v. Keane, 852 F.2d 199 (1988), for the proposition that "granting a writ of error coram nobis is improper where the change in the law did not vitiate the criminality of the petitioners' conduct but only brings into question the propriety of the jury instructions." App., infra, 16a. The court rejected the Seventh Circuit's approach. Id. at 16a-17a. Judge Hall, dissenting, noted that "(i)t has been black letter law since the Supreme Court recognized the coram nobis writ in United States v. Morgan, 346 U.S. 502 * * * (1954), that a reviewing court should grant the writ 'only under circumstances compelling such action to achieve justice.' Id. at 511." App., infra, 19a. He concluded that the Alexander standard -- that convictions should be upheld despite faulty jury instructions only where there is a high degree of probability that the jury did not rely on an improper theory -- was appropriate on direct review, but not on review pursuant to a request for a writ of error coram nobis. Id. at 24a-25a. Because the evidence showed that Mandel had been bribed to attempt to obtain additional racing days for the other respondents' race track, Judge Hall concluded that justice did not require that their convictions be set aside. Id. at 26a. /4/ The government's suggestion of rehearing en banc was denied, with five of the ten judges on the Fourth Circuit dissenting. App., infra, 59a. REASONS FOR GRANTING THE PETITION As explained more fully in our brief acquiescing in the petition in Keane v. United States, No. 88-1178, there is considerable confusion in the courts of appeals with respect to the proper standard for granting coram nobis relief. /5/ The Seventh Circuit in Keane denied coram nobis relief on three alternative grounds, and there is a conflict in the circuits on each of those three grounds. In that circumstance, we believe that review by this Court is warranted. In our view, Keane is a more appropriate candidate for plenary review than this case. The Fourth Circuit here expressly disagreed with the Seventh Circuit's conclusion that a conviction should be upheld on coram nobis review, despite erroneous jury instructions, where the indictment states an offense and the evidence supports a conviction. App., infra, 16a-17a. However, the court below did not address either of the Seventh Circuit's alternative theories, which are (1) that an issue cannot be raised pursuant to coram nobis when the issue was fully litigated on direct appeal and (2) that a person who suffers no current civil disability as a result of his conviction may not obtain coram nobis relief. In light of the conflicts in the circuits on each issue, we think the Court should consider the full range of questions concerning the standards for granting coram nobis relief, and those questions are all squarely presented in Keane. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of Keane v. United States, No. 88-1178. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General THOMAS E. BOOTH Attorney APRIL 1989 /1/ The evidence also showed that the other respondents gave Mandel thousands of dollars worth of clothing, $135,000 worth of bonds, and other valuable gifts. C.A. App. 335-353, 421-424. The court of appeals did not disagree with the dissenting judge's statement that "(t)he total amount received by Mandel has been conservatively estimated at $380,000." App., infra, 22a n.2. /2/ Congress recently amended the federal fraud statutes to provide that a "'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7603, 102 Stat. 4508. The legislative history of the new provision explains that "(t)his section overturns the decision in McNally v. United States * * *. The intent is to reinstate all of the pre-McNally caselaw pertaining to the mail and wire fraud statutes without change." 134 Cong. Rec. S17,376 (daily ed. Nov. 10, 1988). Respondents, of course, must be judged according to the pre-amendment version of the mail fraud statute as construed in McNally. /3/ The district court had set aside respondents' racketeering convictions because the predicate acts for those convictions consisted primarily of the mail fraud counts. App., infra, 51a-54a. The court of appeals followed suit. Id. at 14a-15a. /4/ With respect to the government's constructive trust theory and its argument that respondents' scheme to obtain racing days was a scheme to obtain property, Judge Hall noted: "Neither the majority nor the court below found these theories invalid. Rather, both ruled that they were not relevant because the jury was not specifically instructed on them." App., infra, 23a. He concluded that respondents' "conduct is still illegal under post-McNally law." Ibid. /5/ We are serving a copy of our brief in Keane on counsel for respondents. We are also serving a copy of our petition in this case on counsel for Keane. APPENDIX