United States v. Solomon Weiss

quoted jury instruction offering give agreed that Ultimately, defendant

above. his given, preserved be but

the instruction sufficiently it that would

contention disagree. The defendant We

corrective. jury’s awareness

had the benefit of had failed to offer conviction,

evidence of earlier of that failure

court’s accentuation

instructions, further, explicit instruc- and a I jury must decide counts and

tion that the

II as if it had never been felony

defendant had been convicted of

previously. There was abuse grant deny

district court's discretion

new trial. appealed judgment

It is ordered that

from affirmed. America, Appellee,

UNITED STATES of WEISS, Defendant-Appellant.

Solomon

No. Docket 84-1103. Appeals,

United States Court

Second Circuit. July

Submitted 1984.

Decided Jan. grounds (1)

several for reversal: that he was denied a fair trial because of the infil- tration of extra-record evidence into the jury deliberations; (2) govern- ment’s at trial constituted a constructive amendment of the indict- ment; (3) failed to establish that the defendant’s conduct vio- lated statutes; the mail fraud (4) or RICO prosecutor’s leading use of ques- present tions to the testimony of the two key prosecution witnesses grand jury violated his Fifth rights; Amendment (5) perjury that his conviction should be reversed because of prosecution’s fail- ure to disclose a known conflict of interest “target” defendant’s status at the time grand jury of his testimony; (6) the District Court erred not submitting jury the issue of the materiality of his perjurious grand jury testimony to the jury.

We affirm on all counts. (“Weiss”) Solomon Weiss was tried un- Akerman, Sp. Nathanial H. Asst. U.S. der a thirteen count indictment charges on Atty., S.D.N.Y., (Ru- for City New York fraud, of mail perjury, racketeering, and Giuliani, dolph S.D.N.Y., Atty., W. for tax fraud. City, counsel), New York appellee. of for After three weeks of trial and days four Silverman, Leon City (Grego- New York dеliberation, jury found guilty Weiss ry Joseph, P. Brower, Fried, Linda R. of seven of the thirteen counts Frank, Harris, Jacobson, Shriver & New the indictment. Specifically, Weiss was City, counsel), York defendant-appel- for (1) convicted of: one violation of the RICO lant. § Act, 1962(c); (2) 18 U.S.C. three viola- § fraud, PRATT, Before tions of mail 1341; NEWMAN and under Circuit 18 U.S.C. Judges, KELLEHER,* (3) violations, three perjury Judge. District under 18 § U.S.C. acquitted 1623. Weiss was of one KELLEHER, Judge. Senior District count of mail fraud and of four counts of § fraud, tax 7206(2). 26 U.S.C. appeals

Solomon Weiss judgment from a of conviction in the United States District By post motions, various trial defendant Court for the Southern District of New asserted each of the contentions here York, Mary Lowe, J., J. entered on March presented, including alleged contamination 13, 1984, after jury a trial. Weiss was jury. After an hearing extensive guilty found fraud, three counts of mail prejudicial effects of this con- § 1341, 18 U.S.C. perjury, three counts of tamination, Judge the District ruled that § 1623, 18 U.S.C. and one count of racket- ample had independent evidence to under the Racketeer Influenced and eering convict Weiss and denied that motion. Ad- Corrupt Organizations (“RICO”), Act 18 ditionally, all of the post defendаnt’s trial § (cid:127) U.S.C. 1962. Weiss appeal asserts on motions were denied. * California, The Honorable Robert J. sitting by Kelleher of the United designation. States District Court for the Central District of $50,000 spot sentenced promised was in cash on the March Weiss On pay $50,000 probation. Weiss at a later date. five-year terms to concurrent of his under the RICO part As conviction Approximately one month later 14,898 disgorge Act, was Weiss ordered agreement modified because WPT was Communications, Inc. of Warner shares $50,000 produce unable to an additional (“Warner”) and 359 common stock cash, original owed under amount $412,- warrants, approximately valued $50,000 agreement. agreed to issue Finally, fined total of Weiss was exchange Warner checks to Horowitz in $58,000. $20,000 for in cash. Weiss directed Horo- false, invoice, to prepare witz back-dated principal question The before (“Kon- purportedly from Dennis Konner relatively narrow issue to which ner”), attorney, to make appear it govern- proved more believable. side legal performed. services had been presented testimony of Leonard ment Purchase Second Stock Transaction (“Horowitz”) Jay Emmett Horowitz July (“Emmett”) arranged Horowitz and Weiss that Weiss purchase agree- entered stock into second illicit cash rebates to flow various ment. Under the terms of trans- this new false purchases and from invoices. stock action, purchase Warner was to an addi- The evidence had tak- revealed 20,000 tional shares of WPT stock for fund, cash and created a secret cash en this $100,750 and, exchange, $100,- receive a disguise forged and had documents opened 000 rebate the theater in ear- when put of this fund. defense existence ly plans open early 1974. to in WPT’s emphasis credibility the lack of great through renegotiated fell Horowitz and jury found in Horowitz Emmett. deal with Weiss and de- Weiss. Horowitz government upon favor of substantial garner vised a to new scheme cash for supportive evidence. fund. Between 1974 Weiss The First Stock Purchase Transaction would to induce Warner issue ten checks to in a Horowitz, In 1972 Horowitz became involved Horowitz and then would deliver $100,000 plan to establish a live entertainment the- increments of the debt to Weiss. ater, Using operations, Premier the Westchester Theatre various modes of Warner $171,950 “Theatre”). bogus totalling issued ten checks (“WPT” May In and June $100,000 and Horowitz returned in cash to public an initial WPT conducted payments appear Weiss. To make these offering capital. to raise in order stock legitimate, created Weiss false documents so sluggishly The stock sold Horowitz of- system in accounting Warner’s and had a purchas- fered secret to select inducements plagiarized report created and filed with ers of WPT shares. Warner. Emmett, approached Horowitz a close sum, $470,000 In paid out Warner over Warner, friend and Vice President non-performed for services and for stock of 10,000 $75,- him offered shares of WPT for return, questionable re- value. Weiss decline, Emmett chose to but went to 000. $170,000 40,000 ceived in cash shares Ross, of the Steven Chairman Board stock, $250,000. of WPT cost which about Warner, Ross responded with the offer. paper, ap- net On Warner’s loss stood at Weiss, at that that time the Assistant Trea- $50,000. proximately Warner, might for be interested in surer Perjury Charges Basis for transaction. Emmett introduced Weiss Horowitz, proposed to who thеn the same After received from Horowitz a letter proposed Weiss, a counteroffer deal. prepared of October he 20,000 buy unperformed legal Warner would shares of where Konner bill for services 11,1973. bill, $150,000 if July stock for WPT WPT would and back-dated it to $100,000 the signature to Warner. Pursuant filed with bears “J. “kick back” Warner trial, expert arrangement, gave handwriting Emmett.” At this Horowitz written the matter signature as and discovered that information identified the Emmett that experts accounting testified from a standard set of by Weiss. Other text- not the bill was signature on the Konner books not received evidence had found Jay Emmett. signature of way its into the deliberations. that he wrote the testified At trial Weiss hearing At a before the District it Court prior realizing that 23 letter October that, appeared presentation after the also the bill. Weiss had received deliberations, prior evidence but one him had directed claimed that Emmett juror had reviewed a text basic on book- Further, $30,000 check to Konner. issue a keeping. He testified that he had read to Emmett had instruct- Weiss contended jurors excerpt from the textbook him to to Konner ordеr ed write explained responsibilities performed legal services obtain the bill training distinguished of CPA’s as working on differ- by Konner’s firm while bookkeepers.1 questioned The court a total April for Warner. Yet on ent deals remembered, jurors, of ten each of whom appearance grand jury, in an before specificity, with various levels of the dis- testimony contained certain con- Weiss’s cussion. The court determined that after There, trary Weiss claimed statements. excerpt brought up the textual prepared July that he discussion, moved on to other mat- directly on the Konner bill of check based issue, ters. After extensive review of this July Additionally, Weiss denied appellant’s the District Court ruled that the and the Konner bill were Horowitz motion for a new trial should denied. way The indictment connected. Appellant contends that the District charged that several of Weiss’s statements denying Court erred in his motion for grand jury perjurious. were Sub- new trial. He asserts that his status as a evidence, including stantial Weiss’s contra- jury’s CPA was essential to the determina- dictory testimony, support trial these alle- ventures, tion of what he knew about the gations. knowledge and he contends that this Except for his contention that a construc- proved to be critical on the issue of his occurred, tive amendment of indictment guilt or innocence. Because the record appellant’s we find little merit in conten- concerning contained no evidence the tions. the We shall discuss first lesser CPA, appellant argues duties of a the that grounds proceeding before to consideration the infiltration of textbook definitions into of the more issue of whether substantial deprived the deliberations him of a fair any there existed error in variation be- Specifically, trial. Weiss asserts that the charges tween the made and the of- jurors by injection contamination of the the government. fered the fatally prejudiced of extra-record evidence Jury The Contamination the of him in violation of his Fifth Amendment May appellant for the of 1983 counsel rights process to due and his Sixth Amend- trial, claiming a renewed a motion for new right ment of confrontation and cross-ex- that extra-record evidence had been amination. jury during presented to the their delibera- may recognized We tions and that such information well have that “extra- have contaminated these deliberations. record information that comes to the atten hearing juror ‘presumptively prejudi- The District Court conducted a on tion of a following jurors practical experience. require 1. One of the had recited the of All states that passages jurors: the other pass textual prepared candidates an examination public independent on a national accountants are administered basis twice each Certified attorneys professional persons comparable year by the American Institute of Certified physicians, accounting who offer services Public Accountants. fee. CPA is a to clients for a Meigs Meigs, (3d & R. W. Financial Handbook 7 certificate practice granted by the state the license to ‍​‌‌​​‌‌​​​​​‌​​​‌​‌‌‌​​‌‌​‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​‌‍on 1979) (emphasis original). ed. rigorous basis of a examination and evidence

783 ” denied, 909, 295, Hillard, U.S. 75 S.Ct. F.2d cert. 348 99 701 States v. cial.’ United judge’s 713 L.Ed. trial han Cir.), 1052, 461 “[A] 1064 2431, (1983) dling alleged juror of misconduct or bias is 958, L.Ed.2d 1318 103 77 States, only reviewable for abuse of discretion.” v. 347 (citing Remmer United 654, Panebianco, supra, 457.2 98 L.Ed. 74 S.Ct. re (1954)). presumption may be This evidentiary After an exhaustive butted, however, by affirmative show an contamination, hearing on the issue of the government that ing part of the judge trial concluded that infiltra “The Id. information was harmless. accounting tion of material from as we in a case such touchstone of decision text into deliberations of fact of thus the mere here is have of harmless. We find abuse discretion extra- some molecules of infiltration of holding. in so See United States v. Hock matter, nature of what ... but the record (2d Cir.1978). ridge, 573 F.2d probability of infiltrated and the has been ex rel. Owen prejudice.” United States Sufficiency Mail Fraud of Proof of (2d Cir.1970), McMann, F.2d Appellant argues participation in that his denied, 402 U.S. a cash does the creation of fund not consti- (citations omitted). (1971) in violation of the fraud tute fraud mail should assess The trial court Appellant nor RICO. statute3 of contends reviewing the prejudice” by “possibility of any there no evidence at trial that that record, analyzing the substance misappropriated entire cash was Warner. evidence, comparing it to alleges the extrinsic fund He cash con- jurors were information which up by government contemplated jured Stoughton, properly injury aware. Sher neither harm nor to Warner or to its (2d Cir.1981). may The court stockholders, nor involved use of the conclude that such extra-record properly any improper purpose. cash if it deter non-prejudicial information was cash appellant claims properly admit mines that an abundance of presumptively used for fund was the bene- exists. evidence relevant to this matter corporation, thereby defeating ted fit of Sher, 1064; Hillard, supra, at supra, at obligation to disclose stockhold- Finally, 793-94. of the fund. ers the creation appellant argues that the mail fraud Additionally, trial court has personal- applies only party statute when reviewing the issue discretion broad misappropriation from the ly benefits prejudicial effect of the infiltration funds. evidence into deliberations extra-record States, fiduci employee’s An breach v. United jury. Marshall 1173, alone, 312, 1171, duty, standing support not a 310, ary 3 will U.S. 79 S.Ct. 360 Rather, the 1250, 1252(1959); govern fraud v. mail violation. L.Ed.2d United States Cir.1976), 447, Panebianco, (2d prove must also that while under 457 ment 543 F.2d denied, 1103, to his duty to disclose material information 429 U.S. 97 S.Ct. rt. ce (1977); employee failed do so. 1129, employer, an 51 L.Ed.2d 553 United States 999, (2d Cir.1954), Barta, F.2d 1006 354, v. 635 F.2d 372 Flynn, 216 v. 877, Bagnariol, aptly 665 F.2d 885 The Circuit has noted: 2. Ninth 962, denied, (9th Cir.1981), U.S. 102 cert. 456 qualified ap- judge uniquely The is trial 2040, (1982). S.Ct. 72 L.Ed.2d 487 probable on praise effect of information the materiality jury, of the extraneous the material, the prohibits "any artifice scheme or 3. Section 1341 prejudicial or its nature. He and defraud, trial, money property obtaining or jurors throughout to. or for is the the she observes asserted, pretense or by or has heard means of false fraudulent aware the defenses and (1976). judge's about The conclusions promises.” § the evidence. U.S.C. 1341 18 alleged juror de- misconduct effect weight. serves substantial 784 Cir.1980), denied, 998, 450

(2d U.S. In Siegel cert. defendants defrauded cor- 1703, (1981). 199 poration L.Ed.2d its by S.Ct. 68 and shareholders deliberate- 101 Thus, ly concealing by failing when fiduci the statute is violated to account for corporate material information of all and mer- ary property fails to disclose sales government disclose duty he under a chandise. “which theorized by top corporate under where such acts officers defraud- anothеr circumstances corporation shareholders, in harm could or result ed the and its non-disclosure does Siegel, fiduciary duty 717 and to another.” United violated executives’ States (2d Cir.1983) honestly (quoting faithfully. 14 United to act at 13. F.2d Id. Bronston, 926 States Attempting distinguish Siegel, Weiss Cir.1981), denied, cert. 102 argues government presented that the (1982)(emphasis 72 L.Ed.2d 174 S.Ct. evidence that the Warner cash fund was added). actually personal used for his own enrich- ment. Weiss contends that without such government must show While showing by government, an affirmative injury contemplated that some harm or was he be cannot convicted of a mail fraud scheme, by it need not that “di show Weiss, however, violation. misunderstands rect, tangible economic to the loss resulted scope Siegel. Siegel, supra, scheme’s intended victims.” 14; Newman, 664 see United States v. reviewing court was satisfied with — denied, (2d Cir.1981), F.2d proffered by government: evidence —, (1983). 78 L.Ed.2d 170 misappropriation funds cou- may of the mail fraud statute Violations pled the use of such funds for a deprive any artifices which do not based purpose. non-corporate government money tangible or person other forms presented Siegel evidence that and Abrams property. Margiotta, United States v. pocketed some of the funds and had (2d Cir.1982), amounts to used other bribe officials. union 913, 103 noted, however, The court that there was Further, need not “little, any, if direct evidence to show that actually that the prove fraudulent actors Siegel Abrams proceeds used the cash deception. benefited their Id. corporate purposes____” for other than Yet, Id. at the court determined that Appellant’s argument that he did there “sufficient was evidence from which not the mail fraud statute because violate could reasonably have concluded of the cash was not ille his creation pro- that the defendants received the cash gal, not intended to harm or used them non-corporate pur- ceeds and shareholders, its lead to did not poses in of their fiduciary breach duties” personal gain presents question. a close violation of the statute. wire fraud held, however, We have need that there at 14. Id. showing wrongful direct be a that the act harmful, se, per corporation. is within Our case of the hold- ambit supra. Siegel, Siegel, ing two executive There Siegel. requirement is no government prove officers were misappropri- with violations that the § statute, (1976), fraud wire U.S.C. ated were used his funds Weiss for own Rather, participation of their the cre because enrichment. non-cor- evidence of a porate of a cash fund. purpose, explicitly ation The scheme involved de- implicitly rived, satisfy unrecorded sales of merchandise that the requirements of Sie- will out, closed down for was no gel. been marked There direct offered evidence clearance, damaged. concerning returned as the final the destination of mis- appropriated indictment the with cre funds. jury defendant However the ating reasonably the illicit fund in bribe union order to could have concluded that the and personal corporate officials to increase coffers. of disbursement funds for fake at 10-11. studies feasibility Id. and fake invoices for sum, appellant’s attempts to established non-cor- distin- non-rendered services the guish the facts of his case from Indeed the record law of funds. porate of the use mail fraud fails on all counts. jury the “have here, allowed to Siegel, as in inference defend- that justifiable drawn a Prosecutorial Misconduct for their bene- own ants used the scheme Appellant seeks reversal of his conviction present- the evidence With fit.” Id. at 15. prosecution perjury for because the failed least, here, could, very at the jury ed (1) to to disclose him: a known of conflict corporate of funds diversion infer that the concerning interest the defense counsel non-corporate purpose. for a Weiss was him for at that Warner had retained the bring the within This is to case sufficient and, (2) jury proceedings; his grand status holding Siegel. the investigation. target as a of a claims Weiss that this misconduct effec- an formulated elaborate Weiss tively deprived him of his Sixth Amend- cash-generating plan, involving phony right representation of ment counsel of transactions, the disguise the loyalties.” “undivided He created fake shareholders Warner. represented same firm law both bogus tasks for real feasibility studies and those Warner executive offi- “consultants,” issued for estate checks cers, Weiss, subpoenaed to inсluding testi- services, pur non-performed legal fy grand jury before the 1978. Counsel speculative stock. large chased amounts cooperate each executive to advised found that the scheme The District Court investigation in front of while acceptance via the to create a cash fund jury. Attorneys knew grand that kickbacks, as the conversion investigation separate Weiss was under services, non-performed sets into Warner, defrauding chose not to in- false and fraudulent documents creation of Special form counsel for defendant of this. disguise these illicit transac to conceal and Attorney Assistant Akerman feared acts unquestionably of fraud on tions were might compromise such a that disclosure corporation. agree with find We this possi- ongoing investigation and could ing. bly endanger government informant who partici- and had had been wired for sound appellant’s remaining duo illicit pated transac- number against his conviction under of contentions tions.4 readily mail statute can be dis fraud separate opinion, In a District First, claims that he was patched. perjurious Court determined Weiss’s Warner, owing thus no “officer” of testimony grand before the should not duty to cash fund to share disclose the suppressed. holding affirm the We record, holders. review of this as On the lower A sworn to tell court. “witness seriously. Finally, sertion cannot be taken grand duly the truth constituted before a acting that he was under Weiss contends sup will not to call for the be heard direction, approval, of his and with pression of false statements he superiors. Consequently, asserts that Mandujano, jury____” v. United States fiduciary duty his no conflict between 1768, 1779, participation his employer his L.Ed.2d more, Once cash fund scheme arose. prose It is that the rejected argu not at all clear properly District Court this ment, misrepresented “target” cution Weiss’s sta noting regardless the fact Even if higher wrongful tus to his defense counsel. officials directed acts, Attorneys can injurious less actions the U.S. somehow the harm “misconduct,” Meridor, such actions construed as corporation. Goldberg 567 be See Cir.1977). prejudice to not cause sufficient did Weiss, 81-636, 1982). (August Mem.Op., No. at 29 786 perjury Provenzano, of his See

to warrant dismissal also United States v. 440 561, 577, F.Supp. (S.D.N.Y.1977). 96 at 1776- 565-66 conviction. id. at S.Ct. See 77, at 222-23. 48 L.Ed.2d Materiality Perjuriоus Testimony as a sup appellant’s If the claim for Jury Issue pression grand jury testimony is of his Weiss’s claim that the District Discipli predicated upon a violation of the submitting Court erred in not the issue of Rules, nary this review rests within the materiality perjurious testimony of his supervisory power of this Court. See by foreclosed the law of this 45, Foley, v. 735 F.2d 48 United States circuit. It is well settled that the materiali Cir.1984); Jamil, v. F.2d United States 707 ty perjury grand jury before a is a 638, (2d Cir.1983); 645-46 see also United question for the court alone. United 110, (10th Thomas, 474 F.2d 112 States v. (Sun v. Moon Myung), States 718 F.2d Cir.), denied, 932, 412 cert. U.S. 93 S.Ct. — 1210, (2d Cir.1983), denied, 1237 cert. 2758, (1973). 37 L.Ed.2d 160 The failure of —, 2344, U.S. 104 S.Ct. 80 L.Ed.2d 818 Special Attorney Assistant U.S. Akerman (1984); Cunningham, United States v. 723 judicial to seek resolution of the known 217, (2d Cir.1983), denied, F.2d 226 attorney conflict of interest of defendant’s — —, 2154, ‍​‌‌​​‌‌​​​​​‌​​​‌​‌‌‌​​‌‌​‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​‌‍U.S. 80 L.Ed.2d by was not motivated bad faith or delib (1984); Berardi, United States v. disregard. erate of an obligation. ethical 723, (2d Cir.), inappropriate lower court found it 995, 534, 101 S.Ct. 66 L.Ed.2d 293 sanction his behavior. We see no reason to (1980). disturb that determination.5 Ap- The Constructive Amendment reject appellant’s We must also pellant’s Indictment claim principles under constitutional for the appellant claims that his conviction suppression perjurious testimony. of his It on the mail frаud and RICO counts should is now well settled that a witness before a government’s be reversed because the the- grand jury may not dismiss an indictment ory “radically departed” at trial perjury target because he was the of an charging from the terms of the indictment. investigation, Dionisio, United v. States Specifically, argues “plain 1, 8, 764, 8, 410 U.S. 10 n. 93.S.Ct. 769 n. import” suggests of the indictment that he 67, (1973); L.Ed.2d 77 n. 8 he because fraudulently concealing rights, was not advised of his Miranda from Warner acceptance shareholders his Mandujano, v. United States 425 U.S. of bribes and corporation his conversion of 1768, 1776-77, 96 S.Ct. 48 L.Ed.2d assets, personally enriching himself at the (1977); 222-23 or because no effective expense. shareholders’ Weiss contends warning of the privilege Fifth Amendment that the theory abandoned this given, to remain silent was adopted theory, at trial and a “cash fund” 174, 179-80, Wong, 97 S.Ct. accusing breaching fiduciary his (1977). 52 L.Ed.2d 236-37 duties to Warner shareholders fraudu- also Washington, See lently accepting cash on Warner's behalf. 52 L.Ed.2d 238 appellant great discrep- claims that the ancy government’s between the “breach of duty” theory at trial indictment’s Questions Leading The Use of “bribe and conversion” violated his рerceive prose We rights error Fifth by precluding Amendment leading questions cution’s use of convicting before the him on the offense for grand jury. Further, United appel- See States Jacob which he was indicted. son, (2d Cir.1982). argues 115-16 lant knowledge that his lack of con- Id. at 28-32.

787 theory opposed until trial of an a variance cash indictment to cerning the fund timely preparation of an indictment. Stirone v. United severely prejudiced his States, case supra, is the most often cited adequate defense. of an by arguing defendants either that a con- the cash argues that government The structive or a amendment variance of the trial matched presented at fund evidence occurred; yet does not indictment Stirone grand jury. proof placed before this specifically address distinction. The this consist- government contends definition has forth in noted above been set appellant’s al- presentation refutes the ent circuits, including of several decisions Further, shifting legation of theories. this circuit. in a government asserts that statements prior appellant trial contends that the rule particulars bill ten months to against or a surprised he was variance constructive amend refute Weiss’s claim that ment of has by theory Finally, at trial. an indictment been frustrated the cash government. argues by generally waived See United Lemire, (D.C.Cir.1983), v. claim because 720 F.2d 1327 any “variance theories” States — denied, U.S. —, object any cash fund evi- rt. 104 S.Ct. he failed ce 2678, (1984); 81 874 dence or related instructions time L.Ed.2d Beeler, supra; v. during proceedings. United States v. Silver 106, (2d man, Cir.1970), 430 F.2d 111 A has a criminal defendant sub denied, 953, 1619, 91 29 402 S.Ct. only right tried on the stantive be (1971). reject We this conten contained in the indictment re charges tion, and government’s find that both the grand Bain, by jury. parte Ex turned theory proof fairly and the offered at trial 781, 784-85, 30 7 S.Ct. L.Ed. 121 U.S. charges reflect set forth in the indict States, 849, (1887); 852 Stirone v. United ment. 270, 212, 216-17, 273, 4 (1960). deprived 256 A defendant is of his L.Ed.2d right only charges tried re “An amendment indictment if grand jury prosecution’s turned charging terms of the occurs when or constitute a modification at altered, literally are either indictment trial of an offense essential element of the effect, occurs ... variance when [while a] Lemire, 1345; charged. 720 F.2d at See charging terms of the indictment are (6th 558 Jago, Watson v. F.2d 334 unaltered, but evidence offered at left Cir.1977); Silverman, 430 F.2d at 100. proves materially trial facts different from case the those the indictment.” United this indictment Pelose, (2d secretly n. corruptly 538 F.2d 45 8 “did ex States Cir.1976) (quoting accept Gaither United tract and bribes ... [and] States, (D.C.Cir.1969)) purchase caused Warner to common stock 1071 ..., original). (emphasis in Theatre While variances are Westchester Premiere thereby subject violating fiduciary to the harmless error rule and re duties to [his] quire showing provide prejudice defend Warner and its shareholders to services, ant, loy Garguilo, States v. 554 F.2d honest and faithful undivided United Cir.1977), (2d alty obliga perform 59 constructive amendments and to executive [his] generally prejudicial per good exclusively tions in faith and are considered se. Crocker, 568 and its States v. F.2d best financial interest Warner See United ; Cir.1977) shareholders.” Beeler, (6th Cir.1978), also charged indictment Weiss with 860, 102 “secretly corruptly siphon[ing] L.Ed.2d $221,950 in convertpng] approximately belonged to confusion as to checks which and its

There considerable ...,” knowingly constitutes a amendment shareholders what constructive pre- upon to be causing “fraudulent documents deliberate the secоnd element that the pared” “appear in order to make it the offense of mail fraud.

for fact Weiss knew “said services existent.” checks services rendered to Warner” ... were being paid to third were non- when in parties ^[4] fully the sonable doubt that this The second element government knowingly participated establish defendant requires beyond in a rea- that wil- the scheme knowledge fraudulent with of “having Finally, is with Weiss purposes its unlawful and in further- a scheme and artifice to defraud devised objectives. ance of its unlawful and its shareholders and ob- Warner [with] taining money from and its share- Warner appellant argues that the elements fraudulent means of false and holders proved nothing of the offense at trial had promises, pretenses, representations and bribery conversion, to do with or with or knowingly unlawfully, wilfully and ... for fraudulent with the concealment cash of purpose executing scheme and the said accruing Weiss as to bribes or as converted artifice____” assets, that the re- cash fund by the statement, prosecutor ferred to District Court opening

In his the altered jury argu- the essential element of the crime. gоvernment’s told that evi- This superficial (1) appeal should and other ment has a dence show that Weiss because: judge Warner to defraud the trial did instruct jury executives “schemed that it company duty provide of their hon- find that a had to cash fund in existed company’s and faithful proceed est services to the order to the second element of by creating (2) cash crime; stockholders fund of the words fund” “cash $170,000.” approximately prosecutor actually are not in mentioned the indict- stated the cash fund created out “was ment. bribes, false, phony invoices, fraudulent argument fail, appellant’s must how- misleading documentation, and Warner ever, in light totality when viewed for nine checks existent services.” [sic] First, of the evidence at trial. ‍​‌‌​​‌‌​​​​​‌​​​‌​‌‌‌​​‌‌​‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​‌‍the cash Clearly, prosecutor’s opening statement presented at evidence trial was virtu- exactly tracked almost the indictment. ally proof identical to the that was before Similarly, presented the evidence at trial jury. grand Contrary appel- $50,000 procured showed that Weiss in contention, lant’s de- never in exchange pur- cash for arranging parted from its claims in the indictment stock, $100,000 chase of WPT and received $70,000 that Weiss received in cash bribes exchange issuing in cash in for exchange purchase Warner's WPT Again, checks for non-existent services. $100,000 stock Weiss and that received closely at trial followed the terms exchange cash in for the phony issuance of the indictment. the use checks. While of the words “brib- summarizing allega- After the essential ery” may and “conversion” not com- have indictment,

tions the District Court ported definitions, their with textbook part: jury, pertinent instructed government continued to characterize the ^[1] the existence of a means of false or fraudulent or to obtain The first element of representations. money scheme or [mail fraud] property by pretenses defraud though the refer Emmett terms allegedly fraudulent to a throughout testified both before face fund, government of the indictment the trial. transactions in these Moreover, does witness grand al- ^[2] [T]he government contends that the and at trial that he had “put Horowitz fraudulent scheme was the creation of in touch with Solomon Weiss [because] the cash fund at Warner. helpful rеgard Horowitz could ^[3] doubt [I]f that a you do find cash fund beyond a reasonable exist- the Warner cash Finally, it is clear fund.” (emphasis the trial judge’s added). Warner, go you ed at then must on to the creation reference to “cash fund” another____” at was noth- Id. charge court’s shorthand'expression for L.Ed.2d at 257-58.6 ing more than scheme outlined fraudulent Stirone, Unlike Weiss’s conviction does charged in the indictment. reading expansive not rest on an of his by the indictment District Court. The a con argues also Appellant charges against in the indictment because the amendment occurred structive specific were as to the dates of transac- was that “plain import” of the indictment tions, involved, himself at the the amounts and the identi- enriched personally ty participants. government’s shareholders. We of the expense of the Warner proof types The lan covered each of the three of reject interpretation. this must conspicuously the guage the indictment is fraudulent conduct that formed basis of the accepting destination of on the ultimate of the overall silent scheme— Nothing in funds. fraudulently purchasing оbtained Theatre bribes return for accepted generally stock, the definition or the issuing phony exchange checks in “bribe”, meaning of a commercial or other payments, preparing for cash fraudu- wise, preclude grand jury the would lent documents to conceal the conversion of up ended some assuming that the monies And, Warner checks. the lower court pockets. other than in Weiss’s where charged jury synopsis with a succinct Thus, appellant’s of the indictment. claim did not Frankly, the cash fund evidence apply should here is Stirone invalid. change theoretical basis of the fraudu- Rather, the trial court lent scheme. lines, Along similar this court rec concluded, cash fund offered “[t]he ognizes that an amendment or variance theory, not an alternative but at trial was which does not alter an essential element illegal simply proceeds traced the of the charge may deprive still the defend F.Supp. Finally, at 1244. scheme.” 579 opportunity prosecu ant of an to meet the appellant support cited the cases States, Berger tor’s case. See v. United argument of his cоnstructive amendment 629, 55 79 L.Ed.2d 1314 S.Ct. distinguishable. are (1935); Lemire, above, supra. As noted States, In Stirone United argues pre appellant that he could not (1960), pare charges a defense to the under the for, and defendant was indicted convicted government never indictment because of, commerce interference with interstate theory apprised him of the “cash fund” Act. The indictment iden- under Hobbs prior Specifically, appellant to trial. impor- “interstate as the tified commerce” charges contends that his defenses to the tation of sand the state for use in the into bribery inapplicable and conversion were judge construction of a steel mill. The trial theory. to the cash fund however, jury, instructed the that it could argument reject appellant’s We for interference with convict defendant prejudiced preparation that he was in the importation expor- of sand or with the Supreme strategy by surprise re- of his trial shift tation of steel. The Court conviction, stating government’s theory that “when the of the case. The versed First, proves the cash only particular one kind of commerce is record otherwise. burdened, unequivocal to have a convic- fund was set forth been government’s charge must on that and not on terms at the time of the tion rest claim, Miller, solely inflating based con on evidence Cf. 1983), (9th sustained); modified, Cir. 1362-63 not be but see United viction could (9th Cir.), granted, - U.S. -, (9th Wright, Nos. 742 F.2d States (1984) (defendant 83 L.Ed.2d 26 indict 1984) (“An Cir. amendment is made when the by devising of mail fraud statute ed for violation jury court instructs the on a violation that is not by knowing insurer of and scheme defraud charged in the indictment but that is consistent burglary, inflating consenting to false then trial...."). with the truth adduced at loss, convicted amount claimed statement, remain- not opening throughout kept claim that he had any of the charge trial, money personal Thus, for his der of the own use. conference; government while the yet at no time did the defend- continued to refer to payments or to the cash objection ant raise an to the evidence Weiss received as “cash bribes,” theory, regarding this nor Weiss was on the instructions notice well before request a trial that bribery did the defendant ever continu- “conventional” was not part government’s grounds of trial that he had not casе. ance govern- given adequate been notice of the Finally, appellant implicitly argues ment’s case. that his appropriate against defenses were charges bribery and of conversion government argues that Weiss but against a charge creating not any by failing claim waived variance .cash appeal, fund. On Weiss contends that he exception any take evidence or instruc pursuant established the cash fund to or- making tion on the cash fund. this superiors, ders from his and that he never argument, does con personally retained of the cash. Yet tend that the in a cash shift presented Weiss never such claims at trial. theory at trial a variance rather constitutes Rather, Weiss testified in his own defense amendment; rather, than a it constructive that he nothing knew either about a altogether ignores the distinction. Weiss scheme to sell Theatre stock or about a asserts his case is the first true con plan Warner, to establish a cash fund at structive amendment case to reach this any that he never received payments, court, argues required, that reversal is and that he only issued Warner checks notwithstanding appellant’s the failure to upon superiors. the authorization of his raise the claim below. This circuit has persuaded Had the by been these been reluctant to construe an statements, appellant the would have been government’s theory proof “shift” in the acquitted under theory; the cash fund as a constructive amendment that would charged second element of the offense— require reversal of a conviction “without knowledge participation of and in cre- regard to preju whether defendant was ation of the cash fund—would have been by diced a difference between the indict lacking. proof.” ment and the Heimann, 665-66 Cir. clearly The record establishes that 1983). Sindona, See United States appellant adequate notice of the (2d Cir.1980), denied, F.2d 792 charges against nature of the him. Fur 68 L.Ed.2d 302 ther, objected govern Weiss never (1981). Rather, this circuit has treated theory ment’s knowing participa that his differences between the indictment and the tion the fraudulent creation of a cash require as variances which do not constituted mail fraud violation. showing reversal absеnt a that the variance testimony disavowing any His such knowl prejudice caused substantial to the defend edge presented credibilty with a Knuckles, ant. See United States v. appellant contest between the and the wit (2d Cir.), government. nesses of the Weiss lost. 58 L.Ed.2d 659 Accordingly, we hold that he had reason (1978); Sindona, 636 F.2d at 798. While and, government’s theory able notice of the we decline to resolve issue on the basis therefore, opportunity had and utilized the waiver, appellant’s object failure to ground to contest on this and was not against any argument militates that he was substantially prejudiced prepara in his trial surprised by prepared or not to defend tions. against theory. the cash fund sum, reject appellant’s argu- we

Second, appellant government’s does not presentation dis ment that the trial, pute prior the fact that ten months the cash fund constituted a con- him informed that it would structive amendment of the indictment. grand jury. in the in- indictment returned A detailed scheme The fraudulent scope were one of broad proved at trial criminal statute creates dictment was mere- same; fund” punishable the term “cash some risk that conduct will be for the expressiоn a shorthand ly though perpetrator used as may even have transactions the fraudulent total of sum good faith that his actions fell doubted fund evi- The cash the scheme. comprising coverage within the of the statute. To that not act as an at trial did offered dence apparently wholly tolerable risk is added a theory, simply traced but alternative unacceptable and unconstitutional risk Finally, we illegal scheme. proceeds of prosecutor type one when the describes that there ‍​‌‌​​‌‌​​​​​‌​​​‌​‌‌‌​​‌‌​‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​‌‍was that to the extent conclude in the indictment actionable conduct the indictment any variance between significant- then convicts the defendant for substantial as to proof, it was so I ly different conduct. believe that prejudice to Weiss. cause and mail fraud convictions RICO obtained egregious example in this case are an of a Conclusion indictment, constructive amendment of an the District Court judgment of the Fifth Amendment. violation affirmed on all counts. allegation The core of the RICO and the against fraud counts predicate mail Solo- NEWMAN, Judge, dis- Circuit JON O. participation mon Weiss was his in a part: senting in The scheme scheme to defraud. con- Believing that an unconstitutional the indictment was a scheme to extract of the indictment oc- structive amendment and convert checks. The bribes trial, respectfully I appellant’s curred convicted, stands scheme for which Weiss majori- portions of the dissent from those however, a scheme to create a cash was resulting judgment ty’s opinion and employer. fund for his Since the underlying mail fraud and affirm the RICO alleged extraction of bribes and conversion years, In recent this Court convictions. in corporate funds were to be extraordinary expansion tolerated an has fiduciary the defendant’s duties breach of permit fraud statutes to of mail and wire corporate employer, plain implica- to his prosecution for conduct that some federal bribery is that the tion of the indictment only state crim- thought subject was accomplished were and conversion expan- That “inexorable inal or civil law.1 However, corporation. detriment of the sion,” Siegel, 717 F.2d United States fund, of the cash for which Weiss creation J., Cir.1983) (Winter, dissenting in (2d 24 сonvicted, indisputably for the was questionable on its part), has been own corporation. The two benefit terms, have rewritten the but whether we in fundamentally are different schemes permitted only federal fraud statutes They may effect. their nature and their apply imprecise terms of prosecutors to criminality, in since different their even be imaginative ways, in there these statutes corporate funds bribery and conversion of scope doubt that the modern can be little unlawful, cre- undoubtedly whereas are covers an ex- fraud statutes now federal corporation’s fund for a ation of a cash range conduct. The cur- tremely broad appreciate To what may not be. benefit statutes makes it rent breadth of these must examine happened in this case one prosecu- in important that fraud especially precise terms of the indictment first vigilantly enforce the Fifth courts tions present- prosecution’s case person that a and then requirement Amendment jury. charges in the ed to the only on the contained tried Cir.1981), Bronston, (2d (2d See, Siegel, 658 F.2d 920 e.g., 717 F.2d 9 States v. 1. United States v. denied, 72 Cir.1983); Margiotta, 102 S.Ct. сert. 456 Barta, (1982); denied, (2d Cir.1982), v. Von United States 103 108 (2d Cir.1980), (1983); 635 998, 77 L.Ed.2d 282 (1981). Cir.1981); Newman, 68 L.Ed.2d 199 United 664 F.2d 12 allegations 1 a of the “Methods and Means” charged in Count The indictment § (1982), Weiss, offense, 1962(c) paragraph plainly charge that 18 U.S.C. RICO Warner, up $170,000 mail through a series of ended with the cash accomplished § violations, 18 U.S.C. obtained as a result of the scheme describ- fraud “defendant, alleged the mail fraud in through ed the indictment: Counts SOLO- violations, mailing WEISS, four consisting secretly of the fraudulently MON ac- ¶ $50,000 bribe,” 7(a); of a scheme to cepted in the execution letters id. is described in three “defendant, WEISS, The scheme accepted defraud. SOLOMON heading ¶ under the paragraphs $20,000 cash,” 7(c); “defendant, of Count in id. para- These “Object WEISS, $100,- of the Scheme.” SOLOMON ... received ... in mail fraud realleged graphs are cash,” 117(h). id. the scheme was object The first counts. trial, very description At first secretly “did that Weiss and others following crime that the heard was the corruptly accept cash bribes extract prosecutor’s opening: in the statement they for which caused Warner return government’s “The evidence this case purchase common stock Westchester six-year period, will show that over cer- violating thereby Premier Theatre ... their high tain executives Warner Communi- fiduciary share- duties to Warner and its cations, largest this nation’s entertainment ____” ¶1, Indictment, Count holders corporation, compa- schemed defraud the oth- object The second was that Weiss and ny duty provide of their honest and corruptly siphon secretly ers “did company’s faithful services to the stock- $221,950 in checks approximately convert by creating ap- holders a cash fund of belonged and its share- which to Warner $170,000.” (Emphasis added). proximately holders, fiduciary thereby violating their prosecutor then detailed what his evi- shareholders____” and its duties to Warner concerning dence would be what he now ¶ object The third was that “in order Id. 5. called “the Warner cash fund.” The cash siphon and to convert the checks from that the indictment had accused Weiss of and to conceal the fraudulent con- receiving described now as received checks,” of those and others version “on of Warner.” behalf pre- “did cause fraudulent documents to be prosecutor’s pre- evidence detailed represented ...

parеd”; the “documents cisely participated adding how Weiss being paid that the checks ... were to third cash to the Warner cash fund. His involve- parties for services to Warner” rendered began shortly ment after Leonard Horo- when in fact the “services were non-exis- witz, raising a stock broker interested ¶ charged in tent.” Id. 6. The scheme WPT, Emmett, approached capital Jay for plainly accept a indictment is scheme to vice-president, a Warner and offered him funds, corporate convert bribes and to with $50,000 “loan,” paper bag in a brown as a made false check entries to conceal 10,000 buy if Emmett would shares of paragraph A conversion. further Emmett WPT stock. declined for himself indictment, Means,” headed “Methods and Ross, proposal but took the to Steven War- details various check and cash transactions ner’s chairman. Ross told Emmett that Warner and Westchester Premier between accept Warner could not the loan but that (“WPT”) persons associated Theatre “ought Horowitz to meet with Sol Weiss WPT. with maybe helpful could be in the [h]e no mention of a The indictment makes fund.” Warnеr cash The balance of the to create a cash fund for Warner. scheme just helpful showed evidence how omitting just a matter of It is Warner cash fund Weiss could be. The indictment precise words “cash fund.” Initially, arranged Weiss for Warner to gives indication whatever that Warner no 20,000 purchase shares of purpose or WPT stock for had a cash fund or that the ever $150,000, $50,000 kicked and WPT back of the scheme was to assemble effect fact, promised an cash the detailed cash to Warner additional corporate fund. $50,000. on its cash alleged defaulted fund was When WPT nowhere in the in- War- kickback, for dictment. Weiss secured promised $50,000 $20,000 anticipated ner What occurred simply here is not a vari $50,000 checks for non-exis- by issuing ance such as occurs when the evidence persons associated tent services to proves materially some facts different $20,000 in returned to Warner WPT who alleged from those in the indictment. See Subsequently arranged for cash. Pelose, 45 n. 20,000 shares buy an additional (2d Cir.1976). In this case the very na $100,750, prom- WPT for and WPT stock ture of the crime of which Weiss was con $100,000 in to kick an additional ised baсk significantly victed is different from the WPT defaulted on this second cash. When crime in the indictment. That is a obligation, Weiss secured the kickback indictment, constructive amendment of the $100,000 by issuing in cash for Warner which violates the Fifth Amendment. Sti $171,950of checks for non-existent services States, rone v. United 361 U.S. re- persons associated with WPT who (1960); see Ex $100,000 turned to Warner in cash. The Bain, parte 40,000 acquired end result was that Warner L.Ed. 849 $170,000to shares of WPT stock and added corporate A official indicted for a scheme cash fund at a total cost of the Warner to extract bribes and corporate convert $472,700. funds has a right constitutional not to be put jury, case As the convicted unless a is told that he must Judge unmistakably District made clear proven beyond a reasonable doubt to that the cash fund was the essence of the have corpo- extracted bribes or converted explaining scheme to defraud. After rate funds. He cannot be convicted of a the mail fraud offenses were offenses in corporate scheme to add to a cash fund right their own as well as the essential against when the indictment him contains offense and

predicates of RICO allegations no of such conduct. The dis- the first element of the mail fraud offenses tinction between the scheme “the existence of a scheme to de- indictment and the scheme for which the fraud,” said, “Now, Judge Lowe jury convicted is too fundamental to be government contends that the fraudulent ignored. The accusation that Weiss ex- scheme was creation of cash fund at plainly allegation tracted bribes is Then, accepting prosecutor’s Warner.” pocketed money price being he as the bribery/conversion shift from a scheme to job. undisputed influenced in his Yet it is scheme, Judge cash fund District did thing. that he did such The Govern- guilt not tell the that Weiss’s turned particulars ment’s bill of disclaimed “that on whether he had extracted bribes or con- kept personal for his use own funds, verted as the indictment money he received from Horowitz.” alleged; us, instead she instructed that the As the Government assures “At no time, jury could not convict prosecutor argue on RICO did the ever government personally mail fraud counts if “the has Weiss enriched himself at War- proven beyond expense.” Appellee, not a doubt that ner’s Brief n. *. reasonable for alleged compa- the cash fund in the indictment Rather than a take bribe to hurt his ny, “then the fulfilled existed” because Weiss the board chairman’s proven hope “helpful” not have that essential element that he could be to his com- will course, by adding pany of the crime of mail fraud.” Of to its cash fund.2 The Horowitz, just According 2. The evidence underscored how dutiful with Weiss. to Weiss $50,000 paper bag pro- Weiss was. Horowitz testified that he had his counted out the in the dealings just he first with Weiss at Warner’s offices duced Horowitz and then said would be Emmett, testified, moments after as Emmett back in a few minutes. When Horowitz asked Ross, Ross, presented proposal going was to see the first WPT to whether Weiss replied instructed Emmett Horowitz meet that "we don’t use that name around who have prised prejudiced, or or was himself at conversion bribery essence fault objecting prosecutor’s for not acting is corporate employee part of a evidence, opening, jury charge, is es- corporation. a detriment point all beside the because a constructive fund, сash assembling corporate a sence of “[depri amendment of an indictment is the unlawful, aof is the breach if such be right” vation of such a basic that it cannot make material dis- obligation to fiduciary’s as harmless error.” be “dismissed Stirone closures, that we have held obligation States, supra, 361 v. United in this con- fraud statute violates the mail complain at 273. Weiss does not the funds proven only when it text overreaching argument, inadmissible evi purposes. noncorporate used for were dence, or an incorrect statement of the law F.2d at supra, 717 Siegel, point charge; his is that the notice 14. requirement of the Fifth Amendment has that some of Weiss’s I do not doubt totality been violated. It is the of the trial a the basis of have been conduct could of his that demonstrates the correctness The issuance fraud conviction. valid mail accept I position. justification Nor can as falsely prepared to reflect of checks that the the District Court’s view cash fund services is a performance of non-existent proceeds theory “simply traced the of the someone, ultimately the share- frаud on Weiss, illegal scheme.” United States holders, deprived opportuni- of an who are (S.D.N.Y.1983). F.Supp. At being are ty corporate funds to know how trial, clear, jury charge crystal made as the a was not convicted of spent. But Weiss illegal creation of the cash scheme, falsify checks. The scheme scheme for which Weiss was convicted. jury by prosecutor explained to the proceeds That the fund was also the a judge, was a scheme to assemble the trial alleged scheme the indictment does not fund. The falsification of corporate cash permit from one scheme to the the shift documents, which the indictment Equally unpersuasive other.3 to me is the achieving only a means for the conver- majority’s slightly explanation different the scheme that was objective sion that the reference to the cash fund appeal charged, cannot on become basis only a jury instructions was “short-hand affirming a conviction that was secured for expression” charged for the scheme guilty the defendant when the found Helping at 789. indictment. 752 F.2d of a scheme to assemble corporation raise secret cash for a does fund. accepting strike me as shorthand for bribes. ex- arguments

The various advanced to mitigate cuse or the fundamental switch majority’s Nor do I find the invocation of proved prior especially help- from the crime to the crime decisions of this Court salvage Weiss’s convic- unavailing. are Whether Weiss was sur- ful to the effort proceeds robbery not lesser included returned in a few minutes and of bank here." Weiss purchase robbery provisions), increased the first transaction from offense within federal bank $50,000 10,000 (4th and a kickback of Peyton, shares with Dove v. 20,000 purchase the Warner cash fund to a Cir.1965) (receiving property in- stolen is lesser $100,000 and a kickback of for the War- shares larceny cluded offense within offense of under ner cash fund. provision, explicit Virginia statutory Code of (1950)). Virginia But even if lesser § 18.1-107 might The issue be somewhat closer if concepts included offense could be enlisted scheme, charged with a mail fraud had not been situation, they provide up- no basis for such charged with an offense but instead had been here, holding what occurred where a conviction obtaining directly based on the secret at best as based a scheme that can be viewed on directly based and then convicted for an offense proceeds wrongdoing a cash to funnel into possessing Compare it. United States v. Gad alleging under an indictment fund was obtained 1026, 1023, dis, 424 U.S. 96 S.Ct. wrongdoing. a scheme to commit (1976) (receipt possession or of L.Ed.2d v. States majority cites United tion. (2d 662,

Heimann, 665-66 Cir. OF PENNSYLVA- COMMONWEALTH been reluctant 1983), that we have Pennsylvania Department to show NIA and of in the Govern Cohen, W., alleged shift regard an Public and Walter Welfare a constructive theory ‍​‌‌​​‌‌​​​​​‌​​​‌​‌‌‌​​‌‌​‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌​​‌‍proof as capacity Secretary ment’s as of his official Yet Heim an indictment. of Pennsylvania Department amendment of Public theory all in the of no shift at involved ann Welfare only the most incon alleged and

the crime only proof. shift in sequential STATES of America United UNITED slight varia was a detected shift this Court Department of Health and Hu- States proof indictment and tion between Heckler, Margaret man Services the defend respect to the time when M., capacity Secretary in her official as first dealings with the victims became ant’s Deрartment of In Id. at 666-68. United fraudulent. Health and Human Services Social 792, Sindona, 636 F.2d 797-99 States Svahn, Security Administration Cir.1980), denied, 451 U.S. A., capacity in his official as Com- John (1981), we con 68 L.Ed.2d Security missioner of the Ad- Social prejudicial variance occurred cluded that no ministration. allegation of the indictment the core when that the funds concealment of the fact

was Appeal PENN- of COMMONWEALTH OF belong the defendant question did not Pennsylvania and the De- SYLVANIA that the concealment proof showed partment of Public Welfare and Walter funds occurred because the were obtained Cohen, Secretary Pennsylva- contract, W. fiduciary rather by means of Department Public nia Welfare. embezzlement, lan by means of than alleged. guage of the indictment No. 84-5257. Knuckles, States v. United (2d Cir.), 308-12 Appeals, United States Court (1978), a con Third Circuit. a controlled sub for distribution of viction Argued Oct. 1984. though upheld the indictment stance was heroin and the showed co Dec. Decided cases, involving slight vari caine. These details, support no provide as to ances in this case

the total shift that occurred which the crime for

between which he and the crime for

indicted

convicted. on three agree that Weiss’s conviction

I be affirmed and perjury should

counts only as to the RICO and dissent

therefore Though this dis- fraud convictions.

mail Weiss, help may it enforce

sent is of prompts if for others it protection

some to think future fraud cases

Government crime it

through the nature of the wishes offense in a allege spell and then out the indictment,

carefully drafted instead

confronting its the defendant with criminality first time at trial. for the

Case Details

Case Name: United States v. Solomon Weiss

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 7, 1985

Citation: 752 F.2d 777

Docket Number: 1481, Docket 84-1103

Court Abbreviation: 2d Cir.