United States v. Chandler

United States v. Chandler

Opinion

 [*798]  ON PETITION FOR REHEARING

HILL, Circuit Judge:

The government filed a limited Petition for Rehearing, in which it concedes that the convictions of the appellants should be vacated and, upon remand, judgments of acquittal are to be entered. The limited relief sought is that the court rescind that part of the opinion (Part II.A.2) that holds that violation of the rules of a privately promoted game, without more, could not, under the facts of this case, amount to mail fraud.

Inasmuch as the government seeks no modification of the judgment, and, as the section of the opinion to which the government's motion is directed is an alternative holding rendered unnecessary by this concession, and without further consideration of the merits vel non of the motion, the panel grants rehearing and substitutes the following [**2]  opinion:

The government charged defendants in the Middle District of Florida with conspiring to commit mail fraud, in violation of 18 U.S.C. § 371. Defendants herein proceeded to trial and were found guilty. Each filed a motion for a judgment of acquittal, which the district court denied. Each appeals that denial.

This trial clearly demonstrates the inherent danger in a multi-defendant conspiracy prosecution - that individuals who are not actually members of the group will be swept into the conspiratorial net. Because the government is

permitted broad prosecutorial discretion to prove the conspiracy, the likelihood exists that those who associate with conspirators will be found guilty of a crime that they have not intended to commit, and part of a group that they never joined. See Dennis v. United States, 384 U.S. 855, 860, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966).

This danger is compounded when the grand jury indicts on one theory of the illegal conduct, but the government prosecutes the case on an entirely different theory. This roaming theory of the prosecution can produce trial error of constitutional proportions. See Russell v. United States, 369 U.S. 749, 768, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962) [**3]  (ill-defined charges leave "the prosecution free to roam at large - to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal").

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