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United States v. Doherty

United States v. Doherty

United States Court of Appeals for the First Circuit

February 1, 1989

Nos. 87-1681, 87-1740, 87-1683, 87-1684, 87-1685, 87-1687, 87-1688, 87-1682, 87-1739, 87-1686

Opinion

 [*51]  BREYER, Circuit Judge.

These eight appeals arise from a single prosecution, of nine Boston policemen and a state legislative aide, for conspiring to steal advance copies of civil service examinations and sell them to policemen so they could cheat and obtain promotions. These eight defendants appeal from convictions for conspiracy to commit mail fraud, racketeering, and perjury. See 18 U.S.C. § 371 (conspiracy), § 1341 (mail fraud), §§ 1961-68 (Racketeer Influenced and Corrupt Organizations Act (RICO)), and § 1623 (perjury). The most significant legal claim (advanced by five appellants) is that the Supreme Court's recent interpretation of the federal mail fraud statute, set forth in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987), decided after the appellants' trial, shows that the government tried this case using an incorrect legal theory about "fraud." Appellants add that McNally therefore requires the government to try them again.

The appellants point out [**3]  that the indictment and jury instructions in this case told the jury it could find them guilty of mail fraud conspiracy under the commonly accepted, pre-McNally theory that the statute's definition of mail fraud includes within its scope an effort fraudulently to deprive citizens of honest public services. In McNally, however, the Supreme Court held that this interpretation of the mail fraud statute, 18 U.S.C. § 1341, is not correct. It said that that statute "does not refer to the intangible right of the citizenry to good government." Rather, it protects only property rights; the "original impetus behind" the enactment of the statute was "to protect the people from schemes to deprive them of their money or property." Id. at 2879.

The pre-McNally indictment and jury instructions in this case contain language that McNally now holds to be erroneous. We have therefore read the record to determine whether the erroneous language prejudiced the defendants in any way. We have concluded, as did the district court in its post-trial, post-McNally review of the record, 675 F. Supp. 726, that the errors were harmless beyond any reasonable [**4]  doubt. We therefore reject the appellants' McNally claims. For reasons that we shall elaborate, we reject all but one of the appellants' other legal claims as well.

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867 F.2d 47 *; 1989 U.S. App. LEXIS 885 **

UNITED STATES OF AMERICA, Appellee, v. THOMAS K. DOHERTY, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. NELSON E. BARNER, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. NICHOLAS SALERNO, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. ARTHUR J. PINO, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. ROBERT W. CLEMENTE, SR., Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. JOHN A. DELIERE, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. GERALD W. CLEMENTE, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. FRANK RAY, Defendant, Appellant

Subsequent History:  [**1]   As Amended on Denial of Rehearing March 16, 1989.

Prior History: Appeals from the United States District Court for the District of Massachusetts, Hon. William G. Young, U.S. District Judge.

CORE TERMS

exam, conspiracy, indictment, promotion, mail fraud, district court, convicted, juror, defraud, perjury, conspiring, witnesses, sentencing, scores, mails, subsidiary, harmless, intangible right, participated, cases, general conspiracy, instructions, deprive, copies, counts, racketeering, helped, examinations, answers, argues

Criminal Law & Procedure, Fraud Against the Government, Mail Fraud, General Overview, Grand Juries, Indictments, Accusatory Instruments, Standards of Review, Harmless & Invited Error, Constitutional Rights, Trials, Burdens of Proof, Jury Instructions, Particular Instructions, Elements of Offense, Reasonable Doubt, Appeals, Procedural Matters, Records on Appeal, Definition of Harmless & Invited Error, Jury Instructions, Elements, Inchoate Crimes, Conspiracy, Criminal Offenses, Plain Error, Joinder & Severance, Joinder of Defendants, Civil Procedure, Parties, Joinder of Parties, Defective Joinder & Severance, Severance of Codefendants, Severance of Offenses, Judicial Discretion, Examination of Witnesses, Admission of Codefendant Statements, Postconviction Proceedings, Motions for New Trial, Search & Seizure, Warrantless Searches, Plain View Doctrine, Clearly Erroneous Review, Motions to Suppress, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Abuse of Discretion, Evidence, Relevance, Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time, Racketeering, Racketeer Influenced & Corrupt Organizations Act, Prosecution, Obstruction of Administration of Justice, Perjury, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Consolidation, Juries & Jurors, Disqualification & Removal of Jurors, Constitutional Law, Fundamental Rights, Criminal Process, Right to Confrontation, Plea Bargaining Process, Breach of Plea Agreements, Entry of Pleas, Guilty Pleas, Sentencing, Plea Agreements