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United States v. Zauber

United States Court of Appeals for the Third Circuit

April 13, 1988, Argued ; August 31, 1988, Filed

Nos. 87-5292, 87-5293, 87-5294, 88-5244, 88-5245, 88-5246

Opinion

 [*140]  OPINION OF THE COURT 

HUTCHINSON, Circuit Judge.

I. INTRODUCTION

Appellants Robert Coar and Frank Scotto were indicted, 1 tried and convicted of mail and wire fraud pursuant to 18 U.S. C.A. §§ 1341 (West 1984) and 1343 (West 1984) and of conspiring to violate 18 U.S. C.A. § 1962(c) (West 1984) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C.A. § 1962(d) (West 1984) in the United States District Court for the [**2]  District of New Jersey. Appellant Kenneth P. Zauber was convicted of mail fraud, RICO conspiracy and accepting kickbacks in connection with an employee pension benefit plan in violation of 18 U.S.C.A. § 1954 (West 1984) in the same court. All three were tried together. The district court denied their acquittal and new trial motions and sentenced them to prison terms and $ 25,000 fines. After they filed their appeal, the Supreme Court issued its decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). Although McNally was not considered by the district court, we are bound to consider it on appeal. United States v. Asher, 854 F.2d 1483, slip op. at 8 (3d Cir. 1988); see also Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649 (1987) (new constitutional rules to be applied retroactively to all criminal cases on direct review or not otherwise final, with no exception when new rule is "clear break" with past). Because we find that the indictment fails to sufficiently allege mail and wire fraud violations under McNally, we will vacate appellants' mail and wire fraud convictions and dismiss those portions of the indictment [**3]  that charge §§ 1341 and 1343 violations. As to the remaining RICO conspiracy and § 1954 convictions, we will affirm and remand to the district court for resentencing.

II. FACTS

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857 F.2d 137 *; 1988 U.S. App. LEXIS 12080 **

UNITED STATES OF AMERICA, Appellee v. KENNETH P. ZAUBER, Appellant at Nos. 87-5292 & 88-5244, UNITED STATES OF AMERICA, Appellee v. ROBERT COAR, Appellant at Nos. 87-5293 & 88-5245 UNITED STATES OF AMERICA, Appellee v. FRANK SCOTTO, Appellant at Nos. 87-5294 & 88-5246

Subsequent History: As Amended, November 10, 1988.

Prior History:  [**1]  Appeal from the United States District Court for the District of New Jersey, D.C. Criminal Nos. 85-00332-03, 85-00332-04 & 85-00332-05.

CORE TERMS

pension fund, indictment, mail, loans, kickbacks, wire fraud, new trustee, conspiracy, co-conspirator, Pension, convictions, allegations, violations, counts, charges, profits, solicit, conceal, property loss, artifice to defraud, mail fraud, holdback, mortgage, purpose of execution, multiple occasions, defraud, unlawfully, employees, dealings, honest

Criminal Law & Procedure, Fraud Against the Government, Mail Fraud, Elements, General Overview, Fraud, Wire Fraud, Contracts Law, Statute of Frauds, Standards of Review, Plain Error, Indictments, Accusatory Instruments, Indictments, Grand Juries, Procedures, Return of Indictments, Procedural Requirements, Dismissal, Requirements, Theft & Related Offenses, Embezzlement, Business & Corporate Compliance, Contracts Law, Types of Contracts, Investment Contracts, Criminal Offenses, Weapons Offenses, Pensions & Benefits Law, Governmental Employees, State Pensions, Racketeering, Racketeer Influenced & Corrupt Organizations Act, ERISA, Criminal Charges & Defenses, Inchoate Crimes, Conspiracy, Appeals, Harmless & Invited Error, Sentencing, Corrections, Modifications & Reductions, Civil Procedure, Jury Trials, Jury Instructions