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United States v. Garrett

filed: March 28, 1978.

UNITED STATES OF AMERICA, APPELLEE,
v.
ARTHUR GARRETT, ANGELO MORINI, FIESTA FOODS, INC., APPELLANTS



Appeal from the United States District Court for the Western District of Pennsylvania D.C. Crim Nos. 77-18-1, 77-18-2, 77-18-3.

Aldisert and Hunter, Circuit Judges and Cahn,*fn* District Judge.

Author: Hunter

HUNTER, Circuit Judge:

In this case, appellants challenge the trial judge's jury instruction on intent in their joint trial for mail fraud, 18 U.S.C. ยง 1341 (1970). They contend that part of the charge impermissibly shifted the burden of proof on intent from the government to the defendants. Our review of the trial judge's charge convinces us that no reversible error was committed. We affirm.

I.

The facts will be outlined only briefly. The defendants are Arthur Garrett, food service director at Slippery Rock State College; Fiesta Foods, Inc., a food supply company; and Angelo Morini, the president of Fiesta Foods. They were charged with using the mails in furtherance of a scheme to falsify bids to the college in order to ensure that Fiesta would be awarded supply contracts for part of Slippery Rock's food service.

At trial, the government introduced evidence that Garrett had obtained a financial interest in Fiesta Foods. The college's purchasing agent testified that purchases of perishable foods were to be made after competing bids were solicited, if the product sought was available from more than one source. The evidence indicated that Garrett had instructed food services employees to solicit the required multiple bids for pizzas from defendant Morini, with the result that Fiesta Foods was awarded the pizza contracts. Representatives of other food companies, which had been listed on college purchase orders as participating in the bidding, testified that the bids made on behalf of their companies for the pizza contract were not authorized.

Evidence of the use of the mails for submitting contracts and receiving payments for supplies was introduced by the government and not disputed by defendants. In its closing, the government contended that the evidence presented demonstrated that defendants engaged in a scheme to defraud the college and used the mails to perpetrate the scheme. The jury found each defendant guilty of eight counts of mail fraud.

II.

The defendants' contentions in this appeal are directed solely at the following portion of the trial judge's charge to the jury:

As a general rule it is reasonable to infer that a person intends all the natural and probable consequences of an act knowingly done or knowingly omitted. So unless the evidence of a case leads you to a contrary conclusion you may draw the inference and find that the accused intended all the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have been expected to result from an act knowingly done or knowingly omitted by the accused.

Counsel for defendants objected to this portion of the charge but were overruled by the trial judge.

The thrust of defendants' argument is that by instructing the members of the jury that they may infer the specific intent to defraud element of the crime of mail fraud from acts by the accused "unless the evidence leads [the jury] to a contrary conclusion," the trial judge shifted the burden onto defendants to introduce evidence of their lack of intent to defraud. Further, defendants argue that the instruction is inconsistent with other elements of the charge placing the burden of proving all elements of the crime on the government.

The Fifth Circuit has reviewed the instruction under consideration here numerous times over the last fifteen years. In Mann v. United States, 319 F.2d 404 (5th Cir. 1963) cert. denied 375 U.S. 986, 11 L. Ed. 2d 474, 84 S. Ct. 520 (1964), the court held that the trial judge's use of the instruction in a prosecution for wilful ...


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