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UNITED STATES v. LEWIS

April 29, 1981

UNITED STATES, Plaintiff,
v.
Samuel L. LEWIS, Jr., et al., Defendants



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

I. INTRODUCTION

 The defendants in the instant action are accused of participation in an election fraud. The indictment, dated March 9, 1981, cites four persons. Bernard J. Wujcik holds the position of Luzerne County District Justice. Rudolph Ricko is employed by the Borough of Plymouth. Vincent J. Dougherty formerly worked for the Luzerne County Board of Elections ("LCBE"). Samuel L. Lewis, Jr., is an erstwhile employee of the Pennsylvania Department of Transportation. The Government charges that these individuals conspired to submit fraudulent absentee ballots in both the general election held on November 8, 1977 and the Democratic primary conducted in May 1978. All four defendants have moved to dismiss the indictment. Wujcik, moreover, has submitted additional motions seeking a separate trial, expanded discovery, and other procedural rulings. These matters require individual assessment.

 II. DISMISSAL OF THE INDICTMENT

 According to the indictment, the crime occurred in three stages. Initially, the defendants accumulated absentee ballots obtained through the submission of fraudulent applications. *fn1" Second, they gained control of additional ballots by removing them from the LCBE or by "misleading ... illiterate, ... poorly educated, or apathetic voters" who had submitted their own applications. Third, the defendants then caused the fraudulent votes to be marked, validated, and mailed to the authorities for counting. In the view of the Government, this conduct amounted to three separate crimes: (1) mail fraud, (2) conspiracy to commit mail fraud, and (3) multiple voting in violation of the Voting Rights Act. *fn2"

 Certain arguments appear in all four motions to dismiss. For example, every defendant contends that the indictment fails to allege a transgression of the mail fraud statute. The movants are also unanimous in their contention that the charges should be dismissed as vague. Wujcik has raised the separate defense of pre-indictment delay. Ricko's motion additionally claims that the decision to prosecute him rested on criteria that are constitutionally unacceptable. In assessing these propositions, the court must assume that the allegations contained in the indictment are true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16, 72 S. Ct. 329, 332 n.16, 96 L. Ed. 367 (1952); United States v. Bohonus, 628 F.2d 1167, 1169 n.2 (9th Cir. 1980).

 A. Mail Fraud

 The indictment clearly alleges that the overall purpose of the fraud was to "effect, modify and/or subvert" the results of two elections. Wujcik, Dougherty, Ricko, and Lewis argue that the mail fraud statute, 18 U.S.C. § 1341, outlaws only those schemes designed to divest the victim of money or other tangible property. Concededly, the instant case does not involve such a plan, since the defendants are in effect accused of denying the Commonwealth and its voters of their intangible right to a fair election. Thus, the mail fraud counts must be dismissed if the enactment only protects traditional proprietary interests. The defendants' theory shall be tested on two different grounds, i. e., the actual wording of the provision and the relevant case law.

 1. Text of the Mail Fraud Act

 Generally, the primary step in the interpretation of a statute is analysis of the actual language. Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 1140, 67 L. Ed. 2d 275 (1981). Section 1341 reads thusly:

 
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $ 1,000 or imprisoned not more than five years, or both. (emphasis added)

 Review of this language demonstrates that the provision proscribes three types of "schemes" or "artifices"; namely, those designed: (1) "to defraud," (2) "for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," and (3) "to ... distribute ... any counterfeit or spurious coin, obligation, security, or other article...." Furthermore, use of the word "or" between each of these classifications indicates that the categories are disjunctive. Accordingly, a plan need fit only one of the groupings in order to qualify for application of the statute. United States v. States, 488 F.2d 761, 763-64 (8th Cir. 1973), cert. denied, 417 U.S. 909, 94 S. Ct. 2605, 41 L. Ed. 2d 212 (1974).

 This language supports the Government. If the defendants' position were correct, then the first category, which prohibits schemes that "defraud," would have no meaning beyond the second, which concerns plans that seek "money or property by means of false or fraudulent pretenses." That interpretation would render the term "to defraud" mere surplusage since the phrase would have no independent significance. This type of construction is to be avoided in the absence of a clear indication that Congress intended such a result. American Radio Relay League v. Federal Communications Commission, 199 U.S. App. D.C. 293, 617 F.2d 875, 879 (D.C. Cir. 1980). Nothing in the text of § 1341 supports that conclusion. *fn3"

 2. Review of the Precedents

 The mail fraud law dates back to the late nineteenth century. There is little legislative history concerning the definition of the term "to defraud." United States v. States, 488 F.2d at 764. A certain tension exists in the cases that have reviewed the statute. On one hand, there is agreement that § 1341 must not be construed so expansively that the provision reaches matters of primarily local concern. United States v. Giovengo, 637 F.2d 941, 944 (3d Cir. 1980). Conversely, another body of authority has refused to give the law a narrow interpretation. In United States v. Pearlstein, 576 F.2d 531, 534-35 (3d Cir. 1978), for instance, our Court of Appeals ruled that the scope of the statute is "quite broad" and that the phrase "scheme or artifice to defraud" is "not defined according to any technical standards" but generally reaches "fraudulent misrepresentations or omissions calculated to deceive persons of ordinary prudence and comprehension." Reconciliation of these two principles requires careful analysis.

 United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976) involved an attempt by the Court of Appeals for the Eighth Circuit to place § 1341 in the proper perspective. The case concerned a city inspector who had accepted a number of gratuities from plumbing permit applicants. There was no evidence that the defendant had solicited such payments or that his performance in office was affected by the extra money. On the contrary, the defendant had simply benefited from a "tipping" custom that antedated his tenure. When the practice came to light, the United States Attorney prosecuted under the mail fraud statute. The Government contended that acceptance of the tips constituted a "scheme to defraud" which had been accomplished through use of the postal system. *fn4" A federal jury returned a conviction, but the Court of Appeals reversed.

 The McNeive decision resembled the instant action in that the proper ruling hinged on the interpretation of the term "scheme or artifice to defraud." The panel acknowledged the paradoxical authorities alternatively calling for strict and liberal construction of the enactment and the dearth of helpful legislative history. Id. at 1247-48. After reviewing the various precedents, the Court of Appeals concluded that the plans proscribed by the statute fell into two general categories. The initial classification, which included the majority of cases, involved matters where the victims had been defrauded of "money or other tangible property interests." The panel, however, went on to explain that "(t)he second category of § 1341 ...


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