APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Aldisert and Weis, Circuit Judges, and Re,*fn* Chief Judge.
This appeal by the government comes from a directed verdict of acquittal following a jury verdict of guilty in a highly publicized criminal trial implicating Pennsylvania and Philadelphia public officials.*fn1 Three questions are presented: whether there was a variance between the indictment and the proof; if so, whether it prejudiced substantial rights of the defendants; and if so, whether the proper remedy was a new trial or acquittal. Defendants were charged with participating, with unindicted co-schemers, in a single political patronage scheme, designed to defraud the Commonwealth of Pennsylvania, and which utilized the United States mails in violation of 18 U.S.C. § 1341. The trial judge, determining that there was a variance between the offenses charged in the indictment and the proof offered at trial and that substantial rights of the defendants were prejudiced thereby, entered a directed verdict of acquittal. We affirm.
Defendants, Peter J. Camiel, Vincent J. Fumo, Thomas M. Nolan, and Vincent F. Scarcelli were charged in a forty-four count indictment with violating the federal mail fraud statute, 18 U.S.C. § 1341, between December 1974 and December 1978. From 1974 until the end of May 1976 Camiel was Chairman of the Philadelphia Democratic County Executive Committee (City Committee) and Fumo was his assistant in charge of patronage. During the entire four-year period, Nolan was Majority Leader of the Pennsylvania Senate and in charge of the Senate Special Leadership Account (Senate payroll); Scarcelli, a state representative, was Chief Clerk of the Pennsylvania House of Representatives and in charge of House Per Diem and Staff Salary Accounts (House payroll). Each of these payroll accounts was intended to provide assistance to members of the respective legislative body, but were not intended to be used to pay salaries, wages, or expenses of persons who performed no services for state legislators.*fn2
The indictment charged that the defendants, as well as unindicted co-schemers Henry J. Cianfrani, then a state senator from Philadelphia, and Martin Weinberg, Camiel's successor as City Committee Chairman, participated in a scheme of placing Democratic party loyalists on the House and Senate payrolls with the understanding that they were not required to perform any work for the Pennsylvania legislature. Because these payrolls were intended solely to assist state legislators, the hiring of these "no-show" employees constituted misuse of the payroll funds and worked a fraud on the Commonwealth of Pennsylvania. Moreover, the government alleged, because the "no-show" employees' payroll checks were mailed to them from Harrisburg, the scheme also violated the federal mail fraud statute, 18 U.S.C. § 1341. Under the government's theory of the case, there was a single fraudulent political patronage scheme with the City Committee at the center and with the various participants united by one common goal: increasing the power of the Philadelphia area Democratic party by securing "no-show" jobs with the Pennsylvania legislature for party loyalists.
From December 1974 through at least May 1976 there was an ongoing political battle within the Democratic party in Philadelphia for control of the City Committee between those members aligned with then Mayor Frank Rizzo and those opposed to him. Because Camiel was part of the anti-Rizzo faction, Rizzo denied city government patronage to the City Committee during Camiel's tenure as Chairman. Through his political affiliation with then Governor Milton J. Shapp, and his previous support for both Nolan and Scarcelli, however, Camiel was afforded access to the previously described House and Senate payroll accounts to fund his patronage requests. Nolan or Scarcelli would approve Camiel-recommended party loyalists for "no-show" jobs.
The power structure of the Democratic party in Philadelphia changed drastically in May 1976 when Weinberg, a Rizzo supporter, defeated Camiel in his bid for reelection as Chairman of the City Committee. Immediately upon taking office, Weinberg demonstrated his animosity toward the Camiel faction by firing six "no-show" patronage employees on the Senate payroll who had been recommended by Camiel during the December 1974 to May 1976 period. By June 30, 1976, both Camiel and Fumo had been removed from power on the City Committee. Thereafter, Fumo, who retained his position of ward leader, performed only a minor role in the alleged schemes, and Camiel, as the government concedes, no longer participated in any fraudulent patronage schemes.
According to trial testimony, Camiel and Fumo were aware that both the House and Senate payrolls were being used to fund "no-show" employees. Although this bicameral involvement continued even after the change in leadership of the City Committee, there is a substantial question whether Nolan in the Senate and Scarcelli in the House were aware of each other's activities. The only evidence from whith the existence of such a common House-Senate scheme could be inferred involved Ms. Ann Moss who had been given a patronage position on the House payroll while Camiel was Chairman of the City Committee. Moss switched allegiances and supported Weinberg in his successful bid to oust Camiel from the City Committee Chairmanship. In return for her support, Weinberg first removed her from the House payroll and then obtained a similar "no-show" position for her on the Senate payroll, but as a contract rather than a salaried employee. Moss then approached Nolan inquiring if she now had the same employee benefits she had received while on the House payroll. He informed her that as a contract employee she was not eligible for any employee fringe benefits. The government adduced no other evidence from which it could be inferred that Nolan knew that Moss had been a Philadelphia "no-show" employee in the lower house.
Because of his ill health, Scarcelli was severed from the other defendants for a separate trial which has not yet taken place. A jury convicted Nolan on thirty-two counts, Fumo on fifteen, and Camiel on eleven. Camiel was also found innocent on two counts. After the jury returned its verdict, the district court judge granted the defendants' motions for a directed verdict of acquittal. The trial judge found that there was a variance between the offenses charged in the indictment and the proofs offered at trial, that the variance prejudiced substantial rights of each defendant, and that the proper remedy was acquittal of each defendant rather than a retrial. The government contests each of these rulings on appeal.
The parties agree that a multi-defendant mail fraud scheme may be analyzed as a conspiracy. United States v. Camiel, 519 F. Supp. 1238, 1241 n.7 (E.D. Pa. 1981). Further, case law indicates that the precepts governing variance in conspiracy cases apply equally to multi-defendant mail fraud prosecutions. United States v. Rodgers, 624 F.2d 1303, 1307 (5th Cir. 1980), cert. denied, 450 U.S. 917, 101 S. Ct. 1360, 67 L. Ed. 2d 342 (1981). Finally, we note that in a conspiracy case, the determination of whether there is a variance sufficient to justify a trial judge's ...