Appeal from the United States District Court for the Middle District of Pennsylvania.
Gibbons, Sloviter, Circuit Judges, and Bissell, District Judge*fn*
Bob A. Clapps and Robert T. Powell were convicted of conspiracy and substantive charges of mail fraud in violation of 18 U.S.C. § 1341 through the fraudulent procurement and marking of absentee ballots in connection with two primary elections and a general election. The defendants' first trial ended in a deadlocked jury and a mistrial was declared. At the retrial, the jury found Clapps guilty on thirteen counts of mail fraud and one count of conspiracy, and Powell guilty on five counts of mail fraud and one count of conspiracy. On appeal, they allege that the district court abused its discretion in denying their motions for a non-jury trial, for a mistrial due to alleged juror misconduct, and for judgment of acquittal due to lack of sufficient evidence. Clapps also argues that the mail fraud statute does not encompass the conduct in which defendants engaged.
Sufficiency of the Evidence
We can readily dispose of the contention that there was insufficient evidence to sustain the convictions. In reviewing a claim of insufficiency of the evidence after a guilty verdict, a court must view the evidence and the inferences logically deducible therefrom in the light most favorable to the government. See, e.g., United States v. United States Gypsum Co., 600 F.2d 414, 416 (3d Cir.), cert. denied, 444 U.S. 884, 62 L. Ed. 2d 114, 100 S. Ct. 175 (1979).
There was ample evidence at trial from which the jury could have found that Clapps, the Democratic Chairman of the 120th Legislative District of Luzerne County, Pennsylvania, initiated a scheme with the aid of Powell and two other co-conspirators, Robert Outeda and George Stoss, to fraudulently obtain absentee ballots and send them to the Election Bureau. Pursuant to this scheme, before the May 15, 1979 primary election, Outeda obtained the signatures of 10 to 15 residents of the Hoskins Rest Home on applications for absentee ballots, gathered the ballots when they arrived at the Home, and turned them over to Clapps. Then, at Clapps' direction, Outeda obtained the voters' signatures on the declaration which appears on the envelope in which each completed absentee ballot is mailed. Outeda returned the envelopes to Clapps, and they were then sent to the Election Bureau. The evidence showed that the voters only signed the declarations and never saw the ballots.
Outeda also testified that before the November 6, 1979 election, Clapps directed him to obtain signatures of several Hoskins Home residents on applications. As the district court stated, Outeda delivered these applications to Powell at Clapps' garage "who directed Outeda to sign the applications of [three voters] attesting to the fact that they were unable to sign because of illness or physical disability." App. at 216a. Powell notarized all five appalications. The Bureau sent five absentee ballots addressed to those voters, which were returned to the Bureau by mail with signatures on the envelope's declaration. At trial, all five voters testified that they never saw, marked, or mailed the ballots.
George Stoss, an indicted co-conspirator, testified that prior to the May 19, 1981 primary election, he procured applications from two residents of a low-income housing development pursuant to Clapps' direction. After the Bureau mailed ballots, Clapps instructed Stoss to go to the two voters and "make sure they vote for these people, that was on the [party] ticket." Stoss testified that he followed these directions and that Clapps reviewed the two marked ballots, which were later sent to the Bureau. Both voters were in fact capable of getting to the polls on Election Day and thus were ineligible to vote by absentee ballot.
There was testimony that none of the eight voters named in the mail fraud counts requested the documents at issue. Outeda gave extensive testimony to receiving applications and instructions from Clapps to obtain signatures, and to delivering applications and ballots to both defendants. Stoss testified that Clapps directed him to obtain marked ballots and then reviewed the ballots. Five of the applications were notarized by Powell although none of the voters appeared before him. Finally, there was expert testimony that both defendants' fingerprints were found on the voting materials.
The jury could have reasonably inferred from this evidence that the appellants mailed fraudulently obtained applications and ballots. Each participant in the scheme is responsible for each use of the mails in furtherance of the scheme regardless of whether he agreed to or even knew of a specific mailing. United States v. Nance, 502 F.2d 615, 619 (8th Cir. 1974), cert. denied, 420 U.S. 926, 43 L. Ed. 2d 396, 95 S. Ct. 1123 (1975). The evidence outlined above, supported by additional evidence, also formed the basis for the conspiracy counts.*fn1 The evidence and the inferences deducted ...