card issued by their employer/school district, and the gasoline company later mailed invoices to the school district). In Tarnopol, the Third Circuit specifically noted that the mailings in question occurred prior to the commencement of the execution of the scheme. Tarnopol, 561 F.2d at 473. Moreover, it is evident from a reading of each of the cases cited by defendants that the respective schemes therein may have been better served if none of the mailings had ever taken place.
This court finds the Carpenter opinion more applicable to the present facts. In Carpenter, the procurement of the Wall Street Journal's confidential information was not the ultimate objective of the defendants' scheme; rather, it was a necessary step in achieving their overriding goal, i.e., profits derived from insider trading which, in turn, depended upon the mailing of the Wall Street Journal by others. So too, in the instant case, the altering of favored individuals' written test responses was a necessary step toward the ultimate purpose of the alleged conspiracy, which depended upon the mailed oral examination notices for its progression and eventual completion. See also Doherty, 675 F. Supp at 731 ("the purchase of the [police] examinations was the first step in the defendants' scheme to defraud the Commonwealth of . . . periodic salary payments").
Therefore, this court concludes that the mailings referred to in the indictment are sufficiently related to the ultimate objective of defendants' purported scheme to render the mail fraud statute applicable in this case.
Relying upon the Supreme Court's decision in Parr, defendants also assert that they cannot be held criminally liable for their alleged conduct because the mailings in question were required by law. In Parr, the school board "was required by the state law to use the mails" to collect taxes. 363 U.S. at 388. The Court noted that the factual situation before it was "unique" in that the relevant mailings were required by law. Id. at 391. The Court went on to hold that the legally compelled mailings could not support the mail fraud charges. The Court also substantially relied upon the fact that the indictment did not allege that these mailings were part of the offense.
In the case at hand, Rule IX of the Rules and Classifications of the Municipal Civil Service Commission of Scranton, Pennsylvania states, "The Secretary, as early as practicable after the completion of an examination, shall notify each candidate therein of the rating he has received . . ." (emphasis supplied). The court does not read this language as legally mandating use of the mails. In fact, the government indicated at the pretrial conference that for past examinations, at least some of the candidates were notified of the results by telephone (tr. at 12). Thus, the court finds that defendants' reliance upon Parr is misplaced, that the mailings in question were not legally compelled and that defendants are not insulated from criminal liability.
III. Remaining Contentions
Defendant Sheridan argues, "The indictment in the present case fails to state any activity common to both Catherine Sheridan and defendant Thomas, neither do the allegations contained in the indictment set forth a conspiracy with defendant Thomas." See document 18 in 88-00044-01 at 4. In other words, Sheridan reads the indictment as setting forth a conspiracy between Thomas and O'Hara separate and distinct from a conspiracy between O'Hara and herself.
The essence of conspiracy is an agreement, tacit or express, for an unlawful purpose between two or more persons, and it is not required that the conspirators join in at least one overt act common to all of them. United States v. Heldon, 479 F. Supp. 316, 321 (E.D. Pa. 1979). "'The fact that a conspirator is not present at, or does not participate in, all of the conspiratorial activities does not, by itself, exonerate him. . . . (I)t is not necessary for each conspirator to have entered into the unlawful agreement at its inception.'" Id. at 321 (quoting United States v. Ashley, 555 F.2d 462, 467 (5th Cir. 1977)). "It is not necessary for each co-conspirator even to agree to or actually participate in every step of the conspiracy. . . . A co-conspirator need not be, and often is not, aware of everything being done to further the conspiracy." United States v. Spudic, 795 F.2d 1334, 1337 (7th Cir. 1986). "A person may participate in a conspiracy without knowing the identities of all of the other co-conspirators." United States v. Capo ; 791 F.2d 1054, 1066 (2d Cir. 1986). Finally, a co-conspirator is bound by the overt acts of other conspirators taken in furtherance of the conspiracy, whether or not said co-conspirator was a member of the conspiracy at the time, and in a mail fraud case, when one conspirator causes the mailings, this act can be imputed to all the members of the conspiracy. United States v. Bloom, 78 F.R.D. 591, 607 (E.D. Pa. 1977).
In the present case, if the government's accusations are true, defendant Thomas and Thomas O'Hara formed a conspiracy for the purpose of fraudulently obtaining the position of Patrolman Grade I for certain favored individuals. Sheridan was informed of the existence and purpose of the conspiracy by O'Hara on Saturday, December 7, 1985 at Central High School and again on Monday, December 9, 1985 in the mayor's conference room. Her decision to participate in the conspiracy is allegedly evidenced by (1) her reading of the list of names to O'Hara so that he could separate and alter the test responses of those named on the list from the responses of the remaining candidates, and (2) her advising O'Hara to take and destroy the original responses of those named on the list. According to the government's averments, the conspiracy originally formed between O'Hara and Thomas remained a continuing enterprise and did not convert into a different enterprise when a third person, Sheridan, became involved. Having carefully reviewed the indictment, the court finds that it does not, as asserted by defense counsel, aver separate conspiracies between O'Hara and Thomas and between O'Hara and Sheridan but rather alleges one ongoing conspiracy among these three persons with a constant goal. Thus, defendant Sheridan has not been improperly joined with defendant Thomas.
The mere incorporation by reference of a conspiracy count into a substantive count does not constitute multiplicity. United States v. Serino, 835 F.2d 924, 930 (1st Cir. 1987) (conspiracy and mail fraud counts); United States v. Kirby, 587 F.2d 876, 882 (7th Cir. 1978) (conspiracy and mail fraud counts). In addition, the test for determining whether counts of an indictment are truly separate, and not multiplicious, is whether proof of one offense charged requires an additional fact that proof of the other offense does not necessitate. United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978). In addition to the incorporated paragraphs, counts II through XXI of the indictment contain a different allegation of fact that is required to be proven for a mail fraud conviction, i.e., that the respective mailing was made to execute the scheme. The court, then, concludes that counts II through XXI in the indictment are not multiplicious.
Lastly, once a grand jury returns an indictment valid on its face, a district court will not make an independent inquiry of the evidence considered by the grand jury. United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978), aff'd, 442 U.S. 477, 99 S. Ct. 2432, 61 L. Ed. 2d 12 (1979); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); and United States v. Shober, 489 F. Supp. 393 (E.D. Pa. 1979). In any event, it is readily apparent from the statements made by Thomas O'Hara during his guilty plea and from the representations made by the government during the pretrial conference that there are ample grounds to support the indictment against defendants. See document 9 in M.D. Pa. Cr. No. 88-00047 (transcript of O'Hara plea) and document 40 in 88-00044-01 (transcript of pretrial conference). See also United States v. Short, 671 F.2d 178, 183 (6th Cir.), cert. denied, 457 U.S. 1119, 102 S. Ct. 2932, 73 L. Ed. 2d 1332 (1982) (grand jury utilizes probable cause standard in determining whether to issue indictment).
For the reasons set forth above, defendants' motions to dismiss the indictment will be denied.
An appropriate Order will enter.
DATED: May 6, 1988
NOW, this 6th of May 1988, in accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT defendants' motions to dismiss the indictment are denied.