The opinion of the court was delivered by: NEALON
William J. Nealon, Chief Judge, Middle District of Pennsylvania
Defendants were indicted by a federal grand jury on March 15, 1988. The indictment contains one (1) count charging conspiracy in violation of 18 U.S.C. § 371 and twenty (20) counts charging mail fraud in violation of 18 U.S.C. § 1341 as well as aiding and abetting in violation of 18 U.S.C. § 2. In short, the government alleges that in December of 1985, defendants, along with Thomas O'Hara, participated in a scheme to rig the examination process which had been prepared by the city of Scranton, Pennsylvania to produce a pool of candidates for the subsequent appointment of twenty (20) individuals to the position of Patrolman Grade I in the city's police department and used the mails in furtherance thereof. A one-count information alleging conspiracy in violation of 18 U.S.C. § 371 was filed against O'Hara on March 15, 1988, and he entered a guilty plea on March 24, 1988. It is anticipated that O'Hara will testify on behalf of the government in defendants' upcoming trial.
The government outlined its version of relevant events at a pretrial conference conducted in chambers on April 22, 1988.
Following defeat in his attempt for re-election as mayor of the city of Scranton in November of 1985, James Barrett McNulty directed Thomas O'Hara, then chairman of the city's civil service commission, to prepare entry level and promotional tests for the police and fire departments (tr. at 41-42). Twenty (20) vacancies existed in the police department (tr. at 43). The twenty (20) individuals appointed to those vacancies would assume the position of Patrolman Grade I and would replace reserve patrolmen who were paid a flat hourly fee, with no benefits or guaranteed hours (tr. at 38).
The police entry level examination was prepared by O'Hara and defendant Sheridan (tr. at 47). According to the indictment, the latter functioned as a secretary to the mayor and as chief examiner for the civil service commission. O'Hara and Sheridan also publicized the examination and distributed applications by mail and in person (tr. at 44-46). Three hundred and eighty-eight (388) persons applied to take the test (tr. 45-46).
Sometime prior to the administration of the police entry level examination, defendant Thomas approached O'Hara and requested the answer key for circulation among a select group of the reserve patrolmen (tr. at 47). Thomas expressed consternation that these reserve patrolmen might lose their employment and suffer financial distress (tr. at 47). Thomas had previously solicited contributions from the reserve patrolmen for the re-election campaign of Mr. McNulty (tr. at 37-41).
O'Hara agreed to accommodate Thomas' request but inadvertently extracted the wrong answer key from a file cabinet in the civil service commission's office (tr. at 49). Specifically, O'Hara pulled out an answer key from a previous police entry level examination which had been scheduled in 1984 but which had never been administered (tr. at 47, 49). O'Hara made a copy of the outdated answer key and placed it in an envelope marked "Cookie Thomas" which was delivered to Thomas through interoffice mail (tr. at 49). Thomas met individually with reserve patrolmen in a back office in police headquarters and disclosed the examination answers which he had received (tr. at 50).
Meanwhile, Sheridan obtained a copy of the appropriate answer key from the file in the civil service commission's office and gave it to a city official, at his request, apparently for distribution to certain reserve patrolmen (tr. at 51-52). Some of the reserve patrolmen eventually received both the incorrect and the correct answer keys and discarded the latter in favor of the former (tr. at 52).
Over the weekend, Thomas met with almost all of those to whom he had given the wrong answer key and told them not to worry because the situation would be taken care of (tr. at 56). When O'Hara arrived at his office on the following Monday, he found an envelope on his desk containing a list of the names of the individuals whom Thomas wanted "to take care of" (tr. at 57).
O'Hara and Sheridan then secluded themselves in the mayor's conference room in order to correct all of the test answer sheets, and O'Hara informed Sheridan of the existence and purpose of the list of names which he had received from Thomas (tr. at 58-59). He gave her the list and she read the names from the list as he extracted the answer sheets of those persons from the pile of answer sheets (tr. at 59). O'Hara then composed new answer sheets for these individuals in order to qualify them for the next step, viz., an oral examination to be conducted by O'Hara and Sheridan (tr. at 59-61). When he finished and was leaving the room without the original answer sheets of those named on the list, Sheridan advised him to make sure he destroyed the answer sheets which he had extracted (tr. at 63-64). O'Hara threw away the original test answers of those named on the list, along with the list of names itself, in a wastebasket at city hall (tr. at 64).
All applicants who scored seventy (70) or better on the written police entry level examination became eligible for a subsequent oral examination (tr. at 67). Sheridan prepared a form notification for those applicants who scored seventy (70) or better, informing them to report for an oral examination (tr. at 68). O'Hara stuffed the envelopes, and Sheridan delivered them to the mail room at city hall for mailing (tr. at 68). The mailings to the twenty (20) individuals referred to in counts II through XXI of the indictment form the basis of the government's mail fraud charges.
O'Hara and Sheridan conducted the oral examinations and thereafter compiled and furnished to Mr. McNulty a list of finalists in order of their grades, which were a composite of each candidate's written test score (60%) and oral examination score (40%) (tr. at 64-65, 70). At Mr. McNulty's direction, the top twenty (20) candidates were offered the position of Patrolman Grade I (tr. at 70). Nineteen (19) of these twenty (20) accepted the position, while the remaining individual declined the position in order to accept an appointment to the fire department; the candidate who was twenty-first (21st) on the list of finalists subsequently was offered and accepted the last position of Patrolman Grade I (tr. at 70-71). The twenty (20) individuals referred to in counts II through XXI of the indictment are those who received the Patrolman Grade I appointments. Of those candidates whose examination papers O'Hara remembers altering, with one exception, all ended up in the top twenty (20) on the list of finalists (tr. at 65).
In response to the government's allegations, defendant Sheridan filed a motion to dismiss the indictment and a brief in support thereof on April 22, 1988. See documents 16 and 18 in M.D. Pa. Cr. No. 88-00044-02, respectively. Defendant Thomas also submitted a motion to dismiss the indictment and a supporting brief on the same date. See documents 19 and 25 in 88-00044-01, respectively. Defendants in essence maintain that:
(1) the indictment fails to allege a deprivation of property as required under the mail fraud statute, 18 U.S.C. § 1341;
(3) the mailings referred to in the indictment were required by law, thus insulating defendants from criminal liability for these mailings;
(4) the indictment is duplicious inasmuch as the government incorporates all of the allegations from count I, the conspiracy count, into counts ...