THOMAS TWINE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5295 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-20a) is unreported, but the judgment is noted at 902 F.2d 1563 (table). The opinion of the district court (Pet. App. 21a-33a) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 25, 1990. A petition for rehearing was denied on May 16, 1990. The petition for a writ of certiorari was filed on July 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner received adequate notice of the charges against him. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted of conspiracy to defraud the United States, in violation of 18 U.S.C. 371. The district court suspended the imposition of sentence, placed petitioner on probation for five years, and fined him $5,000. The court of appeals affirmed. 1. Petitioner was the executive vice-president of Eastern Services, Inc. (ESI), a janitorial services company. In December 1982, ESI was certified as a minority business qualified to participate in the Minority Small Business and Capital Ownership Development Program operated by the Small Business Administration (SBA). Under that program, SBA enters into contracts with other federal agencies, and minority businesses subcontract to perform the work. The subcontractors are eligible for SBA financial assistance, including Business Development Expense (BDE) grants to purchase capital equipment approved by SBA for use in fulfilling particular subcontracts. Pet. App. 2a-3a; Gov't C.A. Br. 4-6. In 1983, the principals of ESI learned of a proposed lawn maintenance subcontract at the Naval Air Development Center (NADC) in Warminster, Pennsylvania. Petitioner met with other ESI officials several times to discuss a plan to apply to SBA for a BDE grant in an amount greater than the cost of the capital equipment necessary to perform the NADC contract. To carry out this scheme, they agreed to submit an inflated equipment list and false invoices showing that the equipment had been purchased. Pet. App. 3a-4a; Gov't C.A. Br. 8. ESI applied for the NADC lawn maintenance subcontract, and, on June 30, 1983, SBA awarded it to ESI, to commence July 1, 1983. In June 1983, ESI also submitted to SBA a request, prepared at the direction of petitioner and another ESI official, for BDE funds to purchase ten specified pieces of equipment. After this request was denied, ESI submitted a second request for BDE funds on July 5, 1983. That same day, petitioner prepared false invoices listing eight pieces of equipment supposedly purchased by ESI from Plymouth Lawnmower, an equipment distributor, at a total cost of $68,655. The signature of an individual who had been hired by ESI to assist with the contract was forged on the invoices. Pet. App. 3a-4a, 6a; Gov't C.A. Br. 8. On July 15, 1983, SBA approved a BDE grant of $85,318 to ESI. Because funds for the grant could not be disbursed immediately, and the NADC contract had already commenced, SBA contacted Girard Bank (Girard) to arrange a bridge loan to provide interim financing for ESI. At the insistence of the bank's loan officer, SBA agreed to guarantee full repayment of the loan. A letter from the Deputy Regional Administrator of SBA to the bank stated that SBA would reimburse Girard if the bank presented sufficient documentation that the specific items of capital equipment for which the BDE grant was approved were actually purchased. The letter also reminded Girard that "all of the $85,318.00 has been approved for use for capital equipment for the NADC contract" and "no funds are to be used as general working capital for Eastern Services, Inc." Pet. App. 5a. The loan officer then met with two ESI officials, showed them the letter, and explained that Girard would disburse money from the bridge loan only if ESI submitted documentation that it had purchased SBA-approved equipment. Pet. App. 4a-6a; Gov't C.A. Br. 9-10. On July 18, 1983, petitioner gave an ESI official the false invoices that he had prepared on July 5, and the official in turn submitted the invoices to Girard. The invoices listed purchases by ESI of eight pieces of SBA-approved equipment, even though many of those pieces had not been ordered. Based on these invoices, Girard issued a check in the amount of $68,655 payable to ESI and Plymouth Lawnmower, the supposed vendor. ESI officials endorsed the check, and it was delivered to Plymouth Lawnmower. Later that day, petitioner received an envelope containing $18,605 in cash from a friend who had been acting as an intermediary with Plymouth Lawnmower, and petitioner gave this cash to another ESI official. ESI used this money for general corporate purposes, including paying the salaries of ESI's officers. Pet. App. 6a-9a; Gov't C.A. Br. 11-13. On September 19, 1983, the BDE funds became available and were transferred to Girard, which placed them in a special bank account previously set up by ESI and SBA. The next day, ESI, with the approval of SBA, used BDE funds to repay the principal outstanding on the Girard loan. ESI ultimately withdrew all but approximately $779 of the $85,318 BDE grant from the account. Pet. App. 9a. /1/ 2. Petitioner was charged in a two-count indictment with conspiracy to defraud the United States, in violation of 18 U.S.C. 371; and embezzlement, theft, and conversion of public money, in violation of 18 U.S.C. 641. Count One of the indictment charged that: From in or about June 1983 . . . (the) defendants . . . did knowingly and willfully conspire . . . to defraud the United States by obtaining by deceit and dishonest means, including preparing false documents, money from the United States not otherwise due to the defendants. Pet. App. 12a n.9. Succeeding paragraphs of the indictment alleged that the "plan and purpose" of the conspiracy was for the defendants to obtain BDE funds from SBA to purchase capital equipment and to divert portions of those funds to their own uses. As part of the plan, the indictment charged, the defendants would obtain fraudulent invoices relating to alleged equipment purchases, present the invoices to SBA to obtain BDE funds, and arrange for ESI either to purchase equipment for less than the allocated amount of BDE funds or not to purchase required equipment. Pet. App. 18a; C.A. App. 13a-15a. After a jury trial, petitioner was convicted of conspiring to defraud the United States, but was acquitted of embezzling, stealing, and converting public money. Pet. App. 21a. The district court denied petitioner's post-verdict motion for acquittal or a new trial. Id. at 21a-33a. 3. The court of appeals affirmed. Pet. App. 1a-20a. On appeal, petitioner argued that because the funds obtained by ESI belonged to Girard Bank, not to SBA, there was insufficient evidence of a conspiracy to defraud the United States. Id. at 10a-11a. The court rejected this claim, explaining that Section 371 "requires proof of a conspiracy to defraud the United States: it does not require that the government actually be harmed." Id. at 11a. The court noted that petitioner and the other principals of ESI had devised the plan to submit a "fraudulent, illegally inflated BDE request" to SBA in June of 1983 (Pet. App. 12a), and that petitioner prepared the false equipment invoices on July 5, 1983, the same day that the second BDE request was submitted, while the possibility of obtaining a bridge loan from Girard Bank was not even suggested until the BDE request was granted in mid-July. Id. at 12a-13a. The court concluded that (i)t is of little consequence that the interposition of the Girard Bank bridge loan may have resulted in the embezzlement of Girard, rather than United States money. When they reached an agreement, submitted the fraudulent BDE request to SBA, and prepared the fraudulent Plymouth Lawnmower invoice in furtherance of their agreed plan, (ESI's president and petitioner) conspired to defraud the United States of its money. Id. at 13a. The court also rejected petitioner's claim that the indictment should have been dismissed because it failed to allege that the United States was the target of the conspiracy, concluding that the "indictment clearly alleges either a conspiracy to defraud SBA directly or a conspiracy to defraud SBA indirectly through Girard." Pet. App. 18a. Finally, the court held that there was no fatal variance between the allegations of the indictment and the evidence at trial. Because the government proved that a conspiracy to defraud the United States "existed before Girard was even involved," the court concluded that it was irrelevant to the conspiracy charge whether the money ultimately obtained by ESI belonged to Girard, or to the SBA. Id. at 19a-20a. In any event, the court ruled, petitioner had failed to show that he was prejudiced by the alleged variance. Id. at 20a. ARGUMENT Petitioner contends (Pet. 6-15) that the government failed to adopt a single, consistent theory of prosecution, and that this failure, coupled with the district court's denial of his motion for a bill of particulars, deprived him of his right to notice of the charges against him. Petitioner does not attack the sufficiency of the indictment to charge him with conspiring to defraud the United States. Nor does he challenge the court of appeals' determination that there was no fatal variance between the allegations of the indictment and the government's proof at trial. Rather, petitioner's sole contention is that he was not given adequate notice of the government's theory of prosecution. Petitioner maintains (Pet. 7) that the government repeatedly changed its theory of the case. The court of appeals, however, specifically noted this contention in considering petitioner's variance claim (Pet. App. 19a), and rejected the variance claim because "(t)he indictment charged a conspiracy to defraud by obtaining money from the United States by deceit" (ibid.), and the government's proof established the charged conspiracy (id. at 11a-15a, 20a). Although petitioner does not now raise the issue in the context of a variance claim, the terms of the indictment foreclose his assertion that he lacked fair notice of the charge against him. The indictment specified that the conspiracy concerned a scheme to "obtain() by deceit and dishonest means, including preparing false documents, money from the United States not otherwise due to the defendants." C.A. App. 14a. It specified that the conspiracy included a plan to "obtain BDE funds from SBA to purchase capital equipment to assist ESI in the performance of the NADC grounds maintenance contract and * * * divert portions of said BDE funds to (the conspirators') own uses" (ibid.); to "obtain fraudulent invoices allegedly relating to actual purchases of equipment and * * * present such invoices to SBA to obtain the release of BDE funds" (id. at 15a); and to "arrange for ESI either to purchase required capital equipment for less than the allocated amounts of BDE funds or to not purchase required capital equipment" (ibid.). Contrary to petitioner's claim of lack of notice, the indictment itself thus provided him with full notice of the charge against him. With regard to petitioner's contention that he should have received a bill of particulars, it is well established that the trial court has "very broad discretion" in ruling on a defendant's request for a bill of particulars. Will v. United States, 389 U.S. 90, 99 (1967); see Wong Tai v. United States, 273 U.S. 77, 82 (1927). To successfully attack the denial of a bill of particulars, a defendant must establish "both that the trial court abused its discretion in denying relief and that surprise or other prejudice resulted from his having been deprived of the requested information at the pre-trial stage." United States v. Rosa, 891 F.2d 1063, 1067 (3d Cir. 1989); see United States v. Wright, 826 F.2d 938, 942-943 (10th Cir. 1987). As discussed, the indictment gave petitioner full notice of the charge against him, and there was no abuse of discretion in the district court's denial of petitioner's motion for a bill of particulars. See United States v. Tarvers, 833 F.2d 1068, 1076 (1st Cir. 1987) (where "the indictment itself was more than adequate," district court did not abuse its discretion in denying bill of particulars). Moreover, petitioner does not identify any prejudice he suffered as a result of the district court's denial of his request for a bill of particulars. Although petitioner makes a general assertion that he was prejudiced, he fails to point to any unexpected evidence that was introduced at trial or to anything he would have done differently had he known the details of the government's theory. See Wong Tai v. United States, 273 U.S. at 82 (upholding denial of bill of particulars where nothing in the record indicated "that the defendant was taken by surprise in the progress of the trial, or that his substantial rights were prejudiced in any way"); United States v. Draine, 811 F.2d 1419, 1421 (11th Cir.), cert. denied, 484 U.S. 827 (1987); United States v. Arenal, 768 F.2d 263, 268-269 (8th Cir. 1985). Finally, although petitioner contends (Pet. 12-15) that the decision of the Third Circuit in this case conflicts with other decisions of the courts of appeals, he cites no conflict in the governing legal standard. In the two cited cases in which the denial of a bill of particulars was held to be reversible error, the court specifically found that the government's failure to disclose specific information substantially prejudiced the defendants' ability to prepare for trial. See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (trial court abused its discretion in denying motion for bill of particulars where indictment charged defendant with extortionate schemes aimed at one company and defendant was confronted at trial with evidence of extortions aimed at entirely different companies); United States v. Bortnovsky, 820 F.2d 572, 574-575 (2d Cir. 1987) (denial of bill of particulars was reversible error where government failed to reveal "crucial information" and instead provided "mountains of documents" to defense counsel, who had only four days to prepare defense). Petitioner also cites two decisions in which the court held that the district court's denial of a bill of particulars was not an abuse of discretion, /2/ one decision in which the court of appeals held that the bill of particulars was adequate, /3/ and one decision in which the court of appeals held, that in light of the indictment, the defendant was not surprised or prejudiced. /4/ None of these decisions establishes a conflict with the court of appeals' decision in this case, and petitioner's fact-bound claim does not warrant review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney NOVEMBER 1990 /1/ Of the ten pieces of equipment for which ESI was awarded BDE funds, two pieces were never purchased, five other pieces were purchased by ESI for less than the amount of money ESI received from the BDE grant, one piece cost ESI more than the grant amount, and two pieces were purchased at the amounts specified in the grant. Pet. App. 9a-10a; Gov't C.A. Br. 15. /2/ United States v. Kendall, 665 F.2d 126, 134-135 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); United States v. Giese, 597 F.2d 1170, 1180 (9th Cir.), cert. denied, 444 U.S. 979 (1979). /3/ United States v. Zanzucchi, 892 F.2d 56, 57-58 (9th Cir. 1989). /4/ Thomas v. United States, 188 F.2d 6 (8th Cir. 1951). Petitioner also cites decisions in which courts concluded that convictions could not stand because of the requirements of specific statutory provisions: Russell v. United States, 369 U.S. 749, 771 (1962) (indictment charging a defendant with refusing to answer questions when summoned before a congressional subcommittee must identify the subject under inquiry at the time the defendant was questioned); United States v. Minarik, 875 F.2d 1186, 1196 (6th Cir. 1989) (affirming district court's grant of judgment notwithstanding verdict in part because defendants should have been charged with conspiring to violate particular statute). In Minarik, the court also found, in contrast to the court of appeals in this case, that the defendants were deprived of fair notice of the charge against them. Id. at 1189-1190.