3. On appeal, petitioners primarily argued that they had beencharged with a single conspiracy while the evidence showed multipleconspiracies, and that they had been prejudiced by the introduction ofevidence concerning degrees granted by the "University of England atOxford" and the "University of Southern California," bogus diplomamills operated by unindicted persons. The court of appeals rejectedtheir claims, noting that the jury had been instructed that it was todisregard evidence concerning the University of England at Oxford andthe University of Southern California and that the government wasrequired to prove a single conspiracy. Pet. App. 3a-4a. With respectto the issues petitioners contend warrant review by this Court, thecourt of appeals concluded simply that their contentions were "withoutmerit and do not warrant discussion." Id. at 4a.
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GAIL MARIE KING, PETITIONER V. UNITED STATES OF AMERICARANDALL WILLIAM FOWLER, PETITIONER V. UNITED STATES OF AMERICANo. 88-1893, 88-7305In The Supreme Court Of The United StatesOctober Term, 1989On Petitions For A Writ Of Certiorari To The United States Court OfAppeals For The Fourth CircuitBrief For The United States In OppositionTABLE OF CONTENTSQuestions PresentedOpinion belowJurisdictionStatementArgumentConclusionOPINION BELOWThe opinion of the court of appeals (Pet. App. 1a-4a) /1/ isunreported.JURISDICTIONThe judgment of the court of appeals was entered on February 24,1989. A petition for rehearing was denied on March 23, 1989. Thepetitions for a writ of certiorari were filed on May 22, 1989. Thejurisdiction of this Court is invoked under 28 U.S.C. 1254(1).QUESTIONS PRESENTED1. Whether the indictment charged that the victims of petitioners'scheme to defraud were deprived of money or property within themeaning of 18 U.S.C. 1341 as interpreted by this Court in McNally v.United States, 483 U.S. 350 (1987).2. Whether petitioner Randall Fowler was denied due process in hissentencing proceeding.STATEMENTFollowing a jury trial in the United States District Court for theWestern District of North Carolina, petitioners were convicted ofparticipating in a mail fraud conspiracy that involved the sale ofbogus university degrees and transcripts, in violation of 18 U.S.C.371. In addition, petitioner Randall Fowler was convicted on twocounts of mail fraud and three counts of aiding and abetting mailfraud, and petitioner Gail King was convicted on ten counts of mailfraud, all in violation of 18 U.S.C. 1341. C.A. App. 1481-1487.Petitioner Fowler was sentenced to seven years' imprisonment and wasfined $10,000. Petitioner King was sentenced to three years'imprisonment and was fined $3,000. C.A. App. 1628-1629. The court ofappeals affirmed. Pet. App. 1a-4a.1. The evidence at trial showed that petitioners and theirco-defendants operated a fraudulent scheme to market and sell bogusdiplomas and transcripts from non-existent "universities" named afterlegitimate, accredited institutions. For example, an FBI agentresponded to an advertisement in The National Enquirer offeringcollege degrees by mail. In response, he received from petitionerGail King a brochure describing the "Advanced Study Program" of"DePaul University." The brochure represented that "DePaul Universityis a major public University offering fully accredited Associatedegrees, Masters degrees, Ph.D.'s (all with transcripts), entirelythrough evaluation of your current knowledge and life experiences."C.A. App. 2194. All that an applicant needed to provide was "a resumeof life work, educational experiences or a written authored publishedwork," the brochure stated, along with the required tuition. Id. at2195. The brochure represented that DePaul was accredited by theWorldwide Accrediting Commission, which does not exist. The agentcompleted the application form in the brochure, indicating that he wasan accountant who "admired the legal profession" and sought a"bachelor of laws" degree. He enclosed a check for $600 and askedthat the degree be backdated to 1959. Id. at 2203-2206. The agentwas awarded the degree and given phony transcripts.Petitioner Randall Fowler ran "Loyola University." The evidenceshowed that a postal inspector purchased a "bachelor of science inbusiness administration" degree from Fowler, along with a Loyolatranscript reflecting the inspector's performance in courses he nevertook. GX 87.2. The indictment, which was returned prior to this Court'sdecision in McNally v. United States, 483 U.S. 350 (1987), charged inpart that petitioners had schemed to defraud United States citizens"of their expectation of properly educated, competent, appropriatelytrained and tested, and otherwise qualified, legal, educational,psychological, engineering, business, and health" personnel. C.A.App. 14. /2/ Petitioners challenged this "intangible rights"allegation before trial by moving to dismiss the indictment. Thedistrict court, after reciting the language quoted above, stated that,"(n)othing else appearing, this might well entitle the defendants tothe relief sought." Pet. App. 6a. "However," the court continued,"much else does appear." Ibid. For example, the court noted, theindictment alleged that petitioners "'well had reason to believe . . .that certain graduates would erroneously believe that the degrees . ..' were valid equivalents of other degrees." Id. at 7a (quoting aportion of the indictment reprinted at C.A. App. 19). Accordingly,the court held, "the portions of the indictment attacked by thedefendants are at worst surplusage and as McNally points out can betaken out of the case upon appropriate trial motions and juryinstructions." Pet. App. 7a. The government proceeded to try the caseon the theories (also contained in the indictment) that petitionershad defrauded innocent individuals of tuition money and had defraudedemployers who extended jobs and pay raises to holders of bogusdegrees. The intangible rights language was redacted from theindictment in the jury charge.3. On appeal, petitioners primarily argued that they had beencharged with a single conspiracy while the evidence showed multipleconspiracies, and that they had been prejudiced by the introduction ofevidence concerning degrees granted by the "University of England atOxford" and the "University of Southern California," bogus diplomamills operated by unindicted persons. The court of appeals rejectedtheir claims, noting that the jury had been instructed that it was todisregard evidence concerning the University of England at Oxford andthe University of Southern California and that the government wasrequired to prove a single conspiracy. Pet. App. 3a-4a. With respectto the issues petitioners contend warrant review by this Court, thecourt of appeals concluded simply that their contentions were "withoutmerit and do not warrant discussion." Id. at 4a.ARGUMENT1. Petitioners, alleging that the indictment included intangiblerights charges only, contend that they were convicted of crimes notcharged in the indictment. There is no factual basis for thiscontention, which was rejected by both lower courts.As the district court stated (Pet. App. 6a), the indictmentincluded intangible rights allegations. However, as the districtcourt also concluded (id. at 6a-7a), the indictment charged more thanthat. Specifically, the indictment alleged that some purchasers ofdiplomas would be deceived by petitioners' scheme and "woulderroneously believe that the degrees, diplomas, and certificates wouldbe equivalent to such degrees, diplomas, and certificates oftraditional, legitimate, accredited colleges and universitiesthroughout the world." C.A. App. 19. Thus, the indictment chargedthat some persons would believe that their life experiences qualifiedthem for the degrees they sought and would pay their "tuition" in goodfaith. /3/The indictment further alleged that persons who purchased boguscredentials would present them "to employers, organizations,institutions and individuals seeking legal, health, educational andother professional advice, consultation, and counselling, as well asto the public at large, to the detriment and deceit of such employers,organizations, and individuals, including competing co-workers orfellow employees, and to the detriment of the public at large." C.A.App. 19. Thus, the indictment charged that as a result ofpetitioners' scheme both employers and the general public would notget what they paid for -- the assistance of properly trainedindividuals. /4/In addition, each of the mail fraud counts alleged that the purposeof the scheme was to obtain money. See, e.g., C.A. App. 24. Theindictment therefore "fairly inform(ed petitioners) of the chargesagainst which (they) must defend." United States v. Bailey, 444 U.S.394, 414 (1980) (quoting Hamling v. United States, 418 U.S. 87, 117(1974)).Petitioners' Fifth Amendment right to indictment by a grand jurywas not violated by the district court's removal of the invalidintangible rights theory from the indictment. In United States v.Miller, 471 U.S. 130 (1985), this Court rejected a Fifth Amendmentchallenge where the defendant was convicted of a fraudulent schemenarrower and more limited than, but included within, the allegationsof the indictment. "As long as the crime and the elements of theoffense that sustain the conviction are fully and clearly set out inthe indictment, the right to a grand jury is not normally violated bythe fact that the indictment alleges more crimes or other means ofcommitting the same crime." Id. at 136. Here, as in Miller,petitioners were convicted on account of a fraudulent scheme morelimited than that charged, but one that was nevertheless clearlyalleged in the indictment. /5/In any event, petitioners' contention that the decision belowconflicts with McNally is of no continuing importance. Congress hasamended the mail and wire fraud statutes to provide that a "'scheme orartifice to defraud' includes a scheme or artifice to deprive anotherof the intangible right to honest services." Anti-Drug Abuse Act of1988, Pub. L. No. 100-690, Section 7603, 102 Stat. 4508. Thelegislative history of this provision expressly states that it wasintended to overturn McNally. 134 Cong. Rec. S17,376 (daily ed. Nov.10, 1988). There is no doubt that petitioners' conviction would bevalid under current law, because the evidence showed that as a resultof the scheme employers and the general public were deprived of honestservices from persons holding the credentials they claimed to haveearned. Accordingly, petitioners' claim does not warrant review bythis Court.2. Petitioner Randall Fowler also seeks review of his claim(88-7305 Pet. 18-21) that his sentence was based on an erroneousestimate of the revenues of the diploma fraud. There is no merit tothat fact-bound claim.At Fowler's sentencing hearing, an FBI agent estimated that thefraudulent scheme netted about half a million dollars. Oct. 25, 1987,Tr. 2365. At a subsequent hearing for the other defendants, theUnited States Attorney, on the basis of an intervening report by theInternal Revenue Service, estimated that the diploma mills hadgenerated revenues of about $600,000. About half of that sum wasobtained during the time period covered by the indictment. Nov. 2,1987, Tr. 22-23.Fowler was properly sentenced. It is well settled that matters notcharged in the indictment may be considered in imposing sentence.Williams v. New York, 337 U.S. 241, 244 (1949); United States v.Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); United States v.Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982); United States v. Sweig,454 F.2d 181 (2d Cir. 1972). Since the scheme generated about$600,000, Fowler was not prejudiced because the court relied on the$500,000 estimate in sentencing him. In any event, nothing in therecord suggests that he would have received a lighter sentence had themonetary figure been scaled down from $500,000 to $300,000.Accordingly, this issue does not warrant further review by this Court.CONCLUSIONThe petitions for a writ of certiorari should be denied.Respectfully submitted.KENNETH W. STARRSolicitor GeneralEDWARD S.G. DENNIS, JR.Assistant Attorney GeneralANDREW LEVCHUKAttorneyJULY 1989/1/ "Pet. App." refers to the appendix to the petition filed bypetitioner King in No. 88-1893./2/ The indictment is reprinted in the Appendix to No. 88-7305. Asreprinted in that appendix, the indictment contains the page numbersit was given in the court of appeals appendix./3/ The evidence presented at trial proved that allegation. Amongthe numerous innocent purchasers victimized by the scheme was theReverend James Johnson, who believed that "Roosevelt University" was alegitimate institution with a faculty that would give credit for his20 years of experience in the ministry and prior academic work. Heaccordingly paid more than $500 for a worthless "master of divinity"degree from Roosevelt. C.A. App. 775-777. Calvin Gregory, aninsurance agent who paid $730 to purchase a "Cromwell University"degree, wrote to the "West European Accrediting Society" to confirmCromwell's status. He received a computer print-out (purportedly fromthe accrediting agency but actually from petitioners) stating thatCromwell was a fully accredited institution with an "A-1" rating.Gregory thus believed that he was dealing with a legitimateinstitution. C.A. App. 809-811, 821./4/ The evidence at trial showed that employers provided jobs andpromotions based on degrees issued by petitioners' institutions.Kathryn Mary Finlay, a teacher at St. Joseph's School in Collingdale,Pennsylvania, received a substantial pay raise based upon her DePauldegree. C.A. App. 1040-1047. James Kenneth Ballard used his DePauldegree to obtain teaching certification, a substantial salaryincrease, and a promotion to school principal. Id. at 912-922. Theniece of Chicago pastor Paul J. Evans also obtained a teaching job onthe basis of a DePaul degree. Id. at 839, 851./5/ It is therefore clear that this is not a case in which therewas an attempt to satisfy McNally through jury instructions alone.Thus, contrary to King's claim (88-1893 Pet. 9-11), the court ofappeals' decision is not in conflict with either United States v.Santa-Manzano, 842 F.2d 1, 3 (1st Cir. 1988), or United States v.Italiano, 837 F.2d 1480 (11th Cir. 1988), where the theory presentedto the jury was not contained in the indictment. |
