RICHARD M. DRAY, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-54

   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 First Circuit

   Brief For The United States In Opposition

           TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-20a) is reported
at 901 F.2d 1132.  The opinion of the district court (Pet. App.
21a-27a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 28, 1990.
 A petition for rehearing was denied on April 20, 1990.  See 901 F.2d
1132.  /1/ The petition for a writ of certiorari was filed on June 26,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's acquittals during a prior trial on counts
charging him with mail fraud collaterally estopped the government from
introducing evidence relating to those counts during petitioner's
retrial on a count charging him with conspiracy to commit mail fraud.

   2. Whether petitioner was entitled to a jury instruction limiting
the purposes for which that evidence could be considered.

                               STATEMENT

   1. Petitioner has been tried twice.  The evidence at the second
trial, which was substantially the same as that introduced during the
first trial, is summarized in the opinion of the court of appeals.
Pet. App. 2a-4a, 6a.  It showed that petitioner, a Boston attorney,
conspired with co-defendant Paul Ochs, Jr., to reduce the fee for a
construction permit for the renovation of a building in Boston by
understating the cost of the project and bribing a public official to
approve the fraudulent cost estimate.  The owner of the building was
Temple Place Associates (TPA), a Philadelphia-based limited
partnership.  TPA hired Ochs' firm, Stanhope Development Company, to
oversee the renovation;  one of Stanhope's duties was to assist in
obtaining the necessary permits.  The general contractor for the
project, Mirabassi Associates, Inc., was obligated to pay the fees for
the permits.  At Ochs' urging, TPA hired petitioner to handle the
legal matters associated with obtaining the permits.  Pet. App. 2a-3a.

   During the relevant period in Boston, the fee for a construction
permit was based upon the estimated cost of the work.  An application
for a permit had to contain an estimated cost of construction;  the
City's Department of Inspectional Services would review the estimate
to determine whether it was reasonable.  United States v. Ochs, 842
F.2d 515, 517 (1st Cir. 1988).  Petitioner and Ochs arranged to bribe
Douglas Robinson, the chief building inspector in the Department (whom
petitioner had known for 15 years), to obtain Robinson's approval of a
fraudulent application understating the cost of their renovation.  In
May 1984, petitioner met with Robinson.  They discussed "lowballing"
-- i.e., lowering the estimated cost of the project -- and then
splitting the amount that could be saved in permit fees.  Pet. App.
3a.

   In the meantime, Mirabassi had estimated the cost of the renovation
to be $2,425,000, which would have required a permit fee of $23,950.
Petitioner informed Mirabassi that its estimated cost was too high,
and he directed Mirabassi to prepare a new application for the
construction permit showing an estimated cost of $1,200,000.  After
Ochs signed the application, petitioner delivered it to Robinson, who
processed and approved it.  As a result of the fraudulent estimate of
the cost of construction, Mirabassi paid a permit fee that was $12,200
lower than it would have been under the original cost estimate.  Pet.
App. 3a.

   To recapture some of the savings on the permit fee, petitioner
billed TPA $1,687.50 for conferring with Ochs and preparing and filing
the permit application.  Ochs transmitted the bill to TPA, which paid
it.  The next day, petitioner also billed Mirabassi $5,975 for
preparing and filing the permit application.  Ochs hand-delivered the
bill and directed Mirabassi to pay it.  Although Mirabassi had not
retained petitioner and was not contractually bound to pay him, it
made the requested payment.  Shortly thereafter, petitioner wrote a
check to Ochs for $3,000 and gave Robinson $400 in cash.  Pet. App.
3a-4a.

   Nearly a year later, petitioner sent another bill to TPA for
$30,000;  the invoice again included charges for his services in
obtaining the construction permit.  When Ochs protested on behalf of
TPA that the charges were inordinate, petitioner wrote back to Ochs,
reminding Ochs of the importance to the project of petitioner's
political connections.  Ochs then persuaded TPA to pay the full
$30,000.  Pet. App. 4a.

   2. Petitioner was indicted in the District of Massachusetts and
charged with five counts of mail fraud, in violation of 18 U.S.C.
1341, and one count of conspiracy to commit mail fraud, in violation
of 18 U.S.C. 371.  At petitioner's first trial, the government
introduced seven documents to prove the mailings required for
convictions on the substantive mail fraud offenses charged in Counts
2-6 of the indictment.  /2/ The prosecutor also introduced evidence
that the contracting parties frequently used the mails to transmit
documents between Boston and Philadelphia.  A TPA employee testified
that it was the customary practice of TPA and Mirabassi to send
written materials back and forth by either mail or Federal Express,
depending on time constraints, but he could not recall the specific
manner in which each of the seven documents underlying Counts 2-6 were
transmitted.  To establish mail fraud, it was necessary to prove that
the documents had travelled through the mails, rather than by Federal
Express.  The government relied upon the dates on which documents were
sent and received to demonstrate that the mails were used.  Pet. App.
4a-5a.

   At the close of the government's case in chief, the district court
entered judgments of acquittal on three of the substantive mail fraud
counts, Counts 2, 3, and 5.  Although it acknowledged the possibility
that the mails were used to transmit the three documents underlying
those counts, the court concluded that there was insufficient evidence
for a jury to find beyond a reasonable doubt that the documents had
been mailed.  The jury subsequently acquitted petitioner and Ochs of
the two remaining substantive mail fraud offenses charged in Counts 4
and 6.  The jury found petitioner and Ochs guilty of conspiracy to
commit mail fraud (Count 1).  Pet. App. 5a.

   3. While petitioner's appeal was pending, this Court held in
McNally v. United States, 483 U.S. 350 (1987), that the mail fraud
statute did not prohibit schemes to defraud citizens of their
"intangible right" to honest government services.  In light of
McNally, the court of appeals vacated petitioner's conspiracy
conviction and remanded the case for a new trial.  United States v.
Ochs, supra.  On remand to the district court, petitioner filed a
motion in limine in which he claimed that the doctrine of collateral
estoppel barred the introduction of the seven documents on which the
substantive mail fraud counts had been based as well as any evidence
that those documents had been mailed.  The district court denied the
motion.  Pet. App. 21a-27a.

   The district court concluded that the jury's acquittals on Counts 4
and 6 did not bar the introduction of the documents underlying those
counts because "there is no clear indication of the basis of the
jury's verdict." Pet. App. 24a-25a.  Further, noting that the
government would not have to prove that the documents had actually
been mailed in order to obtain a conspiracy conviction, the court
concluded that the documents involved in all of the substantive counts
could be introduced to show that it was reasonably foreseeable that
the mails would be used to advance the conspiracy, as well as to
establish other elements of the conspiracy offense, such as the
existence of a scheme and agreement to defraud.  Id. at 26a-27a.

   After the court denied the motion in limine, petitioner requested
limiting instructions with respect to five of the seven documents
underlying Counts 2-6.  Pet. App. 35a-37a.  Petitioner asked that the
jury be instructed, in the alternative, (a) that the documents were to
be considered only on the issue of whether a conspiracy existed and
not on the issue of whether it was reasonably foreseeable that the
mails would be used as part of the conspiracy, or (b) that the
documents had been introduced for the purpose of showing that it was
reasonably foreseeable that the mails would be used as part of the
conspiracy.  The district court did not give either instruction.  Pet.
App. 6a, 16a.

   At the conclusion of the second trial, petitioner was again
convicted on the conspiracy count.  The court sentenced him to one
year's imprisonment, with all but the first six months suspended in
favor of two years' probation.  As a condition of probation, the
district court ordered petitioner to perform 500 hours of community
service.

   4. The court of appeals affirmed.  Pet. App. 1a-20a.  With respect
to petitioner's collateral estoppel claim, the court of appeals noted
that the district court's acquittals on Counts 2, 3 and 5 determined
in petitioner's favor the issue whether the three documents underlying
those counts had actually been mailed, but it held that this
determination did not estop the government from offering those
documents to show that a conspiracy existed and that the use of the
mails was reasonably foreseeable.  Id. at 10a, 12a.

   For similar reasons, the court of appeals also concluded that the
jury's acquittals on Counts 4 and 6 did not bar the introduction of
the documents on which those counts were based.  Pet. App. 12a-15a.
The court rejected petitioner's contention that the jury's acquittals
on Counts 4 and 6 necessarily determined that no fraudulent scheme
existed, that petitioner was not a willful participant in the scheme,
or that the use of the mails was not reasonably foreseeable.  Because
petitioner was convicted of conspiracy, the court reasoned, "it seems
highly probable, if not ineluctable, that the original jury found
insufficient evidence that the exhibits in question were actually
mailed, but sufficient evidence that mailing was contemplated." Id. at
13a.  The court concluded that petitioner had not sustained his burden
of showing that the documents were used during the retrial to prove an
issue resolved in his favor by his prior acquittals.  Id. at 13a-15a.

   The court of appeals also held that the district court did not
abuse its discretion in refusing to give petitioner's proposed jury
instructions.  Pet. App. 16a-17a.  It concluded that "restriction of
the evidence by informing the jurors that they could not consider the
exhibits as proof of actual mailing would have been redundant," since
the district court "told the jury, in so many words, that mailing was
not the issue" during its jury charge.  Id. at 16a.  The court added
that "it was unnecessary -- and would have been confusing -- to tell
the jury not to consider the documents on that (non)issue." Id. at
17a.  The court also noted that "there was no reason to restrict the
admission of the documents solely to the issue of reasonable
foreseeability" because "they were also relevant to the existence of
the conspiracy charged in the indictment." Ibid.

                               ARGUMENT

   1. Petitioner contends that the acquittals on the substantive mail
fraud counts at his first trial collaterally estopped the government
from offering the documents on which those counts were based into
evidence during his retrial on the conspiracy count.  Pet. 16-22.

   As the court of appeals recognized, the doctrine of collateral
estoppel prohibits relitigation only of those issues that have
actually been decided in a party's favor.  Dowling v. United States,
110 S. Ct. 668, 673 (1990).  In determining whether collateral
estoppel applies, the court must "'examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge, and
other relevant matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which the defendant
seeks to foreclose from consideration'" during the second trial.  Ashe
v. Swenson, 397 U.S. 436, 444 (1970).  The burden is on the defendant
to show that the verdict in the prior trial necessarily decided the
issue raised in the second trial.  See Dowling v. United States, 110
S. Ct. at 673.

   At petitioner's first trial, the district court made clear that its
judgments of acquittal on Counts 2, 3, and 5 were based on the absence
of proof demonstrating beyond a reasonable doubt that the documents
involved in those counts had actually been mailed.  As the court of
appeals noted, the most plausible explanation of the jury's not guilty
verdicts on Counts 4 and 6 was that it had reached the same conclusion
with respect to the documents involved in those counts.  At most,
therefore, the government was foreclosed from relitigating the issue
of whether any of the documents in question was actually mailed.  /3/

   During petitioner's second trial, the documents were admitted to
prove different issues.  As the court of appeals noted, the documents
were relevant to show that petitioner and Ochs had conspired with one
another and that they either intended or reasonably foresaw that the
mails would be used to further their scheme to defraud.  See, e.g.,
United States v. Citron, 853 F.2d 1055, 1058-1059 (2d Cir. 1988);
United States v. Price, 750 F.2d 363, 366 (5th Cir.), cert. denied,
473 U.S. 904 (1985).  Petitioner has not sustained his burden of
showing that the documents were offered in the second trial to prove
an issue that was resolved in his favor in the first trial.  /4/

   2. The district court did not err in refusing to deliver
petitioner's proposed limiting instructions.  See Pet. 22-26.

   First, neither of the alternatives proposed by petitioner was a
correct statement of applicable law.  The first alternative would have
permitted the jury to consider the documents only on the issue of
whether petitioner and his co-defendant had agreed to devise a scheme
to defraud and would have prohibited the jury from relying on them in
determining whether it was reasonably foreseeable that the mails would
be used to further such a conspiracy.  The second alternative would
have effectively advised the jury that the documents had been admitted
only for the purpose of showing reasonable foreseeability.  As we have
shown, however, the jury was entitled to consider the documents on
both the question whether petitioner and the co-defendant had
conspired with one another and the question whether the use of the
mails was reasonably foreseeable.  See Pet. App. 35a-37a.
Consequently, both of petitioner's proposed instructions would have
improperly limited the jury's consideration of the documents.

   Second, in view of other instructions limiting the issues in the
case, an instruction limiting the use of the documents was unnecessary
and would have been confusing.  It is well established that jury
instructions are viewed as whole.  See United States v. Park, 421 U.S.
658, 674 (1975);  Cupp v. Naughten, 414 U.S. 141, 147 (1973).  Here,
the district court "painstakingly" explained the difference between
substantive mail fraud and a conspiracy to commit mail fraud and "told
the jury, in so many words, that mailing was not the issue" during its
jury charge.  Pet. App. 16a.  Thus, as the court of appeals noted, it
would have been confusing to instruct the jury not to consider the
documents to resolve a matter that was not at issue.  Id. at 17a.  The
district court's jury charge effectively guided the jury's
consideration of all of the evidence introduced at trial, including
the documents at issue.  In light of the court's careful definition of
the ultimate issue in the case, Fed. R. Evid. 105 did not require a
separate limiting instruction on those documents.  /5/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Acting Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   SEPTEMBER 1990

   /1/ The government sought rehearing.  The reported version of the
court of appeals' decision includes an opinion, issued on April 20,
1990, denying the government's petition for rehearing.  901 F.2d at
1143.

   /2/ In a table appended to the court of appeals' opinion, the court
provided the exhibit numbers of the documents, showed the counts to
which they related, and briefly summarized their contents.  Pet. App.
20a.

   /3/ Relying on an excerpt from the jury instructions at his first
trial, petitioner suggests that the jury must have found in that trial
that the use of the mails was not reasonably foreseeable.  Pet. 20-22.
 In that instruction, the court advised the jury that it was necessary
for a conviction on a substantive mail fraud count that a defendant
specifically intend to use the mails and that, to establish intent, it
was sufficient to demonstrate that it was reasonably foreseeable to a
defendant that his actions would cause others to use the mails.  For
the reasons stated in the court of appeals' opinion, there is no
reason to believe that the acquittals on Counts 4 and 6 were based on
a failure of proof on the issue of intent, rather than a failure to
use the mails, the actus reus of the offense.  Pet. App. 14a-15a.
Moreover, at most, petitioner's argument suggests that the verdict
does not disclose on its face whether the acquittals on Counts 4 and 6
were based on a jury determination that the government failed
sufficiently to prove that the documents involved were actually
mailed, that petitioner and his co-defendant lacked the requisite
intent to use the mails to transmit the documents, or both.  In that
situation, collateral estoppel would not foreclose relitigation of any
issue.

   /4/ There are two additional reasons, not addressed in the court of
appeals' opinion, why collateral estoppel did not foreclose the
admission of the documents in question.  First, even if the documents
had been offered to demonstrate that they were actually mailed, they
were not introduced to prove that proposition beyond a reasonable
doubt.  The jury was instructed that the ultimate issue was whether
petitioner and Ochs had entered a conspiracy with respect to which the
use of the mails was reasonably foreseeable (see Pet. App. 16a-17a),
and this was the question to which the reasonable doubt standard
applied.  The government was not called upon to demonstrate beyond a
reasonable doubt that the documents were actually mailed.  Thus, under
Dowling v. United States, 110 S. Ct. at 671-673, the jury could
properly have considered whether the documents were actually mailed in
the course of determining whether the government had carried its
burden of demonstrating beyond a reasonable doubt that the use of the
mails was reasonably foreseeable.

   Second, this Court noted in Ohio v. Johnson, 467 U.S. 493, 500 n.9
(1984), that, "where the State has made no effort to prosecute the
charges seriatim, the considerations of double jeopardy protection
implicit in the application of collateral estoppel are inapplicable."
See also United States v. Ashley Transfer & Storage Co., 858 F.2d 221,
227 (4th Cir. 1988), cert. denied, 109 S. Ct. 1932 (1989).  Here, the
government made no attempt to pursue successive prosecutions;  the
retrial resulted from a reversal on appeal sought by petitioner.
Accordingly, the doctrine of collateral estoppel should not foreclose
the government from establishing facts in the retrial even if the
partial verdict at the first trial could confidently be said to
represent a finding against the government on those facts.

   /5/ Since petitioner's conspiracy conviction at the first trial was
reversed on grounds other than the insufficiency of the evidence, the
Double Jeopardy Clause did not bar the retrial.  See, e.g., Montana v.
Hall, 481 U.S. 400 (1987);  United States v. Scott, 437 U.S. 82, 90-91
(1978).  There is no merit to petitioner's suggestion (Pet. 18, 20)
that this Court's recent decision in Grady v. Corbin, 110 S. Ct. 2084
(1990), may apply to this case.  Grady applies only when the
government initiates multiple prosecutions for a single offense.  It
has no application to a retrial required in the course of a single
prosecution.