RAY L. CORONA, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1076

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-18a) is reported
at 885 F.2d 766.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 29,
1989.  A petition for rehearing was denied on November 13, 1989 (Pet.
App. 19a-20a).  The petition for a writ of certiorari was filed on
January 3, 1990.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the court of appeals correctly held that the verdict of
the jury that convicted petitioner on two RICO counts showed that it
necessarily had relied on valid predicate acts of racketeering, even
though some of the predicate acts alleged at trial were subsequently
determined to be invalid.

   2. Whether, following his conviction after a second trial,
petitioner is entitled to review of his contention that the evidence
was insufficient at his first trial, which ended in a mistrial.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted under the
Racketeer Influenced and Corrupt Organizations Act (RICO) of operating
a racketeering enterprise and conspiring to do so, in violation of 18
U.S.C. 1962(c) and (d);  on three counts of mail fraud, in violation
of 18 U.S.C. 1341;  and on two counts charging violations of the
Travel Act, 18 U.S.C. 1952.  After trial, the district court upheld
the RICO and Travel Act convictions, but directed a judgment of
acquittal as to the mail fraud counts in light of McNally v. United
States, 483 U.S. 350 (1987).  Pet. App. 21a-23a.  The court of appeals
affirmed the convictions on the two RICO counts and one of the Travel
Act counts, but reversed the conviction on the other Travel Act count.
 Pet. App. 1a-18a.

   1. Petitioner and his father were, respectively, the vice president
and president of the Total Bank in Miami, Florida.  In 1976,
petitioner became the banker for Jose Fernandez, a major marijuana
trafficker in South Florida.  Petitioner obtained a credit card for
Fernandez even though Fernandez had no credit history and the
legitimate business that he ran was not very profitable.  As
collateral for the card, Fernandez gave petitioner $20,000 in cash
wrapped in a paper bag.  Pet. App. 2a-3a.

   In 1977, Fernandez determined that his businesses would prosper if
he owned a bank.  Fernandez and his associates discussed buying a bank
with petitioner and decided that the purchase should be made in the
names of "figurehead" owners to conceal Fernandez's interest from
banking authorities.  Petitioner and two other persons -- Alma Robles,
the ex-wife of Fernandez's trusted associate, Steve Samos, and another
associate of Fernandez -- were selected to be the bank's nominal
buyers.  Petitioner and his father subsequently learned that the
Sunshine State Bank in Miami was for sale.  Petitioner's father
negotiated the sale.  On December 21, 1977, Samos wired $900,000 from
Panama to an account controlled by petitioner for the purchase of the
bank (Racketeering Act #20).  In January 1978, the sale agreement was
executed.  In May, the State approved the sale, but directed the
buyers to invest an additional $1.1 million in the bank to complete a
tender offer to minority shareholders.  On May 10, Samos wired
$600,000 into an account controlled by petitioner (Racketeering Act
#21).  On May 16, an additional $550,000 was wired to petitioner's
account (Racketeering Act #22).  That money came from drug proceeds
that Samos had laundered in Panama.  During May, petitioner and his
father sent three letters that related to the purchase of the bank
through the United States mails (Racketeering Acts #34-#36).
Petitioner was made President and Chairman of the Board of the
Sunshine State Bank, but he subsequently relinquished the latter
position to his father.  Pet. App. 3a-4a;  Gov't C.A. Br. 8-11.

   In March 1981, Fernandez was arrested on federal drug charges and
confined in New Orleans, Louisiana.  Several days later, petitioner
traveled to New Orleans and met both Fernandez and Fernandez's local
attorney, ostensibly to help Fernandez make bail (Racketeering Act
#17;  Count VI (Travel Act)).  Petitioner returned to Miami, however,
after Fernandez said that petitioner's presence might reveal
Fernandez's connection with the Sunshine State Bank to federal agents.
 Pet. App. 5a.

   Shortly afterwards, Fernandez was released on bail, but he and his
family were kidnapped and taken to Colombia by a Colombian drug family
to whom Fernandez owed drug debts.  The Colombians forced Fernandez to
liquidate most of his holdings to pay his debts.  During his
captivity, Fernandez, through Samos and others, negotiated the sale of
his bank shares to petitioner and his father.  In June 1981, Fernandez
sold 49,900 shares to petitioner and his father for $200,000 and a
note for $420,000.  Petitioner sent a $200,000 check to Robles in
Panama, which was cashed and given to Fernandez (Racketeering Act #37;
 Count III (mail fraud)).

   In August 1981, Fernandez escaped from captivity and fled to
Brazil.  From Brazil, he continued to negotiate the sale of his
interest in the bank to petitioner and his father, selling them an
additional 9,900 shares for $200,000.  In December 1981, Fernandez
convinced petitioner to pay him an additional $50,000.  On December
22, 1981, Samos called petitioner from Panama and provided him with
the name of the company to which the checks would be made payable
(Racketeering Act #18;  Count VII (Travel Act)).  Petitioner sent
$50,000 in cashier's checks to one of Fernandez's companies in Panama
(Racketeering Act #38;  Count IV (mail fraud)).  Pet. App. 6a;  Gov't
C.A. Br. 24.  In April 1982, after Fernandez persuaded petitioner to
make an additional payment, the Sunshine State Bank sent a $30,000
check to Samos in Panama (Racketeering Act #39;  Count V (mail
fraud)).  Gov't C.A. Br. 25.

   2. Petitioner and his father were tried on RICO and RICO conspiracy
charges, and on multiple counts alleging violations of the mail and
wire fraud statutes and the Travel Act.  After the jury could not
agree on a verdict following lengthy deliberations, the court declared
a mistrial.

   Three months later, the government obtained a superseding
indictment from the grand jury, which charged petitioner with RICO,
RICO conspiracy, three counts of mail fraud, and two counts alleging
violations of the Travel Act.  The superseding indictment did not
change the general thrust of the RICO counts.  United States v.
Corona, 804 F.2d 1568, 1569 (11th Cir. 1986), cert. denied, 481 U.S.
1017 (1987).  The RICO counts alleged 11 predicate racketeering
offenses:  (a) the three 1977-1978 Travel Act offenses that related to
the wiring of laundered funds from Samos to petitioner to buy the
Sunshine State Bank (Racketeering Acts #20-#22);  (b) the three 1978
mail fraud offenses that also related to the purchase of the Sunshine
State Bank (Racketeering Acts #34-#36);  /1/ (c) the 1981 Travel Act
offense relating to petitioner's trip to New Orleans to help Fernandez
make bail, which was also charged as Count VI (Racketeering Act #17);
/2/ (d) the three 1981 mail fraud offenses relating to Fernandez's
sale of his shares in the Sunshine State Bank and the transfer of
money from petitioner to Fernandez while he was a fugitive, which were
also charged as Counts III-V (Racketeering Acts #37-#39);  /3/ and (e)
the 1981 Travel Act offense relating to petitioner's transfer of
$50,000 to Fernandez while he was a fugitive, which was also charged
as Count VII (Racketeering Act #18).

   Prior to retrial, petitioner moved to dismiss the superseding
indictment on double jeopardy grounds.  The district court denied the
motion.  On interlocutory appeal, the court of appeals rejected
petitioner's double jeopardy challenge, holding that petitioner could
be retried because the earlier mistrial had not ended the jeopardy
that had attached at petitioner's first trial.  United States v.
Corona, 804 F.2d at 1570-1571.

   Petitioner went to trial and was convicted on all seven counts.
Two days after the verdict, this Court held in McNally that the mail
fraud statute, 18 U.S.C. 1341, did not reach schemes to defraud
persons of "intangible right(s)." /4/ Based on McNally, petitioner
moved for a new trial and a judgment of acquittal.  The district court
upheld petitioner's convictions on the two RICO and the two Travel Act
counts, but overturned petitioner's convictions on the three mail
fraud counts.  Pet. App. 21a-23a.

   3. The court of appeals affirmed the two RICO convictions and one
of the two Travel Act convictions.  Pet. App. 1a-18a.  /5/ The court
first determined that the evidence showed that petitioner knew that
Fernandez was involved in marijuana trafficking, citing petitioner's
knowledge that Fernandez had acquired a substantial amount of wealth
without any apparent legitimate source for it;  petitioner's knowledge
that Fernandez wanted a "figurehead" buyer for the Sunshine State Bank
and that he had laundered the funds used to buy it;  petitioner's
conversations with Fernandez and his associates concerning the sources
and amounts of their incomes;  petitioner's receipt of expensive gifts
and large loans from Fernandez;  and petitioner's advice to Fernandez
to use a "front" business for investment purposes.  Pet. App. 11a-12a.
 The court also held that the evidence showed that petitioner had
participated in the distribution of drug proceeds by helping Fernandez
buy the Sunshine State Bank with the profits from his marijuana
trafficking business.  Id. at 13a-14a.

   The court then held that the jury had properly concluded that
petitioner had engaged in a pattern of racketeering activity, even
though seven of the 11 charged RICO predicate acts had been
invalidated.  Pet. App. 16a-17a.  It was clear that the jury had
properly relied on predicate act #18, the Travel Act offense on which
petitioner had been separately charged (Count VII) and convicted,
since the court had upheld that conviction.  The court concluded that
it was also clear that the jury had properly relied on the three
1977-1978 Travel Act offenses that were not separately charged,
emphasizing the relationship between the mail fraud counts on which
they jury had convicted petitioner and the 1977-1978 Travel Act
offenses.  The court explained that petitioner had conceded that the
sole issue at trial with respect to the mail fraud offenses and the
1977-1978 Travel Act offenses was whether petitioner knew that
Fernandez was the true investor in the Sunshine State Bank.  Id. at
16a-17a.  Since the jury had convicted petitioner on the mail fraud
counts, the court concluded that "(t)he jury plainly found that
(petitioner) knew Fernandez was the person whom (petitioner) helped
buy the bank stock and from whom (petitioner) later purchased it." Id.
at 17a.  Therefore, the court concluded that the jury could not
reasonably have convicted petitioner on the mail fraud counts "without
also finding (petitioner) guilty of the related Travel Act
predicates." Ibid.  Judge Vance dissented on this point.  Ibid.

   Finally, relying on Richardson v. United States, 468 U.S. 317
(1984), and its previous decision in this case, the court rejected
petitioner's contention that his retrial following a mistrial due to a
hung jury violated the Double Jeopardy Clause.  Pet. App. 15a-16a.

                               ARGUMENT

   1. To obtain a conviction under RICO, the government must show that
the defendant engaged in a "pattern of racketeering activity," which
is defined as "at least two acts of racketeering activity." 18 U.S.C.
1961(5).  Since seven of the 11 charged RICO predicate acts have been
invalidated, petitioner contends (Pet. 7-15) that his RICO convictions
must be reversed because the jury may have relied on the invalid
predicate acts in convicting him.  Based on the jury's verdict,
however, the court of appeals correctly decided that the jury must
have found that petitioner committed the four valid predicate acts.

   a. Where a jury is instructed that it may convict on multiple
grounds, and one of those grounds is later determined to be invalid,
the conviction may stand only if the reviewing court can be certain
that the actual ground relied on by the jury was a proper ground.  If
the reviewing court is not certain of the actual ground relied on by
the jury, the conviction must be reversed.  See Street v. New York,
394 U.S. 576, 585-588 (1969);  Stromberg v. California, 283 U.S. 359,
367-370 (1931);  see generally Zant v. Stephens, 462 U.S. 862, 880-884
(1983).  In this case, the court of appeals correctly determined that
the jury necessarily found that petitioner committed the four valid
predicate acts charged.  That is sufficient to uphold his RICO
convictions.

   First, the court of appeals properly determined that the jury's
conviction on Count VII (the Travel Act violation relating to a 1981
telephone call in which petitioner was directed to send money to
Fernandez) necessarily constituted a finding that petitioner had
committed Racketeering Act #18, because Racketeering Act #18
incorporated the Travel Act allegations of Count VII.  The jury's
verdict on Count VII thus operated in effect as a special verdict that
petitioner committed Racketeering Act #18.  See Brennan v. United
States, 867 F.2d 111, 114-116 (2d Cir.), cert. denied, 109 S. Ct. 1750
(1989);  United States v. Kragness, 830 F.2d 842, 861 (8th Cir. 1987);
 United States v. Anderson, 809 F.2d 1281, 1284-1285 (7th Cir. 1987);
United States v. Lopez, 803 F.2d 969, 976-977 (9th Cir. 1986), cert.
denied, 481 U.S. 1030 (1987);  United States v. Pepe, 747 F.2d 632,
668 (11th Cir. 1984);  United States v. Peacock, 654 F.2d 339, 348
(1981), modified, 686 F.2d 356 (5th Cir. 1982), cert. denied, 464 U.S.
965 (1983).

   Second, the court of appeals correctly held that the jury's verdict
on the mail fraud counts indicated that it must have found that
petitioner had committed the other three predicate Travel Act offenses
by its verdict on the mail fraud counts.  As petitioner conceded in
the court of appeals (Pet. App. 16a-17a), the only relevant issue at
trial was whether petitioner knew that he was fronting for Fernandez
when he bought the Sunshine State Bank.  By its verdict, the jury
showed that it had concluded that petitioner did know that fact, since
it was an essential element of the scheme alleged in the mail fraud
counts.  /6/ Thus, the mail fraud counts subsumed the three Travel Act
predicate acts, which were based on transfer of funds from Fernandez's
accounts to petitioner's accounts during the negotiations leading to
the purchase of the Sunshine State Bank.  /7/

   Petitioner also contends (Pet. 12-14) that the decision below
ignores this Court's recent decision in H.J. Inc. v. Northwestern Bell
Telephone Co., 109 S. Ct. 2893 (1989), which held that RICO's
requirement of a pattern of racketeering activity means that the
predicate acts must be related and constitute a threat of continuing
racketeering activity.  There is no question that the predicate acts
in this case constituted such a pattern.  The 1977-1978 Travel Act
offenses each furthered the common objective of buying the Sunshine
State Bank under false pretenses with the proceeds of Fernandez's
marijuana business.  And the 1981 Travel Act offense was related to
the other three in that it helped Fernandez evade punishment for
selling the illegal drugs.  Thus, all of the offenses posed the threat
of continued racketeering activity because they furthered Fernandez's
marijuana business.

   b. The court of appeals' determination that the jury necessarily
found that petitioner committed the valid Travel Act predicate acts,
even though the jury made no express findings on them, is consistent
with the approach of other courts of appeals.  For example, United
States v. Zauber, 857 F.2d 137 (3d Cir. 1988), cert. denied, 109 S.
Ct. 1340 (1989), involved a RICO charge that alleged invalid mail and
wire fraud predicate acts and valid kickback predicate acts.  As in
this case, the indictment linked the mail and wire fraud schemes and
the kickbacks.  Furthermore, although the mail fraud violations were
charged separately as substantive offenses, the kickbacks were not
charged separately, except as to one defendant.  The court of appeals
affirmed all of the defendants' RICO convictions.  Analyzing the
record and the jury instructions, the court concluded that the jury
necessarily found that the defendants had committed the valid kickback
violations.  857 F.2d at 151-154.  Similarly, in Callanan v. United
States, 881 F.2d 229, 234-235 (6th Cir. 1989), petitions for cert.
pending, Nos. 89-6184 & 89-6203 (filed Dec. 1 and 2, 1989), a RICO
case that involved invalid mail fraud predicate acts and valid bribery
predicate acts, the court of appeals held that the jury's conviction
of a co-defendant on RICO charges based on bribery with the defendant
constituted, in effect, a special verdict that the defendant had
committed the valid predicate acts.

   Contrary to petitioner's contention (Pet. 11-14), the Third Circuit
does not automatically reverse RICO convictions when a predicate act
is subsequently found invalid.  Petitioner's reliance on United States
v. Brown, 583 F.2d 659 (3d Cir. 1978), cert. denied, 440 U.S. 909
(1979), is therefore misplaced.  In that case, the court of appeals,
pursuant to a government concession, reversed the defendant's RICO
conviction following the invalidation of two underlying predicate mail
fraud violations.  As the Third Circuit subsequently explained in
Zauber (857 F.2d at 154), the RICO conviction in Brown had to be
reversed because "it was impossible to determine whether the jury had
relied on invalid predicate acts." /8/

   Petitioner's contention (Pet. 8-10) that the decision below
conflicts with the decisions of other courts of appeals is also
without merit.  Contrary to petitioners' contention, none of the
decisions on which he relies held that where a predicate racketeering
act has been determined to be invalid, the RICO conviction will be
sustained only if the jury made an express finding of guilt on at
least two other predicate acts.  Rather, each court has reversed only
after finding that the record was unclear as to whether the jury had
found two valid predicate acts showing a pattern of racketeering
activity.  Thus, in United States v. Ruggiero, 726 F.2d 913, 921 (2d
Cir.), cert. denied, 469 U.S. 831 (1984), the court reversed a RICO
conviction because it could not "tell from its verdict * * * what
decisions (the jury) made with respect to the eight predicate acts."
The court distinguished cases like this one, where "the court was
assured by the separate convictions that the jury had found defendant
guilty of committing at least two of the predicate acts alleged in the
indictment." 726 F.2d at 922.  Similarly, in United States v.
Kragness, 830 F.2d at 861, the court stated that "we cannot know from
the jury's general verdict of guilty which acts it found (the
defendant) had committed." And in United States v. Mandel, 862 F.2d
1067, 1074 (4th Cir. 1988), cert. denied, 109 S. Ct. 3190 (1989), the
court reversed a RICO conviction because it could not determine
"whether the (invalid) mail fraud or the (valid) bribery charges of
Count 21, or both, were considered by the jury." Under the facts of
this case, in contrast, the court of appeals was able to conclude that
"the verdict leaves no doubt that the jury relied on at least two
valid predicate acts." Pet. App. 16a.

   2. Petitioner also contends (Pet. 15-17) that the court of appeals
erred by not evaluating the sufficiency of the evidence at his first
trial, which ended in a mistrial.  There is no merit to that claim.
In Richardson v. United States, supra, the Court stated that "the
protection of the Double Jeopardy Clause by its terms applies only if
there has been some event, such as an acquittal, which terminates the
original jeopardy." 468 U.S. at 325.  The Court further held that "a
trial court's declaration of a mistrial following a hung jury is not
an event that terminates the original jeopardy to which the defendant
was subjected." Id. at 326.  The Court added that "there is no
possibility that a defendant's double jeopardy rights will be violated
by a new trial" following a mistrial.  Id. at 326 n.6.  Accordingly,
the court below correctly concluded, as it had in its previous
decision in this case, that "the mistrial due to a hung jury in the
first trial did not terminate jeopardy," Pet. App. 15a, so that
petitioner's "double jeopardy claim has no merit," id. at 16a.

   No court of appeals has interpreted the Double Jeopardy Clause
differently in light of Richardson.  To the contrary, they have
recognized, like the court below, that their "task is limited to
considering the sufficiency of the evidence at the second trial."
United States v. Coleman, 862 F.2d 455, 460 (3d Cir. 1988), cert.
denied, 109 S. Ct. 2074 (1989);  United States v. Kimberlin, 805 F.2d
210, 230 (7th Cir. 1986), cert. denied, 483 U.S. 1023 (1987).  In the
absence of any conflict among the circuits with respect to the proper
application of this Court's decision to double jeopardy claims raised
after a second trial, there is no need for this Court to grant review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   THOMAS E. BOOTH

      Attorney

   MARCH 1990

   /1/ It is agreed that, in light of McNally, the RICO convictions
cannot rest on these three predicate acts.  See Pet. App. 2a, 8a.

   /2/ Petitioner's conviction on this count was subsequently
overturned by the court of appeals.  Pet. App. 13a.

   /3/ The district court subsequently overturned petitioner's
convictions on the three mail fraud counts in light of McNally.  Pet.
App. 2a.

   /4/ Congress recently amended the federal fraud statutes to provide
that a "'scheme or artifice to defraud' includes a scheme or artifice
to deprive another of the intangible right of honest services."
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7603, 102
Stat. 4508.  The legislative history of the new provision explains
that "(t)his section overturns the decision in McNally v. United
States * * *.  The intent is to reinstate all of the pre-McNally
caselaw pertaining to the mail and wire fraud statutes without
change." 134 Cong. Rec. S17,376 (daily ed. Nov. 10, 1988).

   /5/ With respect to the Travel Act convictions, the court held that
the evidence was sufficient to sustain petitioner's conviction on
Count VII, which related to the $50,000 petitioner sent Fernandez in
December 1981 while he was a fugitive.  Pet. App. 13a.  But, by a
divided vote, it reversed petitioner's conviction on Count VI, holding
that petitioner's trip to New Orleans to help Fernandez make bail did
not facilitate the enterprise.  Ibid.  The correctness of the court's
rulings on the Travel Act counts is not at issue.

   /6/ Those counts charged that petitioner had schemed to locate a
bank in South Florida "which could be acquired through nominees by the
co-conspirators Jose Antonio Fernandez and Gerardo Jorge Guevara, as
hidden owners, with the proceeds of the Fernandez marijuana smuggling
syndicate." Indictment at 40, Counts III-V, para. 3(a).  The mail
fraud counts further alleged that petitioner transferred funds "in
order to create the false appearance that the Panamanian nominee was
the true purchaser of the majority interest in the stock of the
Sunshine State Bank." Ibid. Counts III-V, para. 3(d).

   /7/ Departing from his position in the court of appeals, petitioner
now contends (Pet. 6-7 & n.4) that the predicate Travel Act violations
and the mail fraud convictions involved different factual issues.
There is no merit to those contentions.  Petitioner first observes
that the mailings in furtherance of the mail fraud scheme occurred in
1981 and 1982, while the Travel Act predicate acts occurred in 1977
and 1978.  Petitioner overlooks the fact that the gist of the mail
fraud charges involved the purchase of the Sunshine State Bank in 1978
by means of false pretenses.  Petitioner also contends that he did not
know that Fernandez was a marijuana dealer until 1981, after the
commission of the predicate Travel Act offenses.  As the court of
appeals concluded, however, the jury had more than ample evidence to
conclude otherwise.  Pet. App. 11a-12a.  In addition, petitioner now
argues that the jury made no specific finding that petitioner obtained
a distribution of the proceeds of Fernandez's marijuana business.  But
the mail fraud counts alleged that petitioner schemed to buy a bank
with the proceeds of Fernandez's marijuana business while concealing
that Fernandez was the true owner (Indictment at 40, Counts III-V
para. 3(a) and (d)), and petitioner received stock in the bank as part
of the deal.

   /8/ In McCullough v. United States, cert. denied, 484 U.S. 947
(1987), Justices White and Brennan would have granted certiorari to
resolve a conflict between Brown and cases from other circuits
concerning the effect of the invalidation of a predicate racketeering
act on a racketeering conviction.  In light of Zauber, the Third
Circuit is no longer in conflict with the other circuits.