United States v. Miller

Warren E. Burger:

We will hear argument first this morning in United States against Miller.

Mr. Frey, you may proceed whenever you are ready.

Mr. Andrew L. Frey:

Thank you, Mr. Chief Justice, and may it please the Court, this case concerns the degree of correspondence that is required between the proof at trial and the allegations in an indictment.

This question is one of great practical importance because lack of correspondence between proof and charges in an indictment is to some extent a feature of a large proportion of criminal prosecutions.

This is due to two basic factors.

First of all, as you are well aware, the grand jury has a different standard of proof for returning an indictment from the one the petty jury has at trial.

The indictment need be based only on a showing of probable cause, and, of course, it's entirely possible that a showing of probable cause cannot be elevated into a showing of proof beyond a reasonable doubt at trial.

Secondly, there are often changes in the availability of evidence.

Witnesses may die, disappear, or cease cooperation between the time of indictment and trial, new evidence may come to light and the prosecutor may acquire a reason not to credit some of the evidence that was presented to the grand jury or to feel it's not persuasive enough to justify presenting it to the petty jury.

Now in this particular case respondent was charged with three counts of mail fraud, and the elements of the offense of mail fraud are, first, the mailing, second, an execution or furtherance of a scheme to defraud.

The offense in this indictment was described in right paragraphs, but the essential elements were alleged in the first paragraph and the last paragraph of Count One, which is at pages 2 and 3 of the joint appendix.

The last paragraph alleges the mailing.

The first paragraph alleges that respondent did devise and intend to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses and representations from Aetna Insurance Company by making a fraudulent insurance claim for a loss due to an alleged burglary at San Francisco Scrap Metal.

The essence of this scheme, then, was to obtain money to which respondent was not entitled by making a false insurance claim in connection with an alleged burglary at his place of business.

Nothing more than paragraph 1 and 8 need have been alleged in this indictment; however, in fact the indictment contained six additional paragraphs, 2 through 7, describing the scheme in more detail.

Of particular relevance are paragraphs 6 and 7.

In paragraph 6 it was alleged that it was part of the scheme that defendant well knew that the alleged burglary was committed with his knowledge and consent for the purpose of obtaining the insurance proceeds.

In fact, at trial not enough evidence was put on to establish this charge of the grand jury or this description of the scheme.

In paragraph 7 the grand jury alleged that it was a further part of the scheme that the defendant well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.

This allegation was proved beyond a reasonable doubt at trial.

Now the Court of Appeals reversed respondent's conviction.

It held that the petty jury convicted Miller, and I am quoting from its opinion at 6(a) of the appendix to the petition,

"for devising a scheme to defraud Aetna by inflating the amount of the claimed loss, even though the grand jury indicted on the basis of a scheme to defraud consisting not only of the inflated claim but also of Miller's knowing consent to burglary. "

The Court went on to say that in a mail fraud case the petty jury must find that the defendant participated in the overall scheme alleged by the grand jury because the Court could not be certain that the grand jury would have indicted on the basis that the defendant participated in only a part of the scheme.

They go on to say that because it is possible that if the grand jury had seen only the proof that the petty jury had seen it would not have chosen to indict; therefore, the conviction should be reversed.

Now in this Court respondent relies principally not on this rationale of the Court of Appeals, I think, of speculation about the grand jury, but, rather, on the more direct proposition that the charge and the proof at trial involved essentially different offenses in the sense that the indictment did not really embrace the scheme for which he was convicted and that, therefore, he was deprived of his right to be convicted only on an offense for which he's been indicted.

Now let me begin my legal argument with a proposition that has generally been treated by this Court as black letter law, and as long ago as 1896 in Crain against the United States, for instance, the Court said

"we perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count so that there may be a verdict of guilty upon proof that the accused has done any one of the things constituting a substantive crime under the statute. "

This same thought has been expressed in a number of decisions of this Court and in innumerable decisions of the Courts of Appeals.

Now these propositions, this proposition would seem rather clearly to dispose of this case in the government's favor.