                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-1997

USA v. Cross
Precedential or Non-Precedential:

Docket
96-3239,96-3240,96-3241




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Recommended Citation
"USA v. Cross" (1997). 1997 Decisions. Paper 245.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/245


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Filed October 21, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 96-3239, 96-3240, 96-3241

UNITED STATES OF AMERICA

v.

WALTER V. CROSS, a/k/a Bobo
Appellant in No. 96-3239

JULES C. MELOGRANE
Appellant in No. 96-3240

NUNZIO MELOGRANE
Appellant in No. 96-3241

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. Action Nos. 94-cr-00233-1, 94-cr-00233-2,
and 94-cr-00233-3)

Argued: August 12, 1997

BEFORE: STAPLETON, GREENBERG and COWEN,
Circuit Judges

(Opinion Filed October 21, 1997)

         Philip A. Ignelzi (Argued)
         Samuel J. Cordes
         Michael A. Murphy
         Ogg, Jones, Cordes & Ignelzi
         245 Fort Pitt Boulevard
         Pittsburgh, PA 15222
         Attorneys for Appellant
          in No. 96-3239




         J. Alan Johnson
         Swensen, Peror & Johnson
         Two PNC Plaza
         Suite 2710
         Pittsburgh, PA 15222
         Attorney for Appellant
          in No. 96-3240

         Kevin G. Sasinoski
         2510 Lawyers Building
         Pittsburgh, PA 15219
         Attorney for Appellant
          in No. 96-3241

         Frederick W. Thieman
         U.S. Attorney
         Paul J. Brysh (Argued)
         Assistant U.S. Attorney
         Office of United States Attorney
         633 U.S. Post Office & Courthouse
         Pittsburgh, PA 15219
         Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

A jury in the U.S. District Court for the Western District
of Pennsylvania found Appellants Walter Cross, Jules
Melograne, and Nunzio Melograne guilty of one count each
of conspiracy to deprive Pennsylvania residents of their civil
right to fair and impartial trial, 18 U.S.C. S 241, and
conspiracy to commit mail fraud, 18 U.S.C. SS 371 and
1341. All three defendants appeal both convictions. They
assert that the civil rights conviction is based on a vague
and undefined theory that cannot support a criminal
conviction, and that the only mailings involved were not
sufficiently connected to the fraudulent scheme to bring it
within the federal mail fraud statute. We hold that
established precedent provided clear notice to the
defendants that their agreement would constitute a
conspiracy to violate a civil right of the victims of that

                                  2



agreement; therefore, we affirm the convictions for
conspiracy to violate civil rights. We reverse the mail fraud
conspiracy conviction, however, because none of the
mailings contemplated in the conspiracy was undertaken
"for the purpose of executing" the scheme to defraud
Pennsylvania and its citizens of honest government
services.

I. Background

From December 1990 through July 1993, Cross and the
Melogranes conspired to "fix" cases coming before the
Statutory Appeals Division of the Court of Common Pleas of
Allegheny County, Pennsylvania (the "Statutory Appeals
Court"). In statutory appeals, the court exercises de novo
review of the decisions of courts of the "minor judiciary" on
matters such as traffic offenses and municipal ordinance
violations. Jules Melograne was a District Justice who
presided over one of the courts of the minor judiciary.
Cross was the supervisor of the Statutory Appeals Court in
Allegheny County, where he performed a number of duties,
including (1) determining when defendants, attorneys, and
witnesses (most often police officers) were present to begin
hearings, (2) controlling the order of hearings, (3) handling
requests for postponements, and (4) signing pay vouchers
for police officers who had appeared as witnesses. Nunzio
Melograne was the "tipstaff" for the judge assigned to hear
statutory appeals. He kept the court calendar, maintained
the case files, called the cases, and swore the witnesses.

Viewing the evidence at trial in the light most favorable to
the government, the record indicates that Cross and the
Melogranes conspired to influence the decisions of the court
in a variety of ways. Most frequently, they would utilize
their authority and access to the decision maker to assure
resolution of the case in the defendants' favor. Cross
repeatedly procured the absence of police officer witnesses
at hearings by telling them that they were not needed,
asking them to leave, or by calling the hearings early,
before the police witnesses had arrived. These tactics led to
automatic not-guilty verdicts. See Pa. R. Crim. P. 86(f).
Cross asked the judge not to rule on certain cases during
the hearing, but to take them under advisement, or "c.a.v."

                                3



After the hearings had concluded, Cross and Nunzio
Melograne would accompany the judge to his chambers
with the c.a.v. cases, and after fifteen to twenty minutes
they would emerge with several not-guilty verdicts. FBI
surveillance also recorded Cross discussing defendants
being found not guilty "because Jules wants it," App. at
929, presumably referring to Jules Melograne. Witnesses
reported that they had observed stars, check marks, or
"c.a.v." notations by defendants' names on Cross's trial
calendar before they had appeared; such defendants
normally were found not guilty or received reduced
sentences at their hearings. In addition, Cross was
observed accepting food, tickets to sporting events, fruit
baskets, and other items despite his office's policy against
employees accepting gifts. Witnesses testified that the gifts
had been offered in exchange for promises by Cross to
reduce or eliminate citations and to influence hearings.

On other occasions, Cross and the Melogranes would
work to assure that a case would be decided against the
defendant--as the government called them, the "to be found
guilty" cases. One witness testified that she had overheard
Cross telling the judge in one case to "find this sucker
guilty," and on another occasion, the defendant was found
guilty after Cross's prompting to the judge even though the
assistant district attorney at the hearing had attempted to
withdraw the charge on the ground that the evidence did
not demonstrate a violation. In yet another case, FBI agents
recorded one of Cross's telephone conversations in which
the husband of an accident victim called Cross and asked
that the case against the woman who had caused the
accident be heard first on its scheduled hearing date. In the
course of their discussion, Cross asked, "You want her
guilty, right?" and after the caller replied affirmatively,
Cross assured him, "Guilty? No problem." App. at 915.
Cross later told the victim's husband that "we'll burn her
ass." App. at 925.

Nunzio Melograne also was seen speaking to police
witnesses on at least one occasion before the police left the
court before their hearings. In addition, he kept a notebook
listing approximately 170 cases, and the name "Jules,"
again referring to Jules Melograne, appeared in connection

                                4



with 82 of those, many of which had been marked on
Cross's trial list. At least three cases in which defendants
were found not guilty were marked on Cross's trial calendar
and listed in Nunzio Melograne's notebook with the name
"Jules." And at least three cases in which a defendant was
found guilty appeared in Nunzio Melograne's notebook with
the word "guilty," including the one described above where
the district attorney attempted to withdraw the charge.

The government based its civil rights charge on matters
in which the conspirators had procured guilty verdicts--the
"to be found guilty" cases. In these cases Cross and the
Melogranes, the government charged, conspired to deprive
defendants appearing before the Statutory Appeals Court of
their fundamental due process right to a fair hearing before
an impartial tribunal. The mail fraud convictions were
based on the conspirators' agreement to deprive
Pennsylvania and its citizens of their own honest services
as public employees.1 It was alleged that, in furtherance of
this agreement, they caused the mail to be used to transmit
notices of case dispositions to parties and the Pennsylvania
Department of Transportation.

The district court properly exercised jurisdiction under
18 U.S.C. S 3231, and we invoke jurisdiction under 28
U.S.C. S 1291 to review the district court'sfinal order of
conviction. Because each of Appellants' challenges is based
on the district court's construction of statutes and case
law, we will exercise plenary review. Epstein Family
Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.
1994).

II. Conspiracy to Violate Civil Rights

The statute under which the defendants were convicted,
18 U.S.C. S 241, makes it a crime for "two or more persons
_________________________________________________________________

1. The government argued before us that the alleged mail fraud
conspiracy had two objectives: to deprive citizens of the honest services
of public employees and to deprive the Commonwealth of fines. Without
objection from the government, however, the case was submitted by the
district court to the jury as a conspiracy with the single objective of
depriving citizens of the honest services of the defendants. App. at 242-
43; 1109-11.

                                5



[to] conspire to injure . . . any person in any . . . state or
Commonwealth . . . in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws
of the United States." The evidence indicates that Cross and
the Melogranes agreed to use their best efforts to cause the
judge in the "to be found guilty" cases to consider factors
other than the merits of the case and to find against the
defendant. Cross and the Melogranes insist that they had
no fair notice that this agreement would violate S 241.
Because the fundamental due process right of a defendant
in a criminal case to an impartial tribunal is so well
established, and because that right is so clearly subverted
by an agreement of this kind, we reject the defendants'
contention that they had no fair notice.

The right to a fair and impartial trial for the resolution of
guilt lies at the very heart of the constitutional guarantee of
due process, as the case law of the Supreme Court and this
circuit reflects. In In re Murchison, 349 U.S. 133 (1955), a
Michigan judge who had presided over a one-person "judge-
grand jury" later, in separate proceedings, adjudged
witnesses in contempt for their conduct before him at the
hearing. Id. at 133-34. The Supreme Court held this to be
a violation of due process, opening its discussion of the law
with the following passage: "A fair trial in a fair tribunal is
a basic requirement of due process. Fairness of course
requires an absence of actual bias in the trial of cases. But
our system of law has always endeavored to prevent even
the probability of unfairness." Id. at 136. The Court warned
that " `[e]very procedure which would offer a possible
temptation to the average man as a judge . . . not to hold
the balance nice, clear, and true between the State and the
accused denies the latter due process of law.' " Id. (quoting
Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Similarly, the
Court held in Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)
that "[t]he Due Process Clause entitles a person to an
impartial and disinterested tribunal in both civil and
criminal cases." 446 U.S. at 242. Among the concerns
protected by this rule, the Court noted, is the preservation
of

         both the appearance and reality of fairness, "generating
         the feeling, so important to a popular government, that

                                6



         justice has been done" by ensuring that no person will
         be deprived of his interests in the absence of a
         proceeding in which he may present his case with
         assurance that the arbiter is not predisposed tofind
         against him.

Id. (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S.
123, 172 (1951)).

This circuit has also clearly acknowledged the
fundamental right to a fair and unbiased adjudication of
guilt. We defined the basic elements of due process not
simply as notice and the opportunity to be heard, 2 but "to
be heard by a fair and impartial tribunal." Sill v.
Pennsylvania State Univ., 462 F.2d 463, 469 (3d Cir. 1972)
(emphasis added). Moreover, we announced unambiguously
that "[i]f someone is deprived of his right to an impartial
tribunal, then he is denied his constitutional right to due
process, regardless of the magnitude of the individual and
state interest at stake, the risk of error and the likely value
of additional safeguards." United Retail & Wholesale
Employees Teamsters Union Local No. 115 Pension Plan v.
Yahn & McDonnell, Inc., 787 F.2d 128, 138 (3d Cir. 1985).
Indeed, we emphasized that "[t]he unfairness that results
from biased decisionmakers strikes so deeply at our sense
of justice that it differs qualitatively from the injury that
results from insufficient procedures." Id.

The defendants attempt to escape the clear import of
these teachings by pointing out that they arose in the
context of misconduct on the part of the decision maker,
and that no decided case imposes criminal liability for
violating S 241 by influencing or attempting to influence a
_________________________________________________________________

2. The defendants claim that all of those whom they conspired to injure
received the fundamental tenets of due process: notice and an
opportunity to be heard. But due process cannot be satisfied when the
state provides a "hearing" at which the judge is not really listening or
before which the decision has already been made. A myriad of cases hold
that mere notice and hearing are not enough if "the state has contrived
a conviction through the pretense of trial." See, e.g., Mooney v. Holohan,
294 U.S. 103, 112 (1935) (deliberate presentation of perjured testimony
by the State); Napue v. Illinois, 360 U.S. 264 (1959) (same); Pyle v.
Kansas, 317 U.S. 213 (1942) (same).

                                7



decision maker. However, where, as here, the civil right
allegedly violated is defined in the preexisting case law in a
way that gave clear notice that the defendant's proposed
conduct would abridge it, a prior conviction on analogous
facts is not necessary. This is clear from the Supreme
Court's recent decision in United States v. Lanier, 117 S.
Ct. 1219 (1997).

Lanier was convicted under 18 U.S.C. S 242 for violating
the constitutional rights of five women by assaulting them
sexually while he was serving as a state judge. Section 242
prohibits "the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or
laws of the United States" by anyone acting "under color of
. . . law."3 The Sixth Circuit Court of Appeals set aside the
conviction for "lack of any notice to the public that this
ambiguous criminal statute included simple or sexual
assault crimes within its coverage." United States v. Lanier,
73 F.3d 1380, 1384 (6th Cir. 1997). The Supreme Court
unanimously reversed, holding that the Court of Appeals
had employed an incorrect standard for determining
whether particular conduct falls within the proscriptions of
S 242. United States v. Lanier, 117 S. Ct. 1219 (1997). As
the Court pointed out, the "touchstone is whether the
statute, either standing alone or as construed by the
courts, made it reasonably clear at the relevant time that
the defendant's conduct was criminal." Id. at 1225.

The Court of Appeals in Lanier recognized two
prerequisites for a conviction under S 242: (1) a prior
decision of the Supreme Court recognizing the constitutional
right at issue, and (2) a prior conviction in a factual
situation "fundamentally similar" to the one at bar. The
Supreme Court rejected this view. It noted that no case has
confined the range of relevant decisions to Supreme Court
precedent. Id. at 1226. As for factual similarity, the Court
pointed out that it had upheld convictions under S 241
despite "notable factual distinctions" between prior
_________________________________________________________________

3. Section 242 is thus the substantive counterpart to the conspiracy
statute in 18 U.S.C. S 241, which is the focus of this appeal. Section 241
forbids conspiracies to violate federally protected rights, whether the
conspirators act under color of law or not.

                                8



decisions and the convictions at issue "so long as the prior
decisions gave reasonable warning that the conduct at
issue violated constitutional rights." Id. at 1227. It
conceded that "[i]n some circumstances, as when an earlier
case expressly leaves open whether a general rule applies to
the particular type of conduct at issue, a very high degree
of prior factual particularity may be necessary." Id. "But,"
the Court continued,

         general statements of the law are not inherently
         incapable of giving fair and clear warning, and in other
         instances a general constitutional rule already
         identified in the decisional law may apply with obvious
         clarity to the specific conduct in question, even though
         "the very action in question has [not] previously been
         held unlawful."

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).

This case falls squarely within the language just quoted.
No earlier case leaves open whether prejudicing a judge
against a defendant violates the defendant's right to a fair
and impartial trial; rather, the "general constitutional rule
already identified in the decisional law"--that people are
entitled to fair adjudication of their guilt before an impartial
tribunal--"applies with obvious clarity to the specific
conduct in question." We therefore affirm the conviction for
conspiracy to violate civil rights.

III. Mail Fraud Conspiracy

The defendants were convicted of a conspiracy that
contemplated using the United States mail to deprive the
Commonwealth of Pennsylvania and its citizens of the
honest services of public employees. The indictment alleges
that this agreement contemplated that the defendants
would cause the following documents to be sent through
the United States mail by the Statutory Appeals Court to
the parties and the Department of Transportation ("DOT"):
(1) notices of dismissals, (2) notices of convictions, and (3)
"notices of favorable disposition." App. at 42, 51, 53. The
government insists that the defendants contemplated that
these documents would be sent through the mail in

                                9
furtherance of their conspiracy. While we agree that the
record will support an inference that the defendants
expected these notices to be dispatched by mail, we cannot
uphold the defendants' mail fraud convictions on this basis.
Because mailing of these notices was required by law as an
integral and necessary part of the court's adjudication of
cases, and because any deprivation of the honest services
of public employees had been completed in each instance
before the notice of disposition was mailed, the mailings of
notices of case disposition as a matter of law were not in
furtherance of the alleged conspiracy.

"The mail fraud statute does not purport to reach all
frauds, but only those limited instances in which the use of
the mails is part of the execution of the fraud." Kann v.
United States, 323 U.S. 88, 95 (1944). As we explained in
United States v. Tarnopol, 561 F.2d 466, 471-72 (3d Cir.
1977) (internal citations omitted):

         In each case the question is whether or not the
         "mailings were sufficiently closely related to
         respondent's scheme to bring his conduct within the
         statute." Moreover . . . "the close relation of the
         mailings to the scheme does not turn on time or space,
         but on the dependence in some way of the completion
         of the scheme or the prevention of its detection on the
         mailings in question." Thus, mailings taking place after
         the object of the scheme has been accomplished, or
         before its accomplishment has begun, are not
         sufficiently closely related to the scheme to support a
         mail fraud prosecution. Nor are routine mailings
         required by law which are themselves intrinsically
         innocent even though they take place during the
         course of carrying out a fraudulent scheme, the
         objective of which is the embezzlement of funds
         received in response to the mailings.

We derived these governing principles in Tarnopol in large
part from Parr v. United States, 363 U.S. 370 (1960), a case
factually similar to that before us. The defendants in Parr
were charged with a scheme to embezzle funds from a
public school district in Texas. The mailings alleged to have
been in furtherance of their conspiracy included notices of
tax assessments dispatched by the district to local

                                10



residents and the tax payments sent to it in response.
Incoming tax revenue was either immediately converted by
the defendants or deposited in the district's account, on
which the defendants issued and cashed checks payable to
fictitious persons or in consideration of fictitious goods and
services. The scheme also allegedly included the
defendants' securing gasoline and other products and
services with school district credit cards, with the
knowledge that the mails would be used to collect from
school funds. Although the Court acknowledged this
"brazen scheme to defraud," it explained that the offenses
described were essentially state crimes, and they would
constitute federal mail fraud only if the mailings charged in
the indictment were made " `for the purpose of executing
such scheme.' " Parr, 363 U.S. at 385 (quoting 18 U.S.C.
S 1341).

Because the district was legally compelled to assess and
collect taxes for school purposes, and the taxpayers were
legally obliged to respond, the Court held that the mailings
in connection with the collection of revenue could not
support a mail fraud conviction even though the scheme to
embezzle could not have succeeded without tax revenue.
Rejecting the government's arguments that the mailings,
even if innocent in themselves, were "steps in a plot," the
Court remarked that no case had ever held that "a thing
which the law required to be mailed may be regarded as
mailed for the purpose of executing a plot or scheme to
defraud." Id. at 390. The Court stressed that: (1) the district
was legally required to assess and collect taxes; (2) the
indictment did not charge and the evidence did not prove
that the taxes assessed exceeded the district's legitimate
needs or that they were in any way unlawful; and (3) in
fulfilling its legal duty to collect and report the receipt of
taxes, the district was practically obliged to permit
taxpayers to use the mail. Id. at 391. In a passage of
central importance to this appeal, the Court summarized its
holding with respect to the tax collection mailings as
follows:

         [I]t cannot be said that mailings made for or caused to
         be made under the imperative command of duty
         imposed by state law are criminal under the federal

                                11



         mail fraud statute, even though some of those who are
         so required to do the mailing . . . plan to steal . . .
         some indefinite part of [the district's] moneys.

Id.

The Court also held that the mailings required to collect
for the credit card purchases would not support a mail
fraud conviction. The "scheme in each case had reached
fruition when [the defendants] received the goods and
services . . . . It was immaterial . . . to any consummation
of the scheme, how the [oil company] . . . would collect from
the [District]." Id. at 393 (quoting Kann v. United States,
323 U.S. 88, 94 (1944)) (internal quotation mark omitted).
Accordingly, it could not be said "that the mailings in
question were for the purpose of executing the scheme, as
the statute requires." Id.

Parr's holding with respect to the credit card portion of
the scheme was followed in United States v. Maze, 414 U.S.
395 (1974). Maze also involved credit card fraud. The Court
held that mailings of credit card invoices from a motel to a
bank for the purpose of securing reimbursement for the
goods and services supplied to Maze by the motel were not
"for the purpose of executing [the defendant's] scheme." Id.
at 405. The Court pointed out that Maze's "scheme reached
fruition when he checked out of the motel." Id. at 414. In
reaching its conclusion, the Court distinguished United
States v. Sampson, 371 U.S. 75 (1962), on the ground that,
while Maze had received no benefit from the mailings, the
mailings in the Sampson scheme "were designed to lull the
victims into a false sense of security, postpone their
ultimate complaint to the authorities, and therefore make
the apprehension of the defendants less likely than if no
mailings had taken place." Id. at 403.

We find this case indistinguishable from Parr. The
Statutory Appeals Court was charged by law with
adjudicating specified cases, just as the school district in
Parr was charged with running a school system. Its
mailings to the parties and the DOT, like the tax mailing in
Parr, were required by law as a part of the court's exercise
of its responsibilities. See Pa. R. Crim. P. 58(b)(2), 63(b)(2),
68(b)(2), 80, 9024, 9025; Pa. R. Civ. P. 236(a)(2); Pa. Stat.

                                12



Ann. tit. 75, S 6323 (West 1996). Given the volume of
business that the court conducted, it had little choice but
to transmit these required notifications by mail. The notices
of dispositions dispatched by the court, like the tax
mailings in Parr, performed precisely the function they were
intended by law to perform: they faithfully reported the
court's disposition of the case. As in Parr, the relevant
mailings would, of necessity, have been made whether or
not the conspiracy existed, and they would have performed
precisely the same function in the absence of the
conspiracy that they performed during its continuance.

We also find an analogy between this case and the credit
card aspects of Parr and of Maze. The objective of this
conspiracy was to deprive citizens of the honest services of
public employees charged with processing and adjudicating
cases. That objective would "reach fruition" when the
defendants' efforts caused a different disposition by the
court than would otherwise have been made. In short, all
that the conspirators needed to fix in order to achieve the
object of their agreement was the disposition of a case.
While routine mailings to the parties and the DOT and
between the DOT and the parties could reasonably have
been expected to follow in the ordinary execution of duties
imposed by law, by the time notices of dispositions were
dispatched, the conspiracy had either succeeded or failed,
the legal consequences of an acquittal or conviction had
been established, and the routine reporting of the
dispositions simply was not a part of the conspirators'
execution of their scheme. Nor did that routine reporting
have the effect of lulling anyone into a false sense of
security or otherwise making the conspirators'
apprehension less likely.4
_________________________________________________________________

4. Schmuck v. United States, 489 U.S. 705 (1989), a case relied upon
heavily by the government, appears to us to support the position of the
defendants. In Schmuck, a used car distributor was charged with
devising and executing a scheme to defraud retail automobile customers
by rolling back the odometers and inflating the prices he charged to
dealers based on the lower mileage readings. The Court held that the
mailing requirement was satisfied by the dealers' mailings of the title
application forms. The Court distinguished Parr on the basis that the
annual tax mailings in Parr continued regularly regardless of the

                                13



The scope of the federal mail fraud statute is limited. The
Supreme Court has clearly held that legally required
mailings in circumstances like those in this case cannot be
deemed to have been made "for the purpose of executing" a
fraudulent scheme. We therefore reverse the mail fraud
conspiracy convictions.5

IV. Conclusion

For the reasons set forth above, we will affirm the
convictions for conspiracy to violate civil rights and will
reverse the convictions for conspiracy to commit mail fraud.
We will remand for resentencing.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

scheme, while the mailings from the dealers in Schmuck were a direct
result of and would not have occurred but for the fraudulent scheme.
Schmuck, 489 U.S. at 713 n.7. Here also, the court regularly mailed
notices to parties and the DOT in every case, whether or not the
defendants had attempted to influence the result.

5. In a footnote in its brief, the government points to testimony that the
defendants caused notices to be mailed of the time, date, and place of
the hearings in the various cases. Appellee's Br. at 36 n.4. Even if these
had been alleged in the indictment to be mailings in furtherance of the
conspiracy, we could not sustain the defendants' mail fraud convictions
on the basis of these notices. They too are a necessary part of the
Statutory Appeals Court's carrying out its charge to adjudicate the cases
within its jurisdiction. These notices were sent in all cases and their
function was precisely the same during the conspiracy as it would have
been without that conspiracy.

                                14
