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United States v. Fayette

decided: January 12, 1968.

UNITED STATES OF AMERICA, APPELLEE,
v.
FREDERICK J. FAYETTE, APPELLANT



Lumbard, Chief Judge, and Medina and Hays, Circuit Judges.

Author: Medina

MEDINA, Circuit Judge:

Having been convicted after a trial to Chief Judge Gibson and a jury of knowingly receiving $3000 from Frederick A. Flint as a political contribution and for personal emolument in consideration of his promise of support and the use of his influence in obtaining for Ned W. Handy the position of Postmaster of St. Johnsbury, Vermont, in violation of 18 U.S.C., Section 211, Frederick J. Fayette appeals.

At the center of the case is an oral statement made by appellant Fayette to FBI Agent John W. Fowkes in appellant's law office in Burlington, Vermont, on December 31, 1963. Reversal of the judgment of conviction is sought on the ground that there was not sufficient corroboration of this statement by independent proof to justify submission of the case to the jury. Other contentions relate to alleged errors in the instructions to the jury and in receiving in evidence over objection a certain sworn statement by Handy made on December 20, 1963.

To keep the case in focus and for the purpose of clarity we have thought it best to make a preliminary survey of the principal incidents and the participants and reserve a more detailed discussion of the testimonial and documentary proofs for the part of this opinion devoted to the issue of corroboration. We find the corroboration amply sufficient to meet the legal requirements. We also find no error in the instructions or in the ruling on the admissibility of Handy's statement. We affirm the judgment.

I.

In the early part of 1961 it was common knowledge in St. Johnsbury that there would soon be a vacancy in the office of Postmaster as Frank Barney, the incumbent, was up for mandatory retirement on February 28, 1962. Appellant Fayette was then the State Chairman of the Vermont Democratic Party and he was elected a Vermont State Senator later that year. Ned Handy and appellant Fayette were friends but the relationship was not so close as that between Handy and Frederick A Flint, an elderly Republican who had in prior years been Sheriff of Caledonia County. Irrespective of who started the idea on its way, there came a time when Handy decided to do what he could to become Postmaster of St. Johnsbury and the subject was frequently discussed not only as between Handy and Fayette but also by them in the presence of others.

As postmasters fall in the category of political patronage and as it is important in the public interest that only competent persons of good reputation be chosen, there is a certain procedure that has been followed for some time. At the bottom of the political hierarchy relevant to the case before us is the St. Johnsbury Democratic Town Committee. In the Spring of 1961 Mrs. Laferriere was Chairman of this Town Committee. Higher up was the Democratic State Chairman of Vermont, appellant Fayette. He was succeeded in the Fall of 1961 by John M. Spencer. Since the days of President Lincoln, we are told, members of the Congress who are of the same political party as the President have been given the prerogative of making recommendations to the Post Office Department on the selection of postmasters. In view of the fact that at the time of the incidents recorded at this trial there were no Democratic Senators or Congressmen from Vermont, appellant Fayette up to the Fall of 1961 and Spencer thereafter were the "advisors" to the Post Office Department on these matters.

In the event of a vacancy the usual but not invariable custom and practice was that the Civil Service Commission solicited applicants and then by competitive examination all but 3 of the applicants were weeded out and the names of these three and the order of precedence among them on the merits were set forth in a Register of Eligibles published by the Civil Service Commission. This procedure was followed in the filling of the vacancy in the St. Johnsbury postmastership. In due course the publication of the Register of Eligibles would be followed by a recommendation by the State Chairman, who might or might not, but probably would follow the endorsement of the Town Committee. He was required, however, to select one of the highest 3 names on the Register of Eligibles. After receipt by the Department of the recommendation of the State Chairman there was usually a prompt processing by the Post Office Department, followed by appointment by the President and the issuance of the commission to the new postmaster after approval by the Senate.

But there might be delays and objections. Without going into too much detail, the persons whose duties brought them in contact with these delays and objections were John M. Bailey, the Chairman of the Democratic National Committee, and his assistant Pendergast, Michael Monroney, Executive Assistant to the Postmaster General, and Raftery who was one of the Secretaries in the office of the Division of Postmaster Appointments and Rural Carriers, which was in turn part of the Bureau of Operations. Monroney's Deputy was Tyler Abel. Thus, in the case of political interference with the normal procedures one would expect communications over the telephone or otherwise to Pendergast or Abel followed by directions issued by Bailey or Monroney. The only written record would generally be in the memorandum directions issued by Bailey or Monroney.

We turn now to what actually occurred, as clearly demonstrated by the documentary evidence, reserving for the moment the matters in dispute. On December 16, 1961 the Town Committee met and endorsed Handy for the office of Acting Postmaster of St. Johnsbury by a vote of 14 to 11. On February 28, 1962 Handy took office as Acting Postmaster and he served as such until October 23, 1963. The Civil Service Commission sent out applications and forms on October 9, 1962. Before the publication of the Certificate of Eligibles and on April 18, 1963 the Town Committee met and made the following endorsements for the office of Postmaster: # 1 Russo; # 2 Lanctot; # 3 Ouellette; # 4 Handy. On June 13, 1963 the Civil Service Commission published the Register of Eligibles with William L. McGraw as # 1, Handy as # 2 and Fife as # 3. On June 26, 1963 the Town Committee endorsed McGraw. On or just prior to July 15, 1963 Spencer wrote a letter to Monroney asking that McGraw's name "be submitted to the White House" and Monroney's memorandum to the Division of Postmaster Appointments of the Bureau of Operations on July 16, 1963 contains a direction that McGraw's name be included in the next list. On July 15, 1963 Flint's check to the order of Fayette for $3000 was deposited in Fayette's account in the Merchant's National Bank of St. Johnsbury and the proceeds credited to Fayette. Some time between July 16 and July 30, 1963 Pendergast asked Monroney if the nomination of McGraw had gone in. When Monroney replied that it had not he was requested to hold it up for a short time, and on July 30, 1963 Monroney sent a memorandum to Raftery telling him to take McGraw's name off the list. In August, 1963 Pendergast told Monroney to go ahead and submit McGraw's name and Monroney did so by direction contained in his memorandum of August 22, 1963. On August 29, 1963 McGraw was nominated, the nomination was confirmed by the Senate on September 30, 1963 and on October 2, 1963, the very day on which Fayette's check returning the $3000 to Flint was dated, the President advised Pendergast of the Senate's confirmation and directed that the commission be issued.

We shall find that at each stage of this development appellant Fayette was in touch with Handy and with Handy's friend Flint.

Now that we have the sequence of events in focus, we turn to Fayette's statement to FBI Agent Fowkes and the corroboration. It may be stated parenthetically that Fayette testified in his own defense and denied he had made most of the statements that were the subject of Fowkes' testimony.

A.

Fowkes testified that Fayette told him that after the Town Committee had on April 18, 1963 nominated four (sic) others ahead of Handy he was contacted by Flint, and Handy and his wife and they requested his services regarding any legal matters or investigative action that could be taken on Handy's behalf. He said he assumed that Flint would pay for any expenses he might incur.

Handy testified that after the action of the Town Committee and about the 1st of May, 1963 he and his wife and Flint had a conference with Fayette in the State Capitol building in Montpelier and Flint offered to compensate Fayette for his trouble but Fayette said he did not think this was necessary. During this conference, and in the presence of the Handys and Flint, appellant Fayette called up Abel in Washington and told him that he (Fayette) "had a particular interest in the Saint Johnsbury files and if he would flag it and let him know when the Register did come up." On the trial Fayette testified he did make the call but his version of what was said differed from Handy's.

B.

Fowkes further ...


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