Former Maryland governor Marvin Mandel and five associates are seeking to have their convictions overturned a decade after they were found guilty of mail fraud and racketeering.
Mandel, who was driven from office by the conviction and served 19 months of a four-year sentence, and associates Irvin Kovens, W. Dale Hess, Harry Rodgers III, William Rodgers and Ernest Cory, filed motions in federal court in Baltimore Thursday asking that their convictions be vacated on the basis of a Supreme Court ruling in June that drastically limited the scope of the federal mail fraud law.
The Supreme Court decision in McNally v. U.S. held that the federal mail fraud law covered only situations in which prosecutors could show that the fraudulent scheme caused economic injury, not situations -- like the Mandel case -- in which the government argued that the citizens were deprived of their "intangible rights" to the loyal and faithful services of public officials.
Mandel unsuccessfully argued that very issue in a four-year legal struggle that ended with the high court's refusal to review his conviction.
In the new motion, he said the McNally decision "establishes that . . . Mandel was convicted and punished for acts that the law does not make criminal."
Baltimore U.S. Attorney Breckinridge L. Willcox said, "We intend to take a very narrow and strict view of the McNally decision, noting, for example, that Mandel and several other defendants were convicted of a racketeering count that was based on both mail fraud and bribery.
However, he said, "It's tough to distinguish the facts of Mandel from McNally, especially since the Mandel opinion was cited in the Supreme Court McNally decision itself as the line of cases they were now overruling."
Even though Mandel and the others have already served their time, Willcox said, whether the motions succeed "matters in the sense that Mandel and his codefendants, if in fact their convictions are voided, can with all due justification claim that they've been fully exonerated and what they did was in no way reprehensible."
Mandel was convicted of 15 counts of mail fraud and one count of racketeering stemming from manipulations to increase the value of Prince George's County's Marlboro race track, owned secretly in 1972 and 1973 by Mandel's five codefendants.
Mandel helped the track obtain extra racing days, which are allocated by the state and worth millions of dollars in profits. The track's secret owners in return provided the governor with money, jewelry, vacations and financial assistance in completing his divorce and remarriage.
Mandel's lawyer, Arnold Weiner, said "we had always had a sense that there had been quite an injustice in this case. Even though it was belated it was of some comfort to see that we were correct from the beginning that the conduct was not criminal."
Mandel's racketeering conviction was based in part on the underlying mail fraud counts, and Weiner argued in the motion that it also should be vacated.
Weiner said Mandel is seeking to have the conviction set aside because "in the first place, he stands improperly convicted of conduct which is not criminal. Secondly, he suffers the burden of continuing disabilities as the result of the improper conviction."
For example, Mandel was disbarred on the basis of his conviction and could seek to regain his license to practice law if it is vacated.
"Obviously, there's no way the court can turn the clock back and give you back your 19 months," William G. Hundley, the lawyer for Mandel's close friend Hess, said in an interview before the motions were filed. "He's done his time, but he paid a $40,000 fine, and his interest in the race track" was forfeited under the provisions of the racketeering statute.
Federal prosecutors charged Mandel with seeking "to defraud the citizens of the state of Maryland . . . of their right to the conscientious, loyal, faithful, disinterested and unbiased services" of their governor. However, they could not prove that Mandel's actions cost the state any money or otherwise injured it financially.
Lawyers for Mandel and his codefendants argued that their acts therefore were not covered under the mail fraud law, which for years has been used to punish such cases of political corruption.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in January 1979 overturned the convictions of all six defendants. But the full circuit court, splitting three to three, reinstated the convictions, and the Supreme Court in 1980 refused to hear the case.