US v. Gelb, 881 F. 2d 1155 - Court of Appeals, 2nd Circuit 1989

Defendant-appellant Bernard Gelb appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York (Van Sickle, J.).[*] Having engaged in schemes to avoid paying postage on mass mailings, Gelb was found guilty of one count of violating the Racketeer Influenced and Corrupt Organizations Act ( RICO ), 18 U.S.C. § 1962(c) (1982); one count of mail fraud, 18 U.S.C. § 1341 (1982); fifty counts of bribery, 18 U.S.C. § 201(b)(1)(C) (1982 & Supp. V 1987); and three counts of willfully making and subscribing false corporate income tax returns, 26 U.S.C. § 7206(1) (1982). Gelb claims, inter alia, that by conducting a trial during the Jewish holiday season, which, he asserts, made it impossible to include Jews in the venire from which his jury was selected, the district court deprived him of his sixth and fourteenth amendment rights to a jury representative of his community. He argues also that his mail fraud conviction was improper because dispatching mail without paying postage does not constitute mail fraud. Furthermore, he claims that paying Postal Service employees to ensure proper service is not bribery, and that there was insufficient evidence to support his bribery conviction in any event. Because the predicate offenses of mail fraud and bribery are said to be insupportable, Gelb argues that the RICO conviction cannot stand. Gelb contends also that evidence about payoffs to an institution other than the Postal Service, inadvertently introduced by a government witness, had a prejudicial effect upon the jury. Finally, Gelb claims that the district court committed reversible error during voir dire by not asking the jury venirepersons if they understood that testimony of a law enforcement official is not entitled to enhanced credibility simply by virtue of the official position of the witness. It appears from the record that Jewish jurors are excused from duty only on Jewish holidays, not during the whole holiday season. As Gelb\u27s trial was suspended for only the days necessary to observe the Jewish holidays, Gelb\u27s sixth and fourteenth amendment rights were not harmed by the jury selection process. Contrary to Gelb\u27s understanding of mail fraud, we hold that defrauding the Postal Service of postage does constitute mail fraud. Since the evidence supports Gelb\u27s conviction for bribery as well as mail fraud, his conviction for violating RICO was proper. The payoff evidence inadvertently introduced by the government to which Gelb takes exception was not prejudicial. Finally, any error the district court may have committed during voir dire was harmless. Accordingly, we affirm