Pritchard v. United States

• Citation: 386 F.2d 760
• Decision Date: 19 December 1967
• Docket Number: No. 18501-18506.,18501-18506.
• Parties: Harold E. PRITCHARD, Appellant, v. UNITED STATES of America, Appellee. Calvin POPEJOY, Appellant, v. UNITED STATES of America, Appellee. Robert MURRAY, Appellant, v. UNITED STATES of America, Appellee. Daniel ANGELINI, Appellant, v. UNITED STATES of America, Appellee. Dale ESPICH, Appellant, v. UNITED STATES of America, Appellee. Ronald BORCHELT, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

386 F.2d 760 (1967)

Harold E. PRITCHARD, Appellant, v. UNITED STATES of America, Appellee.

Calvin POPEJOY, Appellant, v. UNITED STATES of America, Appellee.

Robert MURRAY, Appellant, v. UNITED STATES of America, Appellee.

Daniel ANGELINI, Appellant, v. UNITED STATES of America, Appellee.

Dale ESPICH, Appellant, v. UNITED STATES of America, Appellee.

Ronald BORCHELT, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18501-18506.

United States Court of Appeals Eighth Circuit.

December 19, 1967.

Theodore F. Schwartz, Clayton, Mo., for appellants and filed brief.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., was on the brief.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendants Pritchard, Popejoy, Murray, Angelini, Espich and Borchelt, hereinafter jointly referred to as defendants, have each appealed from their conviction by a jury and the resulting sentence on various counts of an indictment charging them with mail fraud in violation of 18 U.S.C.A. § 1341. Defendants named above, along with Leon Hauser and Porter E. Gordon, were jointly tried on a twenty-nine count mail fraud indictment. Counts 14 and 16 were dismissed by the court as to all defendants. Hauser and Gordon were acquitted upon all counts. Pritchard was convicted on each of the twenty-seven counts submitted. Defendants Murray, Angelini and Espich were each found guilty on Counts 1, 2, 5, 6, 7, 8, 9, 11, 12, 13, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28 and 29, and acquitted on the remaining counts. Defendant Borchelt was convicted on all of the counts last set out and in addition was found guilty on Count 21, and was acquitted on Counts 3, 4 and 10.

Pritchard was sentenced to five years imprisonment on Count 1 and certain other counts, such sentences to be served concurrently, and in addition was sentenced to five years under the provisions of 18 U.S.C.A. § 4208(a) (2) on Count 2 and certain other counts consecutively to the Count 1 sentence, and was fined $1,000 on each of Counts 1, 26, 27, 28 and 29.

Murray was given concurrent sentences of thirty months upon all the counts upon which he was convicted, to be served pursuant to 18 U.S.C.A. § 4208(a) (2), and was fined $1,000 upon Count 1.

Angelini was sentenced to three years imprisonment on Count 1 and certain other counts to be served concurrently, and to three years under Count 2 and certain other counts, pursuant to 18 U.S.C.A. § 4208(a) (2), to run consecutively to the sentence on Count 1.

Espich was given concurrent sentences of three years under 18 U.S.C.A. § 4208 (a) (2) upon each count upon which he was convicted and sentenced to a fine of $500 on Count 1.

Borchelt was sentenced to four years imprisonment on Count 1 and certain other counts, to be served concurrently, and to four years under § 4208(a) (2) on Count 2, and certain other counts, to be served consecutively to the sentence imposed on Count 1. He was fined $1,000 on each of Counts 1 and 28 and $500 on Count 29.

Popejoy was given concurrent sentences upon all the counts upon which he was convicted of thirty months under 18 U.S.C.A. § 4208(a) (2) and fined $1,000 on Count 6. Costs were taxed to defendants jointly.

Chem-Plastics & Paint Corp. was incorporated in Missouri in 1962 with principal place of business in St. Louis. In 1965 such corporation was succeeded by National Chem-Plastics Corp., a Nevada corporation with principal place of business at Las Vegas. Operations were also continued in St. Louis. Both corporations were engaged in the sale of paint products, particularly Pylon products, a type of plastic coating. The indictment covers 1964 and 1965 transactions.

Defendant Pritchard was the principal owner and operator of both corporations. Pritchard made attempts to conceal his ownership of the Nevada corporation and sometimes used and signed the name "Hauser". Popejoy was president of the Nevada corporation from July to December 1965. Borchelt became manager at St. Louis in the fall of 1964 and has been general manager since July 1965. Defendants Angelini, Murray and Espich were primarily salesmen. Angelini bore the title of Vice President and there is evidence that Espich had the title Secretary.

The indictment charges and the evidence establishes that the defendants convicted entered into a scheme to defraud prospective purchasers of franchises to sell their product. Advertisements were placed in numerous newspapers and magazines with national circulation inviting inquiries with respect to profitable franchises. People answering the advertisements were usually sent descriptive literature and were invited to visit the plant at St. Louis or Las Vegas, where upon arrival they were usually put in touch with one or more of the defendants. The scheme consisted of false representations as to the financial strength of the company, false promises as to aid in establishing and training a sales organization, false promises of an exclusive territorial franchise, false statements as to copyright protection, and false statements as to profit possibilities. The victims, on the basis of representations made, were sold large quantities of paint in order to obtain their exclusive franchises. In nearly all instances the paint was delivered. There is some dispute about the quality of the paint but the Government has not based its case on misrepresentations of paint quality. False representations as to direct mailing and advertising aid are also charged.

The promises of sales assistance, although sought by the franchise purchasers, were not carried out. The promises of exclusiveness of the franchise were in many instances violated. There is substantial evidence that the financial statements used to impress the victims of the corporation's financial stability were knowingly false. Many of the direct advertising reply cards received from prospective customers were not sent to the franchise holders in accordance with the promises made and in some instances were used by the defendants for making direct sales.

The defendants were tried together below and their appeals were consolidated here. All defendants are now represented by the same counsel. Angelini and Borchelt have filed separate briefs. The remaining defendants have filed a joint brief. The briefs filed differ with respect to facts relating to the participation or lack thereof on the part of the various defendants but all briefs raise the same errors for reversal, to wit:

I. Refusal to sustain motions of all defendants for judgment of acquittal on all grounds made at the close of all the evidence for the reason that the evidence was insufficient to sustain a conviction on any count.

II. Error in admitting testimony of statements made by salesmen, who were not defendants, to victims for the reason that such testimony is prejudicial hearsay and that there is no showing defendants authorized or ratified any acts or statements of such salesmen.

III. Prejudicial error in refusing to give defendants' requested instructions 1, 2, 3, and 4.

IV. Refusal to strike testimony of Charles Guess concerning financial status of corporation for the reason the books were not kept by Guess nor were they kept in the ordinary course of business.

V. Errors in admitting in evidence exhibits 102 and 109 — two cancelled checks.

We have examined the asserted errors in the light of the record and find no prejudicial error has been committed and hence an affirmance is required. We shall discuss the asserted errors in the order in which they are set out above.

I.

All motions for acquittal were properly overruled. Under the familiar, well-established principles of appellate review, the evidence must be viewed in the light most favorable to the Government as the prevailing party before the jury, and the Government is entitled to the benefit of all reasonable inferences that may properly be drawn from the evidence. Friedman v. United States, 8 Cir., 347 F.2d 697, 706; Koolish v. United States, 8 Cir., 340 F.2d 513, 519.

As heretofore pointed out, each sentence of imprisonment is imposed on conviction upon many counts. With respect to all defendants except Popejoy, the imprisonment sentences are imposed on Count 1, with sentences imposed on certain other counts to run concurrently with the Count 1 sentences. Consecutive sentences of imprisonment are imposed only on defendants Pritchard, Angelini and Borchelt, such sentences being imposed on Count 2 convictions and concurrently imposed on other designated counts. Popejoy's imprisonment sentence is imposed on Count 6, with concurrent sentences on all other counts upon which he was convicted. Fines were imposed on the various defendants on specific counts as hereinabove stated.

In order to support the convictions, it is not necessary to determine the sufficiency of the evidence to support the conviction on all counts. The burden is on the defendants to establish that the evidence is insufficient to support conviction upon any count upon which the sentence is concurrently imposed. In Isaacs v. United States, 8 Cir., 301 F.2d 706, 733, we state the law here pertinent as follows:

"Firmly embedded in federal jurispudence is the principle that a general sentence on several counts of an indictment will be sustained on appeal if the defendant was properly convicted under any count which is good and which is sufficient in itself to support the judgment and sentence. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Bunn v. United States, 8 Cir., 260 F.2d 313, 316; Guon v. United States, 8 Cir., 285 F.2d 140, 142."

The law with respect to mail fraud cases is well-established by our prior decisions. See Fabian v. United States, 8 Cir., 358 F.2d 187; Gold v. United States, 8 Cir., 350 F.2d 953; Koolish v. United States, 8 Cir....