395 F.2d 469 (8th Cir. 1968), 18592, Jacobs v. United States

Docket Nº:18592, 18593.
Citation:395 F.2d 469
Party Name:Harris Calvin JACOBS, Appellant, v. UNITED STATES of America, Appellee. Burton S. WOLCOFF, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 21, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 469

395 F.2d 469 (8th Cir. 1968)

Harris Calvin JACOBS, Appellant,

v.

UNITED STATES of America, Appellee.

Burton S. WOLCOFF, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 18592, 18593.

United States Court of Appeals, Eighth Circuit.

May 21, 1968

Page 470

Sherman C. Magidson, Chicago, Ill., for appellants; Herbert Barsy, Chicago, Ill., on the briefs.

Jerry E. Williams, Asst. U.S. Atty., Des Moines, Iowa, for appellee; James P. Rielly, U.S. Atty., and Claude H. Freeman, Asst. U.S. Atty., Des Moines, Iowa, on the brief.

Before VOGEL, Senior Circuit Judge, and MATTHES and BLACKMUN, Circuit Judges.

VOGEL, Senior Circuit Judge.

Irwin J. Davis, alias Pinky Davis, alias Pinky Diamond, Burton S. Wolcoff, alias Bert Gold, Harris Calvin Jacobs and Alan Robert Rosenberg, alias George Wagner, were all indicted together, tried together and convicted by a jury verdict on one count of conspiracy to violate the bankruptcy laws, in violation of 18 U.S.C.A. § 371, and seven counts of mail fraud, in violation of 18 U.S.C.A. § 1341. Since the convictions and sentences Rosenberg has become deceased. Each of the remaining three was sentenced to concurrent five-year sentences on each of the counts and each was directed to pay one-fourth of the prosecution costs. In addition, Davis received a $10,000 fine, Wolcoff received a $5,000 fine and Jacobs received a $1,000 fine on the 18 U.S.C.A.§ 371 violation. Following conviction and sentence, Davis, Wolcoff and Jacobs appealed. During the pendency thereof, Davis, the appellant in No. 18,571, asked that his appeal be dismissed and the mandate issue. His appeal was dismissed on March 12, 1968. We accordingly are concerned with appellant Jacobs in No. 18,592 and appellant Wolcoff in No. 18,593. References in this opinion to Davis and Rosenberg will be made only where necessary or pertinent. We affirm the judgment of conviction in both No. 18,592 and No. 18,593.

The appellants herein did not testify and they offered no testimony in their own behalf. That offered by the government, which was of course undisputed, indicated as follows: During the summer of 1963 the Robinson Wholesale Company was experiencing financial difficulties and the operating officer appointed by the bank to which it was indebted determined that one of the company's stores, which was located in Bettendorf, Iowa, should be sold. In mid-July, 1963, Goodman Robinson, the president of Robinson Wholesale Company, was introduced to the two appellants, Jacobs and Wolcoff. Wolcoff was introduced as 'Bert Gold'. Jacobs and Wolcoff were in Bettendorf, Iowa, to discuss the purchase of the Bettendorf store. Various terms of sale were discussed and Wolcoff concluded the conversation

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by telling Robinson that he would hear from them later. Approximately two weeks later Wolcoff arranged to meet Robinson at the store in Bettendorf. At this second conversation in Bettendorf, Irwin J. Davis was present and was introduced to Robinson as 'Pinky Davis'. Terms of sale were again discussed and in addition Mr. Robinson gave them the name of Mr. Seymour Gordon, whom the prospective purchasers could employ to manage the store for them.

In the last week in August 1963 Seymour Gordon, who had earlier discussed with Robinson the possibility of purchasing the store, flew to Bettendorf to meet with Jacobs and Wolcoff, after being informed by Robinson that he had suggested Gordon as a store manager for the prospective purchasers. Gordon met with Wolcoff and Jacobs at Robinson's store and discussed the possibility of his employment as general manager and buyer for the Harris Discount Store, which would be the successor to Robinson's store. On Labor Day weekend Gordon returned to Bettendorf and met Jacobs and Wolcoff at a motel. There he also met Davis, who this time was introduced to Gordon as 'Pinky Diamond'. The four men then discussed the terms of Gordon's employment, which included an agreement that Gordon would receive an additional percentage of the net if he would lend the appellants $5,000 for two or three weeks, which amount was the purchase price of the store. On September 9th Gordon returned with the $5,000 and on September 11, 1963, the sale of the store fixtures was consummated. Articles of Incorporation for the Harris Discount Center, Inc., had been filed with the Iowa Secretary of State on August 21st. By September 9th a form letter and a false credit reference and financial statement were drawn for the new corporation and an employee, Dorothy Walton, was hired to mail out over a thousand of these documents to addresses given to her by Wolcoff.

Two other employees were also hired as buyers for the store. They placed orders to manufacturers from catalogs the manufacturers sent to the store in response to the form letter, credit reference and financial statement. By September 23rd merchandise began coming into the store in some quantity while orders continued going out through salesmen who called at the store and through mail orders. The incoming merchandise would be piled in the rear of the store. As this rear area would fill up, the merchandise was removed from the store. The employees, upon arriving at the store in the morning, observed that merchandise which had nearly filled the receiving room the evening before had disappeared. When they asked the appellants about this, the employees would be told that the missing merchandise had been removed to a warehouse across the river and that it would be returned when the redecorating of the store was completed. Even after the redecorating was completed, however, merchandise continued disappearing from the store. The evidence indicated that both Jacobs and Wolcoff participated in removing the merchandise to places of business in Chicago, including a 'Harris Discount Center' which Jacobs said he had in Chicago and that it had a warehouse to which he was sending the merchandise.

During the latter part of October Jacobs and Wolcoff left for California on a buying trip, and none of the four defendants was ever seen at the store again. In all, $117,876.26 worth of merchandise was delivered to the Harris Discount Store in Bettendorf. A total of $6,909.70 was paid to the suppliers of this merchandise and this total includes a $6,003.90 payment made to one of the suppliers.

On November 27, 1963, a petition in bankruptcy was filed against Harris Discount Center, Inc. The Trustee in Bankruptcy ultimately recovered $5,751.34 as proceeds of a sheriff's sale of the Harris Discount Store's assets, and an additional $100.00 from the sale of the store fixtures. All four defendants

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were given notice of the bankruptcy proceedings, and while Rosenberg, Davis and Jacobs appeared at those proceedings, no additional recovery resulted from those appearances.

A grand jury in the Southern District of Iowa, Davenport Division, returned an indictment against the four defendants below on November 16, 1964. Count 1 of the indictment charged a conspiracy to violate the bankruptcy laws of the United States, in violation of 18 U.S.C.A. § 371. Count 2 charged a concealment of assets, in violation of 18 U.S.C.A. § 152. Counts 3 through 14 charged mail fraud, in violation of 18 U.S.C.A. § 1341. The four named defendants pleaded not guilty and the case was set for jury trial. Prior to trial leave was granted to the United States Attorney, on June 29, 1966, to dismiss Count 2 of the indictment. The trial commenced on August 2, 1966. Prior to submitting the case to the jury Counts 5, 6, 8, 10 and 14 were withdrawn from jury consideration. On August...

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