407 F.2d 95 (8th Cir. 1969), 19161, Von Feldt v. United States

Docket Nº:19161, 19162.
Citation:407 F.2d 95
Party Name:Dominic A. VON FELDT and Inland Oil Company, a Kansas Corporation, Appellants, v. UNITED STATES of America, Appellee. Howard D. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 11, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 95

407 F.2d 95 (8th Cir. 1969)

Dominic A. VON FELDT and Inland Oil Company, a Kansas Corporation, Appellants,

v.

UNITED STATES of America, Appellee.

Howard D. MITCHELL, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 19161, 19162.

United States Court of Appeals, Eighth Circuit.

February 11, 1969

Page 96

John R. Doyle, Lincoln, Neb., and Jack L. Freeman, Oklahoma City, Okl., for appellants.

Theodore L. Richling, U.S. Atty., Omaha, Neb., for appellee; Donald N. Malawsky, Thad H. Turk and Robert H. Davenport, for Securities and Exchange Commission, Denver, Colo., on the brief.

Before MATTHES, GIBSON and LAY, Circuit Judges.

MATTHES, Circuit Judge.

A nine count indictment filed December 10, 1964, in the United States District Court for the District of Nebraska alleged that the appellants and one Roy E. Crist had violated 15 U.S.C. § 77q(a) of the Securities Exchange Act of 1933; 18 U.S.C. §§ 1341, 2314 and 371. 1

Defendant Crist, who had originally pled not guilty, withdrew that plea on February 11, 1965, and on the same day entered a plea of guilty to all counts. The appellants were found guilty on all counts except appellant Mitchell, whose motion for a judgment of acquittal was granted as to Count VIII. From the judgments of conviction duly entered on the jury verdicts appellants have appealed.

There is no controversy over the sufficiency of the evidence to sustain the convictions of Von Feldt and Inland Oil Company. However, Mitchell does claim that a submissible case was not made against him and that his motion for a judgment of acquittal on all counts should have been granted. We deal with this question below.

In general, Counts I through VII of the indictment alleged and the evidence, viewed in the light most favorable to the verdicts, established that the appellants

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and Crist devised a fraudulent scheme or artifice to offer and sell securities, namely, investment contracts evidenced by oil and gas leases and assignments of oil and gas leases, agreements and promises on land owned by the United States Government in Rio Arriba County, New Mexico. On or about January 1, 1962, and continuing thereafter, the defendants carried out their fraudulent scheme by soliciting members of the investing public and offered and actually sold to them such investment contracts. The defendants exhibited magazine articles, maps, pictures, reports and made misrepresentations, all designed to prove the excellent oil and gas prospects on the federally-owned land. As a part of the scheme, appellants and Crist falsely represented to the investors that the Government charged $5 per acre for the oil and gas leases, plus a $10 filing fee for each lease, and in consideration for assigning the leases to appellants and Crist they would pay the investors $10 an acre and in some cases as much as $20 per acre. Additionally, the investors were to retain an overriding or royalty interest in the leases ranging from one per-cent to five per-cent. Appellants and Crist, after obtaining money from investors, caused the Bureau of Land Management, Department of the Interior at Santa Fe, New Mexico, to issue oil and has leases, and assignments of leases previously obtained by defendants, to investors. The cost to the defendants was $.50 per acre, instead of $5 per acre as represented, plus the $10 filing fee.

After the investors entered into the investment contracts, they were contacted by appellant Mitchell. He purported to be not directly involved in the offer and sale of the investment contracts. He falsely represented that he was employed by 'Standard Oil Company of Venezuela,' and that this company was offering to buy the investors' leases and assignments of leases at a price far in excess of the amount the investors had paid for the leases and assignments. Mitchell's representations were designed to further lull the investors into a false sense of security and to deceive them into believing that the leases and assignments of leases were valuable assets.

Appellants and Crist failed to comply with their agreement and refused to purchase the assignments and leases from the investors.

The scheme proved fruitful for appellants and Crist and detrimental to the investors. A number of contracts were sold to residents of Nebraska. The amount obtained from such investors exceeded $27,800 and it was converted by the appellants to their own use.

The evidence is conclusive and uncontroverted that the mails were used for the purpose of carrying out the fraudulent scheme. Neither do Von Feldt and Inland assail the evidence relating to the interstate transportation of a cashier's check drawn on the Omaha National Bank in the amount of $12,800, payable to defendant Crist and which was obtained in connection with the fraudulent scheme. As stated in footnote 1 supra, this transaction is the subject of Count VIII of the indictment. There is also substantial evidence to support the jury's finding that the appellants and Crist entered into a conspiracy for the purpose of effectuating the fraudulent scheme and the sale of the investment contracts.

Although appellants present several contentions of error, it is apparent from their brief that the principal point relied upon relates to the lapse of time between the filing of the indictment on December 10, 1964, and the date of trial, May 1, 1967. On the eve of the trial, April 28, 1967, all three appellants filed a motion to dismiss the indictment on the ground that they had been denied their Sixth Amendment right to a speedy trial. 2

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Judge Van Pelt held...

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