Von Feldt v. United States

• Decision Date: 06 March 1969
• Docket Number: No. 19161,19162.,19161
• Citation: 407 F.2d 95
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.2d 95 (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.

Rehearing Denied March 6, 1969.

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.

Rehearing Denied in No. 19162 March 6, 1969.

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 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 gas 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

Judge Van Pelt held a plenary hearing on the motion, apparently for the purpose of affording appellants an opportunity to show that they had been prejudiced by the delay. The motions to dismiss were denied and the case proceeded to trial. Appellants now assert the court erred in not granting their motion. They argue, in effect, that the period of time between indictment and trial was of such duration as to establish a per se denial of a speedy trial, requiring a dismissal of the action. For reasons stated infra, we disagree.

From the cases which have considered similar contentions there have evolved certain principles which have relevance here.

In the early case of Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905), the Supreme Court in considering a claimed violation of the Sixth Amendment announced "the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."

This principle has retained its vitality throughout the years. In United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), the Supreme Court reversed the United States district court's dismissal of an indictment where there was a delay of 19 months between the original arrests and the hearings on the indictments. Mr. Justice White, for the Court, recognized the practical considerations attending the question by observing:

"This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that `the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.\' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. `Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. * * * The delay must not be purposeful or oppressive,\' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393. `The essential ingredient is orderly expedition and not mere speed.\' Smith v. United States, 360 U.S. 1, 10, 79 S. Ct. 991, 997, 3 L.Ed.2d 1041." Id. at 120, 86 S.Ct. at 776.

Thus, it is clear that there is no specific standard for measuring the maximum period of time that automatically requires application of the Sixth Amendment and dismissal of the indictment. Time is certainly an important factor, but there are other elements to be considered. These include the reasons for the delay, the diligence of the prosecutor, court and defense counsel, and the reasonable possibility that the defendant has been prejudiced by the delay. Dockery v. United States, 393 F.2d 352, 353 (D.C.Cir. 1968); Hedgepeth v. United States, 125 U.S.App.D.C. 19, 365 F.2d 952, 954 (1966); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687 (1966). Pertinent to the question of the diligence required of the defendant, the courts have ruled with consistency that where, as here, the defendants are at liberty on bond and are represented by counsel, a demand for a speedy trial should be made by the defendants and that failure to make such a demand will constitute a waiver. United States v. Della Rocca, 388 F.2d 525, 527 (2d Cir. 1968), vacated on other grounds, 390 U.S. 745, 88 S.Ct. 1443, 20 L.Ed.2d 274 (1968); United States v. Maxwell, 383 F.2d 437, 441 (2d Cir. 1967), cert. denied, 389 U.S. 1057, 88 S. Ct. 809, 19 L.Ed.2d 856 (1968); Fleming v. United States, 378 F.2d 502, 504 (1st Cir. 1967);³ Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 314 at n. 1 (1967).

We turn now to consideration of the circumstances relevant to the Sixth Amendment issue. After the...