United States v. Marine, 17061.

• Decision Date: 22 August 1969
• Docket Number: No. 17061.,17061.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dorwin MARINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.2d 214 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Dorwin MARINE, Defendant-Appellant.

No. 17061.

United States Court of Appeals Seventh Circuit.

July 7, 1969.

Rehearing Denied August 22, 1969.

Joseph A. Lamendella, David P. Schippers, Jerome Rotenberg, Chicago, Ill., for appellant; Schippers, Betar & Lamendella, Chicago, Ill., of counsel.

Thomas A. Foran, U. S. Atty., Thomas N. Todd, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before SWYGERT and CUMMINGS, Circuit Judges, and ESCHBACH, District Judge.^*

ESCHBACH, District Judge.

Defendant Dorwin Marine was convicted on February 16, 1968, after a trial by jury, of conspiring to use the mails in furtherance of a scheme and artifice to defraud and obtain money by false and fraudulent representations, in violation of 18 U.S.C. §§ 371 and 1341. Defendant brings this appeal, contending that reversible error was committed in the admission into evidence of another alleged crime, in the failure to give certain limiting instructions, in the insufficiency of proof beyond a reasonable doubt that the mails were used in furtherance of the scheme, and in the denial of effective assistance of counsel.

The facts of the record taken in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), are as follows: The Rocket Finance Company (hereinafter referred to as Rocket) was a finance company specializing in the financing of retail automobile purchase contracts. The defendant Dorwin Marine served as vice president and general manager during the period of December 30, 1961 to July 30, 1962, covered by the indictment. Carl Taleen was, during this period, principal stockholder and president of Rocket. J. B. Lawson, a co-conspirator convicted with Marine in joint trial, was a used car dealer who discounted fraudulent automobile sales contracts to Rocket with recourse. Lawson died while this appeal was pending. Rocket and defendant Marine also during this period processed other fraudulent automobile sales contracts with one John Tellone, another used car dealer.

In processing an installment contract purchased from an auto dealer, Marine approved all contracts, and either Marine or Carl Taleen would sign the contract for Rocket, and Taleen would sign a note to the bank. The contract was then submitted to either the City National Bank and Trust (later Continental Illinois National Bank) or Drovers Bank as part collateral for loans from the bank, together with pledges of the automobile title and assignment of automobile insurance policies. The titles and insurance policies were retained in the Rocket office. Numerous bank officials and a former employee of Rocket testified that the great bulk of sales contracts submitted to the banks were transmitted through the mails to the banks' commercial loan departments.

In July of 1962, both of the banks involved caused audits to be made of Rocket's records, since titles and insurance assignments were missing on the contracts they had taken as collateral for loans. The subsequent investigation revealed that Lawson had submitted at least 19 contracts to Rocket which, he admitted during the course of the trial, were fraudulent. John Tellone testified at trial that he placed at least 50 or 60 fraudulent sales contracts with Marine during a three-year period, and his testimony revealed that the mechanics of such transfers were largely similar to those involved in the Lawson transfers to Marine.

ADMISSION OF EVIDENCE OF EXTRA-INDICTMENT OFFENSES

Defendant first contends that the district court committed prejudicial error in the admission into evidence of the fraudulent auto sales transactions between defendant and John Tellone, which tended to show the commission of another crime by the defendant. He argues that such evidence was both highly prejudicial and of little probative value, and that such evidence had the effect of causing the jury to convict Marine of the crime for which he was on trial because they were led to believe that he was guilty of the other crime.

The law must protect against the human tendency to conclude that birds, like words, are frequently judged by the company they keep — noscitur ex socio. But despite the adverse implications — often spectacular and occasionally inflammatory — from proof showing commission of some crime other than the one being tried, the law does not accord automatic immunity from such evidence. Care must, of course, be taken to keep such evidence in proper bounds. If it has no connection with any elements of the offense being tried, it may not be introduced merely to cast the defendant in a bad light. * * * But it is essentially a question of relevance. And it is now clear that evidence relevant to prove one crime does not become inadmissible because it also proved another. Roe v. United States, 316 F.2d 617, 623 (5th Cir. 1963) (citation omitted).

The Government offered evidence of the Tellone-Marine transactions to show Marine's knowledge and intent, and the trial court, in its final instructions to the jury, clearly stated that intent may be so determined from, among other things, similar transactions. There can be little doubt, and defendant does not argue to the contrary, that the Tellone-Marine transactions were strikingly similar to the transactions with Lawson for which Marine was indicted and convicted. Defendant contends, however, that he had not, either in his claims or statements of facts which he would seek to prove, "sharpened" the issue of intent by asserting that the act charged was done innocently or by accident or mistake. The defendant overlooks the fact, however, that proof of specific intent to defraud is an essential element of the offense here involved and that the Government had the burden of proving such specific intent beyond a reasonable doubt regardless of whether or not defendant, in his opening statement, asserted his innocence or culpability as to that issue.

Moreover, the defendant himself clearly and forcefully "sharpened" the issue of intent when he subsequently testified that he did not know "until it all exploded" that the installment contracts transferred by the co-conspirator Lawson and by John Tellone were fraudulent. This court has held in similar cases that evidence sought to be introduced of a similar offense is admissible if it bears "a strong resemblance" to the pattern of the offense charged, United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955), cert. denied, 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839, or is "in remarkable conformity" with, United States v. Accardo, 298 F.2d 133, 137 (7th Cir. 1962), or "occurred very shortly before * * * or very shortly after" the offenses charged, United States v. Cobb, 397 F.2d 416, 418 (7th Cir. 1968), cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260. Such evidence is highly relevant to the issue of knowledge and intent, as tending to show a consistent pattern of conduct, Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949), and therefore the district court did not abuse its discretion in receiving such evidence. It may be noted that Rule 4-04(b) of the Proposed Rules of Evidence for the United States District Courts (March 1969 Preliminary Draft) provides that evidence of other crimes may be admissible to prove intent.

COURT'S FAILURE TO GIVE LIMITING INSTRUCTIONS

Defendant next contends that the district court committed plain error under Fed.R.Cr.P. 52(b) by failing to instruct the jury at the time of its admission that the evidence of the Tellone-Marine transactions was limited only to the question of intent. Defendant admits that his trial counsel failed to observe the requirements of Fed.R.Cr.P. 30, which provides in part that

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

As noted previously, the district court did instruct, sua sponte, in its final charge to the jury that specific intent may be determined from similar transactions. This instruction, coupled with defense counsel's failure to either tender a limiting instruction himself or to take exception to the foregoing general instruction, cannot be held to be an error which is "substantial and capable of resulting in miscarriage of justice to warrant the reversal of a judgment of conviction based on ample evidence." United States v. Raub, 177 F.2d 312, 315 (7th Cir. 1949).

ADMISSION OF CO-DEFENDANT'S EXTRAJUDICIAL ADMISSION

Defendant next contends that it was plain error to admit into evidence the following testimony of Carl Taleen concerning a conversation he had with co-defendant Lawson:

"Q. What did he say?

"A. He said, `Well, I had a lot of bankruptcy, and I was out of money, and I couldn\'t make the payments. So I suggested to Marine that I see you and see if you wouldn\'t loan me some money temporarily until I could get over this. He said, Mr. Marine says, `Don\'t do that. Put through some more phony contracts, and when you get in better shape you can pay them off and make them up.\'"

Defendant insists that the admission of this testimony constituted "plain error * * * affecting substantial rights" of the defendant within the purview of Rule 52(b), notwithstanding the admitted fact that defendant's counsel made no objection at the time of its admission. Defendant seeks to avoid...