U.S. v. Calvert

• Decision Date: 24 September 1975
• Docket Number: No. 74-1716,74-1716
• Parties: 1 Fed. R. Evid. Serv. 41 UNITED STATES of America, Appellee, v. Ronald F. CALVERT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 895

523 F.2d 895

1 Fed. R. Evid. Serv. 41

UNITED STATES of America, Appellee, v. Ronald F. CALVERT, Appellant.

No. 74-1716.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1975.

Decided Aug. 25, 1975.

Rehearing and Rehearing En Banc Denied Sept. 24, 1975.

Irl B. Baris, St. Louis, Mo., for appellant.

Terence M. Brown, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Defendant Ronald Calvert was convicted by a jury on seven counts of mail fraud in violation of 18 U.S.C. § 1341, four counts of fraud by wire in violation of 18 U.S.C. § 1343, and one count of conspiring to commit mail and wire fraud in violation of 18 U.S.C. § 371. The District Court sentenced him to a total of forty-five years imprisonment. We affirm.

Viewed in the light most favorable to the government, the evidence established the following facts. In the spring of 1972, the defendant approached an old acquaintance, Charles Hintz, and asked Hintz if he were interested in going "into business" with him. In a series of meetings, the defendant informed Hintz that he wished to use Hintz as a "front man" in a scheme in which they would enter into a partnership with a businessman with an idea or invention, obtain key man and accidental death insurance on the businessman, and then cause his death for the purpose of collecting and sharing the proceeds. The defendant informed Hintz that he needed a "front man" because he had successfully used this ruse before and, hence, could not have his name listed as beneficiary on the policies. Hintz accompanied the defendant to several meetings with at least three potential business partners. During the process of sizing up these prospects, the defendant stressed to Hintz the health and insurability of the potential partner, stating that business acumen and the merits of the potential partner's product were not the most important considerations. By late spring of 1972, Hintz dropped out of the picture as a "front man." ¹

On May 24, 1972, the defendant's father, James Calvert, entered into a partnership agreement with Victor Null, an inventor who had designed a rotary engine and who was looking for financial backing. Under the partnership agreement, James Calvert was to supply the necessary funds and Null was to develop the engine. The partnership leased office space in East St. Louis, and Null began work there on a prototype.

During the next few months, the defendant obtained insurance policies on the life of Null with a total face value in excess of two million dollars. ² The defendant's father, James Calvert, became the beneficiary on two policies, worth $350,000 in the event of accidental death, but the premiums came from the defendant's funds by indirection. An additional $2,000,000 policy was owned by the partnership, and designated the partnership as beneficiary.

On November 1, 1972, the defendant went to the home of an acquaintance of twenty-five years, John Alsop, and offered to pay Alsop $5,000 if he would murder an inventor in East St. Louis. The defendant told Alsop that the inventor's wife wanted some "policies" cancelled, and that he wanted the inventor killed in the near future during a time when the defendant would be in Florida. The defendant stated that he wanted Alsop to go over to the East St. Louis office early one morning and shoot the inventor in the head several times with a .22 or .25 caliber pistol, making it look "like it was done by one of the local colored persons." When Alsop balked, the defendant asked him to think it over. The next day, the defendant called from the partnership premises in Illinois to Alsop's residence in Missouri and asked Alsop if he had made up his mind. ³ Alsop declined the offer, informing the defendant that it was not a question of money, but that he had a young daughter and wanted to "see her grow up."

On November 9, 1972, two days after the defendant had gone to Florida, Null's body was found in his East St. Louis workshop. He had been shot four times in the head with a .22 caliber firearm. There were no signs of forced entry, and nothing was reported missing, although the office had the appearance of having been ransacked. The murderer has never been found. Shortly after the murder, the defendant told Hintz to warn Alsop to keep his mouth shut if he did not wish to see his (Alsop's) daughter harmed. Subsequently, the defendant offered to give Hintz $100,000 tax-free "from our policy" if he would corroborate the defendant's deposition testimony to the effect that Hintz had expressed an interest in acquiring the engine.

I. AUTHORITY OF THE SPECIAL ATTORNEYS TO PRESENT THE CASE TO THE GRAND AND PETIT JURIES.

There is no merit to the defendant's contention, raised for the first time more than six months after conviction, that the prosecuting attorneys were without authority to present the case to the grand and petit juries. Any objections to the validity of the indictment were waived when they were not presented by motion before trial. See Federal Rule of Criminal Procedure 12(b) (2); Davis v. United States, 411 U.S. 233, 236-237, 241, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Even were we to relieve the defendant from the consequences of his waiver, we have squarely rejected the proposition that the type of authorizing letter employed here is insufficient to empower special attorneys of the Justice Department to conduct grand jury proceedings. United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir. 1975); Di Girlomo v. United States, 520 F.2d 372 (8th Cir. 1975). Accord, In re Grand Jury Subpoena of Persico, 522 F.2d 41 (2nd Cir. 1975).

II. PUBLICITY.

The defendant argues that he was deprived of a fair trial because of publicity occurring both before and during the trial. ⁴ While he has submitted a package of newspaper articles to this Court, he does not specify the manner in which they prejudiced him. On this appeal, he points to no instance in which the news accounts were anything other than factual, and he cites no instances in which the accounts went beyond the evidence presented to the jury. Compare United States v. Pomponio, 517 F.2d 460 (4th Cir. 1975) (defendant demonstrated that specific newspaper articles contained in-court items from which the jury had been excluded). The defendant did not request a sequestered jury. He does not contend that the voir dire was in any respect inadequate, that any particular juror should have been stricken, or that any juror violated the court's repeated admonitions to avoid all news accounts of the trial. In short, his allegation of unfair publicity is limited to the general allegation that the media coverage was so pervasive as to create an " atmosphere" in which a fair trial was denied.

We have held on the issue of trial publicity, that

* * * (e)ventually each case must be decided on the facts, and ordinarily the defendant has the burden of showing any essential unfairness in the adjudicatory process unless the totality of the circumstances raises the probability of prejudice. * * *

United States v. McNally, 485 F.2d 398, 402 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974) (footnote omitted).

We are convinced that the totality of the circumstances here do not raise the probability of prejudice. The trial judge instructed the attorneys not to add to the publicity with leaks, instructed the marshals to prevent pictures from being made of witnesses, ordered photographers to stay away from the area around the jury room, refused to provide the media with the names of the jurors, granted the defendant's request that portions of the transcript dealing with matters not occurring in open court be suppressed, and interrogated the jury to determine if any juror had disregarded his instructions to shun media coverage.

The defendant is not persuasive in his attempt to analogize the atmosphere of his trial to that in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). As the Supreme Court recently noted, each of those cases involved convictions which had been "obtained in a trial atmosphere that had been utterly corrupted by press coverage." Murphy v. Florida, --- U.S. ---, ---, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). We need not further detail the facts in those four cases, for the Supreme Court's discussion of them amply discloses that they do not call for a presumption of prejudice here.

III. SUFFICIENCY OF THE EVIDENCE.

A. THE EVIDENCE REGARDING THE USE OF THE MAILS AND WIRES.

The defendant attacks the sufficiency of the evidence on the mail and wire fraud counts in two respects. ⁵ First, he urges that the evidence was insufficient to support a finding that he "knowingly caused" any matter or thing to be delivered by mail or transmitted by wire. Second, he asserts that the evidence does not support a finding that the mailings and use of the wires were "for the purpose of executing" the scheme. We find the evidence sufficient in both respects.

It has long been clear that the mail fraud statute reaches schemes in which the defendant did not himself place any matter in the mails; it is sufficient to show that he "caused" the mailings. See United States v. Brickey, 426 F.2d 680, 684 (8th Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970). The scope of the wire fraud statute is equally broad. See United States v. Hancock, 268 F.2d 205, 206 (2nd Cir.), Cert. denied, 361 U.S. 837, 80 S.Ct. 89, 4 L.Ed.2d 77 (1959). The standard was set forth in Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954):

* * * Where one does an act...