U.S. v. White, 80-1760

• Decision Date: 01 April 1982
• Docket Number: No. 80-1760,80-1760
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ronald Floyd WHITE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 299

673 F.2d 299

UNITED STATES of America, Plaintiff-Appellant, v. Ronald Floyd WHITE, Defendant-Appellee.

No. 80-1760.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 13, 1981.

Decided March 2, 1982.

Rehearing Denied April 1, 1982.

Kenneth P. Snoke, Asst. U. S. Atty., Tulsa, Okl. (Hubert H. Bryant, U. S. Atty., Tulsa, Okl., with him on the brief), for plaintiff-appellant.

Joel L. Wohlgemuth of Prichard, Norman & Wohlgemuth, Tulsa, Okl., for defendant-appellee.

Before BARRETT and LOGAN, Circuit Judges, and KERR, District Judge. ^*

LOGAN, Circuit Judge.

The United States appeals from a district court order granting Ronald Floyd White's motion for a judgment of acquittal after a jury had found him guilty of mail fraud, in violation of 18 U.S.C. § 1341, and interstate transportation of more than $5,000 that had been taken by fraud, in violation of 18 U.S.C. § 2314. The issues on appeal are whether the Double Jeopardy Clause bars the government's appeal and whether the court erred in granting White's motion for acquittal.

Count one of the indictment alleges that White used the mails in implementing a scheme to obtain money fraudulently by inducing individuals to purchase partnership interests in Tanaha Gas and Oil Company (Tanaha), a partnership White organized, by falsely representing that he owned leasehold rights in three Oklahoma oil and gas leases (the Bruce, Harjoche, and Walker properties), that he had recently reworked an oil well on a nearby property, and that he would use his best efforts to rework existing oil wells and drill new wells on the tracts. Count two of the indictment alleges that on or about May 23, 1978, White transported $9,500 from Sapulpa, Oklahoma, to Texas, knowing that the money had been taken by fraud.

Several times throughout the trial White's counsel moved for a judgment of acquittal. Each time the district court stated it would reserve decision until the jury returned its verdict. After the jury returned a verdict finding White guilty of both charges, the court reconsidered and granted the motion for acquittal. The government appeals.

White contends that the Double Jeopardy Clause prohibits the government from appealing the district court's judgment of acquittal. But the Supreme Court has held that the Double Jeopardy Clause prohibits a government appeal only when there is danger of subjecting a defendant to a second trial for the same offense. United States v. Wilson, 420 U.S. 332, 342, 344-45, 95 S.Ct. 1013, 1021, 1022, 43 L.Ed.2d 232 (1975). When, as here, a trial judge rules in favor of a defendant after a jury has found the defendant guilty, no retrial is necessary, and double jeopardy does not attach. If the government wins on appeal, the jury verdict is simply reinstated.

The government contends that the district court erred in granting White's motion for acquittal, arguing, first, that the court applied an incorrect standard too favorable to the defendant. The government argues that the case most relied on by the trial judge, Curley v. United States, 160 F.2d 229 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), states a different standard than Tenth Circuit cases. We do not agree. The trial judge cited a particular passage in Curley:

"The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt."

Id. at 232 (footnote omitted). Our Circuit has stated the rule as requiring the trial court, in considering a motion for acquittal, to view the evidence in the light most favorable to the government and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. See, e.g., Maguire v. United States, 358 F.2d 442, 444 (10th Cir.), cert. denied, 385 U.S. 801, 87 S.Ct. 9, 17 L.Ed.2d 48 (1966); Cartwright v. United States, 335 F.2d 919, 921 (10th Cir. 1964). We agree with the trial judge that there is no essential difference between the Curley statement and the Tenth Circuit rule. Both recognize the right of the jury to determine credibility and to find the facts; both permit the court to enter a judgment of acquittal only if the evidence that defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt. We conclude that the district court stated the correct legal standard of review.

Second, the government argues that when viewed in the light most favorable to the government, the evidence supports the jury's verdict. We agree. We are reluctant to reverse the conscientious trial judge's ruling, but we are convinced he applied the correct legal standard in an erroneous manner.

Our standard of review of the district court's grant of the defendant's motion for acquittal is the same as the trial court applied when passing on the motion. We must view the evidence, both direct and circumstantial, in the light most favorable to the government, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime. United States v. Downen, 496 F.2d 314, 318 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); Goff v. United States, 446 F.2d 623, 624 (10th Cir. 1971). If the government has met that standard, we, as well as the trial court, must defer to the jury's verdict of guilty. This standard reflects a deep respect for the fact-finding function of the jury.

Count one charges White with mail fraud. The elements of mail fraud are (1) a scheme or artifice to defraud or obtain money or property by false pretenses, representations, or promises, and (2) use of the United States mails to further the scheme. United States v. Seasholtz, 435 F.2d 4, 8 (10th Cir. 1970). A scheme to defraud by false representations is one "reasonably calculated to deceive persons of ordinary prudence and comprehension." Gusow v. United States, 347 F.2d 755, 756 (10th Cir.), cert. denied, 382 U.S. 906, 86 S.Ct. 243, 15 L.Ed.2d 159 (1965). Implicit in this definition is the requirement that the misrepresentations be material. Further, as Gusow states, deceitful concealment of material facts may also constitute fraud. Id. Whether a defendant's misrepresentations were made with the requisite intent to defraud is a question for the jury. E.g., United States v. Themy, 624 F.2d 963, 965 (10th Cir. 1980).

Use of the mails is not in dispute; only the first element is in question here. To determine whether the government's evidence is sufficient to establish that White was engaged in a scheme or artifice to defraud investors by use of false representations or promises, we must relate some of the facts, as a reasonable jury could have found them. White first became aware of the Bruce, Harjoche, and Walker properties in October 1977, while in Sapulpa, Oklahoma, to inspect the adjoining Richart property for Amord Corporation (Amord). Carl Langford, Amord's president, had hired White to inspect the Richart property and to meet with Thomas Bennett, who, together with Amord, held oil lease rights to that property. During his second visit to Sapulpa as an Amord employee, White observed James Bennett, Thomas's son, rework an oil well on the Richart property using a steam recovery method, which increases a well's production by loosening oil from the underground structures. ¹

In late November or early December, Langford, who also was acting president of Maligaya Corporation (Maligaya), a California investment corporation, hired White to obtain for Maligaya subleases for the oil rights on the Bruce, Harjoche, and Walker properties. On December 28, 1977, the Bennetts, who held leases for the oil rights on the properties, signed an agreement granting White and Maligaya, as sublessees, the right to rework existing wells and drill new ones on the three properties. White signed as "Attorney and Agent for Maligaya Corporation." Believing that the sublease gave White an interest in the three properties, Maligaya flew White to California to convince him to assign all his interest in the Bruce, Harjoche, and Walker properties to Maligaya. ² At trial, although White's counsel presented a document whereby Jose Santana, an employee of Amord and possibly of Maligaya, ³ purportedly assigned Maligaya's interest in the three properties to White, Santana testified that White must have altered the instrument because the assignment was actually the reverse: On January 18, 1978, White assigned all interests he had to Maligaya. ⁴ The next day White entered into an employment contract with Maligaya, which provided that Maligaya would pay White $500 per month to rework the oil wells on the Bruce, Harjoche, and Walker tracts. ⁵

Some time in early February, White spoke to his father, Floyd Young, about the possibility of forming a partnership to rework the oil wells on the Bruce, Harjoche, and Walker tracts. White told Young he had acquired the rights to rework the wells on these tracts, and showed Young the document purportedly assigning Maligaya's interest to White. He also told Young that he had reworked an oil well on the Richart lease using the steam recovery method, and that he would use that method to rework the wells on the other three tracts. Young became interested and contacted three other friends about forming a partnership with White. At two meetings in Houston held later that month, White, Young, and the other three discussed the oil venture. White again stated that he had acquired Maligaya's oil drilling and reworking...