Atkinson v. United States
| Decision Date | 17 May 1965 |
| Docket Number | 17826.,No. 17825,17825 |
| Citation | 344 F.2d 97 |
| Parties | Jack Thornton ATKINSON, Appellant, v. UNITED STATES of America, Appellee. M. Dean HODGES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert G. Duncan, Kansas City, Mo., Kenneth K. Simon, Kansas City, Mo., for appellants.
William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee.
Before VAN OOSTERHOUT and RIDGE, Circuit Judges, and HENLEY, District Judge.
VAN OOSTERHOUT, Circuit Judge.
These are separate appeals taken by defendants Jack Thornton Atkinson and M. Dean Hodges from their conviction on each of the thirteen counts of an indictment returned against them jointly. The first twelve counts charged mail fraud in violation of 18 U.S.C.A. §§ 1341-1342. The thirteenth count charges conspiracy to perpetrate the mail frauds in violation of 18 U.S.C.A. § 371. Defendants were tried jointly before a jury and upon conviction, Atkinson was sentenced to five years imprisonment upon each of the first ten counts, such sentences to be served concurrently with each other, and two years imprisonment on counts eleven, twelve and thirteen, plus a total fine of $1,000, said sentences to be served concurrently with each other but consecutively to the imprisonment imposed on the first ten counts. Defendant Hodges was sentenced to three years imprisonment on each of the first ten counts, to be served concurrently with each other. Imposition of sentence on counts eleven, twelve and thirteen was suspended and Hodges was placed on probation for a period of three years, such probation to begin at the expiration of the sentences imposed upon the first ten counts. Hodges was fined $500 on count thirteen.
The mail fraud counts charged the defendants with having devised a scheme to defraud certain investors out of money or property by means of fraudulent representations and having placed or caused to be placed in the United States mail advertisements published in the Kansas City Star with the specific intent and purpose of executing such scheme or attempting to do so. Each count is based upon one of twelve advertisements placed in specified issues of the Kansas City Star during the period commencing October 27, 1963, and ending December 2, 1963.
Defendants contend that there is no proof that any one responded to the advertisements described in counts one, two, three, six, eight, nine, ten and eleven. Such statement appears to be factually correct. However, the gist of the offense is the causing of the insertion in the mail of matter intended to be used to effect the scheme to defraud. Each separate mailing constitutes a separate offense. Milam v. United States, 5 Cir., 322 F.2d 104, 109-10; Marvin v. United States, 10 Cir., 279 F.2d 451. The lack of success of a fraudulent scheme is no defense. Baker v. United States, 8 Cir., 115 F.2d 533, 538.
Moreover, federal courts, including this court, have consistently held that a general sentence on several counts of an indictment will be sustained upon appeal if the defendant was properly convicted upon any count which is good and which is sufficient in itself to support the judgment. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed. 2d 1115; Krueger v. United States, 8 Cir., 331 F.2d 283, 284; Isaacs v. United States, 8 Cir., 301 F.2d 706, 733.
Here concurrent sentences were imposed upon each defendant with respect to the first ten counts and additional sentences with respect to counts eleven, twelve and thirteen, concurrent as to each other but consecutive as to those in counts one to ten. Thus, we need go no further than to determine that a conviction was proper upon at least one count in each group.
Motions for acquittal were made by each defendant at the close of the Government's case, at the close of all of the evidence and renewed by post-trial motions. Such motions raised the issue of the sufficiency of the evidence to sustain the conviction upon any count. Defendants urge that the court committed error in overruling all such motions.
This court has had numerous occasions to set out the elements of mail fraud and conspiracy cases and to discuss the principles applicable to determining the sufficiency of the evidence to support a conviction in such cases. See Koolish v. United States, 8 Cir., 340 F.2d 513; Hayes v. United States, 8 Cir., 329 F.2d 209; Dranow v. United States, 8 Cir., 307 F.2d 545; Isaacs v. United States, 8 Cir., 301 F.2d 706. No useful purpose will be served in again stating the well-established principles here. We are convinced that the evidence, when viewed in the light most favorable to the Government as the prevailing party, adequately supports the conviction.
It is stipulated that the advertisements soliciting the victims were published in the Kansas City Star on the dates charged. In most instances, a reply to a box number at the Star was solicited. Responses by victims were followed up by phone calls from Atkinson arranging appointments. At least 7,000 copies of each issue of the Star were distributed by mail. The use of the mail in furthering the scheme is established. This is not seriously questioned except for the contention that it does not apply here because all victims who testified received their newspaper by carrier. Such fact is not disputed. The contention is without merit. It is sufficient that the use of the mail was caused by defendants in furtherance of the fraudulent scheme. See Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435; United States v. Sorce, 4 Cir., 308 F.2d 299, 301; Dranow v. United States, 8 Cir., 307 F.2d 545, 557.
Defendants' primary contention is that the proof is inadequate to establish a scheme to defraud. We have carefully examined the rather lengthy record. We do not propose to set out the evidence relating to all alleged fraudulent representations. We will only refer to a few of the principal items. The advertisements defendants caused to be inserted in the Kansas City Star are all quite similar but vary some as to content. The one published on November 3, 1963, described in count five, reads:
Newcomb responded to this count five advertisement. Atkinson called Newcomb by telephone and arranged an appointment at Atkinson's office. In the course of several interviews, Atkinson represented that American Credit Associates, Inc., had been in business for some six years; that it had many offices throughout the country; had many employees; that the Kansas City office grossed $8,000 to $15,000 per month with monthly net profits of from $3,000 to $6,000; that because of his heavy workload, he needed a manager for the Kansas City office; and to insure an interest and incentive on the part of the manager, a $10,000 investment would be required which would purchase a 10% interest in the business. The manager would be paid an annual salary of $15,000; that the collection business was worth well over $100,000 and that an investor could get back his money any time he was dissatisfied if he did not expect a huge profit.
In a separate interview, Hodges, confirmed Atkinson's representations. When Newcomb advised Atkinson that he could raise but $2,500, Atkinson promptly agreed to accept such amount to apply on the $10,000 purchase price with the balance to be paid out of profits, and told Newcomb he was manager and that a formal contract would be drawn later. No formal contract was ever drawn. After Newcomb had observed more of the operation and had consulted with a Better Business Bureau, he advised Atkinson that the proposition had been misrepresented to him and that he wanted to withdraw and have his money refunded. Several conferences were held between Newcomb and Atkinson, and Hodges, but the money was never refunded.
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