Bruce v. United States

• Decision Date: 04 November 1965
• Docket Number: No. 20776.,20776.
• Citation: 351 F.2d 318
• Parties: J. Adams BRUCE, as President of Bruce's Juices, Incorporated, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

351 F.2d 318 (1965)

J. Adams BRUCE, as President of Bruce's Juices, Incorporated, Appellant, v. UNITED STATES of America, Appellee.

No. 20776.

United States Court of Appeals Fifth Circuit.

October 6, 1965.

Rehearing Denied November 4, 1965.

Morison Buck, Tampa, Fla., for appellant.

Arnold D. Levine, Spec. Asst. U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and GROOMS, District Judge.

JONES, Circuit Judge:

The appellant, J. Adams Bruce, was convicted on all of the charges of a four count indictment of conspiracy to violate 49 U.S.C.A. § 121,¹ and on all charges of a seventeen count mail fraud indictment.² The cases were consolidated for trial.

The appellant was a major stockholder, the president and a director of Bruce's Juices, Inc., which engaged in the processing and sale of citrus juices on an extensive scale throughout the United States and Canada. It operated a processing plant in Tampa, Florida, and maintained a warehouse at the plant and at other locations in the Tampa area. These warehouses were leased to Lee Terminal and Warehouse Corporation by Bruce's Juices, Inc., and processed juices of the Bruce company were stored in the warehouses, and warehouse receipts were issued by Lee. In the four count case (district court No. 6600) warehouse receipts were procured through fraud and were exchanged for order bills of lading issued by a steamship company and purported to receipt for canned citrus juice for shipment to Montreal and Toronto, Canada. The bills of lading, together with invoices and drafts, were negotiated with a St. Petersburg, Florida, bank and sums aggregating more than $22,000 were obtained from the bank. It subsequently developed that although the warehouse receipts and bills of lading called for 12,100 cases of citrus juices, the warehouses contained less than 1,700 cases. Bruce's Juices was bankrupt and the steamship line was required to protect the bank against loss. In the seventeen count case (district court No. 6601) fraudulently issued warehouse receipts were attached to drafts payable to the First National Bank of St. Petersburg, Florida, drawn on purchasers of the products described in the warehouse receipts. The drafts were handled by mail for collection. The appellant was sentenced to serve a year and a day on each count, with all sentences on both counts to run concurrently. Twelve specifications of error are assigned.

The court permitted the jury to take a copy of each of the indictments into the jury room. There was no objection to this being done and counsel at the trial for the appellant participated in a discussion with the court and Government counsel as to the effect of some underscoring which the court instructed the jury to ignore. On the appeal with the appellant being represented by other counsel, it is contended that error was committed in permitting the jury to have the indictment during its deliberations. In making the point, the appellant relies upon the decision of this court in Getchell v. United States, 5 Cir., 282 F.2d 681. The Getchell case is not a departure from the general rule that the trial court may, in the exercise of discretion, allow the indictment to be taken into the jury room. In the Getchell case, the trial court recognized the prejudicial character of the language in which the indictment was framed and declined to permit it to go to the jury. This Court recognized the propriety of its action. In this case, we find no prejudice to the appellant resulting from the allowing of the indictments to go with the jury, and no abuse of discretion in permitting it to be done.

The indictments were returned early in 1956. The acts which the Government charged as criminal offenses took place in the summer of 1952. The cases were tried in June 1963. The appellant makes the contention that he has been denied his constitutional right to a speedy trial, that his witnesses have died and the memory of those who have lived has become dimmer and that he has been prejudiced by the delay. This, he says, is true notwithstanding that he took no action to require the case against him to be brought on for trial. The appellant contends that there was an unreasonable delay both in the interval between the commission of the offenses and the indictment, and the lapse of time between the indictment and the trial. The right to a speedy trial, guaranteed by the Sixth Amendment and implemented by Rule 48(b), Fed.Rules Crim.Proc. 18 U.S.C.A., does not arise until there has been an indictment or information, as the applicable statute of limitations is controlling as to the time within which an indictment or information must be brought. Harlow v. United States, 5th Cir. 1962, 301 F.2d 361, cert. den. 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56, reh. den. 371 U.S. 906, 83 S.Ct. 204, 9 L.Ed.2d 167. The appellant claims prejudice to his defense because of the dimmed memory of the witnesses after so great a lapse of time. That this is so may be doubted, as the memories of the witnesses for the prosecution may be no better than those of the defense. We have no difficulty in agreeing with the appellant that a seven year delay in bringing a case on for trial is unreasonable and unnecessary. But this does not, under the facts here present, require a reversal and a dismissal of the charges. The appellant could have asserted his right to a speedy trial by motion and perhaps by other procedural action. He did not do so. By not doing so he waived his right and cannot be heard to assert it after he has been tried and convicted. Harlow v. United States, supra.

In the mail fraud case, it is asserted by the appellant that his motion to acquit should have been granted because the use of the mails occurred subsequent to the execution of the scheme. The drafts were drawn and credit for them was given by the St. Petersburg bank and after the credit had been given the drafts were transmitted through the mails for presentation to the drawee. Attached to the drafts were warehouse receipts which purported to represent citrus juices in storage. The fraud, if any there was, says the appellant, had been perpetrated before there was any use of the mails and that the mails were thereafter used by the bank which was a stranger to the fraud. The using of the mails, says the appellant, was for the convenience of the bank and was not employed by or even contemplated by the appellant. But such is not the situation here. The drafts, with the spurious warehouse receipts, were turned over to the bank. The drafts were drawn on firms and corporations in other places. The bank's function was to collect or attempt to collect the drafts. Collection items on distant points are frequently and perhaps usually forwarded by mail. The use of the mails should have been contemplated as a material part of the fraudulent scheme. The appellant's claim is without merit. Adams v. United States, 5th Cir. 1963, 312 F.2d 137.

Included in the evidence by which the Government sought to prove the first count of the mail fraud indictment were two warehouse receipts which had been mailed by the appellant to one of his associates. The appellant's contention is that these particular warehouse receipts were transmitted only for the purpose of showing the form of document that would be used as security but that these were mere samples and were not themselves intended to be pledged. The Government contends that the only reason that they were not used as collateral was because the banks to which they were offered would not accept them. The evidence was such that the Government's theory might have found acceptance with the jury, and no error was committed in admitting these documents in evidence.

As a part of its case the Government undertook to reconstruct an inventory. In so doing it offered in evidence a carbon copy of a letter signed by J. L. Parker. The letter was addressed to...