Gold v. United States

• Decision Date: 28 October 1965
• Docket Number: No. 18012.,18012.
• Citation: 350 F.2d 953
• Parties: Frank GOLD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

350 F.2d 953 (1965)

Frank GOLD, Appellant, v. UNITED STATES of America, Appellee.

No. 18012.

United States Court of Appeals Eighth Circuit.

October 6, 1965.

Rehearing Denied October 28, 1965.

John L. Boeger, St. Louis, Mo., Morris A. Shenker, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES and GIBSON, Circuit Judges, and REGAN, District Judge.

MATTHES, Circuit Judge.

In a five-count indictment, Frank Gold, appellant, was charged with violations of the mail fraud statute, Title 18 U.S.C. § 1341. Count 2 of the indictment was dismissed prior to the trial. A jury found appellant guilty of the offenses alleged in the remaining four counts. This appeal is from the judgment imposing a four-year prison term under each count, to run concurrently.

Appellant presents two contentions: (1) that the evidence was insufficient to sustain the verdict of the jury, so the court erred in failing to grant the motion for judgment of acquittal filed at the close of all of the evidence; and (2) that error resulted from the admission of certain documentary evidence.¹

Appellant argues, in support of his challenge of the sufficiency of the evidence, that there is no proof that appellant "intentionally made false representations and submitted fictitious orders which induced the manufacturers to give the appellant money and samples." In order to place this contention in proper perspective, a brief résumé of the Government's theory of the case is desirable.

The indictment charged that appellant devised a scheme to defraud manufacturers of women's clothing and to obtain money and property by means of false and fraudulent pretenses, representations and promises, consisting of: representations of appellant that he would sell or promote the sale of women's clothing of Miami Sportswear Company, of Opa Locka, Florida; Modern Miss, of Chicago, Illinois; Scott Manufacturing Company, of Rusk, Texas; and Jackfin Company, of New York City; that appellant caused the companies to send him samples of their lines of women's apparel, which he disposed of without the approval of the manufacturers; that he represented that he would devote his full time and effort to the promotion and sale of the merchandise of the defrauded companies, although he knew he would make no effort to promote or sell the merchandise; that appellant forged names of owners and buyers of retail establishments to fictitious orders for merchandise and caused the dress manufacturers to suffer financial loss through their issuance of checks to appellant for services which he never intended to, and did not, perform. Each count of the indictment alleged the use of the mails for the purpose of executing a scheme to defraud.²

Inasmuch as the court imposed concurrent sentences of four years on each of the four counts, which is not in excess of the maximum which might have been imposed under any count, there can be no legal prejudice if the conviction on any count is sustained by competent evidence and is otherwise invulnerable to attack. Gajewski v. United States, 321 F.2d 261, 264, and cases there cited (8 Cir. 1963). In light of this principle, our summary of the pertinent evidence will be confined largely to the first count, which is focused upon appellant's dealings with Miami Sportswear and use of the mails on July 19, 1961. We hasten to add, however, that there is an abundance of evidence to support the conviction on the three remaining counts.

After correspondence, appellant was employed by Miami Sportswear as a salesman in the territory of Missouri, Kentucky, and Tennessee (with the exception of Memphis). As set forth in a letter, Miami agreed to advance appellant a 7% commission on his booked sales accepted for credit on the 15th of each month. A later letter from Miami to appellant, dated August 31, 1961, stated: "In reply to your letter of August 31st, we will agree to advance you against commissions $300.00 on September 18th, $300.00 on October 1st, and $300.00 on October 15th, with the understanding that during this period you will be travelling the territory exclusively with our line." Accordingly, appellant received from Miami checks for $300 on September 15, 1961, September 30, 1961, October 14, 1961, and October 31, 1961. Miami received its first order, purportedly placed by a store buyer in appellant's sales territory, on September 28, 1961. Pursuant to its reception of this, and 33 additional orders, between September 28 and November 3, 1961, supposedly from store owners and buyers in appellant's sales territory, Miami purchased from $10,000 to $15,000 of extra goods to fill the orders. On November 16, 1961, the first order was cancelled and all others were subsequently cancelled after Miami discovered that the orders did not originate from the persons whose signatures appeared on the order blanks and, moreover, that none of the stores had placed orders with Miami. Miami thereupon terminated appellant's employment and has not been reimbursed for any of the $300 checks appellant received.

After the termination of his employment with Miami, appellant entered into three additional, and consecutive, transactions with Modern Miss, Jackfin, and Scott manufacturing companies which followed the basic pattern established in his Miami Sportswear dealings.

Count 3 is based upon use of the mails on November 23, 1961, and is centered on appellant's dealings with Modern Miss, resulting from its employment of him on or about November 20, 1961. Modern Miss sent samples worth approximately $733 to appellant. A drawing account, against appellant's commissions, of $125 per week was agreed upon. Appellant received three checks for $125 each before the orders sent in by appellant were cancelled. Appellant neither returned the samples nor any of the money which he received by checks.

Count 4 involves appellant's...