Henderson v. United States, 25951.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 425 F.2d 134
• Docket Number: No. 25951.,25951.
• Parties: Oliver Wendell HENDERSON and Leon Edward Jurras, Appellants, v. UNITED STATES of America, Appellee.
• Decision Date: 21 April 1970

425 F.2d 134 (1970)

Oliver Wendell HENDERSON and Leon Edward Jurras, Appellants, v. UNITED STATES of America, Appellee.

No. 25951.

United States Court of Appeals, Fifth Circuit.

April 21, 1970.

William P. Fonville, Dallas, Tex., for Jurras.

George C. Dunlap, (Ct. Appt.), Dallas, Tex., for Henderson.

Eldon B. Mahon, U. S. Atty., Dallas, Tex., Patrick H. Mulloy, Jr., B. H. Timmins, Jr., William F. Sanderson, Jr., Asst. U. S. Attys., Dallas, Tex., for appellee.

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

RIVES, Circuit Judge.

Appellants Henderson and Jurras, a third individual defendant Derrick, and a defendant corporation, Leon E. Jurras Associates, Inc., were tried on an indictment containing four counts charging wire fraud (18 U.S.C. § 1343), two counts charging mail fraud (18 U.S.C. § 1341), and a seventh count charging the individual defendants with a conspiracy to commit the substantive offenses charged in the first six counts (18 U.S. C. § 371). All counts alleged the identical scheme and artifice to defraud, which will be described later. Appellants were convicted on Counts 1, 3, 4, 5, 6 and 7,¹ and sentenced to four years imprisonment on each of Counts 1, 3, 4, 5, and 6, to run concurrently, and to four years imprisonment on Count 7, to run consecutively with the sentences imposed on Counts 1, 3, 4, 5 and 6 — a total of eight years imprisonment.

Appellants raise three contentions of error, which will be discussed in the following order: (1) That the evidence was insufficient to sustain the conviction on any count; (2) that the evidence was insufficient to establish the offense of mail fraud charged in Counts 3 and 6 of the indictment, in that the mail delivery alleged to be the offense in each Count was not in furtherance of the scheme alleged in the indictment; and (3) that the district court erred in instructing the jury.

Sufficiency of Evidence

The scheme to defraud alleged in the indictment was that appellants would obtain money as loans from contractors by means of false and fraudulent representations. These false representations, which were alleged in each count of the indictment, were:

1. That appellants had a large contract from the Philippine Government under a Land Reform Program for the construction of physical improvements in the Philippine Islands including concrete highways, water wells, dams, canals, earth work, and houses, and had authority from the Government of the Philippines to grant valid construction contracts for such construction;

2. That appellants had a reasonable expectation of obtaining a contract for the construction of such improvements and a reasonable expectation of having authority to grant valid construction contracts for portions of such construction;

3. That Abraham Axelrod and A. F. Axelrod Company, Inc. of New York City were associated with the defendants in a Land Reform Program of the Philippine Government and that Axelrod had a personal net worth of approximately $45,000,000;

4. That by virtue of the activities of the defendant Jurras, Abraham Axelrod had arranged for the sale of Philippine Government bonds guaranteed by the Bank of the Republic of the Philippines in sufficient amounts to finance a Government Land Program having a total cost of $600,000,000;

5. That the First National Bank of Boston had agreed to act as transfer agent for the Philippine Government bonds issued to finance a $600,000,000 Land Reform Program;

6. That, by virtue of the activities of Jurras Associates and Jurras, International Telephone & Telegraph Company was selected to construct a large rural electrification program in the Philippine Islands;

7. That there was due and owing to the defendants Jurras Associates and Jurras from International Telephone & Telegraph Company the sum of approximately $700,000, and

8. That there was then due and owing to Abraham Axelrod and A. F. Axelrod Company, Inc. from the International Telephone & Telegraph Company the sum of approximately $700,000 and that appellants could reasonably expect to receive a portion of such sum.

Initial contact with various building contractors allegedly occurred through appellants' representation that they had a large contract or a reasonable expectation of obtaining such a contract from the Philippine Government for the construction of improvements in the Philippine Islands under the Philippine Government Land Reform Program. If the contractors would make the advances sought by appellants for purposes of defraying expenses in connection with the negotiation of the contracts with the Philippine Government,² they would receive from appellants the subcontracts in the improvement program.

The record shows that several contractors did make advances to appellants, who in return promised to obtain contracts from the Philippine Government for the contractors and to repay the loans out of appellants' share of the money earned on the venture. Although appellants did have some connection with the Philippine Government and Axelrod, who had discussed the project with Philippine Government officials, including the National Land Reform Council of the Philippines, the project never matured. The loans that appellants received from hopeful contractors were not repaid.

The question of sufficiency of the evidence was properly raised by motions for judgment of acquittal at the close of the evidence and after the verdict. See Rule 29, Fed.R.Crim.P. In reviewing a district court's refusal to direct a judgment of acquittal, this Court can reverse a jury verdict of guilty only in the absence of substantial evidence to support it, viewing the evidence in the most favorable light to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Fitzpatrick v. United States, 410 F.2d 513 (5 Cir. 1969). We must decide whether a reasonable-minded jury could accept the relevant and admissible evidence, considered in the light most favorable to the government, as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. Weaver v. United States, 374 F.2d 878, 881 (5 Cir. 1967); Riggs v. United States, 280 F.2d 949, 953-954 (5 Cir. 1960); Ahrens v. United States, 265 F. 2d 514, 517 (5 Cir. 1959). Or as otherwise stated in circumstantial evidence cases, our inquiry is whether the jury might reasonably deduce from the evidence inferences which exclude every reasonable hypothesis but that of guilt. South v. United States, 412 F.2d 697, 699 (5 Cir. 1969); Montoya v. United States, 402 F.2d 847, 850 (5 Cir. 1968); Vick v. United States, 216 F.2d 228, 232 (5 Cir. 1954).

In that the sufficiency of evidence as to Counts 3 and 6 of the indictment is discussed below, the discussion here concerns only Counts 1, 4 and 5 (18 U.S.C. § 1343) and Count 7 (18 U.S.C. § 371) of the indictment.³

The counts alleging violation of section 1343 charged appellants with transmitting, or causing to be transmitted, by means of wire⁴ communications in interstate commerce for the purpose of executing a scheme to defraud various contractors by means of false or fraudulent representations, pretenses or promises. In challenging the sufficiency of the evidence, appellants contend the alleged false or fraudulent representations, either were not made or caused to be made by appellants or were not in themselves fraudulent or false representations. Thus appellants challenge the sufficiency of the evidence as failing to satisfy the "false or fraudulent pretenses, representations, or promises" element of section 1343, and not section 1343's requirement that the wire be used to execute the scheme.

We have carefully examined the record and are convinced that the evidence meets the required standard to support the jury's finding of guilt on each count in question — a reasonable jury could properly accept the evidence as adequate to support a conclusion of Jurras and Henderson's guilt beyond a reasonable doubt. See generally United States v. Andreadis, 366 F.2d 423 (2 Cir. 1966); Gorman v. United States, 323 F.2d 51 (5 Cir. 1963); Huff v. United States, 301 F.2d 760 (5 Cir. 1962); United States v. Sheiner, 273 F. Supp. 977 (S.D.N.Y.1967), aff'd, 410 F. 2d 337 (2 Cir. 1969). Viewing the evidence in the most favorable light to the government, we find ample evidence in the record of a scheme to defraud, of certain false representations which were known to be false, and of communications by wire in furtherance of that scheme. As to the conspiracy count, there is ample evidence in the record of appellants' knowledge of the conspiracy and of overt acts in furtherance of the conspiracy. See Atkinson v. United States, 418 F.2d 1311, 1313 (8 Cir. 1969); Huff v. United States, supra, 301 F.2d at 766.

Some of the evidence from which a jury could properly accept to support a conclusion of appellants' guilt beyond a reasonable doubt is as follows. Appellants claim that the alleged false representations were either not made or, if made, were not false. The evidence, viewed in a light most favorable to the government, however, is to the contrary.

Representations No. 1 and No. 2. Appellant Jurras informed Sam Pettigrew that he (Jurras) could verify that appellants had the contract on the social project in the Philippines. Appellant Henderson informed Farris Rookstool that appellants would be able to control the letting of construction contracts in the Philippines project and James Peterson that appellants were agents of the Philippine Government, who wanted them to secure contractors in the United States to perform the construction work. Henderson also informed Alex Bickley that appellants had contracts with the Philippine Government and therefore had to find contractors to fulfill them, and that the only remaining detail was to go to the Philippines to sign the final documents. Appellants Jurras and Henderson told C. H. Lewis that they had negotiated or were in the process of negotiating with the Philippine...