Hickman v. United States

• Decision Date: 07 April 1969
• Docket Number: No. 25460.,25460.
• Parties: Gene HICKMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 414 (1969)

Gene HICKMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 25460.

United States Court of Appeals Fifth Circuit.

January 13, 1969.

Certiorari Denied April 7, 1969.

Joseph H. Davis, Macon, Ga., for appellant.

Manley F. Brown, D. L. Rampey, Jr., Asst. U. S. Attys., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

Certiorari Denied April 7, 1969. See 89 S.Ct. 1309.

PER CURIAM:

Appellant, convicted on each count of a three-count indictment charging him, in each count, with mail fraud (18 U.S.C. § 1341) in connection with the sale of hairpieces, contends upon this appeal errors of a substantial nature in that:

(1) The trial court abused its discretion in refusing to grant appellant's motion for a bill of particulars;

(2) The evidence was insufficient to sustain a conviction upon either count; and

(3) The trial judge erred in analogizing the scheme alleged to that of a state charge of cheating and swindling, and also in emphasizing to the jury certain evidence and transactions which it could consider.

The counts were similar except as to the dates of the offenses; each charged basically that appellant, representing that he was doing business as Taylor Topper, had devised a scheme to defraud by inducing persons to order and pay for hairpieces which appellant knew would not be manufactured or delivered.

As to the bill of particulars point, appellant seems to complain that the Government used two witnesses who were not named in the indictment and that the failure and refusal of the trial court to require the Government to disclose the names of all its witnesses and to disclose all overt transactions upon which the prosecution was based was substantial error. Each count of the indictment charged with particularity the scheme to defraud, including names and dates. The purpose of a bill of particulars is to inform defendant and defense counsel of the facts constituting the offenses charged so that they may be fairly informed, prepare defenses and perfect the record so as to bar subsequent prosecution. Braden v. United States, 272 F. 2d 653 (5th Cir. 1960). Such motions are directed to the discretion of the trial judge. Leary v. United States, 383 F.2d 851 (5th Cir. 1967); Joseph v. United States, 343 F.2d 755 (5th Cir. 1965), cert. denied 382 U.S. 828, 86 S.Ct. 65, 15 L.Ed.2d 73. Here, the record discloses that appellant was fairly apprised of the Government's theories and the particulars upon which each charge was based. He was entitled to no more.

On the question as to the sufficiency of the evidence, a careful review of the evidence offered by the Government in support of each count reflects that the schemes existed, were fraudulent or "reasonably calculated to deceive persons of ordinary prudence and comprehension, and that the mail service of the United States" was used in the execution of the schemes. Silverman v. United States, 213 F.2d 405 (5th Cir. 1954), cert. denied 348 U.S. 828, 75 S.Ct. 46, 99 L.Ed. 653. The evidence on these questions was for consideration and determination by the jury and not for the court through the use of judgment for...