Huff v. United States, 18753.

• Decision Date: 23 July 1962
• Docket Number: No. 18753.,18753.
• Parties: Robert Frederick HUFF and William Constantine Nicholson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

301 F.2d 760 (1962)

Robert Frederick HUFF and William Constantine Nicholson, Appellants, v. UNITED STATES of America, Appellee.

No. 18753.

United States Court of Appeals Fifth Circuit.

April 19, 1962.

Rehearing Denied July 23, 1962.

Holvey Williams, Daniel Y. Garbern, El Paso, Tex., for appellants.

Ernest Morgan, U. S. Atty., San Antonio, Tex., Lawrence L. Fuller, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before JONES, BROWN and GEWIN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal tests the conviction of Robert Huff and William Nicholson for violation of the Wire Fraud Statute, 18 U.S.C.A. § 1343, and conspiring to do so under 18 U.S.C.A. § 371. Defense counsel in ten Specifications of Error has put into question every step of the proceedings leading up to the judgment of conviction — from the indictment to the charge to the jury.¹ Finding no error in the law, and finding sufficient evidence to support the verdict, we affirm the judgment.

The events leading up to the alleged crime of 1960 began on September 17, 1957. The evidence indicated that on that date, Huff's apartment was burglarized. Cash and jewels said to value together $22,000 were alleged to have been taken. Although the record is totally lacking in any attempted explanation, Huff apparently thought it neither prudent nor advisable to notify any official of the burglary other than the manager of the apartments where he lived. Rather, the course of action which Huff chose to follow was to call one of his gambling companions, Nazry Abraham, who worked at a furniture store belonging to his father, Salim Abraham.² Huff then persuaded Nazry to deliver an air conditioner to his apartment. But when Nazry arrived at Huff's apartment and found Huff and Nicholson waiting, he soon learned that they were not interested in the air conditioner. Instead he was taken into the kitchen and accused of taking Huff's money and jewels. After stoutly denying any part in any burglary, he was released in a couple of hours after he promised to do all he could to help Huff find and regain possession of the jewels. Shortly thereafter Nazry received a call from "Tony."³ Nothing further was done. From all that appeared the matter was closed. Nazry had no occasion to, nor did he, discuss the matter further with either Huff or Nicholson or anyone else until almost three years later.

On April 22, 1960, and apparently out of the blue, Nazry received a telephone call from Duran, then in Mexico, in regard to jewelry which Duran said belonged to, and was stolen from, Huff. In as many days Nazry received four additional international long distance calls from Duran. After each one, Nazry promptly called Huff to relay to him the conversation had with Duran. Also each time Huff attempted to persuade Nazry to go to Juarez, Mexico — just across the border — to meet Duran and see the jewels. Nazry testified that after Huff described some of the jewelry over the telephone, "he asked me to please act more or less like his agent and retrieve those so-called jewelry." Each time Nazry refused until finally on April 26, 1960, he consented to go to Juarez to see the jewelry. In a matter of minutes after he reached the designated rendezvous at the El Taurino Club, several men surrounded him with pistols and told him he was under arrest. These men were Mexican Federal Judicial Police officers.

Instead of being taken to the jail at Juarez, Nazry was driven some 30 or 40 miles to another town in Mexico known as Guadalupe. He was taken to what one witness described as a downtown tenement house, and which Nazry himself didn't know whether it was a house or a jail. In any event he was forcibly detained there. He testified that once inside, the men shouted at him, drew their pistols, and forced him to sign a confession. The substance of the confession was that he had in fact robbed Huff's apartment (in 1957). Nazry requested that the officers contact his father and Huff which they agreed to do.

Meanwhile Salim spent a sleepless night. His daughter-in-law called late to inquire about Nazry and to tell Salim that Nazry had not come home. Salim then spent the rest of the night looking for Nazry and checking the police and sheriff's departments, and the jails in both El Paso and Juarez. Finally, he received a call from Huff at 8:45 on the morning of April 27, 1960. Huff said he was in Juarez at the La Sevillano Restaurant and that he was waiting there to talk with Salim about Nazry.

When Salim arrived in Juarez, Huff informed him that Nazry was in the custody of the Mexican Federal Police, and that Nazry had robbed his apartment three years ago. Huff demanded $22,000 for Nazry's release. By this time the Mexican police who knew of the scheme began to gather around and, according to Salim, they suggested that Salim "pay the man Huff and forget it." But Salim refused to make any deal until he saw his son.

Then they went outside and got into Nicholson's car and Nicholson drove them to Guadalupe. When they arrived at about 11:00 a. m. at the place where Nazry was being held, Huff in the presence of Salim asked Nazry if he had robbed Huff's apartment, and Nazry said yes — later explained by Nazry to be because of fear. When Salim saw that his son was all right, he was ready to talk business with Huff. By further discussion he was able to reduce Huff's demand from $22,000 to $12,000. Then Nicholson drove Huff and Salim to El Paso where Salim went to the bank and borrowed $15,000 — $12,000 with which to satisfy Huff's demand and $3,000 for extra safety in case some of the others decided they wanted money also. Nicholson knew of the purpose of the trip back to El Paso and let Salim off at the bank.

Meanwhile that afternoon, a Mexican Federal Police Officer took Nazry to a little town on the border between Mexico and United States known as Caseta. Presumably this was the place where his "purchased" release was to take place. After they waited awhile and nothing developed, they took him to the Juarez jail at about 5:00 p. m., from which he was released later that evening.

When Huff and Nicholson let Salim out in El Paso, he told both of them to go back to the La Sevillana Restaurant, and he would return within an hour with the money. When Huff and Nicholson returned, they were arrested by the Juarez Secret Police, and held for four months before their release. Arrested also were the Mexican Federal Judicial Police Officers.

After their return from Mexico, Huff and Nicholson were indicted and tried for the Federal crimes charged here. After both were found guilty by a jury, Huff was sentenced to two years on each of the six substantive counts⁴ to run concurrently, and five years on the seventh (conspiracy) count to run consecutively with the sentence on the first six counts. Nicholson's sentence was five years on each of the seven counts to run concurrently. It is from that judgment that this appeal was taken.

Appellants' motions for acquittal raised the question of the sufficiency of the evidence.⁵ However, the major point woven into most of the other points of error is that of the legal sufficiency of the indictment.⁶ It is asserted that fraud or deceit is not alleged in the indictment. Rather, it is claimed, the scheme alleged was to extort money. That point is also raised in the argument on the sufficiency of the evidence by practically admitting all that took place, but saying that while such evidence may amount to extortion or coercion, there is no fraud shown and therefore conviction under 18 U.S.C.A. § 1343 cannot stand. Great stress is laid on Fasulo v. United States, 1926, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443, which held that extortion as such does not amount to a scheme to defraud under the Mail Fraud Statute, 18 U.S.C.A. § 1341. But that case itself demonstrates that it is not controlling here. Referring to a prior case⁷ sustaining a mail fraud charge, the Court observed that "* * * there were involved trickery and deceit as well as threat." It was the presence of threats alone which the Court regarded as distinctive and decisive. For the Court commented that "if threats to kill or injure unless money is forthcoming do not constitute a scheme to defraud within the statute, there is none in this case. The only means employed by petitioner and his coconspirators to obtain the money demanded was the coercion of fear." 272 U.S. 620, 626, 628, 47 S.Ct. 200, 201, 202.

While the actions of Huff and Nicholson here may or may not have amounted to extortion, coercion, threats or kidnapping, they were not simply that. They were much more since a fraudulent scheme of implied or expressed misrepresentations could also be found in these actions. Muench v. United States, 8 Cir., 1938, 96 F.2d 332. In other words, for purposes of the Wire Fraud Statute fraud and extortion are not mutually exclusive. The mere fact that extortion may constitute one aspect of the transaction does not insulate the fraudulent representations and plan from prosecution as a scheme to defraud.

In the present case, once credited by the jury, the whole scheme from beginning to end amounted to trickery and deceit. The scheme revolved around luring the victim out of the United States and into Mexico. This was carried out as to Nazry by representing that certain jewels alleged to have been stolen had been found. Indeed, there was evidence from which the jury could find that the jewels had not been found, if they were ever stolen, and if they belonged to Huff in the first place. Huff also told Nazry that he wanted Nazry to go to Mexico as his agent and see the jewels, and that he would pay a nice price to get them back. Huff explained that he was too busy and too sick to go himself. The jury could find from the evidence before it that none of these representations were true.

Huff told Salim that Nazry had robbed his apartment, and he indicated that Nazry was under a legal arrest based on a legal complaint...