Kloian v. United States
| Decision Date | 27 July 1965 |
| Docket Number | No. 22511.,22511. |
| Citation | 349 F.2d 291 |
| Parties | Suran KLOIAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Emmet J. Bondurant, Atlanta, Ga., for appellant.
J. O. Sentell, Asst. U. S. Atty., Ben Hardeman, U. S. Atty., Montgomery, Ala., for appellee.
Before TUTTLE, Chief Judge, BELL, Circuit Judge, and DYER, District Judge.
This appeal is from the judgment of the District Court denying appellant's motion under 28 U.S.C.A. § 2255 to vacate his conviction and sentence. Appellant is incarcerated under a four year mail fraud sentence imposed by the United States District Court for the Middle District of Alabama on a plea of guilty after the case was transferred for plea and sentence to that court from the Western District of Texas on motion of appellant under Rule 20, F.R.Crim.P.
The motion to vacate is based on the contention that the two-count information upon which the plea was entered failed to charge a violation of the Federal Mail Fraud statute, 18 U.S.C.A. § 1341.1 And it is clear that appellant may attack the conviction and sentence imposed under such circumstances in the event the contention is meritorious. Stinson v. United States, 5 Cir., 1963, 316 F.2d 554; Dawes v. Gough, 5 Cir., 1948, 170 F.2d 396; Aderhold v. Schiltz, 5 Cir., 1934, 73 F.2d 381. We proceed then to the merits of the motion.
Appellant's position rests entirely on the proposition that Parr v. United States, 1960, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277, is controlling to the end that activity of the type charged against him does not constitute an offense against the laws of the United States. The position of the government, on the other hand, is that the case is controlled by our recent case of Adams v. United States, 5 Cir., 1962, 312 F.2d 137. Both cases involved, as does this case, the unauthorized use of gasoline credit cards and the subsequent mailing of invoices covering purchases.
In Parr, two holders of offices of trust in a School District were charged with using the mails to defraud by obtaining gasoline and related products on the account of the School District for their personal use. They were authorized to use the credit cards for District purposes. The violation of the mail fraud statute was said to have arisen through the use of the mails in billing the School District, and in transmitting payment from the District to the oil company. The Supreme Court reversed the affirmance of the convictions on these charges by this court. Parr v. United States, 5 Cir., 1959, 265 F.2d 894. The essence of the Supreme Court holding was that the scheme of the office holders to defraud was directed against the School District and accomplished through the abuse of their offices. The use of the mails was so incidental in the execution of the scheme as to lack sufficient nexus to the use of the mails. The use of the mails was not an integral part of the scheme to defraud as planned and executed by the defendants. This reasoning followed from the holding of the Supreme Court in Kann v. United States, 1944, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88, that the mail fraud statute is applicable only in those limited instances in which the use of the mails is a part of the execution of the fraud, with other cases being left to the states for disposition. There, corporate officers had imposed on the corporation for their own gain and the mails were used only incidentally in the forwarding of checks representing the gains from banks where they were cashed to other banks for collection. The scheme had reached fruition and come to a complete rest prior to the mailings in question.
United States v. Sampson, 1962, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136, is somewhat interpretative of the Supreme Court's concept of the applicability of the mail fraud statute in the Parr and Kann cases. There the mails were not used in originally obtaining the funds through fraud but were used to lull the victims of the fraud into a feeling of false security, thereby preventing or delaying the discovery of the fraud. This came about through the sending of various documents amounting to assurances through the mails to the victims after the funds had been paid to the operators of the scheme. The court held that this use of the mails was an integral part of the operation of the scheme. These cases point out that the offense of using the mails to defraud consists of a scheme to defraud, and the use of the mails in the execution of the scheme. This question in the Kann, Parr, Sampson and Adams cases, all supra, centered on whether the use of the mails was...
To continue reading
Request your trial
-
United States v. Maze 8212 1168
...States v. Ciotti, 469 F.2d 1204 (CA3 1972), cert. pending, No. 72—6155; Adams v. United States, 312 F.2d 137 (CA5 1963); Kloian v. United States, 349 F.2d 291 (CA5 1965), cert. denied, 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966); United States v. Reynolds, 421 F.2d 178 (CA5 1970); Un......
-
Henderson v. United States, 25951.
...or if use of mails was such an integral and material part of the scheme that it was foreseen and contemplated, Kloian v. United States, 349 F.2d 291, 293 (5 Cir. 1965); Brown v. United States, It is clear that Kann and Parr, relied on by appellants, do not establish "* * * an automatic rule......
-
United States v. Green
...Sixth Circuit's Maze decision, which the Supreme Court affirmed: Adams v. United States, 5 Cir., 1963, 312 F.2d 137; Kloian v. United States, 5 Cir., 1965, 349 F.2d 291, cert. denied, 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966); United States v. Reynolds, 5 Cir., 1970, 421 F.2d 178; ......
-
Williams v. United States
...has simply made an assertion. He has neither presented nor argued facts. The presence of clear merit required in Kloian v. United States, 349 F.2d 291 (5th Cir. 1965) cert. denied 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966), does not appear even in the haze of hope that surrounds the......