Kraft v. United States, 15357.
| Decision Date | 17 December 1956 |
| Docket Number | No. 15357.,15357. |
| Citation | 238 F.2d 794 |
| Parties | Edwin Arnold KRAFT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Samuel J. Wettrick, Seattle, Wash. (Fred J. Wettrick and George J. Toulouse, Jr., Seattle, Wash., were with him on the brief), for appellant.
Kenneth G. Owens, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., was on the brief), for appellee.
Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
This is an appeal from a judgment and sentence finding appellant guilty on five counts of an indictment charging him with a scheme to defraud and the use of the United States mails in furtherance of such scheme in violation of Section 1341, Title 18, U.S.C. We shall refer to the appellant as defendant throughout this opinion.
The indictment, in effect, charged that the defendant from on or about February 1, 1954 and continuing to on or about September 1, 1954 at Los Angeles, California, at St. Paul, Minnesota and at divers other places devised a scheme to defraud persons who could be induced to pay money to defendant in anticipation of receiving "rare geraniums" and for obtaining money from such persons by false and fraudulent pretenses through advertisements placed in various newspapers, including the St. Paul Dispatch and Pioneer Press, St. Paul, Minnesota, and for the purpose of executing such scheme wilfully and knowingly used the United States mails. The indictment was returned by a grand jury sitting in St. Paul, Minnesota on February 5, 1955, following which defendant was arrested in the vicinity of Los Angeles, California on February 10, 1955. He was enlarged on bail in the amount of $3,000 by the arresting authorities in the State of California. In anticipation of trial at the regular April term of court in St. Paul arraignment was set for March 7, 1955 but at defendant's request and with the agreement that no motions were to be made attacking the sufficiency of the indictment before trial defendant's arraignment was set for the day of trial which was fixed at April 11, 1955, the opening of the St. Paul criminal jury term, and defendant was notified of the trial date. Defendant claims that owing to lack of funds he was unable, following his arrest, to secure counsel for his defense. He concluded to go to St. Paul, pursuant to the terms of his bail bond, by way of Seattle, Washington to consult Mr. Fred J. Wettrick, an attorney at law, who had on some former occasions represented him as his attorney, with the hope that he could secure him to represent him in the instant case. He was not successful in employing Mr. Wettrick and arranged to proceed to St. Paul by airplane. The plane on which he had accommodations was reported some two hours late and he accordingly telegraphed the United States District Attorney at St. Paul advising him that his arrival might be late because of the delay in air service and the government attorney called the attention of the court to this telegram. He arrived at St. Paul on April 11, 1955 at 10:20 A.M. and reported at the United States District Attorney's office at 11:20 A.M. In the meantime his $3,000 bail bond had been declared forfeited by direction of the court and it was ordered that defendant be taken into custody by any United States Marshal and that his bail in the future would be fixed at a higher sum to be determined by the court in the event he appeared. On the defendant's reporting at the United States District Attorney's office he was, pursuant to the court's direction, taken into custody by the United States Marshal. Thereafter, the court fixed the amount of defendant's bail bond at $25,000 although the United States District Attorney asked that it be fixed at not less than $15,000. The surety on defendant's $3,000 bond consented that the bond be reinstated and after defendant secured counsel a motion was made asking that it be reinstated and accepted in lieu of the $25,000 bond as ordered by the court, but this request was denied and defendant was incarcerated in the county jail where he remained up to and during the time of the trial except for such times as he was required to be in court. A motion for a continuance was submitted by the defendant before he secured an attorney asking for a continuance of sixty days in order to secure counsel and to enable him to prepare for trial but this motion was denied. On the 19th of April, 1955 defendant appeared by counsel who was advised that the court had on its own motion set the case down for trial on April 25, 1955, thus giving counsel for defendant six days within which to prepare for the trial. On the date set for the opening of the trial defendant appeared in person and by his attorney and a prior motion for continuance having been denied, his attorney answered that he was ready for trial. The trial accordingly began on the 25th day of April, 1955 and the jury returned a verdict on May 6th, 1955.
It appeared from the evidence that defendant conducted a mail order business in which he placed newspaper ads through the mails under the trade name of "Seminole Gardens" at Cornell, Los Angeles County, California, offering "rare geraniums" at four for $1.00 with a "Money Back Guarantee". Defendant prepared the ad copy for the newspapers and it was published in about seventy-five or eighty-five newspapers. The ad states:
4 Plants $1.00 8 Plants $1.75 12 Plants $2.50 "Send Cash, Check or Money Order to "Seminole Gardens "Cornell (L. A. County) Calif."
The ad was ordered published by letters mailed to the St. Paul Pioneer Press and Dispatch, St. Paul, Minnesota, and five such letters furnished the basis for the five counts of the indictment. The ads which were inserted early in April of 1954 quickly produced thousands of orders received through the mails.
It was the claim of defendant that he had arranged with certain named gardeners in the vicinity where he was operating to furnish the geranium plants and that many were furnished and sent by defendant to fill orders received by him, but that the season in southern California was unusually cold and that the plants did not grow or develop satisfactorily nor with their usual rapidity and that the orders soon exceeded the supply and that he in good faith attempted to supply them though delays were inevitable, and his evidence went chiefly to the question of his lack of criminal intent and his claim that his failure resulted from climatic conditions and misfortunes rather than any purpose on his part to defraud his customers. It is not our purpose here to narrate in any detail the testimony in the case.
At the close of the government's case and again at the close of all the evidence defendant moved for a judgment of acquittal and each of these motions was denied. The court sent the case to the jury on instructions to which certain exceptions were saved and the jury returned a verdict of guilty. The defendant then moved for judgment of acquittal notwithstanding the verdict on the grounds alleged in his motion for judgment of acquittal interposed at the close of all the evidence and this motion was denied and judgment and sentence entered pursuant to verdict of guilty.
Defendant seeks reversal on substantially the following grounds: (1) Irregularities in preliminary proceedings constituted denial of due process of law; (2) The conduct of the judge was prejudicial to defendant; (3) The court erred in rejecting certain specified exhibits offered on behalf of defendant; (4) The court erred in admitting government's exhibit 93; (5) The court erred in instructing the jury that a person is presumed to intend the necessary and natural consequences of his acts; (6) The court erred in failing to give defendant's requested instruction as to money received; (7) The court erred in refusing defendant's request for instruction as to character testimony; (8) The court erred in making disparaging comments with regard to certain of defendant's exhibits and (9) The evidence failed to sustain the verdict and the court erred in failing to direct entry of judgment of acquittal.
Complaint is made that defendant was denied due process of law by reason of the proceedings prior to his trial on the indictment. Defendant at all times material to the issues in this case was a resident of Glendale, California. Following his arrest he gave bail bond in the amount of $3,000. Because of financial difficulties and the attachment of his funds and other property, according to his statement when inquiry was made of him by the court, he had been unable to employ counsel because without available funds. His...
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