Krueger v. United States

• Decision Date: 01 June 1964
• Docket Number: No. 17233.,17233.
• Citation: 331 F.2d 283
• Parties: William P. KRUEGER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

331 F.2d 283 (1964)

William P. KRUEGER, Appellant, v. UNITED STATES of America, Appellee.

No. 17233.

United States Court of Appeals Eighth Circuit.

April 21, 1964.

Rehearing Denied June 1, 1964.

Noel L. Robyn, St. Louis, Mo., made argument for appellant and filed brief with Norman Zaltsman, Clayton, Mo.

William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., made argument for appellee and filed brief with F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

RIDGE, Circuit Judge.

William Paul Krueger, along with four other persons, was charged in twenty-seven counts of a twenty-eight count indictment with the substantive offense of using the mails to defraud (Section 1341, Title 18 U.S.C.A.) and in Count 28 with conspiracy (Section 371, Title 18 U.S. C.A.). The allegation as to use of the mails charged in each count of such indictment was related to a scheme or artifice to defraud, covering a period "prior to October 1957 and continuing to on or about the 20th day of May, 1958." The activities of the fraud and conspiracy charged were specifically related to a scheme and artifice to defraud purchasers and prospective purchasers of coin vending machines warranted for use in the dispensing and sale of cigarettes or ballpoint pens.¹

Appellant and one Larry W. Thornton stood trial on such charges. Thornton was found not guilty on all counts of the indictments submitted to the jury for consideration as to him. Appellant was found guilty by jury verdict on Counts 3, 13, 19 and 21, charging substantive offenses, ante. The other defendants, Clovis N. Ooley, Don Garrison and Joe Hanlin, each entered pleas of guilty before trial to Counts 1 and 28 of the indictment. The other counts thereof were dismissed as to them at time of imposition of their sentence.

Appellant was sentenced to two years on each count of the indictment on which he was found guilty, to run concurrently. He, alone, prosecutes this appeal. Inasmuch as concurrent sentences were so imposed, and the quantum of sentence thereof is less than might have been assessed under any single count as to which appellant was found guilty, "an affirmance is dictated if the evidence was sufficient to sustain the conviction under any one count." Johnson v. United States, 329 F.2d 600 (8 Cir. 1964); Slocum v. United States, and Eaton v. United States, 8 Cir., 325 F.2d 465.

Joe Hanlin and his wife were the owners of ninety-nine per cent. of the stock of Hanlin Manufacturing Company and Midwest Manufacturing Company. Neither company had a plant or any physical equipment. At all times here considered, such companies alternatively acted as jobbers of cigarette vending machines, but the sales here appraised were made in the name of "Midwest". Petitioner was one such salesman, who contacted prospective purchasers answering advertisements appearing in local papers, similar to that appearing in the footnote.² Hanlin was in sole charge of the office of both the above companies. His arrangements with salesmen employed by him were uniform. He purchased the vending machines for $60.00 each and sold them to the salesman for between $70.00 and $80.00 apiece. The salesman sold the machine to purchasers for $195.00 to as much as $210.00 apiece; thereby receiving approximately a sixty per cent. commission, less freight charges which were paid by the salesman. As a sale was closed, a signed contract, with a cashier's check, was obtained and sent by the salesman through the mail to Hanlin, who took out his share and mailed the remainder to the man responsible for the sale. The contract was entered into in the name of one or the other of Hanlin's companies, but usually through Midwest; and contained a guarantee for one year that each machine was free of faulty construction, with any necessary cost of repairs to be made thereto during that time, assumed by Midwest. The evidence established a complete failure on the part of Midwest to live up to such warranty.

Hanlin gave very little instruction to salesmen employed by him. In the main, he told the salesmen they should first get the purchaser acquainted with the vending machine business and its moneymaking potential; the amount a purchaser could earn by the purchase of ten or more units, depending on location which Midwest would establish. He also provided them with photographs of the vending machine and contracts to be executed by the purchasers. Otherwise, the salesmen were fairly much on their own. Without going into details, the four purchasers to whom appellant admittedly sold ten machines each, were given a "sales pitch" as to the quality of the machines; where they were to be located by Midwest; the profits to be derived therefrom, ranging from $100.00 to $300.00 a month; and, that tobacco companies would pay placement fees of $20.00 per location to the purchaser; all of which was established to be false. Of course, the machines were represented to the purchasers as being of good quality and trouble-free. As it turned out, most all of them were imperfect. Cigarettes could be obtained from them without using coins; and when coins were inserted, cigarettes would not be ejected. One purchaser, a Mr. Manchac, testified he did not receive the same machine shown to him by appellant in a photograph. Complaints were continuously received by Hanlin as to the mechanical problems of the machines. Hanlin, himself, testified he had not heard of anyone making money on the machines as his salesmen represented. Concededly, the mails were used in the execution of the scheme to defraud.

Nevertheless, it is appellant's primary contention before us, that the District Court erred in overruling his motion for acquittal made at the close of all the evidence; since the use of the mails as established by the evidence was merely "incidental, not anticipated," and was not an integral part of the scheme charged. The letters which are the basis of the counts on which appellant was found guilty are set forth in the footnote.³ The letters relating to Counts 3 and 13 were sent by Hanlin to purchasers Courtner and Vester, after the full purchase price for the vending machines was received by Midwest. As to Counts 19 and 21, the letters were sent to purchasers Manchac and Hardcastle. It is apparent on the face of the last two letters that acknowledgment of partial payment was first made and thereafter it was stated: "On completion of your contract we will process your order and ship" the...