Myrick v. United States

• Decision Date: 26 May 1964
• Docket Number: No. 19950.,19950.
• Citation: 332 F.2d 279
• Parties: H. M. (Mike) MYRICK and Vernon Evans Bergman, a/k/a Soll Evans, Sol Evans and Sonny Evans, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

332 F.2d 279 (1963)

H. M. (Mike) MYRICK and Vernon Evans Bergman, a/k/a Soll Evans, Sol Evans and Sonny Evans, Appellants, v. UNITED STATES of America, Appellee.

No. 19950.

United States Court of Appeals Fifth Circuit.

December 18, 1963.

Rehearing Denied February 19, 1964.

As Amended May 26, 1964.

Joe B. Goodwin, Beaumont, Tex., Warren G. Moore, Tyler, Tex., for appellants.

Leighton Cornett, Asst. U. S. Atty., Tyler, Tex., Theodore George Gilinsky, Atty. Dept. of Justice, Washington, D. C., for appellee.

Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge.

HOOPER, District Judge.

The appellants Vernon Evans Bergman (also known as Soll Evans, Sol Evans and Sonny Evans) and Henry Madison Myrick (also known as Mike Myrick and Mike Mayer) were both found guilty under Counts One and Two, and Bergman was found guilty under Court Four, of the indictment returned against him.

Count One, based on 15 U.S.C. § 77q(a) charged a scheme to defraud various persons in the offer and sale of capital stock of Legal Security Life Insurance Company, capital stock of American Rare Metals Corporation, and of Motels Unlimited, Inc.

Count Two was based on 18 U.S.C. § 1341, charging use of the mails to defraud, based upon the same factual allegations contained in Count One.

Count Four (upon which Bergman only was convicted) was based on 18 U.S.C. § 2314 charging transportation in interstate commerce of a certain bank draft in the amount of $7,000.00.

The trial consumed approximately four days and the transcript of evidence contains some one thousand pages. It is not necessary for a consideration of the points of error relied upon to give a full discussion of the various charges against appellants and the evidence adduced to support the same. The evidence discloses that appellants were involved in a deliberate scheme to palm off on the public for a very substantial sum of money certain stocks which were of practically no value, that they used the mails in furtherance of this scheme and that Bergman caused to be transported in interstate commerce the draft referred to, the same having been obtained by fraud. Some reference to the evidence will be made herein.

(1) The first point of error alleges "there is a material variance between the allegations and the proof in Count One of the indictment of such a nature as to affect the substantial rights of the appellant."

It is not necessary, of course, that the Government should have proved each of the charges contained in the indictment, but only necessary that a sufficient number of the charges in each Count should be proven to constitute a violation of the statute relied upon. The question of variance will therefore be approached from that viewpoint.

The second point of error complains of a variance likewise as to Count Two of the indictment and, since the allegations of both Counts One and Two cover the same subject matter, after a careful study of the entire record, we find no material variance.¹

(2) Point of error No. 5 alleges the Court erred in overruling appellant Bergman's motion for a Judgment of Acquittal as to Count Four of the indictment. This Court charges Bergman with transportation in interstate commerce from Carthage, Texas to Alexandria, Louisiana of a bank draft in the amount of $7,000.00, knowing the same to have been taken by fraud in violation of 18 U.S.C. § 2314.

Appellants insist the evidence does not show the draft was taken by fraud, nor that same was transported by Bergman as alleged. We cannot agree.²

(3) In point of error No. 6 defendants contend the Court committed fundamental error in failing to set out in its charge to the jury the essential elements of the offense charged in Count Four of the indictment. The brief for appellant recites: "The Court in its charge to the jury failed to require a finding on the part of the jury that the draft or check referred to in the indictment must be proven to be of the value of $5,000.00 or over."

It is true that 18 U.S.C., § 2314 requires in part that the transportation in question must relate to securities "of the value of $5,000 or more." The Court in one portion of his charge (see Transcript, p. 879 and p. 880) stated as follows:

"Now that section just referred to provides in effect that it shall be unlawful for any person to transport or cause to be transported in interstate commerce any money of the value of $5,000.00 or more, knowing the same to have been taken by fraud."

In another portion of his charge to the jury (Transcript, p. 880) the Court in stating the essential elements required to be proven under Count Four, did not expressly state that the value of the security must be shown to equal $5,000.00.

The evidence in the case shows without dispute that the draft in question was in the sum of $7,000.00 and that it was of the value of $7,000.00 because it was paid. No reversible error is shown in the above Charge of the Court.

(4) In points of error No. 3 and No. 7 error is assigned upon the admission in evidence by the Court of photostatic copies of documents, primarily checks.

A subpoena was issued to the bank for production of these records and a bank official appeared, but instead of bringing the original microfilms of the checks he brought prints from the same which he identified as having been made from the microfilms. Defense counsel objected to the admission of this evidence because as alleged, "under the best evidence rule that there has been no predicate laid." The Court overruled this objection but recessed court and suggested that defense counsel read § 1732 of Title 28 during the recess.

A reading of said section by counsel would have disclosed that the reproduction of such...