Ohrynowicz v. U.S., 76-1247

• Decision Date: 12 October 1976
• Docket Number: No. 76-1247,76-1247
• Citation: 542 F.2d 715
• Parties: Thaddeus M. OHRYNOWICZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 715

542 F.2d 715

Thaddeus M. OHRYNOWICZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 76-1247.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1976.

Decided Oct. 12, 1976.

Grady E. Holley, Springfield, Ill., for petitioner-appellant.

Donald B. Mackay, U.S. Atty., J. Douglas Weingarten, Asst. U.S. Atty., Springfield, Ill., for respondent-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and BAUER, Circuit Judges.

SWYGERT, Circuit Judge.

This appeal presents the question of whether an order for personalized checks mailed by a bank pursuant to the opening of a new checking account is closely enough related to a fraudulent scheme using that account to support a conviction for mail fraud under 18 U.S.C. § 1341. ¹ We hold that it is and affirm the conviction.

Petitioner Thaddeus M. Ohrynowicz was convicted in 1970 of conspiracy and seven counts of mail fraud. The charges arose from a "check kiting" scheme in which Ohrynowicz and Robert S. Strauss conspired to defraud a number of banks in which they had opened checking accounts under false names and addresses. Their plan was to draw checks on one bank for which sufficient funds were not available and then deposit or cash them at a different bank where they had opened accounts.

The grand jury returned an eleven count indictment against both Ohrynowicz and Strauss. Counts I and III accused both men of committing mail fraud under 18 U.S.C. § 1341 because in opening two of the checking accounts for a fraudulent purpose they had caused the mailing of an order by the banks for personalized checks. Counts II and IV alleged that both men had violated section 1341 by causing on two occasions "advice letters" transmitting insufficient funds checks which had been cashed or deposited at one bank to be mailed back to the banks on which the checks were drawn.

Counts VI, VII, and IX alleged that Ohrynowicz had violated 18 U.S.C. § 1342 ² by opening checking accounts under a false name and address with the intention of using the mails to carry on a fraudulent scheme. Counts V, VIII, and X charged that Strauss had committed similar crimes. Count XI alleged that Ohrynowicz and Strauss had committed a criminal conspiracy in violation of 18 U.S.C. § 371.

Strauss was tried alone on Counts II, IV, V, VIII, and X and was convicted on all counts. His conviction was affirmed in United States v. Strauss, 452 F.2d 375 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972) (Strauss I ). Ohrynowicz was later tried and convicted on Counts I-IV, VI, VII, IX, and XI and sentenced to seven years in prison. This sentence was subsequently reduced to five years. ³

This court vacated Strauss' conviction on all counts in 1973, relying on the Supreme Court's intervening decision in United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Strauss v. United States, 516 F.2d 980 (7th Cir. 1975) (Strauss II ). Ohrynowicz subsequently filed a motion in the district court for the Southern District of Illinois under 28 U.S.C. § 2255, claiming that his case was controlled by Maze and Strauss II and requesting that his conviction be vacated as well. The district court granted this motion as to Counts II, IV, VI, VII, IX, and XI, but denied it as to Counts I and III. Petitioner now appeals this finding.

I

In Maze the defendant used a stolen credit card to charge a number of motel bills. The invoices which resulted from these transactions were then forwarded by mail to the bank which had issued the credit card. The defendant was subsequently convicted of mail fraud under 18 U.S.C. § 1341. The Supreme Court affirmed the Sixth Circuit's reversal of the conviction on the ground that the mailings were not sufficiently related to the defendant's fraudulent scheme to bring his conduct within the purview of the statute.

The Court noted that "under the statute, the mailing must be 'for the purpose of executing the scheme, as the statute requires,' Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 89 L.Ed. 88 (1944), but '(i)t is not necessary that the scheme contemplate the use of the mails as an essential element,' " citing Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). 414 U.S. at 400, 94 S.Ct. at 648. The Court held that Maze's conviction could not stand under this test, stating:

Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent's scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. Id. at 402, 94 S.Ct. at 649.

In the case at bar the district court held, on the basis of Maze, that Counts II, IV, VI, VII, and IX should be vacated because they involved the mailings of collection letters between the defrauded banks after Ohrynowicz and Strauss had already received cash for the fraudulent checks. It distinguished, however, the mailed orders for personalized checks which underlay Counts I and III on the grounds that they "occurred before the scheme to defraud was completed (and) were in pursuance of that scheme. . . ."

Petitioner argues that this distinction should not be given controlling importance because obtaining personalized checks was superfluous to the success of his fraudulent scheme, since the checks which he used in attempting to defraud the banks were the unpersonalized ones which he was given upon opening an account. He contends that, like the defendant in Maze, he would have preferred to have the check orders misplaced or not mailed at all because the subsequent mailing of personalized checks to the false names and addresses he was utilizing would increase the chances of his apprehension. ⁴ See 414 U.S. at 402, 94 S.Ct. 645. Thus, he concludes, the mailing of the check orders was not "for the purpose of executing (his) scheme" within the meaning of 18 U.S.C. § 1341.

The Government asserts that the ordering of personalized checks did contribute to the furthering of the fraudulent scheme because it was a normal concomitant of opening a checking account and therefore substantially aided the petitioner in obtaining the temporary checks which he utilized at other banks. If the petitioner had not ordered personalized checks, the Government contends, the banks would have been alerted that he did not intend to use the checking account for legitimate purposes. ⁵

The record in petitioner's original case does not contain a great deal of testimony on this issue. Nonetheless, the district court in this case concluded that there was enough evidence to support an inference that the ordering of personalized checks was a normal part of the transaction which resulted from opening an account, leading to the conclusion that the order was in furtherance of the fraudulent scheme. A trial judge's finding of facts ordinarily will not be disturbed unless they are without support in the record. United States v. Sells, 496 F.2d 912, 913-14 (7th Cir. 1974); Crail v. United States, 430 F.2d 459, 460 (10th Cir. 1970) (section 2255 case). Although the fact that we sit in the same vantage point as the district judge in examining the original record necessarily gives us unusual freedom in reaching our own conclusion, nothing in the record convinces us that the district court was incorrect.

We therefore hold that the ordering of personalized checks was conduct in furtherance of petitioner's fraudulent scheme. Unlike the mailings in Maze, the mailing of these orders occurred prior to the fruition of that scheme and thus supports a conviction under 18 U.S.C. § 1341.

II

Petitioner also contends that his convictions on Counts I and III must be vacated under our decision in Strauss II. Insofar as Strauss II dealt with offenses under 18 U.S.C. §...