Owens v. United States

• Decision Date: 17 May 1955
• Docket Number: No. 15039.,15039.
• Citation: 221 F.2d 351
• Parties: Hardy Joseph OWENS and John Link Cogdill, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

221 F.2d 351 (1955)

Hardy Joseph OWENS and John Link Cogdill, Appellants, v. UNITED STATES of America, Appellee.

No. 15039.

United States Court of Appeals Fifth Circuit.

April 15, 1955.

Rehearing Denied May 17, 1955.

Zach H. Douglas, Damon G. Yerkes, Edgar W. Waybright, Sr., Jacksonville, Fla., W. L. Robinson, Miami, Fla., for appellants.

Edith House, Asst. U. S. Atty., Jacksonville, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and DAWKINS, District Judge.

TUTTLE, Circuit Judge.

Appellants were convicted below of using the mails in furtherance of a scheme to defraud,¹ using an instrumentality of communication in interstate commerce to sell or attempt to sell fraudulent securities,² and conspiracy.³ The indictment was very lengthy, containing eight counts, the first five of which charged violations of the mail fraud statute, counts six and seven of which pertained to the fraudulent securities statute, and count eight of which alleged a conspiracy to commit these substantive crimes. The trial court directed an acquittal of count six because of insufficient proof. Appellant Owens was convicted on all other counts and was sentenced to five years' imprisonment on each count, sentences to run concurrently. Appellant Cogdill was convicted of counts 1, 2, 4, 5, 7 and 8, but his motion for acquittal was subsequently granted as to count seven, and he was thereupon sentenced to two years' imprisonment to run concurrently on each of the remaining counts.

The appeals raise three questions:

(1) Was the indictment duplicitous, in that each count alleged two or more separate schemes to defraud, as the appellants contend, and contended below in a motion to dismiss?

(2) If not, was there a material variance between the proof and the indictment, in that the proof showed separate and distinct schemes, as appellants contend, and contended below in motions for acquittal?

(3) Was the proof insufficient to support the convictions; and particularly, with respect to Cogdill was the proof insufficient for the jury to find that he was connected with or knowingly participated in any fraudulent scheme?

We think all of these questions must be answered in the negative, and that the convictions must be affirmed.

1. Count one of the indictment was seven pages long. It charged in considerable detail that over a period between 1950 and 1952, appellants devised a scheme to defraud persons who could be induced by false pretenses, representations, and promises to entrust money to appellants or invest in corporations controlled by them, in connection with transactions to be effected by appellants or such corporations; that they organized the Dade County Terminal Company, Inc., the Societe Nationale de Credit Agricole et Industriel, S.A., and the Habanex Haitian Bananas Export, S.A., and issued shares of those corporations to themselves without giving anything of value therefor, using sham stockholders and officers; that the corporations never operated; that they knowingly and falsely represented that Owens was a prosperous and successful business man and that they and the corporations were engaged in negotiating many business transactions (actually non-existent or not being carried on in good faith) in which the persons to be defrauded might profitably participate, including the purchase of real estate from Sun Oil Company, the construction of a $14,000,000 dam in Haiti, and numerous others; that they used the Dade corporation as a front to incorporate and capitalize falsely the other two corporations, by means of two worthless checks for $250,000 and $25,000 respectively, drawn by Dade; that they by means of such scheme defrauded a Mrs. Fisler of a substantial sum of money (shown by the proof to be $40,000 to $76,000) in the Sun Oil Company real estate negotiations, of $3,000 by promising to buy her an automobile which they failed to do, of the proceeds of a valuable annuity contract by promising to turn the proceeds over to her, and of $900 by representing they would buy and resell coconuts, returning to her the proceeds; that they likewise defrauded X. G. Nichols of $10,000 by representing that he would be awarded the contract to build the Haitian dam which they pretended to be financing and to control; that they likewise defrauded Arnoldo Daetz-Villela of $3,500, by assuring him that if he would invest in bonds of the Societe Nationale he would be given an executive job therein with a substantial salary. Count one ended by alleging that in furtherance of this scheme, appellants mailed a letter to Sun Oil Company seeking an option on certain real estate.

Counts two through seven realleged the scheme to defraud by reference. Count two alleged the mailing of a letter and corporate charter to the Florida Secretary of State in furtherance of the scheme; count three, the mailing of Mrs. Fisler's annuity contract; count four, the taking from the mails of a check from Sun Oil Company to the Dade corporation; count five, the mailing of Dade's worthless check for use in incorporating the Societe Nationale; count six, the sending of a telegram for the purpose of selling stock; count seven, a long distance telephone call to sell Societe Nationale stock.

Count eight charged a conspiracy to violate the mail fraud statute and the fraudulent securities statute.

Appellants contend that this indictment is duplicitous; that is, it shows on its face separate schemes to defraud in each substantive count, thereby prejudicing the defendants by wrongly stating several different crimes together as a single violation and letting the jury consider them as such. We recognize that each count of an indictment for violations of these statutory crimes may set out only a single scheme to defraud. We are convinced, however, that these counts state but a single scheme.

We said in Weiss v. United States, 5 Cir., 122 F.2d 675, 680:

"A single scheme to defraud may involve a multiplicity of ways and means of action and procedure. It may be such that the complete execution of it would involve the commission of more than one criminal offense. Mere details may be changed and the scheme remain the same. As the execution of the scheme (or the intention to devise the scheme) proceeds, new ways may be adopted or invented to effectuate the original design. The important thing is that the scheme, or the intention to devise it, shall remain the same."

In that case we held the defendants engaged in but a single scheme to defraud, by collusively and fraudulently raising the price of a public contract and then a year later collecting a claim for fictitious extra work. It does not appear that the defendants conceived the whole scheme from the start. In United States v. MacAlpine, 7 Cir., 129 F.2d 737, three different methods were used at diverse times by the defendants to defraud a large class of victims of their whiskey warehouse receipts. It was held that this was also one scheme.

The teaching of these cases as applied to the present one, is that the defrauding of different people over an extended period of time, using different means and representations, may constitute but one scheme. Naturally, by clear analogy it does not make any difference that the various deceptions were practiced at different places. Nor is it significant that the whole scheme was not planned...