Pereira v. United States

Decision Date03 April 1953
Docket NumberNo. 14980.,14980.
Citation202 F.2d 830
PartiesPEREIRA et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

W. H. Fryer and Coyne Milstead, El Paso, Tex., for appellant.

Holvey Williams, Asst. U. S. Atty., El Paso, Tex., Charles F. Herring, U. S. Atty., Austin, Tex., Francis C. Broaddus, Jr., Asst. U. S. Atty., El Paso, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The indictment charged the defendants with nine violations of the mail fraud statute, 18 U.S.C.A. § 1341, a violation of the National Stolen Property Act, 18 U.S.C.A. § 2314, and conspiracy to commit the aforesaid substantive offenses, 18 U.S.C.A. § 371. Eight of the counts under the mail fraud statute were dismissed by the district court leaving Count One under the mail fraud statute, Count Ten under the National Stolen Property Act, and Count Eleven, the conspiracy charge. The jury found the defendants guilty as charged and the court sentenced each of them to the maximum confinement under Count One, five years; the maximum confinement under Count Ten, ten years, to run concurrently with the sentence under Count One; and a cumulative sentence of two years confinement under Count Eleven.

The errors relied on arise out of rulings on the sufficiency of the indictment, the competency of a witness, admissibility of testimony, instructions to the jury, failure to require the Government to elect as between Counts One, Ten, and Eleven, plurality of punishment for the same offense, and sufficiency of the evidence to support the verdict and judgment.

The first count of the indictment brought under 18 U.S.C.A. § 1341 charges that between certain dates the defendants devised and intended to devise a scheme and artifice to defraud a woman victim and to obtain money and property by means of false and fraudulent pretenses. The alleged scheme is described substantially as follows: to represent that Pereira was obtaining a divorce and was to receive as a settlement in said proceedings $48,000; that he was a wealthy businessman, a hotel man of wide experience with an option to buy the Washington Hotel in Greenville, Texas, for which he was to pay $78,000; that such was a fine financial proposition and would earn a fine living for the victim and Pereira for the rest of their lives; that he needed immediately cash for this purpose and as a result thereof, that the victim advanced to him $35,286.78; that Brading was a wealthy Texas oil man with many leases and holdings over Texas, New Mexico and other states; that he was about to close an oil lease in Texas which would net immediately large proceeds; and that, if the victim would lend Pereira $5,000, Pereira would double his money in the very near future; that with this understanding the victim lent the defendants $5,000; that both the defendants represented that Pereira was violently in love with the victim and, as a result of said representation, the victim was caused to take extended trips over the United States with one or both of the defendants and was induced to marry Pereira in Kansas City, Missouri, on the 25th day of May, 1951.

Count One further charges that for the purpose of executing said scheme and artifices and attempting so to do, the defendants, Pereira and Brading, caused to be placed in the mails at El Paso, Texas, a letter addressed to the Citizen National Trust & Savings Bank, Los Angeles, California.

The tenth count brought under 18 U.S. C.A. 2314 charges that on or about June 15, 1951, the defendants with unlawful and fraudulent intent caused to be transported in interstate commerce from El Paso, Texas, to Los Angeles, California, a security of the value of more than $5,000 knowing said security to have been obtained by fraud. The evidence disclosed that the security and the transportation described in the tenth count constituted the mail item described in the first count.

The eleventh count brought under 18 U.S.C.A. § 371 charges that the defendants conspired to commit the substantive offenses described in the preceding counts.

The victim was past 55 years of age, a widow who had been married twice. Under the will of her second husband, some years older than she, she had received a considerable estate. She and the defendant Pereira were married on May 25, 1951. Subsequently, on November 16 of the same year, after the indictment was returned but before the trial, they were divorced. Most of her testimony was admitted over the objections of the defendant Pereira as to her competency to testify to matters occurring after the marriage and to confidential communications with her husband. Some of her testimony was objected to by the defendant Brading also on the ground that as to him it was hearsay.

The victim and her young half sister had taken a trip to El Paso, Texas, where the half sister was to be treated by a dentist. As they stopped their automobile in front of the Del Norte Hotel, they were greeted by a stranger, the defendant Brading, who in a short time introduced them to his companion, the defendant Pereira. Within an hour the four were drinking cocktails in the Del Norte Hotel and in a couple of hours they were on a party in Juarez. The victim testified that she thought fate had brought them together and she invited these men to be house guests at her home in Roswell, New Mexico, and while there Pereira received a telegram signed Curtis that his divorce would be granted effective April 28; that distribution of the property would be made May 25, and his net share would be $48,895.

A few days later Brading proposed that the victim let Pereira have $5,000 for oil leases on which he could double his money and that Pereira would pay her back. After the victim had given her check for that sum Brading left Roswell. Several days later she and Pereira returned to El Paso where Brading joined them. There were more parties in Juarez and they returned to Roswell for a birthday party for Pereira on May 3.

With the proceeds of a $1,000 check which the victim had cashed and given to Pereira, she and Pereira took a trip to Wichita Falls. Brading joined them there and the three drove to Dallas where the victim shopped at Neiman-Marcus and other stores. They left Brading at Dallas and went to Hot Springs for several days and then on to Kansas City. At the hotels in each place they observed the proprieties of registering in their own names for separate rooms. They were married at Kansas City on May 25 with the victim's half sister and Brading attending the wedding.

The victim then gave Pereira $6,956.55 to buy a $4,750 Cadillac automobile in which the four returned to Texas. Pereira kept the change. At Greenville they looked at the Washington Hotel and drove on to Dallas where Pereira discussed with her the purchase of the hotel on which Pereira showed her a supposed option and later a telegram from his supposed broker, E. J. Wilson, 1414 Electric Building, Fort Worth, Texas, granting a seven day extension. The victim told him that she had some securities on which she was not making a large return; that she knew him to be capable and trusted him; and that she could sell the securities. She had her broker in Los Angeles, California, sell some securities and received from him a check for $35,286.78. She and Pereira went to El Paso where she endorsed the check to Pereira, who placed it with the bank for collection, for which purpose it was mailed to the bank on which it was drawn in Los Angeles, California. On their return to Roswell they met Brading. About 5 o'clock on the morning of June 19, Brading and Pereira drove the Cadillac out of Roswell ostensibly to pick up some oil leases. On the same day Pereira collected the proceeds of the $35,286.78 check which had been cleared. The victim did not see either of them again until seven months later when they came into the courtroom.

The clerks of the Denver courts testified that there was no divorce case there to which Pereira was a party. The owner and the operator of the Washington Hotel in Greenville, Texas, denied knowledge of any option to Pereira or any negotiations for the purchase of the hotel. Witnesses from the Western Union testified that the Curtis Telegram and the Wilson telegram were transmitted over their facilities. A handwriting expert expressed the opinion that the Curtis telegram was printed by Pereira. The operator of a telephone answering service at 1414 Electric Building, Fort Worth, Texas, identified Brading as a customer who had registered with her under the name of E. J. Wilson. Bank employees identified the broker's check as having been placed with them by Pereira for collection; that it was mailed to the Los Angeles bank upon which it was drawn for payment; that it was paid and a cashier's check was issued to Pereira and he cashed that check.

Count One is attacked as duplicitous, as charging two separate and distinct schemes and artifices to defraud; one to get the $35,286.78 for the hotel and the other, the $5,000 for the oil leases. We think it clear that the charge was of only one scheme and that to defraud the victim of money. It is not material that different means were alleged to effectuate the same scheme nor that false representations were alleged concerning each defendant. Mansfield v. United States, 5 Cir., 155 F.2d 952; Kuiken v. United States, 5 Cir., 196 F. 2d 223, approving district court's opinion 101 F.Supp. 929.

It is insisted that a plurality of offenses was charged that since the Government was not compelled to elect upon which it relied, double punishment was assessed against each appellant for a single criminal act. A conviction under Count One of the indictment required proof that the defendants devised the scheme to defraud, and that in executing the scheme they caused the mails to be used as alleged. A conviction under Count Ten required proof that ...

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