Raftis v. United States

• Decision Date: 24 August 1966
• Docket Number: 18084.,18044,No. 18040,18040
• Parties: Doyle E. RAFTIS, Appellant, v. UNITED STATES of America, Appellee. Vernon F. HAWKINS, Appellant, v. UNITED STATES of America, Appellee. Curt MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

364 F.2d 948 (1966)

Doyle E. RAFTIS, Appellant, v. UNITED STATES of America, Appellee.

Vernon F. HAWKINS, Appellant, v. UNITED STATES of America, Appellee.

Curt MARTIN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18040, 18044, 18084.

United States Court of Appeals Eighth Circuit.

August 24, 1966.

Henry G. Morris, St. Louis, Mo., for appellants in 18040 and 18044.

Robert H. Kubie, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before JOHNSEN and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

BLACKMUN, Circuit Judge.

Doyle E. Raftis, Vernon F. Hawkins and Curt Martin have been convicted by a jury of violations of the mail fraud statute, 18 U.S.C. § 1341. They appeal.

The alleged scheme centered in Pac Aid of Missouri, an unincorporated Saint Louis enterprise which was engaged in the sale of coin operated aspirin vending machines and of tins of Bayer's aspirin dispensed from those machines. Initial customer contacts were made through newspaper ads. Personal solicitation and mail communication followed. A machine with an initial supply of about 20 tins of aspirin sold for $80. Most buyers took on from 10 to 20 machines. The machine dispensed the aspirin at 25¢ a tin. Apart from the initial supply, the owner purchased aspirin from Pac Aid at 11¢. He paid 5¢ to the proprietor at the machine's location, usually a restaurant, motel, bowling alley, or gas station. The remaining 9¢, less the cost of servicing, was profit.

The indictment contained 24 counts. It named as defendants the three appellants and four others. It also listed the names of 148 persons who allegedly had been defrauded during the period from about November 11, 1960, to about July 27, 1962. Generally, it charged Raftis as the operator of the business, Martin as office manager and salesman, and the others as salesmen. It alleged, as parts of the scheme and artifice to defraud, purported sponsorship of the Pac Aid operation by Sterling Drug, Inc., manufacturer of Bayer's aspirin; ascertainment of a prospect's available cash; obtaining of cash or check from the prospect prior to delivery of the merchandise; immediate certification of any check so received; the defendants' making themselves unavailable to the buyer after his purchase; and the making of false representations as to Pac Aid's having exclusive distribution rights from Sterling to sell Bayer's aspirin through vending machines and being subject to contract cancellation by Sterling, as to Pac Aid's having surveyed, through trained location engineers, the buyer's territory and selected and arranged for the best locations for the machines, as to assistance in the installation of machines, as to profit to Pac Aid in the sale of aspirin rather than of machines, as to weekly profits to be expected from a unit, as to Pac Aid's selling the route if the buyer becomes dissatisfied, as to the trouble-free character of the machine and free repairs and replacements, and as to periodic supervision and visitation by Pac Aid. The 24 counts then relate to specific mail deposits or receipts for the purpose of effecting the scheme. There was no conspiracy count.

At the close of its case, and with leave of court, the prosecution dismissed five of the counts.

The jury convicted Raftis and Martin on all 19 remaining counts and Hawkins on the 18 counts which were submitted to the jury as to him. It acquitted the other four defendants. The court sentenced Raftis to three years on each of nine counts, to be served concurrently, and two years on each of the other ten counts, to be served concurrently but consecutively with the three year sentences, thus making a total of five years; the two year sentences, however, were all made subject to the provisions of 18 U.S.C. § 4208(a). The sentences imposed on Hawkins were on a similar three and two year pattern but he was placed on probation to begin at the end of the three year sentences. Martin received sentences similar to those imposed on Hawkins but on a two and two year basis.

The respective appellants raise five points; they attack (1) the sufficiency of the evidence; (2) the denial of defense motions to quash a subpoena, to suppress evidence, and to quash the indictment; (3) the verdict forms submitted to the jury; (4) the exclusion of Raftis' Exhibit S; and (5) the refusal of a position instruction proffered by Hawkins.

Initial reference should be made to Martin's appellate posture. This defendant was represented throughout the trial by separate retained counsel. His attorneys filed a notice of appeal on his behalf. The transcript was thereafter prepared and filed. Henry G. Morris, as appellate counsel for Hawkins and Raftis, filed a separate brief for each of them. Mr. Morris had not been trial counsel for either Hawkins or Raftis but had represented one of the defendants who was acquitted. No brief was timely filed on Martin's behalf. No explanation as to this was forthcoming and he made no application for additional time. The government moved to dismiss Martin's appeal for failure to prosecute. Martin then presented himself personally and filed with us a writing which recites that he did not have a lawyer and could not pay for one but

"I would like to request of the Court of Appeals that I be allowed to participate in briefs filed by Raftis #18040 and also Hawkins #18044. I have read both briefs and understand them and all the points made in them. If the court will grant my request I will abide by the court\'s decision in the matter."

Mr. Morris, being aware of Martin's request, consented to have his two briefs serve for Martin, too. We, accordingly, deny the government's motion to dismiss.

Wholly apart from Martin's gesture, the voluntariness of which is not questionable, we are aware of the desirability of having appellate counsel for a defendant on his direct appeal from a conviction of a federal crime. We have read the record with Martin's status in mind. We are fully satisfied that Mr. Morris' briefs, particularly the one for Raftis, have application and pertinency for Martin; that they embrace and appropriately present all arguments on his behalf; that Martin's and Raftis' postures here are essentially identical; and that all requirements of appropriate federal appellate representation for Martin have been adequately satisfied. We are grateful to Mr. Morris for his cooperation in this respect.

1. The sufficiency of the evidence. On a number of occasions this court has observed that it is unnecessary and of little profit to relate in full detail what the government establishes in these voluminous-record mail fraud cases. See Friedman v. United States, 347 F.2d 697, 706 (8 Cir. 1965), cert. denied 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354; Koolish v. United States, 340 F.2d 513, 519 (8 Cir. 1965), cert. denied 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724; Slocum v. United States, 325 F.2d 465, 468 (8 Cir. 1963). We again are content with a general outline of the proof.

We start, of course, with the customary observation that we are to view the evidence in the light most favorable toward sustaining the verdict and that all reasonable inferences are to be resolved in favor of the government. Friedman v. United States, supra, p. 706 of 347 F.2d; Fabian v. United States, 358 F.2d 187, 195 (8 Cir. 1966).

The record indicates that Raftis was the primary force behind the enterprise. He was the one who, in November 1960 with counsel's advice, registered under the Missouri fictitious names statutes, V.A.M.S. §§ 417.200-417.230, to engage in business under the name of Pac Aid of Missouri.

Raftis, however, did not take the stand. The two other appellant-defendants did and some of that government's case is buttressed by what they said as witnesses.

Hawkins testified that he was associated with Pac Aid from eighteen months to two years; that he sold machines and aspirin; that he called on prospects; that he used brochures which related to Bayer's aspirin and the demand for the product; that he introduced himself as Marvin Millar; that a prospect would be asked how many aspirins a day could be sold out of a vending machine; that he would start with the prospect's figure but would lower it; that he had occasion to go out with Raftis on calls; that an application blank was taken from the customer which required information concerning financial worth and business experience; that the purchase order was subject to the company's acceptance; that he did not know whether the company ever checked this information; that he told prospects "there would be a certain amount of training in the business of some nature"; that he told them that the machines would be placed by Pac Aid's location men; that he himself did not know how to load the machines and had never loaded any; that there was never a survey of a community prior to the sale of machines; that he showed one of the count witnesses some checks from Sterling; that when he received a purchase order he also took a deposit; that when a check was taken it contained authority for certification or the issuance of a cashier's check in its place; that it was his duty to go directly to the bank and have the check certified; that Pac Aid did not have a resale department even though its operation's manual referred to one; that he told customers the machines were guaranteed; and that he was the first salesman Pac Aid had and trained one or two others.

Martin testified that his name was Robert Burns; that he used the name Martin about 14 years in business and always did so in Missouri; that in 1960 he was a truck driver; that he went to work for Pac Aid in February or March 1961; that he had known Hawkins for 10 or 12 years; that at first he called on some customers; that he then received an inside job with the company, handling mailing, shipments and supplies; that Raftis instructed him in his job; that the cost of the...