Ross v. United States

• Decision Date: 22 March 1967
• Docket Number: No. 18453.,18453.
• Citation: 374 F.2d 97
• Parties: Fannie Mae ROSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

374 F.2d 97 (1967)

Fannie Mae ROSS, Appellant, v. UNITED STATES of America, Appellee.

No. 18453.

United States Court of Appeals Eighth Circuit.

March 22, 1967.

David Q. Reed, Kansas City, Mo., for appellant.

F. Russell Millin, U. S. Atty., Kansas City, Mo., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., submitted brief for appellee.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

A 72 count indictment was returned in February 1965 against Fannie Mae Ross, age 56 and a Negro, charging her with violations of 18 U.S.C. § 1702¹ and § 495² in that, with the design, intent or purpose statutorily specified, she took, forged and uttered 24 United States Treasury checks issued in the name of Emma M. Williams monthly on the 3rd day of April, 1962, through the 3rd day of March 1964, inclusive.

Counsel was appointed for Mrs. Ross. She pleaded not guilty. After a two day trial a jury convicted the defendant on all 72 counts. Judge Collinson, exercising the authority the court possesses under 18 U.S.C. § 3651 and Rule 32(e), Fed.R. Crim.P., suspended the imposition of sentence and placed the defendant on probation for two years. She appeals in forma pauperis.

There is no dispute as to the basic facts. Emma M. Williams was the defendant's mother. She was over 80 years of age and lived with the defendant. She was entitled to receive, and did receive, monthly social security checks. The defendant testified that, because of her mother's bad memory, she had "an arrangement" with her to open her mail, to endorse her mother's name on the checks and to cash them, and that this was done with her "full knowledge, approval and consent".

But Mrs. Williams died on March 1, 1962. No notice of her death was given to the social security authorities or to the government disbursing office. The defendant, however, had a son in military service who was then stationed in Korea. The Department of the Army was notified of the grandmother's death and the soldier was sent home on emergency leave to attend her funeral.

The social security checks payable to Mrs. Williams continued to come in after her death. Eventually the defendant moved and her landlady told the postman not to deliver any more mail. This led to an investigation by the Secret Service and to the discovery that Emma M. Williams had died in 1962.

Mrs. Ross took the stand and conceded that the checks received after her mother's death were issued in her mother's name and that she took, endorsed and cashed them. When asked why she did this, she testified:

"Because I assumed that they were mine. I knew I had some kind of benefits coming and I just thought that they were rightfully due me and I assumed that the government knew what they were doing. They were sending them. And for another reason, I hadn\'t notified them of any check, but I did have to have my son come here from Korea to the funeral."

The checks so received and cashed by Mrs. Ross in the two years following her mother's death are the subject of the indictment's 72 counts.

The defendant's landlady and the landlady's daughter both testified that Mrs. Ross moved into their place after Mrs. Williams' death; that she received her mail in a regular mail box there; and that Mrs. Ross placed her own name and that of Mrs. Williams on that box.

The defense brief states:

"Appellant cashed the overwhelming majority of the checks at the same places of business where she cashed her pay checks, where she was well known and usually traded, and where it was well known that she was not Emma Williams. She did not, of course, represent to them that the checks had been endorsed by Emma Williams. Most of the witnesses who accepted the checks testified that there was no inquiry by them as to whether or not Emma Williams was dead, and that Mrs. Ross did not volunteer the fact that she was dead. The rest of the witnesses had no specific recollection of the incident. Sometimes she endorsed Emma Williams\' name in the presence of the person accepting the check, and sometimes not. All of the witnesses stated they would not have accepted the checks had they known that Emma Williams was dead" transcript references omitted.

Most of the checks were promptly cashed at a Milgram Food Store, where the defendant was a regular customer, or at Palace Liquors, where she was known by the management. One was cashed at a pharmacy; the pharmacist there testified that the defendant at the time said her name was Williams. Two other checks were cashed at a Sears Roebuck store; as to one of these the cashier testified that she assumed the presenter showed her social security card and, in answer to a question whether she knew the presenter was the payee Emma M. Williams, that "I would assume her to be and I think she represented herself as such or I would not have cashed the check, because we do not cash them on second endorsements".

During the investigation a secret service agent and an aide called on the defendant at her home. She freely answered questions and on February 2, 1965, signed a written statement.³ This statement was introduced in evidence without objection by the defense. No claim as to its evidentiary impropriety is asserted on this appeal.

There is testimony about the bill for Mrs. Williams' funeral. The funeral director testified that the defendant had made the funeral arrangements; that part of the cost was covered by insurance; that the balance was to be paid at $10 a month; and that no payments beyond the insurance had been received. The landlady testified that "I asked her how she was getting those checks because it might have been wrong and I didn't want to get myself involved in it", and that Mrs. Ross told her that "her mother had it fixed so she would get" the checks and that she had to take the social security checks up to the funeral home to cash them. The landlady's daughter testified that when she asked "How was she getting the checks", the defendant also told her that "her mother had made arrangements for her to get them" and that "when the checks first started coming to my house she said she had to take them to the funeral home, and I took it for granted she was paying on her mother's funeral". On cross-examination the defendant said that she told the landlady and her daughter that she owed the funeral bill but denied that she told them she was going up to the funeral home. She conceded that she signed the statement taken by the agent but said that she was ill and "in bed sick" at the time and did not remember the sentence about her paying the funeral expenses.

There was evidence as to the defendant's good character. There was no evidence that she had been in difficulty with the law before.

We may accept the government's arguments that Missouri law controls any agency issue here, Still v. Union Circulation Co., 101 F.2d 11, 12 (2 Cir. 1939), cert. denied 308 U.S. 565, 60 S.Ct. 78, 84 L.Ed. 474, and that under the law of Missouri Mrs. Williams' death terminated any agency status which the defendant theretofore possessed to open, endorse and cash her mother's social security checks. Long v. Thayer, 150 U.S. 520, 522, 14 S.Ct. 189, 37 L.Ed. 1167 (1893); Holliday v. Clark, 110 S.W.2d 1110, 1111 (Mo.1937); Ridenour v. Duncan, 246 S.W.2d 765, 770 (Mo.1952).

And we may accept the defense argument that specific fraudulent intent is an essential element for convictions under 18 U.S.C. § 1702 and § 495. This is evident from the "with design to obstruct the correspondence" language of § 1702 and from the phrases "for the purpose of obtaining or receiving" and "with intent to defraud" in § 495. Walker v. United States, 342 F.2d 22, 26-27 (5 Cir. 1965), cert. denied 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97; Leonard v. United States, 324 F.2d 911, 913 (9 Cir. 1963); United States v. Sonnenberg, 158 F.2d 911, 915 (3 Cir. 1946); United States v. Grieco, 25 F.R.D. 58, 60 (S.D.N.Y.1960). See Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962).

Beyond this, the defense raises six points:

1. The sufficiency of the evidence on the issue of specific fraudulent intent. The defense argues that Mrs. Ross merely continued, after her mother's death, a course of conduct which theretofore was lawful; that the defendant had heard of a social security death benefit and knew she had benefits coming; that the checks did arrive and were honored; that the government was notified of Mrs. Williams' death and even acted on that information when it sent the defendant's son home from Korea; that most of the checks were cashed in the defendant's neighborhood and at places where she was well known; that there was no attempt to conceal anything; that she freely admitted the cashing of the checks to the investigating officers; and that her prior record was unblemished. All this, says the defense, "Squarely points to an innocent mistake".

This is good argumentative material for the jury. The issue of intent, however, is an issue of fact and we are compelled to hold that on the entire record there is sufficient evidence to support the conviction. The defendant, of course, knew of her mother's death. There is competent evidence here that thereafter the defendant endorsed the checks with her deceased's mother's name and with no representative or agency description; that she did not notify Social Security of the death; that she did not reveal the death to anyone to whom she presented the checks; that at her new abode, to which she moved after her mother's death, she placed Mrs. Williams' name on the mail box; that her right to receive the checks was questioned both by the landlady and by the landlady's daughter; that the defendant replied that she was taking the checks to the funeral home; and that on at least one occasion, and perhaps two, the defendant did represent herself as the payee. In addition, there are obvious discrepancies between the defendant's testimony, and even the statement ...