Shale v. United States, 24264.
| Decision Date | 02 April 1968 |
| Docket Number | No. 24264.,24264. |
| Parties | John P. SHALE, d/b/a J & C Company, Inc., d/b/a Southern Home Properties, Inc., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas A. Larkin, Larkin, Decker & Elliott, Jacksonville, Fla., for appellant.
William J. Hamilton, Jr., Sp. Asst. to U. S. Atty., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., Middle Dist. of Florida, for appellee.
Before BELL, GOLDBERG and DYER, Circuit Judges.
Appellant was tried and convicted by a jury under nine counts of violating the mail fraud statute, 18 U.S.C.A. § 1341.1 Each count involves the purchase, induced by fraudulent representations, of certain mortgaged homes, using the United States mail to convey the necessary papers and forms from appellant to prospective sellers.
Generally, the sellers were persons being transferred out of the Jacksonville, Florida area for military or business reasons. They placed advertisements in the local papers offering to sell their homes for little or no equity. Most of the advertisements included a statement to the effect that the purchaser must assume the mortgage payments. The seller was contacted by appellant, either by telephone or in person, and was asked about the details of the mortgage-amount, interest rate, monthly payments, etc. Appellant variously represented that he was "interested in buying it; and that he would do this on the basis of taking over my mortgage;" that he would pay any past due mortgage payments; that "he would buy it and assume the payments on it;" that his wife and children were with him but he had to return to Miami because his furniture was there; that if his wife liked the house he would move in; that "he wanted a house that he could assume payments on * * * was being transferred to the Jacksonville area;" and that "his wife had just fallen in love with the house and had to have it."
After appellant persuaded the home owner to sell to him, he mailed a warranty deed, a deposit receipt, a set of instructions and other papers to the seller. These papers stated that the purchase price was "one dollar plus the unpaid balance on the present first mortgage." However, it was also stated that the house was taken "subject to" the mortgage. The seller thereupon signed the deed and mailed it in an envelope provided by appellant to the appropriate office to be recorded. Several months later the sellers began to receive letters from their mortgage companies threatening foreclosure because the mortgage payments had not been made. Those who contacted appellant about this were assured that the payments would be made; that he had simply forgotten; and that there was nothing to worry about. However, appellant never moved into any of the houses but rented them to others, and never made any mortgage payments. Each of the houses eventually went into foreclosure.
Appellant urges us to reverse his conviction on three principal grounds, i. e., the erroneous rulings of the trial judge that certain evidence proffered by appellant was inadmissible; that the government's evidence was so insubstantial that appellant's motion for acquittal should have been granted; and that the parol evidence rule was violated by permitting the recipients of the mailed material to testify as to the effect of the solicitation. Finding that no error was committed we affirm.
Appellant's contention that the court prevented him from presenting a defense of good faith by sustaining objections made by the government is untenable. These objections were interposed when the appellant insisted on rambling unresponsive answers to questions propounded to him or when he attempted to inject irrelevant and inflammatory statements concerning the Veterans Administration and Federal Housing Administration policies. An essential element of the offense for which appellant was convicted was the false and fraudulent representation made through the use of the mail to defraud the sellers. Evidence concerning the policies of governmental agencies, the failure of state courts to award deficiency decrees in foreclosure suits, or the depressed state of the real estate market were wholly irrelevant matters. There was no abuse of the wide discretion given the trial judge to determine what evidence is material and relevant. Holt v. United States, 5 Cir. 1965, 342 F.2d 163.
Appellant next urges that even when viewed in the light most favorable to the government the evidence to support the conviction was so insubstantial that the trial court erred in...
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