Slocum v. United States
| Decision Date | 24 December 1963 |
| Docket Number | 17253.,No. 17248,17248 |
| Citation | 325 F.2d 465 |
| Parties | Robert H. SLOCUM, Appellant, v. UNITED STATES of America, Appellee. LeRoy EATON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William J. Costello, St. Louis, Mo., Bryce M. Fisher and James F. Pickens, Cedar Rapids, Iowa, on the brief, for appellant Slocum.
Donald R. Breitbach, Dubuque, Iowa, for appellant Eaton.
Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, James M. McNally, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
Before SANBORN, VOGEL and RIDGE, Circuit Judges.
Robert H. Slocum and LeRoy Eaton were two of seven defendants charged by indictment in 34 counts with violations of 18 U.S.C. § 1341, the mail fraud statute, as a result of their having, during the period January 2, 1958, to about January 22, 1959, participated in the activities and operations of the Main Sewing Service, of Cedar Rapids, Iowa. The defendants named in the indictment were: Eugene Van Dusen, Robert H. Slocum, LeRoy Eaton, Lester Brockmeyer, Pat McNiel, Bobie Brockmeyer and Carl E. Bradley.
The Main Sewing Service was, during its existence, engaged in the business of inducing housewives to enter into contracts for the purchase of new electric sewing machines by representing that no money would be involved in the purchase and that the machines could be paid for by the sewing of children's boxer shorts at 60 pairs a month for 24 months, the material for which would be furnished by the Sewing Service and the shorts purchased and disposed of by it. The execution of the scheme, which was charged to have been a scheme to defraud within the meaning of 18 U.S.C. § 1341, required advertising, the obtaining of names of prospects, and the sending of salesmen to call upon the prospects at their homes to induce them, by misrepresentations and promises, to sign purchase contracts (conditional sales contracts). The contracts were promptly discounted for cash by the Sewing Service with local finance companies. The outlets procured by the Service for the shorts produced by the purchasers of the machines proved inadequate. The scheme failed. Concededly, the mails were used in the execution of the scheme.
Initially all defendants entered pleas of not guilty. During the four-weeks trial which ensued, the defendant Bradley, with leave of the court, changed his plea of "not guilty" to "guilty". The defendant Van Dusen was acquitted by the jury, which convicted the defendant Lester Brockmeyer and disagreed as to two others. Slocum was found guilty on twenty counts of the indictment, and Eaton on five. Slocum, under Count 5, of which he was adjudged guilty, was sentenced to three years' imprisonment and a fine of $1,000 plus costs. He was given a sentence of three years' imprisonment under each of the other counts of which he was convicted, the sentences to run concurrently with that imposed under Count 5. This amounted to a sentence, upon all counts, of three years' imprisonment and a $1,000 fine plus costs. The sentences imposed on Eaton upon the five counts of which he was found guilty aggregated one year's imprisonment, only two months of which was to be served and the balance of which was suspended under three years' probation.
If Slocum and Eaton were properly convicted under any single count of the indictment, the sentences appealed from must be affirmed, since the sentence imposed on each of them upon all counts on which he was convicted is less than the maximum sentence which might have been imposed under any one count. Wood v. United States, 8 Cir., 279 F.2d 359, 360; Myres v. United States, 8 Cir., 174 F.2d 329, 332; Bowen v. United States, 8 Cir., 153 F.2d 747, 748-749 and cases cited; Gantz v. United States, 8 Cir., 127 F.2d 498, 501.
It is argued on behalf of both appellants that it was an abuse of discretion and reversible error for the trial court to deny their respective motions for a severance and for separate trials on the ground that several disconnected schemes were charged and proved. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, is cited in support. We do not agree. The defendants were properly joined, under Rule 8 (b) of the Federal Rules of Criminal Procedure. It has long been established that a motion for a severance is addressed to the sound discretion of the trial court. See Rule 14, Federal Rules of Criminal Procedure; Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101; Cochran v. United States, 8 Cir., 41 F.2d 193, 198; Goodman v. United States, 8 Cir., 273 F.2d 853, 860; Guon v. United States, 8 Cir., 285 F.2d 140, 142; Butler v. United States, 8 Cir., 317 F.2d 249, 264, certiorari denied 375 U.S. 838, 84 S.Ct. 77, 11 L.Ed.2d 65; Kilgore v. United States, 8 Cir., 323 F.2d 369, 371. The scheme charged was sufficiently unitary to justify the joint trial of the defendants. Cf. Reistroffer v. United States, 8 Cir., 258 F.2d 379, 393.
It is argued on behalf of Slocum that it was reversible error for the trial court to permit the defendant Carl E. Bradley, during the trial, to withdraw his plea of not guilty and to enter a plea of guilty to one count of the indictment. We do not agree. Bradley was entitled to ask for leave to change his plea at any time if he saw fit to do so, and the trial court...
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