Spindler v. United States, 19114.

• Decision Date: 13 October 1964
• Docket Number: No. 19114.,19114.
• Parties: Julius Frederick SPINDLER, Frank J. Richards, etc., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 678 (1964)

Julius Frederick SPINDLER, Frank J. Richards, etc., Appellants, v. UNITED STATES of America, Appellee.

No. 19114.

United States Court of Appeals Ninth Circuit.

September 11, 1964.

Rehearing Denied October 13, 1964.

Raymond Sutton, Babcock & Sutton, Las Vegas, Nev., Clete McCoy, Los Angeles, Cal., for appellants.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.

HAMLIN, Circuit Judge.

Julius F. Spindler and Frank J. Richards, appellants herein, and one Charles Rhodes (who did not appeal) were each convicted of fifteen counts of the violation of 18 U.S.C. § 1343 (1958) (fraud by interstate wire) by a jury in the United States District Court for the Southern District of California. Jurisdiction is conferred on this court by 28 U.S.C. § 1291 (1958).

The facts as shown by the record as to the various counts of the indictment are complicated. It was the theory of the prosecution that the guilt of the defendants below was established to the required degree by circumstantial evidence. There was evidence of many interstate telephone calls, as a result of which several finance companies or lending organizations who had made loans on automobiles were defrauded of various sums of money. The evidence disclosed that the pattern of operation was approximately the same as to the several counts. We shall set out an illustration of the general method used.

On August 31, 1962, one Dressel, assistant collection manager of the Spokane, Washington, office of Pacific Finance, received a telephone call from a person stating that his name was Jack Curtis, representing National Auto Recovery Service, 505 East Dunham, Hobbs, New Mexico. The alleged Curtis stated that National Auto Recovery had located a 1961 Dodge automobile belonging to Pacific Finance at Hobbs, New Mexico, and asked if Dressel wished them to pick up the vehicle and "if the fellow was behind or delinquent in his payments * * *" Pacific Finance was the legal owner of the Dodge. The registered owner was behind in his payments, so Dressel told the caller to pick up the car. On September 14, 1962, Dressel received another telephone call from the alleged Jack Curtis in which the alleged Curtis stated that there was a bid of $1350 for the vehicle. The next day Dressel sent a letter addressed to the National Auto Recovery Service, 505 East Dunham, Hobbs, New Mexico, authorizing the sale of the vehicle. When no money was forthcoming by October 2, 1962, Dressel sent a telegram to the Hobbs, New Mexico, address "asking where the money for the sale of the car was, that we hadn't received it, and I received a call stating that somebody by the name of Delaney, I believe, had been in an automobile accident, and this was the reason we hadn't received our money, and that we would receive it in the near future, and that he had been in an accident down in Texas." The record shows that this Dodge automobile was sold on September 19, 1962, to a purchaser named Amsterdam in Hollywood, the sales price being $1,000. None of the proceeds of this sale was ever sent to Pacific Finance Company. This general pattern with some variations was shown to have occurred concerning many other automobiles.

The record showed that the Hobbs address was the address of Woodruff's Answering Service and that the telephone number of this answering service was the number given by the alleged Curtis in various telephone conversations. The answering service was in charge of Mrs. Woodruff who testified that she had had a telephone conversation with a "Jack Curtis" in which he said he wanted to use an answering service and also said he was the National Auto Recovery Service. She never personally saw Jack Curtis. However, "Curtis" would telephone the answering service periodically and ask if he had a letter or telegram. If there was a telegram, it would be read to him and he would give instructions as to the handling of the telegram and where to send the reply telegram. The answering service would send the reply telegram from Hobbs with "National Auto Recovery" and the Hobbs address as the only return address. When mail came to the answering service for National Auto Recovery it would be forwarded by the answering service to a post office box number in San Diego.

The record also showed that the various telephone calls to Dressel and others in similar positions did not originate in Hobbs, New Mexico, but that they actually came from two San Diego telephones referred to in the record as the "Park phone" and the "Linda Vista phone." During a one-month period there were twenty-seven telephone calls from the "Park phone" to Woodruff's answering service in Hobbs, and for the same period the closing telephone bill for that phone was over $1800 which was never paid. The "Park phone" had been obtained by the defendant Rhodes using the name of Kenny Idom. The Linda Vista phone was applied for by one "Edward L. Bates" having the address of "Hitching Post, El Cajon Blvd." Appellant Spindler was living at that motel under the name of Ed Bates and appellant Richards was seen there with Spindler during that time. Richards was also registered at the Hitching Post Motel and when he left defendant Rhodes moved in with Spindler. Spindler then had possession of one of the automobiles involved. Appellant Richards was involved in the sale of two of the automobiles and Spindler was involved in the sale of three of the automobiles. There was testimony that Richards had stated that "he was working for or was a partner of `Jack Curtis' with the National Recovery Service." One Whaley testified that he had telephone calls from a person claiming to be Jack Curtis and that on various occasions Curtis gave him authorizations and instructions to repossess eight automobiles. Whaley testified that he did repossess the vehicles for the National Auto Recovery Service and turned them over to "Tommie" without requiring receipts. He had no telephone number or address for "Tommie." There was testimony that Spindler, Richards, and Rhodes had been seen frequently at the Park phone address and that they had used the telephone at that address. A witness testified that she told Rhodes "Your phone sure is busy all the time" and that Rhodes told her she wasn't supposed to know anything.

Spindler and Richards at various times had been in the auto repossession business and had contacts with many auto dealers. They contended they had dealings with "Curtis" concerning repossessions of automobiles and had assisted "Curtis" in the sale of some of the automobiles in question, and on occasion one or the other of them had received money from Curtis for services. The testimony of each of them was on occasion inconsistent with and contradictory to that of the other and of other witnesses in the case. Richards had been twice previously convicted of a felony. Richards had...