U.S. v. Cyphers

• Citation: 556 F.2d 630
• Decision Date: 13 June 1977
• Docket Number: Nos. 328,329,D,s. 328
• Parties: UNITED STATES of America, Appellee, v. James Seeley CYPHERS and James W. Ferro, Appellants. ockets 76-1131, 76-1160.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 630

556 F.2d 630

UNITED STATES of America, Appellee, v. James Seeley CYPHERS and James W. Ferro, Appellants.

Nos. 328, 329, Dockets 76-1131, 76-1160.

United States Court of Appeals Second Circuit.

Argued Oct. 18, 1976.

Decided Feb. 8, 1977.

Rehearing En Banc Denied April 18 and June 29, 1977.

Certiorari Denied June 13, 1977.

See 97 S.Ct. 2937.

Jonathan Silbermann, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for Ferro.

Thomas W. Evans, New York City (P. Jay Wilker and Lance Gotthoffer, New York City, of counsel), for Cyphers.

Douglas J. Kramer, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., for the Eastern District of New York, Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before SMITH, OAKES and TIMBERS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal by James Cyphers and James Ferro from judgments of conviction on three counts, based on two indictments, of violating 18 U.S.C. § 1341 (mail fraud) after a jury trial in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge. Both Cyphers and Ferro claim that the evidence was not sufficient to establish any violation of § 1341 and that they were denied their right to a speedy trial. Cyphers also claims that Judge Platt erred in admitting certain evidence and in denying his request that he be allowed to make the argument to the jury. Ferro also claims that his trial violates the Interstate Agreement on Detainers. We reverse on two counts as to Ferro's claim involving the Interstate Agreement on Detainers. We find some possible merit in the speedy trial claim on all counts and therefore remand for further consideration. We find no merit in the other claims.

I.

Cyphers and Ferro were found guilty by a jury on three counts of using the mail to defraud airline companies by means of altered credit cards and identifications, in violation of 18 U.S.C. § 1341. ¹ The essence of the government's case was that Cyphers and Ferro had a scheme for fraudulently obtaining airline tickets by using lost or altered credit cards and that they mailed airline tickets so obtained to Dr. I. Simon on or about February 3, 1973 and on or about February 26, 1973 and to Dr. Stuart Sylvan on or about February 19, 1973.

Relying on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), Cyphers and Ferro claim that the evidence was insufficient to establish any violation of § 1341. In Maze the only mailings were of credit invoices by motel employees, and the Supreme Court held that Maze's use of one Meredith's credit card to obtain goods and services at motels did not constitute a violation of § 1341, since Maze "probably would have preferred to have the (credit) invoices misplaced by the various motel personnel and never mailed at all." Id., at 402, 94 S.Ct. at 649. Cyphers and Ferro claim there was no violation of § 1341 because in each case they had purchased the ticket and received payment from either Dr. Simon or Dr. Sylvan prior to mailing the ticket, and so "the mailing here bore no relation to appellants' acquisition of the fruits of their fraud" (Brief of Appellant Ferro at 20); "any fraudulent scheme would have been no less successfully consummated had the airline tickets never been delivered" (Brief for Appellant Cyphers at 25). Cyphers and Ferro also claim that there was no evidence showing that either the tickets received by Dr. Simon on February 3 or the tickets received by Dr. Sylvan were fraudulently purchased by appellants.

In United States v. Finkelstein, 526 F.2d 517, 526-27 (2d Cir. 1975), cert. denied, Scardino v. United States, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976), we set out the elements involved in a violation of § 1341: "sufficient evidence in the record to permit a jury to infer beyond a reasonable doubt that a scheme or artifice to defraud existed, that the participants in the scheme caused the mails to be used in furtherance of that scheme, and that the defendant was a participant in the fraudulent scheme. . . . (I)rrelevant is the fact that he (the defendant) did not personally mail the count letter or directly involve himself in the transaction . . . . It is enough that he participated in the scheme and that it was foreseeable that the scheme would involve use of the mails."

Construing the evidence in the light most favorable to the government, United States v. Barash, 412 F.2d 26, 31 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969), we hold that the evidence was sufficient to show that both Cyphers and Ferro committed three violations of § 1341.

Dr. Simon, a dentist, testified that he frequently traveled to Florida from Long Island and was told by George Nagin, a friend, that airline tickets for Florida could be obtained at a discount. Dr. Simon called Nagin and had him order round-trip tickets for a February 8, 1973 flight from John F. Kennedy Airport ("JFK") to West Palm Beach. After he paid Nagin, Dr. Simon received the tickets in the mail on or about February 3, 1973. This transaction was the basis of Count I of indictment 74 CR 322. Again in February, 1973 Dr. Simon needed tickets to Florida; since Nagin was in Florida, Dr. Simon went to Nagin's Manhattan office to pick up the tickets ordered through Nagin's business associate. At Nagin's office Dr. Simon met a man who gave him the tickets he had ordered; at the same time Dr. Simon ordered tickets for his partner, Dr. Sylvan. Dr. Sylvan testified that he received these tickets in the mail on or about February 14, 1973; this transaction was the basis of Count II of indictment 74 CR 322. At the end of February, 1973 Dr. Simon again purchased airline tickets through Nagin for a flight between JFK and Florida, and he received these tickets through the mail. This transaction was the basis of Count I of indictment 75 CR 259.

George Nagin testified that he had been told by Cyphers about the availability of cheap airline tickets and that he had purchased tickets from Cyphers, at a discount, for his own use. Nagin also testified that either Cyphers or Ferro, Cyphers' nephew, picked up the money when Dr. Simon had ordered tickets. Cyphers had given Nagin a telephone number, 832-1211, in order that he could be reached for orders, and Nagin had given this number to Dr. Simon. This telephone number was proven to have been installed, together with an answering device, in Cyphers' apartment.

On March 19, 1973 an arrest warrant for Cyphers and Ferro was issued pursuant to a complaint of a Postal Inspector, and the warrant was executed against Cyphers and Ferro at Cyphers' apartment on March 20, 1973. Consent to search the apartment was obtained from Cyphers, and various drivers' licenses, credit cards, a credit card validator, and various credit card company bulletins reporting stolen credit cards were found in Cyphers' briefcase and in his apartment.

One of the seized credit cards bore the name of Richard Redstrom. Richard Rooney, manager of commercial credit for United Airlines, testified that a credit card bearing the account number found on the Redstrom credit card was issued by United Airlines to Richard Hedstrom and that the credit card had been altered to read Richard Redstrom. Richard Hedstrom testified he lost his credit card on February 23, 1973. Rooney testified that numerous airline tickets had been purchased on February 26, 1973 at Boston on the Hedstrom/Redstrom credit card and that the airline had received no payment for these tickets. The signatures on the Hedstrom/Redstrom charge slips were identified as Ferro's. The airline tickets purchased on February 26 included the one received by Dr. Simon at the end of February and others for flights leaving from Newark, Chicago, Cleveland, and Los Angeles.

It was stipulated that a Fred Preston Staff credit card had been reported lost and that three airline ticket charge slips were incurred with the use of the credit card after its reported loss. There was evidence from which the jury could believe that Cyphers had signed these airline tickets charge slips. One of these charge slips involved an airline ticket purchased in Newark for a flight scheduled to depart from Los Angeles.

While there is no direct evidence that either Cyphers or Ferro purchased either the tickets received by Dr. Simon on February 3 or the tickets received by Dr. Sylvan, the jury could find from the evidence summarized above and other evidence (including two other lost credit cards that were found in Cyphers' briefcase on March 20 and had been altered and used by Ferro to purchase airline tickets that were not paid for) ² that Cyphers and Ferro had a scheme that included the fraudulent purchase of Dr. Simon's February 3 tickets and Dr. Sylvan's tickets.

While Cyphers and Ferro might have delivered the tickets to Dr. Simon and Dr. Sylvan in person, they were mailed and the jury could find that these mailings were part of the general scheme to mail airline tickets to people in New York, Chicago, Cleveland, and Los Angeles. The jury could also find that the fraudulent scheme depended on repeat business from satisfied customers of Cyphers and Ferro and that the delivery of the tickets was an essential part of the scheme. Under the standards set out in Finkelstein the evidence was sufficient to support the conviction of both Cyphers and Ferro on all three counts.

II.

Cyphers was represented by an attorney during the trial. Relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), Cyphers claims he has a sixth amendment right to make his own summation.

This reliance is misplaced. Herring does say that "a defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument." 422...