U.S. v. Dondich, No. 74-1947

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT and GOODWIN; ALFRED T. GOODWIN
Citation506 F.2d 1009
Docket NumberNo. 74-1947
Decision Date22 November 1974
PartiesUNITED STATES of America, Appellee, v. James H. DONDICH, Appellant.

Page 1009

506 F.2d 1009
UNITED STATES of America, Appellee,
v.
James H. DONDICH, Appellant.
No. 74-1947.
United States Court of Appeals, Ninth Circuit.
Nov. 22, 1974.

Morton Berger, White Plains, N.Y., for appellant.

William D. Keller, U.S. Atty., Los Angeles, Cal., for appellee.

Before WRIGHT and GOODWIN, Circuit Judges, and SCHWARTZ, 1 district judge.

OPINION

ALFRED T. GOODWIN, Circuit Judge:

James Dondich, who participated in a scheme to separate banks from their money by obtaining loans on worthless collateral, appeals his conviction of violation of 18 U.S.C. 1341 (mail fraud) upon the ground that the government neglected to prove that he had used the mails within the meaning of 1341. We agree, and reverse.

The only government evidence of mailing is found in the answer of a government witness to the leading question, 'Did you then, pursuant to that agreement, send a letter verifying that note to the bank?' The witness: 'Yes, I did.' The collateral in the case was 'hand carried'.

Elsewhere in the transcript we find testimony that the banker in a distant city received the so-called verification, and another reference to its having been 'sent'. The issue on appeal, therefore, is whether the trier of fact was entitled to infer from the above testimony that the sending of the document was through the United States Postal Service.

The knowing use of the mails for the purpose of the alleged crime is an essential element of the offense. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 89 L.Ed. 88 (1944); United States v. Goldberg, 455 F.2d 479 (9th Cir.), cert.

Page 1010

denied, 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 665 (1972). And the government must prove beyond a reasonable doubt that the defendant used, or caused to be used, the postal service. Bolen v. United States, 303 F.2d 870 (9th Cir. 1962).

The government cites the Bolen case, in which the banker apparently testified about the ordinary mailing practices in his bank. We said there that such testimony could supply circumstantial evidence of the mailing of the documents in question. 303 F.2d at 875-876. However, the record must contain evidence of custom and usage before an inference can be drawn that the customary course of events was probably followed in the specific case. That evidence is lacking in this case.

The government also cites United States v. Fassoulis, 445 F.2d 13 (2d Cir.), cert...

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3 practice notes
  • U.S. v. Mastelotto, Nos. 81-1678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 1983
    ...scheme and the mails are in fact used. See also United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979); United States v. Dondich, 506 F.2d 1009, 1010 (9th 13 Salinger v. United States, 272 U.S. 542, 548-49, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926), in which the Court upheld the giving of......
  • U.S. v. Hannigan, No. 93-1596
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 23, 1994
    ...the check does not support a finding of the element of mailing to convict under 18 U.S.C. Sec. 1341. In United States v. Dondich, 506 F.2d 1009 (9th Cir.1974), a Sec. 1341 case with a similar factual setting to the matter presently before the court, the government argued that since most bus......
  • U.S. v. Beecroft, Nos. 78-2190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 19, 1979
    ...the meaning of Section 1341. Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1953); United States v. Dondich, 506 F.2d 1009 (9th Cir. 1974). In the instant case, appellants knowingly used the mails to promote the enterprise. The issue is whether the government sustain......
3 cases
  • U.S. v. Mastelotto, Nos. 81-1678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 19, 1983
    ...scheme and the mails are in fact used. See also United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979); United States v. Dondich, 506 F.2d 1009, 1010 (9th 13 Salinger v. United States, 272 U.S. 542, 548-49, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926), in which the Court upheld the giving of......
  • U.S. v. Hannigan, No. 93-1596
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 23, 1994
    ...the check does not support a finding of the element of mailing to convict under 18 U.S.C. Sec. 1341. In United States v. Dondich, 506 F.2d 1009 (9th Cir.1974), a Sec. 1341 case with a similar factual setting to the matter presently before the court, the government argued that since most bus......
  • U.S. v. Beecroft, Nos. 78-2190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 19, 1979
    ...the meaning of Section 1341. Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1953); United States v. Dondich, 506 F.2d 1009 (9th Cir. 1974). In the instant case, appellants knowingly used the mails to promote the enterprise. The issue is whether the government sustain......

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