U.S. v. Outpost Development Co., Nos. 75-3160

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore TRASK, GOODWIN and KENNEDY; GOODWIN
Citation552 F.2d 868
PartiesUNITED STATES of America, Appellee, v. OUTPOST DEVELOPMENT COMPANY, Appellant. UNITED STATES of America, Appellee, v. Conrad L. GERMAIN, Appellant. UNITED STATES of America, Appellee, v. Robert W. KANE, Appellant.
Decision Date24 March 1977
Docket Number75-3161,75-3060,Nos. 75-3160

Page 868

552 F.2d 868
UNITED STATES of America, Appellee,
v.
OUTPOST DEVELOPMENT COMPANY, Appellant.
UNITED STATES of America, Appellee,
v.
Conrad L. GERMAIN, Appellant.
UNITED STATES of America, Appellee,
v.
Robert W. KANE, Appellant.
Nos. 75-3160, 75-3060, 75-3161.
United States Court of Appeals,
Ninth Circuit.
March 24, 1977.
Rehearing and Rehearing En Banc Denied May 16, 1977.

Stanley Fleishman, argued, Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., for appellants.

Page 869

William D. Keller, U. S. Atty., Juan Robertson, Asst. U. S. Atty., argued, Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before TRASK, GOODWIN and KENNEDY, Circuit Judges.

GOODWIN, Circuit Judge:

Conrad L. Germain, Robert W. Kane, and Outpost Development Company, a corporation, were tried before a jury and convicted of eighteen counts of mail fraud (18 U.S.C. § 1341). They appeal.

In 1972, Germain and Kane established Outpost Development Company to conduct a mail order business under the names of Lydia Feldman Methods and Brenda Hardy Research. The defendants operated the business with the help of one employee. They mailed interstate solicitations entitled "Want to Lose Weight?" The solicitations, written under the fictitious name Lydia Feldman, explained how Lydia had discovered in an occult writing a recipe for a diet tonic that converted "unburned calories into energy."

The diet tonic was a mixture of ordinary fruit juices and was to be taken before meals or after meals, depending upon whether the dieter was following the "with meals" plan or the "mealless" plan. Lydia invited the reader to send her $5.95 for the recipe and promised a refund if the customer was not satisfied.

Testimony established that some persons sent the $5.95 but did not receive the diet tonic recipe, and that others requested, but did not receive, a refund. This was, of course, some evidence of fraud.

Multiple specific acts were alleged in each count of the indictment. The defendants argue that if the evidence is insufficient with respect to any one of the fraudulent acts alleged, the guilty verdict on that count should be reversed. They rely principally on Stromberg v. California,283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). None of these cases supports their position.

In Stromberg, the statute contained three alternative clauses, one of which the Court held unconstitutional. Because it was impossible to determine whether the jury had based its verdict of guilty on the unconstitutional clause alone, the Court reversed the conviction.

In Williams, the instructions permitted the jury to find the defendant guilty on either of two grounds, one of which was unconstitutional. The Court followed Stromberg and reversed.

In Yates, the defendant was tried on two different grounds. In submitting the case to the jury the judge misstated the law on one of the grounds. Because the jury could have based its verdict upon an impermissible finding, reversal was necessary.

In all three cases cited above, the convictions were reversed because they could have been based on an erroneous legal ground. Such convictions are defective. These cases, however, are distinguishable from the instant case, in which appellants claim that the jury could have based its finding of fraud on facts for which the evidence was insufficient. It is well established that a count in an indictment is not improper if it simply charges the commission of a single offense by different means. United States v. Markee, 425 F.2d 1043 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). See...

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27 practice notes
  • U.S. v. Eaglin, No. 75-2720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Agosto 1977
    ...(9th Cir. 1977); United States v. Tri-State Motor Co., 550 F.2d 494, 495 (9th Cir. 1977). See United States v. Outpost Development Co., 552 F.2d 868, 870 (9th Cir. The trial court instructed the jury that (n)o person can intentionally avoid knowledge by closing his eyes to facts which shoul......
  • U.S. v. Beverly, Nos. 88-2985
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 7 Septiembre 1990
    ...1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Jessee, 605 F.2d 430, 431 (9th Cir.1979); United States v. Outpost Dev. Co., 552 F.2d 868, 869-70 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 38 See United States v. Soteras, 770 F.2d 641, 646 (7th Cir.198......
  • U.S. v. Halbert, No. 78-3278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Marzo 1981
    ...this argument. We do so, however, because of appellant's novel interpretation of our decision in United States v. Outpost Development Co., 552 F.2d 868 (9th Cir.), cert. denied sub nom., Germain v. United States, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 (1977). Halbert cites this case cor......
  • U.S. v. Mastelotto, Nos. 81-1678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 Mayo 1983
    ...as charged in indictment). United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979), and United States v. Outpost Development Co., 552 F.2d 868, 869-70 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 (1977), in which we sustained mail fraud convictions after ascertai......
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27 cases
  • U.S. v. Eaglin, No. 75-2720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Agosto 1977
    ...(9th Cir. 1977); United States v. Tri-State Motor Co., 550 F.2d 494, 495 (9th Cir. 1977). See United States v. Outpost Development Co., 552 F.2d 868, 870 (9th Cir. The trial court instructed the jury that (n)o person can intentionally avoid knowledge by closing his eyes to facts which shoul......
  • U.S. v. Beverly, Nos. 88-2985
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 7 Septiembre 1990
    ...1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Jessee, 605 F.2d 430, 431 (9th Cir.1979); United States v. Outpost Dev. Co., 552 F.2d 868, 869-70 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 38 See United States v. Soteras, 770 F.2d 641, 646 (7th Cir.198......
  • U.S. v. Halbert, No. 78-3278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Marzo 1981
    ...this argument. We do so, however, because of appellant's novel interpretation of our decision in United States v. Outpost Development Co., 552 F.2d 868 (9th Cir.), cert. denied sub nom., Germain v. United States, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 (1977). Halbert cites this case cor......
  • U.S. v. Mastelotto, Nos. 81-1678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 Mayo 1983
    ...as charged in indictment). United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979), and United States v. Outpost Development Co., 552 F.2d 868, 869-70 (9th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 503, 54 L.Ed.2d 450 (1977), in which we sustained mail fraud convictions after ascertai......
  • Request a trial to view additional results

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