U.S. v. Puckett, s. 81-1127

• Decision Date: 16 July 1982
• Docket Number: Nos. 81-1127,81,s. 81-1127
• Citation: 692 F.2d 663
• Parties: 10 Fed. R. Evid. Serv. 1348 UNITED STATES of America, Plaintiff-Appellee, v. Gerald Lee PUCKETT, Whit Yancey Mauzy, Jr., and Kevin Barry Krown, Defendants-Appellants. 1130 and 81 1138.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 663

692 F.2d 663

10 Fed. R. Evid. Serv. 1348

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Lee PUCKETT, Whit Yancey Mauzy, Jr., and Kevin Barry

Krown, Defendants-Appellants.

Nos. 81-1127, 81 1130 and 81 1138.

United States Court of Appeals, Tenth Circuit.

July 16, 1982.

Rehearing Denied in No. 81-1138 Sept. 9, 1982.

Kenneth P. Snoke, Asst. U. S. Atty., Tulsa, Okl., N. D. Oklahoma (Frank Keating, U. S. Atty., Tulsa, Okl., with him on the brief), for plaintiff-appellee.

John S. Evangelisti of LaFond & Evangelisti, Denver, Colo., for Gerald Lee Puckett, defendant-appellant.

E. Terrill Corley, Tulsa, Okl., for Whit Yancey Mauzy, Jr., defendant-appellant.

Richard D. Irvin, Boulder, Colo., for Kevin Barry Krown, defendant-appellant.

Before SETH, Chief Judge, and McWILLIAMS, Circuit Judge, and BRIMMER, ^* District Judge.

McWILLIAMS, Circuit Judge.

In the first count of a seven-count indictment, Kevin Barry Krown, Gerald Lee Puckett, and Whit Yancey Mauzy, Jr., were charged with conspiring together and with other co-conspirators, both known and unknown, to commit offenses against the United States in violation of 18 U.S.C. Sec. 371. Violations of the wire fraud statute, 18 U.S.C. Sec. 1343, ¹ and of 18 U.S.C. Secs. 1014 Counts two through seven of the indictment charged the three defendants with transmitting money orders by means of Western Union telegraph wires for the purpose of executing their scheme to defraud, in violation of 18 U.S.C. Secs. 1343 and 2. Each of these six counts was based on separate Western Union transmissions.

and 2, ² which proscribe the making of false statements for the purpose of influencing the action of a bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, were alleged in count one as the objects of the conspiracy.

A jury convicted each of the three defendants on all seven counts of the indictment. All defendants appeal.

FACTS

In the latter part of 1977, Krown and certain co-conspirators, who were not named defendants in the present case, embarked upon a fraudulent scheme which required, as an initial step, the creation of a phony bank. Krown and several others, not including Puckett or Mauzy, formed an "offshore bank" on St. Vincent Island in the Caribbean which became known as the First London Bank & Trust Company, Ltd. (First of London). Krown had the bank registered in Polk's Directory, and, in order to obtain a charter for the bank from the Vincentian government, falsified a financial statement to indicate that the bank was backed by assets valued at $258,000,000. In fact the bank had no assets.

Once the charter was granted, Krown leased an office on St. Vincent and hired employees to answer the phone and receive mail. Krown remained in New York where he met with individuals who wished to purchase phony paper from the bank. Krown and certain unindicted co-conspirators agreed to sell First of London letters of credit and certificates of deposit to willing buyers for only 10% of the face value of the paper in cash. Those who purchased the certificates of deposit or letters of credit thereafter would attempt to persuade banks to accept the spurious First of London bank instruments as collateral for loans.

Typically, when presented with the First of London paper, the banks would phone or telex St. Vincent to verify the authenticity of the instrument. Pursuant to instructions from Krown, the employees at St. Vincent would assure the bank that the certificate of deposit or letter of credit drawn on the First of London was good.

The certificates of deposit Krown sold were redeemable two years from the date of issuance. Thus, a First of London customer purchased an approximate two-year float period before the lending bank would realize that the paper it was holding as collateral was worthless.

Sometime in 1978 Krown and his associates decided the First of London would also sell phony cashiers checks for cash in the amount of 10% of the face value of the check. Purchasers of the cashiers checks would deposit them with banks and attempt to draw on them immediately. With a cashiers check the float period was reduced to 40-60 days. During that time Krown would stall the presenter bank by attributing the delay in collection on the First of London check to the mail or bank clearing system.

In early summer of 1978, defendants Puckett and Mauzy met with Krown and others in New York and arranged to purchase four $25,000 First of London cashiers checks. ³ The four checks were sent to On July 6, 1978, Mauzy sent a Western Union telegraphic money order in the amount of $2,100.00 from Tulsa, Oklahoma, to New York City. Similar transmissions of money orders were made by Mauzy on July 11, 1978, July 13, 1978, July 17, 1978, July 20, 1978, and August 1, 1978. The aforementioned wire transmissions formed the basis of the separate 18 U.S.C. Secs. 1343 and 2 violations alleged in counts two through seven of the indictment. After receiving some of these payments, three additional cashiers checks, each in the amount of $5,000 were sent to Mauzy in Tulsa. Mauzy obtained immediate credit on these checks also and withdrew the funds from his account.

Puckett and Mauzy in Tulsa, Oklahoma, without prepayment of the usual 10% cash fee. The defendants successfully negotiated two of the four checks and immediately drew upon them. Nonetheless, Puckett refused to pay Krown and company their 10% fee for furnishing the checks. Mauzy, however, made partial payment by transferring money in small amounts through Western Union to Krown's associates in New York.

Sometime in late July of 1978, bank officials became suspicious about the validity of the First of London checks. Although assurances were made by Krown, the First of London never paid any of the checks.

KROWN

As his first ground for reversal on appeal, Krown renews his argument made below that the first count of the indictment charging him with conspiracy violated his right not to be placed twice in jeopardy for the same crime. From the record it appears that certain other false bank instruments issued by Krown found their way into the hands of persons (not Puckett or Mauzy) in the Denver, Colorado, area, and those persons presented the false instruments to several Denver banks. As a result of these transactions, Krown, and others, were charged in the United States District Court for the District of Colorado, inter alia, with conspiracy to violate 18 U.S.C. Secs. 2314 and 1014 and 2. The Colorado case was tried before the Oklahoma case, and the jury in the Colorado case convicted Krown on the conspiracy count. Prior to commencement of the Oklahoma trial, Krown moved to dismiss the conspiracy count in the Oklahoma indictment on the ground that under the Fifth Amendment, his conviction in the Colorado court precluded his trial on the same charge in the Oklahoma proceeding. The trial court reserved ruling on the motion until the close of the government's case. At that time the trial court rejected Krown's double jeopardy argument.

At the outset we note that the prevailing law in this Circuit to determine the validity of a double jeopardy claim remains the "same evidence" test endorsed by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ⁴ See United States v. Zwego, 657 F.2d 248, 251 (10th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1275, 71 L.Ed.2d 460 (1982); United States v. Martinez, 562 F.2d 633, 637 (10th Cir. 1977); Robbins v. United States, 476 F.2d 26, 32 (10th Cir. 1973). That rule provides that offenses charged are identical in law and fact only if the facts alleged in one would sustain a conviction if offered in support of the other. "Where one count requires proof of a fact which the other count does not, the separate offenses charged are not identical, even if the charges arise out of the same acts." Id. at 32-33. In this Court, both the indictment and the transcript of the previous trial may be considered in evaluating a subsequent double jeopardy claim. United States v. Henry, 504 F.2d 1335, 1338 (10th Cir. 1974), cert. denied, 421 U.S. 932, 95 S.Ct. 1660, 44 L.Ed.2d 90 (1975) (the judgment not the indictment acts as a bar); Tritt v. United States, 421 F.2d 928 While we adhere to the same evidence test, we recognize that it has been criticized in recent years as an inadequate measurement of double jeopardy when applied to multiple prosecutions for conspiracy charges. See, e.g., United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981); United States v. Tercero, 580 F.2d 312, 314-15 (8th Cir. 1978); United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). ⁵ Krown urges us to employ the "totality of the circumstances" test adopted by the Sixth and Eighth Circuits in Jabara, supra, and Tercero, supra, to determine that his double jeopardy rights were violated in the present case. We conclude, however, that whether the "totality of the circumstances" test or the "same evidence" test is applied, the record before us indicates that the Colorado and Oklahoma trials concerned separate conspiracies.

                930 (10th Cir. 1970).   Cf. United States v. Cowart, 595 F.2d 1023, 1029-30 (5th Cir. 1979) (double jeopardy focuses on the elements of the crime and not the evidence adduced)
                

In the Colorado case, Krown was convicted of conspiring with others, none of whom were named in the Oklahoma case, to violate: (1) 18 U.S.C. Sec. 2314, which proscribes the interstate transportation of stolen or fraudulently obtained securities; and (2) 18 U.S.C. Sec. 1014, which proscribes making false statements to banks. The indictment in the present case included allegations of wire fraud and charged no violation of 18 U.S.C. Sec. 2314. In the Colorado indictment four offshore banks were mentioned whereas in the present case only one was discussed. There is a time period overlap between the...