U.S. v. Snyder, s. 74-1316

• Decision Date: 16 December 1974
• Docket Number: Nos. 74-1316,74-1982,s. 74-1316
• Citation: 505 F.2d 595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William SNYDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 595

505 F.2d 595

UNITED STATES of America, Plaintiff-Appellee, v. William SNYDER, Defendant-Appellant.

Nos. 74-1316, 74-1982.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1974, Certiorari Denied March 24, 1975, See 95

S.Ct. 1433.

Gary Weston, Birmingham, Ala. (Court-appointed), William Snyder, Ft. Lauderdale, Fla., Fred Blanton, Jr., Associate Counsel, Birmingham, Ala., for defendant-appellant.

Wayman G. Sherrer, U.S. Atty., Albert C. Bowen, Jr., Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Before GEWIN, AINSWORTH and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Snyder was convicted by a jury on January 15, 1974, on one count of violating 18 U.S.C. 1343 by using telephone communications in interstate commerce as part of a fraudulent scheme to obtain money. Snyder was later sentenced to three years' imprisonment. In connection with the preparation of a presentence report, Snyder submitted a false financial statement to the court. For this action, Snyder was held in contempt of court on March 28, 1974, and an additional sentence of six months was imposed. Snyder, in this appeal, contests both convictions. For the reasons discussed below, we affirm the fraud conviction and reverse the contempt citation.

I. The Facts

The scheme in which Snyder participated is more thoroughly described in the opinion released today, affirming the conviction of Snyder's co-indictee, Lawrence C. King. See United States v. King, 5 Cir., 1974, 505 F.2d 602. Taken in the light most favorable to the Government, the evidence at trial established a scheme to defraud one Edward H. Fuller, Jr. in connection with the purported sale of an interest in Fuller's mobile portrait studio which, at the time, was located in Orlando, Florida. After being told that King and Snyder had found a purchaser for the trailer, and upon receiving a check and an option agreement apparently signed by Robert Waldorf, Fuller wired payments of $1,000 to Snyder and $500 to King as 'commissions' for the sale of the trailer. Waldorf's check was worthless, and Snyder and King made a timely journey to Texas.

Snyder's role in the scheme was to solicit a 'buyer' for the portrait trailer. Snyder had known William Robert Waldorf for about five years, and asked Waldorf if he would sign an option agreement to 'buy' an interest in a mobile portrait studio owned by Edward Fuller, as well as to sign a $4,000 check which would serve as earnest money. Waldorf testified that Snyder told him that, if Waldorf would do this, he would receive part of the money Fuller would pay King and Snyder. Waldorf had no intention of legitimately purchasing part of the business from Fuller because Waldorf had no money, and this fact was well known to Snyder. Snyder drew up the option agreement and left it with Waldorf, who had his girl friend sign his name both to the agreement and to the $4,000 check.

The letter containing the option agreement and check was received by Fuller on July 3, 1972, and on the same date Fuller sent the commission payments to Snyder and King via Western Union. On July 4, 1972, Snyder and King received their money orders. On July 6, 1972, Snyder called Fuller, and during the conversation it was agreed that Snyder, King and Fuller would meet in Orlando on July 10 to discuss business matters and the portrait studio. But that same day, July 6, Snyder and King left Florida and went to Texas, where they stayed together temporarily. Snyder, having so ignobly departed without paying any money to Waldorf, subsequently called Waldorf to tell him that King, and not he (Snyder), had absconded with all the money. Snyder was then informed by Waldorf that the fraud had been discovered, and that an enraged Fuller had gone to the authorities.

II. The Fraud Conviction

A. Did the trial court err in not granting Snyder's motion for a continuance?

Prior to trial, Snyder requested that the court grant him a continuance so that he could call as his witness Lawrence King, who could not at that time be located. The reason for this was that King, who had been indicted with Snyder, was a fugitive from justice. It is highly doubtful that King, who was taking pains to avoid invitations from the FBI to appear at the trial, would have favored Snyder with his presence. It borders on frivolity to assert error in the court's refusal to grant a defendant's motion for continuance so that he may call a fugitive coindictee to appear on his behalf. The trial judge, to whom the granting or refusal of such a motion is a matter of discretion, clearly did not abuse his discretion in denying the motion.

B. Did the trial court err in refusing to grant a new trial after it referred to the indictment as a conspiracy indictment, and allowed the testimony of coconspirators to be heard, when only the substantive count of fraud was charged?

Snyder was indicted for a violation of 18 U.S.C. 1343; there was no charge for conspiracy in violation of 18 U.S.C. 371. During the trial, and in the presence of the jury, the trial judge erroneously stated that 'the indictment is a conspiracy indictment.' During its charge to the jury, however, the court recognized its error, and addressed the jury as follows:

Now, the indictment in this case charges the defendant with the crime of fraud by interstate communication or wire, by wire. And the defendant is not on trial in this case for the crime of conspiracy, as such. Tuesday, I think I may have given you the impression that this defendant was charged with the crime of conspiracy. It's not-- this is not technically true. The crime charged is as I have explained.

Snyder alleges that the use of the word conspiracy injected something so malodorous into the trial such as to have 'poisoned' the jury's attitude toward appellant. Conspiracy is not an invective, however, and the court did not commit reversible error by referring to Snyder as a conspirator or to the indictment as a conspiracy, even though no separate conspiracy indictment was entered. As we have said in another case which also involved a scheme in violation of 18 U.S.C. 1343 but no conspiracy indictment, 'The weakness of appellant's argument is that it overlooks the fact that joint participants in crime may be denominated 'conspirators' and the joint act or scheme may be called a 'conspiracy' since such words do not lose all of their ordinary content merely because Congress has separately created a crime of conspiracy.' Kumpe v. United States, 5 Cir., 1957, 250 F.2d 125, 126; see United States v. Hoffa, 6 Cir., 1965, 349 F.2d 20, 41, aff'd,385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Snyder also intimates, but does not directly contend, that there was some type of variance between the indictment and the evidence at trial resultant from proof of a conspiracy where no conspiracy indictment was entered. This is without merit, because the indictment charged precisely what was proved-- a scheme involving three persons, King, Snyder and Waldorf, to defraud one Edward Fuller. Proof of joint action to defraud is tantamount to proof of a conspiracy, and appellant introduces merely a semantic quibble when he complains that although he was indicted for participation in a scheme to defraud, the evidence at trial indicated his involvement in a conspiracy to defraud.

The final allegation of error is described as follows. A person indicted with Snyder and King, William Waldorf, pled guilty to the charge and testified for the Government at Snyder's trial. Certain testimony by Waldorf regarding the statements of both Snyder and King were objected to as being hearsay. The objections were overruled by the trial court and the testimony ruled admissible under the coconspirator exception to the hearsay rule. The record makes obvious, as Snyder's counsel conceded at oral argument, that the existence of the conspiracy was clearly established by independent, non-hearsay evidence. Notwithstanding this, Snyder protests the application of the coconspirator exception absent a conspiracy indictment.

Some defendants strongly protest the Government's use of the conspiracy statute, but Snyder seems to contend that unless a conspiracy indictment is entered, a defendant cannot fairly be convicted of a crime which, by its nature, denotes joint schemes and conspiratorial conduct. But the cases firmly establish that a conspiracy indictment is not necessary to sustain a substantive conviction. The admission of the hearsay testimony of a coconspirator does not depend on a conspiracy indictment: 'The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis . . ..' United States v. Olweiss, 2 Cir., 1943, 138 F.2d 798, 800, cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1944) (L. Hand, J.). As an opinion from the Fourth Circuit has pointedly commented:

It is true that the co-conspirators' exception cannot be invoked without a showing that the declarant was presently engaged in promoting the joint criminal enterprise. But where, as here, such a showing has been made, the principle is not rendered inapplicable merely because the accused has not been formally indicted for conspiracy.

United States v. Sapperstein, 4 Cir., 1963, 312 F.2d 694, 698.

Thus, in a case involving a conviction for mail fraud under 18 U.S.C. 1341, where no conspiracy indictment was charged, the court noted:

The nature of proof in a scheme to defraud, involving two or more persons, is analogous to the nature of proof in a conspiracy. The acts and declarations of each party to the scheme made in furtherance or execution thereof are admissible against all . . ..

United States v. Grow, 4 Cir., 1968, 394 F.2d 182, 203, cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111.

In a recent case we found proper the use of the coconspirator's exception and upheld the propriety of admitting such testimony in a case where no conspiracy...