United States v. Anderson

• Decision Date: 23 September 1971
• Docket Number: No. 20655.,20655.
• Parties: UNITED STATES of America, Appellee, v. Charles W. ANDERSON and Anita Anderson, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

447 F.2d 833 (1971)

UNITED STATES of America, Appellee, v. Charles W. ANDERSON and Anita Anderson, Appellants.

No. 20655.

United States Court of Appeals, Eighth Circuit.

August 30, 1971.

Rehearing Denied September 23, 1971.

Wiliam R. Kirby, Thad F. Niemira, St. Louis, Mo., for appellants.

Daniel Bartlett, Jr., U. S. Atty., and William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the conviction of Charles W. Anderson and his wife, Anita Anderson, on eleven counts of an indictment charging the Andersons with use of the mail for the purpose of executing a scheme to defraud under 18 U.S.C. § 1341. We affirm in part and reverse in part.

The Andersons owned and operated Real Estate Loan & Investment Co. and Chas. W. Anderson, Inc. in St. Louis, Missouri. These corporations sold to their customers, notes, mortgages, bonds, and deeds of trust executed by those companies and by W. Dohrman and H. Dohrman, relatives of the Andersons, which purported to convey to the purchasers a security interest in various parcels of land in St. Louis. The Government alleged in the twelve count indictment that the Andersons, as a part of said scheme and artifice to defraud, "sold notes, mortgages, bonds and deeds of trust in amounts far in excess of the actual value of the properties held as securities therefor"; and made false representations "that the obligations being or to be purchased were first deeds of trust or secured by a first deed of trust, when in truth and in fact, said obligations were not so secured, as the defendants well knew."¹

In each count of the indictment, an allegation was made of the mailing of a different letter to a different person for the purpose of executing the alleged scheme to defraud. Count I of the indictment was dismissed on the Government's motion. The eleven remaining counts related to notes secured by deeds of trust on six parcels of land.

On appeal, the Andersons claim: (1) that the trial court erred in overruling their motions to dismiss and to arrest judgment because the indictment failed to allege that the mailings were an essential part of the offense alleged and because it failed to allege facts to show that the mailings were within the class prohibited by the statute; that on trial, the proof did not establish beyond a reasonable doubt that the defendants defrauded those named in the indictment, and that the mailings were an essential part of the defrauding scheme; (2) that the court erred in admitting into evidence the testimony of John F. McDonald of the County Assessor's office as to the assessed value of these properties; (3) that the court erred in admitting into evidence "letter reports" from title companies purporting to show that the properties in question were encumbered by more than one deed of trust or that deeds of trust were not in fact first deeds of trust as alleged; (4) that the court erred in overruling the motions of the defendants for a bill of particulars; and (5) that the court erred in overruling the defendants' motion for a new trial.

I. SUFFICIENCY OF THE INDICTMENT

Rule 7(c) of the Federal Rules of Criminal Procedure requires that the indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." In United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953), recently quoted by this Court in United States v. Edwards, 443 F.2d 1286, 1290 (8th Cir. 1971), the Supreme Court said:

"an indictment is required to set forth the elements of the offense sought to be charged.

`The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606\'. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861."

In Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954), the Supreme Court determined that the essential elements of mail fraud were "(1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme." The Court then said: "it is not necessary that the scheme contemplate the use of the mails as an essential element." Id. Likewise, this Court said in Gold v. United States, 350 F.2d 953, 956 (8th Cir. 1965), that the essential elements of mail fraud were "(1) a scheme conceived by appellant for the purpose of defrauding * * * by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of that scheme." Pritchard v. United States, 386 F.2d 760, 764 (8th Cir. 1967), cert. denied sub. nom Brochelt v. United States, 390 U.S. 1004, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968); Fabian v. United States, 358 F.2d 187, 193 (8th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 46, 17 L. Ed.2d 58 (1966); Atkinson v. United States, 344 F.2d 97, 99 (8th Cir.), cert. denied, 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106 (1965). Measured by the above pronouncements of the law, the wording of the indictment is obviously sufficient. The indictment alleges that "Charles W. Anderson and Anita Anderson * * * did devise * * * a scheme * * * to defraud" and "for the purpose of executing the aforesaid scheme * * * did place and caused to be placed in an authorized depository for mail a letter. * * *"

Our conclusion is strengthened by the fact that the indictment substantially followed "Form 3, Indictment for Mail Fraud" which is found in the Appendix of Forms attached to the Federal Rules of Criminal Procedure. See United States v. Bagdasian, 291 F.2d 163, 164-165 (4th Cir.), cert. denied, 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961); Martin v. United States, 285 F.2d 150, 151 (10th Cir. 1960), cert. denied, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961).

It is well established that to be guilty of the crime contemplated by 18 U.S.C. § 1341, it is not necessary to prove that someone has actually been defrauded. Pereira v. United States, supra, 347 U.S. at 8, 74 S.Ct. 358; United States v. Gross, 416 F.2d 1205, 1209 (8th Cir. 1969), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970); New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969) and other cases cited therein; Pritchard v. United States, supra, 386 F.2d at 764.

The Andersons' contention that the mailings were not proved to be an essential part of the alleged defrauding scheme is not well taken. As stated in Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960), "only if the mailings were `a part of the execution of the fraud,' or, as we said in Pereira v. United States, 347 U.S. 1, 8 74 S.Ct. 358, 363, 98 L.Ed. 435, were `incident to an essential part of the scheme,' do they fall within the ban of the federal mail fraud statute."

The mailing sent out on November 19, 1968, as alleged in Count II of the indictment, was sent to Ervin Rottmann in an effort to get him to invest money in notes secured by trust deeds to several properties, including 800 Coach 'N Six Court. The mailing sent out on December 22, 1964, as alleged in Count III of the indictment, was sent to Mrs. Mayme Schmidt enclosing $3,000.00 of first deed of trust on #800 Coach 'N Six Court, dated December 12th, 1964, * * *" Mrs. Schmidt testified that she also received a title letter from the Andersons dated January 20, 1965, and purportedly written by "Land Title Insurance Company" which indicated that Chas. W. Anderson, Inc. had clear title to 800 Coach 'N Six Court, subject to a single deed of trust in the sum of $9,500.00 recorded December 21, 1964. The evidence also established that this title letter was not prepared by Land Title Insurance Company. These mailings were clearly "incident to an essential part of the scheme." Parr v. United States, supra, 363 U.S. at 390, 80 S.Ct. at 1183.

The allegation that the Government presented no evidence that the Andersons had any "intent to defraud" at the time the scheme was put into operation is also without merit. As this Court indicated in Anderson v. United States, 369 F.2d 11, 15 (8th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967), a jury may consider in its determination of intent the totality of defendants' conduct while involved in their scheme. An examination of the record, as exemplified by but the few examples mentioned herein, compels the conclusion that there was substantial evidence from which intent to defraud could have been found.

II. EVIDENCE OF VALUE

The indictment alleges as to each count that as part of the scheme to defraud devised by the defendants, they sold to their customers notes and deeds of trust "in amounts far in excess of the actual value of properties held as securities therefor." They also alleged as to each count that the defendants knowingly made false representations that the value of the property used as security for the obligation to be purchased by the investor was far in excess of mortgages and liens against it. These allegations in the indictment made it incumbent upon the Government to prove the actual value of the six parcels of real estate involved in the eleven counts, and the amount of the encumbrances against them.

The Government offered the testimony of John F. McDonald, Chief Appraiser in the Department of Revenue in the Assessment Division of St. Louis County, as...