United States v. Blosser

• Citation: 440 F.2d 697
• Decision Date: 25 May 1971
• Docket Number: No. 516-69.,516-69.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Allen BLOSSER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

440 F.2d 697 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Allen BLOSSER, Defendant-Appellant.

No. 516-69.

United States Court of Appeals, Tenth Circuit.

March 16, 1971.

Rehearing Denied May 25, 1971.

James R. Richards, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., was on the brief) for plaintiff-appellee.

Henry Gonzalez, Tampa, Fla. (James W. Wilson, and Wilson, Boltz & Boyens, Denver, Colo., were with him on the brief) for defendant-appellant.

Before BREITENSTEIN, SETH and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal is taken from a conviction for mail fraud in violation of 18 U.S.C. § 1341. Appellant was indicted on six counts under § 1341 but count two was dismissed at the close of the Government case. The jury found appellant guilty on the remaining five counts and he was sentenced to concurrent five-year indeterminate terms on these counts. On his appeal therefrom appellant argues: (1) that the trial court erroneously denied a trial continuance when change of counsel occurred, depriving him of effective assistance of counsel and a fair trial; (2) that proof was improperly admitted of transactions and events occurring more than five years before the indictment, in violation of the statute of limitations; and (3) that the instructions were misleading and inadequate, and failed to submit properly the defense of advice of counsel. We conclude that appellant's arguments must be rejected and affirm.

The general background is outlined here, with the details pertaining to appellant's issues appearing in our discussion of them below. In essence the indictment charged six violations of § 1341 by separate uses of the mails to induce deposits in the Home Industrial Bank of Aurora, Colorado, or in the receipt of such deposits. A separate company controlled by appellant purchased the bank's stock in 1962 and appellant then became the bank's President. As part of the scheme and artifice to defraud, appellant was charged with causing advertisements in letters and brochures to be circulated representing fraudulently that deposits would be safe with the bank; that it made sound and conservative investments in prime real and personal notes, collateral notes and stocks; that such investments were insured "dollar for dollar"; and that "lazy dollars" could be put to work where they are "Insured Safe," among other things.

The Government proof was that there was no Federal Deposit Insurance Corporation insurance or similar protection of the accounts, other than fidelity bonds; that numerous improper and unsound uses were made of the bank's funds by loans to other corporations owned or controlled by appellant or associated with him; that such improper transactions had commenced as far back as late 1962 when appellant took over the bank's management; and that after the bank was closed in 1964 by the State Banking Commission, the depositors ultimately realized only 63.6% on their deposits. The sufficiency of the Government proof to support the convictions is not challenged, but appellant urges that there were errors in procedural rulings and conduct of the trial.

First, appellant says the trial court abused its discretion by denying a continuance, thereby depriving him of the effective assistance of counsel and a fair trial. The case was set for trial on March 18, 1969, and that morning the motion for a continuance was presented by Mr. Wilson and Mr. Gonzalez for appellant. A motion by Mr. Erickson and Mr. Hanlon for leave to withdraw as defense counsel was also presented. Appellant's position was that Mr. Erickson had been personally retained and that now he had advised that instead Mr. Hanlon, an attorney with his firm, would participate. Appellant said that he was obliged to have new trial counsel (Wilson and Gonzalez) and was, therefore, entitled to a continuance in order for his new counsel to prepare. Mr. Wilson was retained the day before and stated that he was not prepared for trial. And stress is laid on the lack of time to prepare and the complexity of the case.

However, a prior continuance by defense counsel had been obtained several months previously for similar reasons. There was also information before the court to show that two months earlier Mr. Gonzalez was already retained in the case, although his appearance was not entered of record until the day before trial; and that Mr. Erickson in January had advised that he would, therefore, not participate but would make an associate available if desired, mentioning Mr. Hanlon. After hearing detailed statements of counsel, which were conflicting in part, the trial court granted the motion to withdraw and denied the continuance. Among other things the court pointed out that appellant had had Mr. Gonzalez in the case for several months and that from time to time he was considered as the one to try the case, and in any event had had exposure to it.

We are satisfied there was no abuse of discretion and so the ruling on the continuance will not be disturbed. United States v. Davis, 436 F.2d 679 (10th Cir.): United States v. Eagleston, 417 F.2d 11 (10th Cir.); United States v. Arlen, 252 F.2d 491, 494-495 (2d Cir.). While the proof was detailed and extensive in the six-day trial, there is no showing of impairment of the defense by the rulings amounting to a denial of the right to assistance of counsel, Avery v. Alabama, 308 U.S. 444, 452-453, 60 S.Ct. 321, 84 L.Ed. 377; United States v. Davis, supra, nor did the rulings deny a fair trial or due process under constitutional standards. Ungar v. Sarafite, 376 U.S. 575, 590, 84 S.Ct. 841, 11 L.Ed.2d 921. We conclude that there was no infringement on appellant's rights by the rulings.

Secondly, appellant argues that the trial court erred by admitting proof of transactions and events occurring more than five years prior to return of the indictment, saying that such proof is prejudicial and barred by the statute of limitations.¹ The Government proof did cover events in late 1962 and thereafter which occurred more than five years prior to return of the indictment in February, 1968. Such evidence bore on the existence of the scheme to defraud, the falsity of representations made, and intent. However, all uses of the mails shown to prove the offenses charged occurred within the period of the statute of limitations.

We cannot accept appellant's proposition. The gist of the offense is the use of the mails for the purpose of executing the scheme. See Weatherby v. United States, 150 F.2d 465, 466 (10th Cir.); and Little v. United States, 73 F.2d 861, 867 (10th Cir.). If the prohibited use of the mails was within the period, the prosecution is timely. Weatherby v. United States, supra, 150 F.2d at 467; Fournier v. United States, 58 F.2d 3, 6 (7th Cir.); Munch v. United States, 24 F.2d 518, 519 (5th Cir.).² It is no defense that the scheme was formed...