United States v. Decker, 12909.

• Decision Date: 02 June 1969
• Docket Number: No. 12909.,12909.
• Citation: 411 F.2d 306
• Parties: UNITED STATES of America, Appellee, v. William Horace DECKER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

411 F.2d 306 (1969)

UNITED STATES of America, Appellee, v. William Horace DECKER, Appellant.

No. 12909.

United States Court of Appeals Fourth Circuit.

Argued April 10, 1969.

Decided June 2, 1969.

Richard L. Kennedy, Charlotte, N. C., Robert J. Robinson, Asheville, N. C., court-appointed counsel, for appellant.

William Medford, U. S. Atty., Joseph R. Cruciani, Asst. U. S. Atty., on brief, for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Convicted by a jury of mail fraud and sentenced to eight years in prison by the district judge, William Horace Decker appeals, urging for reversal several alleged errors. We find no error and affirm his conviction.

The government's evidence at trial tended to show that for eight or ten weeks following August 14, 1967, Decker financed his travel in a wide arc through the United States by presenting in payment for accommodations, goods and services, some 88 checks¹, totaling about $6,000 or $7,000, drawn on a single fictitious account in the North Carolina National Bank at Charlotte, North Carolina. The jury found him guilty on five counts of violating the federal mail fraud statute, 18 U.S.C. § 1341. The indictment charged a scheme to defraud, and further stated:

"It was a part of said scheme and artifice to defraud to cash a series of worthless checks in a certain city over a period of days and then to move on to another distant place before his fraud had been discovered, thereby delaying detection and enabling the defendant to continue to perpetrate his fraudulent scheme and artifice to defraud."

Some 21 cities were listed in the indictment as points throughout the United States at which Decker passed the checks knowing they would be sent by U. S. mail to Charlotte for collection. It was specifically alleged in the indictment that Decker caused worthless checks to be sent by mail from these 21 places to Charlotte.

Citing Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), Kann v. United States,² 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), and Dyhre v. Hudspeth, 106 F. 2d 286 (10th Cir. 1939), Decker now urges that his several offenses were complete when goods and services were received, and therefore there could be no violation of 18 U.S.C. § 1341, as the use of the mails in no way furthered his scheme to defraud. The United States takes the position that the passage of these checks through the mails were crucial to the success of Decker's scheme, as he thereby gained the delay necessary to avoid detection before moving on to another city. The only question for decision on Decker's claim that the district court erred in refusing to dismiss the indictment is whether such a scheme, adequately charged in the indictment, constitutes a violation of the mail fraud statute. We conclude that it does.

On similar facts, the Fifth Circuit in Bauman v. United States, 156 F.2d 534 (5th Cir. 1946) reached a similar result, distinguishing Kann, and Dyhre v. Hudspeth. We see no need to embroider on the reasoning of that circuit as stated in a paragraph which, if for "Amarillo" we read "Charlotte", might have been written for Decker's case:

"Moreover, in the present case there seems to have been a series of transactions that were substantially identical in that they had the same forgeries against the account of the same company in the same bank and with the same representations as to the employment of defendant by the company against which he had forged the checks. Since the transmittal of the checks through the mails to Amarillo, with the necessity of getting a return thereon before their fraudulent nature was discovered if, indeed, it were ever discovered, was a part of the scheme, and since such delay would enable defendant to give the scheme a wider scope of operations and require less haste in getting away than if the checks had been forged against an account in a local bank where the discovery of the forgery would, perhaps, have been more prompt, we think that the contention that the scheme did not embrace the mailing is contrary to the wording of the indictment and in disregard of the realities."

156 F.2d at 537; accord, United States v. Kuiken, 101 F.Supp. 929 (W.D. Tex.1951), aff'd per curiam 196 F.2d 223 (5th Cir.), cert. denied, 344 U.S. 867, 73 S.Ct. 109, 97 L.Ed. 657 (1952). We find no error in the district court's refusal to dismiss the indictment.

Decker next assigns as error the court's overruling of his motions for acquittal at the close of the government's evidence and at the close of all the evidence. As Decker presented no evidence at all, these motions were in effect the same. A review of the trial transcript reveals that the government, offering 25 witnesses and 25 exhibits, presented substantial evidence tending to prove both elements of the crime of mail fraud under 18 U.S.C. § 1341: that Decker had devised a scheme to defraud and that he had knowingly caused the mails to be used for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The motions to acquit were properly denied. United States v. McGonigal, 214 F.Supp. 621, 622 (D.Del.1963); see United States v. Godel, 361 F.2d 21, 24 (4th Cir.), cert. denied, 385 U.S. 838, 87 S.Ct. 87, 17 L.Ed.2d 72 (1966).

Next, Decker claims he was prejudiced at trial by the erroneous reception of evidence, including blank checks imprinted with the name of his mythical account, seized from him at his arrest. The arrest was pursuant to an indictment for interstate transportation of worthless securities, which was later dismissed. Decker was then immediately indicted on the mail fraud charge. However, during the pendency of the first indictment, in response to various motions by Decker, the district judge directed the return to Decker of all his property not intended to be offered in evidence. It is Decker's claim that upon dismissal of that indictment all his property should have been returned, and the district judge erred in failing to suppress and failing to require the United States to return the seized evidence. We do not agree. It is...