United States v. Green

• Decision Date: 16 July 1974
• Docket Number: No. 73-1210.,73-1210.
• Citation: 494 F.2d 820
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rita Carpenter GREEN and Richard William Payne, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

494 F.2d 820 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Rita Carpenter GREEN and Richard William Payne, Defendants-Appellants.

No. 73-1210.

United States Court of Appeals, Fifth Circuit.

May 23, 1974.

Rehearing and Rehearing Denied July 16, 1974.

L. Lynn Elliott, Dallas, Tex. (Court-appointed), for defendants-appellants.

Frank D. McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Roger J. Allen, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 16, 1974.

AINSWORTH, Circuit Judge:

Appellants Richard William Payne and Rita Carpenter Green were each convicted on nine counts of violation of the federal mail fraud statute, 18 U.S.C. § 1341, for devising a scheme to defraud through the unlawful use of credit cards. They were each sentenced to five years' imprisonment on each of the first two counts, these terms to run consecutively. Sentences on the remaining counts were suspended, and appellants were placed on probation for five years, to run consecutively to the sentences imposed.¹ On appeal, they raise issues concerning the scope of the mail fraud statute and the sufficiency of the evidence, as well as other assorted contentions. We affirm in part and reverse in part.

The relevant portions of the mail fraud statute provide:²

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both." 18 U.S.C. § 1341.

The first six counts of the indictment under which appellants were convicted contained these common allegations: (1) on or about October 1, 1970, and continuing until mid-1972, appellants "devised and intended to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations and promises"; (2) as part of such scheme and artifice, appellants "would apply for and obtain credit cards from businesses they intended to defraud, among such businesses would be Texas Bank and Trust Company of Dallas, BankAmericard Center, Diners Club, American Express Company, Mobil Oil Corporation, Gulf Oil Corporation, Texaco, Inc., Humble Oil and Refining Company and Shell Oil Company"; (3) "in submitting credit card applications to such businesses, appellants would willfully make false and misleading representations in order to make it appear that they were worthy of credit and to induce the businesses to be defrauded to issue credit cards to them"; (4) the credit cards so obtained would be used by appellants "to purchase large quantities of merchandise and many services from business establishments . . . when in fact they intended not to pay for such purchases"; (5) "upon receipt of bills and statements of account for their purchases . . . appellants would willfully refuse and fail to pay . . ."; and (6) "for the purpose of executing such scheme and artifice and attempting to do so, did . . . knowingly cause to be placed in an authorized depository for mail matter, a business reply envelope to be sent and delivered by the Post Office Department according to the direction thereon . . . ." Each of the first six counts alleges the mailing of a different business reply envelope, constituting an application for a credit card, to an issuing company.

Counts 7, 8 and 9 of the indictment each allege that appellants, for the purpose of executing their scheme to defraud, knowingly caused the mailing of an invoice subsequent to the receipt by them of goods and services.

Evidence presented at the trial showed that between October 1970 and May 1972, appellants, through the use of twenty-one credit cards and four different surnames, incurred total charges of $135,432, for which they did not pay.³ Here, we outline briefly the evidence pertaining directly to each count of the indictment.

Count 1 dealt with a Bank-Americard application, which was identified at trial as having been received through the mail. This application, in the name of Richard W. Payne, with Rita K. Payne listed as his wife, requested that two cards be issued. Testimony revealed that a previously issued BankAmericard had been seized from appellant Green by a retail merchant prior to this application. The mailing of another BankAmericard application in the name of Richard Kenner, also requesting two cards, formed the basis of proof on count 5 of the indictment. This application listed Kenner's wife's name as Rita Kay. These two applications and a third were all rejected by BankAmericard because officials were able to identify all three applicants as Richard W. Payne, the holder of a Bank-Americard account with a substantial unpaid balance.⁴ The Government's handwriting expert identified appellant Payne as the writer of the applications named in counts 1 and 5.

Count 2 of the indictment dealt with a Gulf Oil Company credit card application that was sent through the mails. The Government's witness testified that pursuant to this application, which listed the applicant's spouse as Rita K., a card was issued in the name of Richard Kenner. The handwriting of Kenner on the application was identified as that of appellant Payne. An associate of appellants further testified that he saw appellants make certain charges on the card in February 1972.

Count 3 of the indictment charged mail fraud involving an application received through the mail for a Mobil Oil Company credit card. A card was issued in the name of Richard Kenner as a result of the application, and the handwriting on an invoice resulting from the use of the card was identified as that of appellant Payne. Count 6 also involved a Mobil credit card application, this time in the name of Richard W. Green. As a result of this application, which was received through the mail, a Mobil credit card was mailed to an address at which, it was shown, appellants resided at the time. See note 4 supra. An additional Mobil credit card was applied for in the name of Richard W. Traylor. At trial, it was stipulated that appellant Payne had, from time to time during the previous two years, submitted applications for credit cards in the name of Richard Traylor.

Count 4 concerned the sending through the mail of a Shell Oil Company credit card application, which requested issuance of two cards and which was completed in the name of Richard Kenner. His wife's name was listed as Rita. The application, which resulted in the issuance of the Shell cards, bore handwriting identified as that of appellant Payne. This Shell card was used during December 1971 to purchase eighty-four new automobile tires at several different service stations. Government witnesses identified both appellants as the persons who had purchased the tires.

The remaining counts of the indictment, 7, 8 and 9, charged that, as part of the scheme to defraud, the mails had been used in the transmission of invoices between various service station dealers, who supplied automobile tires to appellants, and Humble Oil Company, which had extended credit on the basis of the credit cards issued to appellants. The testimony on these three counts showed that on certain occasions persons identified as appellants used a Humble credit card issued in the name of Richard Kenner to purchase the tires. The testimony further showed that the particular invoices for the sale of the tires were sent by the dealers, who were located in the Fort Worth, Texas, area, through the mail to the Humble Credit Card Center in Houston, Texas.

The purpose of the mail fraud statute, section 1341, is "to prevent the post office from being used to carry schemes to defraud into effect . . . ." Durland v. United States, 161 U.S. 306, 314, 16 S.Ct. 508, 511, 40 L.Ed. 709 (1896); see Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 1182, 4 L.Ed.2d 1277 (1960). The two basic elements of a mail fraud offense are (1) the scheme to defraud, and (2) causing a mailing for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); see United States v. Bruce, 5 Cir., 1973, 488 F.2d 1224, 1230; Bass v. United States, 5 Cir., 1969, 409 F.2d 179, cert. denied, 396 U. S. 863, 90 S.Ct. 138, 24 L.Ed.2d 117. While the mailing must, as the statute requires, be "for the purpose of executing the scheme," Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 151, 89 L. Ed. 88 (1944), "it is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155, 34 S. Ct. 303, 58 L.Ed. 548," Pereira v. United States, supra, at 8, 74 S.Ct. at 362; see United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974). Indeed, it is sufficient if the mailing that is caused is "a part of the execution of the fraud," Kann v. United States, supra, at 95, 65 S.Ct. at 151, or is "incident to an essential part of the scheme," Pereira v. United States, supra, at 8, 74 S.Ct. at 363; see Parr v. United States, supra, at 390, 80 S.Ct. at 1183. One "causes" the mails to be used when one "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . . . . United States v. Kenofskey, 243 U.S. 440, 37...