United States v. Gross, 19420.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 416 F.2d 1205
• Docket Number: No. 19420.,19420.
• Parties: UNITED STATES of America, Appellee, v. Everett W. GROSS and L. Mary Gross, Appellants.
• Decision Date: 30 October 1969

416 F.2d 1205 (1969)

UNITED STATES of America, Appellee, v. Everett W. GROSS and L. Mary Gross, Appellants.

No. 19420.

United States Court of Appeals Eighth Circuit.

September 29, 1969.

Rehearing Denied October 30, 1969.

COPYRIGHT MATERIAL OMITTED

A. E. Sheridan, Waukon, Iowa, for appellant.

Asher E. Schroeder, U. S. Atty., Sioux City, Iowa, for appellee.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

Everett W. Gross and L. Mary Gross, his wife, both now about 56 years of age, were jointly charged, in a 20-count indictment returned in December 1966, with violations of 18 U.S.C. § 1343 (wire fraud, seven counts) and § 1341 (mail fraud, 13 counts). Each count concerned a particular wire communication, or letter mailed with accompanying check, on a specified date between May 2, 1962, and October 14, 1963, both inclusive, in furtherance of an alleged check kiting scheme said to have existed from about August 21, 1961, to about October 15, 1963, and to have been operated between Decorah, Iowa, and LaCrosse, Wisconsin.

With retained counsel each defendant pleaded not guilty to all counts. At the ensuing three-day trial in February 1967 the jury returned a verdict of guilty against each defendant on each count. The court imposed on Mr. Gross a sentence of two years on each of the 20 counts; the sentences were to run concurrently and he was to be eligible for parole, under 18 U.S.C. § 4208(a) (2), at such time as the board of parole may determine. Pursuant to the provisions of 18 U.S.C. § 3651, the court suspended the imposition of any sentence on Mrs. Gross and placed her on probation for two years.

The defendants appealed in forma pauperis. Because of error in the cross examination of the defendants' character witnesses, this court reversed and remanded the case for a new trial. Gross v. United States, 394 F.2d 216 (8 Cir. 1968).

The second trial covered three days in July 1968 and was before the same district judge who presided at the first trial. The same attorney represented the defendants but he now served in a court-appointed capacity. Again the jury returned a verdict of guilty against Mr. Gross on each of the 20 counts. However, as against Mrs. Gross, it returned a verdict of not guilty on each of the first nine counts and of guilty on each of the last 11 counts. The court imposed on Mr. Gross a four-year sentence on each of the first two counts and a two-year sentence on each of the remaining 18 counts; his sentences were to run concurrently and he was to be eligible for parole, under § 4208(a) (2), at such time as the board of parole may determine. Judgment of acquittal was entered for Mrs. Gross on the first nine counts. The court imposed on her a two-year sentence on each of the last 11 counts of the indictment; these sentences were to run concurrently. However, pursuant to § 3651, the court suspended the execution of these sentences and placed Mrs. Gross on probation for two years.

Thus the punishments on the second trial differed from those on the first trial. The differences were (a) that Mr. Gross received a four-year, rather than a two-year, sentence on each of the first two counts and (b) that Mrs. Gross' sentences were suspended only as to execution rather than as to both imposition and execution.

The defendants again appeal.

On the first appeal we said,

"Appellants have urged 26 separate assignments of error, many of them repetitious. We have examined all of them and find that none rises to the status of reversible error excepting only one based upon the government\'s cross-examination of appellants\' character witnesses. Since we conclude that a new trial must be granted, we limit our discussion herein to the point requiring reversal." 394 F.2d at 218.

On the present appeal the defense makes 22 assignments of error. The first eight are the same as the first eight on the prior appeal. Further, we have compared the defense briefs for both appeals and find them virtually identical on these eight points. Seven other assignments on the present appeal (Nos. 9, 10, 11, 13, 15, 19, and 20) were also raised on the first appeal and, again, the respective defense briefs on these issues are substantially the same. These 15 assignments on the present appeal (Nos. 1-8, 9-11, 13, 15, 19, and 20) thus are repetitiously raised and are subject to the argument that they were passed upon adversely to the defense in the first appeal, were resolved at that time, and require and deserve no further consideration now. See Emery v. Northern Pacific R. R., 407 F.2d 109, 111-112 (8 Cir. 1969).

Nevertheless, because this is a criminal case resulting in convictions and because on the first appeal we gave these 15 assignments of error, so far as the published opinion was concerned, only peremptory and passing mention, we pause here to say that the present panel, too, has examined the assignments carefully and also finds that "none rises to the status of reversible error." In order that there may be no question about our position, we comment briefly on these assignments as well as on those which are new to this appeal. They may be grouped:

A. Assignments Nos. 1, 3, 4, 5, 7, 8, 9, 10 (in part), and 11. These relate to the indictment and its return and to the district court's refusal to dismiss the indictment.

The defense arguments are (1) that the indictment is legally insufficient because it fails to charge that the representations were false, that the defendants knew they were false, that the defendants intended to defraud, and that someone was actually defrauded; (2) that the five-year limitation period prescribed by 18 U.S.C. § 3282 bars the prosecution because (a) the indictment was returned only on December 6, 1966; (b) it alleges a scheme devised from on or about August 21, 1961 (a date more than five years prior to the return) to on or about October 15, 1963; (c) the "whole gist" of the government's case is the opening of the Gross checking account at the Exchange State Bank in LaCrosse in August 1961; and (d) each charge is based on a scheme said to have been formulated that August; (3) earlier grand juries had refused to indict the defendants; (4) the indictment was returned upon evidence, consisting of bank and Western Union records, unlawfully obtained and wrongfully withheld by the government after the earlier grand juries had refused to indict; (5) there was an untoward delay in prosecution under Rule 48(b), Fed.R.Crim.P., and a denial of the defendants' sixth amendment right to a speedy trial, because more than three years elapsed between the last act charged in the indictment (October 14, 1963) and the indictment's return; (6) the defense was entitled to have the indictment made more specific or to be favored with a bill of particulars; and (7) the defendants were denied a preliminary hearing.

We discuss these in order:

1. There is adequate allegation of falsity in the indictment's charges. Each count alleges that the scheme was one "to defraud and to obtain money by means of false and fraudulent * * * representations * * * the Grosses well knowing at the time that the * * representations * * * would be and were false when made * * *." This surely provides the elements of falsity, knowledge, and intent. It is true that the fourth element which the defense claims to be essential, that of actual loss to a named person, is not alleged in so many words. The purported victims, Bertha Aaby, the Western Union Telegraph Company, and the Decorah State Bank, however, are named.

We recognize, as the defense urges, that in a few opinions there is a broad expression that in mail and wire fraud cases "some person or persons must have been defrauded." See, for example, the two cases which the defense proffers to us, United States v. Baren, 305 F.2d 527, 528 (2 Cir. 1962) (where no supporting authority is cited), and United States v. Rabinowitz, 327 F.2d 62, 76 (6 Cir. 1964) (where only Baren is cited). The Sixth Circuit has quoted its language from Rabinowitz on at least one occasion. United States v. Lichota, 351 F.2d 81, 89 (6 Cir. 1965), cert. denied, 382 U.S. 1027, 86 S.Ct. 647, 15 L.Ed.2d 540. The Fifth Circuit has picked it up. Bass v. United States, 409 F.2d 179, 180 (5 Cir. 1969). The expressions in Baren and Rabinowitz were sufficiently significant to persuade at least one federal trial court to instruct its jury that some person or persons must be defrauded. United States v. Brunet, 227 F.Supp. 766, 772 (W.D.Wis. 1964).

Except for the Wisconsin case, we are not convinced that any of these are flat holdings that actual defraudment is an essential element in federal mail and wire fraud. We regard the expressions as general and perhaps overbroadly stated. The Second Circuit, with the author of Baren a member of the panel, has disavowed it and has limited Baren to its facts. United States v. Andreadis, 366 F.2d 423, 431 (2 Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541. The Ninth Circuit has cited Andreadis with approval. Fineberg v. United States, 393 F.2d 417, 419 (9 Cir. 1968). And the First Circuit has refused to accept Baren and Rabinowitz as expressive of a general rule. New England Enterprises, Inc. v. United States, 400 F.2d 58, 72 n. 10 (1 Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581.

What the defense is really arguing, and as it stressed to the jury and at oral argument, is that no one "lost one penny" by the actions of the defendants and, indeed, "everyone but the Gross's profited by the transactions" for the Western Union received its fees, the bank received its service charges and enjoyed the use of the money on deposit, and Mrs. Aaby received her salary and lost nothing. However, Mrs. Aaby testified that she had to borrow $1,400 to make some of the returned checks good. The fact that Mr. Gross eventually reimbursed her for this does not erase the fraud if it originally existed. United States v. Feldman,...