United States v. Mingo

• Decision Date: 02 May 1963
• Docket Number: No. 8097 T. Cr.,8097 T. Cr.
• Citation: 217 F. Supp. 729
• Parties: UNITED STATES of America v. Michael Snedeker MINGO.
• Court: U.S. District Court — Middle District of Florida

217 F. Supp. 729

UNITED STATES of America v. Michael Snedeker MINGO.

No. 8097 T. Cr.

United States District Court M. D. Florida, Tampa Division.

May 2, 1963.

Edward F. Boardman, U. S. Atty., by Joe H. Mount, Asst. U. S. Atty., Tampa, Fla., for plaintiff.

Harry W. Fogle, of Fogle, Wilson & Shingler, St. Petersburg, Fla., for defendant.

LIEB, District Judge.

In this case the defendant, Michael Snedeker Mingo, was charged in a two count indictment with violation of Section 2314, Title 18, United States Code Annotated. Upon a "not guilty" plea duly entered by the defendant to both counts, the case was called for trial before the Court sitting without a jury pursuant to a written waiver of trial by jury filed by the parties at the opening of the trial. Prior to taking any testimony, the Government announced that it would be unable to produce any proof of the interstate element of the transaction described in count one of the indictment, whereupon the Court granted leave to dismiss said count and said count was dismissed voluntarily by the Government.

Count two, upon which the trial was had, charged that: "On or about April 10, 1962, the defendant did with unlawful and fraudulent intent cause to be transported in interstate commerce from Tarpon Springs, Florida, to Philadelphia, Pennsylvania, a falsely made and forged security, to-wit: an evidence of indebtedness showing that merchandise costing $24.67 had been purchased on credit with and by the use of credit card No. R-08661654, issued by Richfield Oil Corporation to C. W. Ireland, and the defendant then and there well knew that said security was falsely made and forged."

From the written stipulation jointly produced by the parties and admitted into evidence, and from additional evidence offered by the Government, the following facts can be taken as established:

The Richfield Oil Corporation issued an annual credit card to one, C. W. Ireland. Said card was marked "Valid through June 1962." The card also recited that it would be honored at stations operated by the Cities Service Oil Company. On April 10, 1962, the defendant, Michael Snedeker Mingo, purchased certain merchandise from a Cities Service gas station located in Tarpon Springs, Florida. Said merchandise consisted of and was described as, "Delco Parts" priced at $24.67, including tax. The defendant presented the credit card involved in this case to the gas station attendant in lieu of payment for said merchandise, whereupon the gas station attendant prepared, with the use of the credit card, a printed form card entitled "Invoice from your CITIES SERVICE DEALER," reflecting the sale of said products to C. W. Ireland for the price mentioned above. The attendant then handed said invoice to the defendant, who signed the name of C. W. Ireland in the blank space provided on the invoice for the signature of the purchaser, acknowledging receipt and purchase of the merchandise described thereon. Subsequently said invoice was transmitted by the Tarpon Springs, Florida, service station to an office of the Cities Service Oil Company located in Philadelphia, Pennsylvania.

The question presented for the Court's determination is whether or not the invoice involved in this case was, in fact, an evidence of indebtedness and, therefore, a security within the meaning of Section 2314, Title 18, United States Code Annotated, the section under which indictment was brought. The pertinent portion of said section reads as follows:

"Transportation of * * * securities, * * *.

"Whoever, with unlawful or fraudulent intent, transports in interstate * * * commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited; * * *."

The Court, having reviewed the authorities cited by the parties and the pertinent case law revealed by independent research, is of the opinion that the invoice involved in this case is an evidence of indebtedness and, therefore, a security within the meaning of the statutes involved in this case for reasons hereinafter stated.

Congress has undertaken to define what constitutes a security. Section 2311, Title 18, U.S.C.A., the section setting forth definitions, states, inter alia, that:

"`Securities' includes any * * * evidence of indebtedness * * * or writing evidencing ownership of goods, wares and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise * * *."

Since it cannot be said that an invoice is legally incapable of being an evidence of indebtedness under any circumstances (see Lewis v. U. S., 10 Cir., 301 F.2d 787,) it is important to examine the true nature of the invoice involved herein. In this connection it is important to consider its commercial function, the underlying credit agreement, express or implied, if any, and the treatment accorded...