United States v. Patterson, 26909.

• Decision Date: 20 March 1972
• Docket Number: No. 26909.,26909.
• Citation: 455 F.2d 264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton PATTERSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

455 F.2d 264 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Clifton PATTERSON, Jr., Defendant-Appellant.

No. 26909.

United States Court of Appeals, Ninth Circuit.

February 7, 1972.

Rehearing Denied March 20, 1972.

Roswell Bottum, Jr. (argued), Los Angeles, Cal., for defendant-appellant.

Andrew Willing, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Eric A. Nobles, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Before CARTER and WRIGHT, Circuit Judges; and BATTIN,^* District Judge.

BATTIN, District Judge.

Appellant was convicted of twelve counts of mail fraud under 18 U.S.C. § 1341. Prior to trial, appellant twice moved for severance of his trial from that of other defendants. These motions were denied and appellant was tried with one Aquino, who was charged in other counts of the same indictment with the same offense. At the close of the Government's case in chief, appellant moved the court to declare a mistrial because of misjoinder. This motion was also denied.

The indictment charged that on three separate occasions the mails were used to further a scheme to defraud. It was alleged that in each case mass mailings were made to persons and businesses who repeatedly advertised in the "Yellow-Pages". The evidence introduced by the Government revealed that these mailings were practically identical: Each included a bill, statement or invoice in the form of a data processing card, requiring payment of either $74 or $77 to "Classified Directory". Recipients who paid the bills indicated that they thought they were paying for previously arranged classified advertising and did not know that the bills were from an unrelated source.

One Mortillaro was charged with this offense in Counts One through Seven. He entered a guilty plea before trial. Aquino was charged with this offense in Counts Eight through Fourteen, all pertaining to the period from February 1, 1969, to April 30, 1969, including a mailing on March 12, 1969. Mortillaro was charged with aiding and abetting in each count against Aquino.

Appellant was charged in Counts Fifteen through Twenty-six with conducting a mail fraud contrary to 18 U.S.C. § 1341, from July 1, 1969, to October 1, 1969, including a mailing on September 4, 1969. Mortillaro was also charged with aiding and abetting appellant in each of these counts, as was one Salerno, who also pled guilty before trial.

On its face, the indictment alleged that the scheme used by each of the principals was virtually identical. The same modus operandi was alleged to have been used by each defendant, and Mortillaro was alleged to have been a key participant in each scheme and was a defendant in every count of the indictment.

The Government introduced a packet of materials, which appellant admitted was representative of his mailings. Evidence was introduced which established that appellant mailed these materials. Appellant testified that he did business as "Classified Directory of California", but that he had no business office and had only one employee, his codefendant, Salerno.

The evidence against Aquino showed that he followed virtually the same pattern as appellant in his execution of the scheme. Aquino admitted responsibility for the mailing of approximately 7,000 packets.

Additional evidence was introduced to establish a link between Aquino and Patterson:

1. Mortillaro, who began the use of these schemes, and whose assistance was common to the schemes of both Aquino and appellant, testified that he employed Aquino as a sales manager and that beginning June 1969, he had several discussions with appellant regarding the mechanics of the so-called directory business;

2. Aquino testified that after being sales manager for Mortillaro, he took over Mortillaro's business. He also solicited appellant's services as salesman for the directory business and discussed the business with appellant on several occasions 3. Appellant testified that he had several discussions with Aquino about the mechanics of the business and that on one occasion while attempting to call Aquino at his place of business, he talked with Mortillaro who answered the phone instead of Aquino. This conversation was about the operation of the directory business; and

4. Mortillaro, Aquino and appellant actually mailed billing cards and related material which were almost identical.

During the course of the trial, the court and trial counsel specifically indicated which evidence applied to which defendant. In addition, the jury was instructed to apply each instruction separately to each defendant and to consider each alleged offense and each defendant separately in analyzing the evidence in the case. There is no evidence to show that these instructions were not followed by the jury in rendering its convictions of both Aquino and appellant.

On appeal, appellant claimed that neither the indictment nor the representations of the Government established joint acts which would permit joinder of the defendants and...