United States v. Prionas, 20288.

• Decision Date: 17 May 1971
• Docket Number: No. 20288.,20288.
• Citation: 438 F.2d 1049
• Parties: UNITED STATES of America, Appellee, v. Paul L. PRIONAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 1049 (1971)

UNITED STATES of America, Appellee, v. Paul L. PRIONAS, Appellant.

No. 20288.

United States Court of Appeals, Eighth Circuit.

March 3, 1971.

Rehearing Denied March 29, 1971.

Certiorari Denied May 17, 1971.

Bruce S. Feldacker, St. Louis, Mo., for appellant.

Daniel Bartlett, Jr., U. S. Atty., Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.

Certiorari Denied May 17, 1971. See 91 S.Ct. 1683.

HANSON, District Judge.

Defendant Paul Prionas, appellant herein, was convicted by a jury on nine counts of an indictment charging mail fraud and seven counts of using an assumed name in connection with the mail fraud scheme. 18 U.S.C.A., Section 1341; 18 U.S.C.A., Section 1342. He was sentenced to a total of eight years imprisonment.

Defendant presents four issues to be considered on appeal: (1) the insufficiency of the evidence; (2) the inadmissibility of certain exhibits; (3) the improper cross-examination of defendant; and (4) the propriety of the trial court's reserving ruling on a motion for judgment of acquittal at the close of the Government's case. We reject each of defendant's grounds for reversal and affirm. We will consider the issues raised seriatim.

I. SUFFICIENCY OF THE EVIDENCE

The essence of the indictment was that defendant devised a scheme involving two schools, the Doncaster School and the Brookshire School, whereby he acquired merchandise which he had no intention of ever paying for. Counts 1 and 3 alleged violations of 18 U.S.C., Section 1341 in the operation of the Doncaster School. Counts 7, 8, 11, 12, 13, 14 and 15 alleged violations of 18 U.S.C., Section 1341 in the operation of the Brookshire School. Counts 16, 17, 20, 21, 22, 23 and 24 alleged violations of 18 U.S.C., Section 1342 in connection with defendant's use of the name Lawrence Van Rick in the operation of the Brookshire School. The other eight counts of the indictment were dismissed by the Government at trial.

The Government's evidence established the following facts: In early 1966, Prionas began ordering merchandise through the mails from various companies by the use of printed purchase orders bearing the name of the Doncaster School. Specifically, on February 3, 1966, defendant ordered a $136 pegboard divider from the Brewster Corporation on behalf of the Doncaster School which order was signed by Paul Prionas. This item was shipped collect but no payment was ever received. On October 9, 1967 the Brewster Corporation received a letter from Prionas stating that the equipment was being used but that "due to circumstances beyond our control, we are not able to meet all our financial obligations, and are doing our best to avoid filing bankruptcy." The letter further stated that Prionas was willing to return the equipment or make partial monthly payments.

A representative from Olson Electronics testified that their firm had also received a purchase order from Doncaster School by Paul Prionas. The merchandise was shipped but no payment was received. In response to a collection letter, Olson received on September 20, 1967, a letter identical to that received by Brewster Corporation in respect to why no payment had been forthcoming. Before that date, however, Olson had sent its local St. Louis representative, Mr. Charles DeLuca, to the Doncaster School Location in an attempt to regain the merchandise.

Mr. DeLuca testified that upon notification by Olson Electronics, he went to the Doncaster School address in St. Louis. DeLuca found a junk shop at the purported address but upon inquiry located the Doncaster School two doors down. There was a sign indicating the Doncaster School. DeLuca talked to Prionas and requested payment or return of the merchandise. At that time Prionas stated that he did not have the merchandise and wanted to talk to his attorney. A week later Prionas told DeLuca he had seen his lawyer and would make payment in thirty days. In November 1967 DeLuca was requested by Olson to check the status of the Prionas situation. DeLuca went back to the Doncaster School approximately three times but was unsuccessful in getting any answer to his knocks on the door. Olson was never paid for the merchandise.

Postal Inspector Britz testified that he had received complaints from Olson Electronics and other companies about the Doncaster School. Britz began an investigation of the matter and spoke to defendant. Prionas admitted receiving the merchandise and not paying for it. Prionas told Britz that he would return some of the merchandise but that he had already sold some of the items. Britz described the Doncaster School as a second-story three-room apartment composed of a kitchen, a living room and sleeping quarters. It was furnished with a kitchen table, a range, a few chairs, sofa and bed. The only equipment Britz saw was a projector. It should be noted that Britz met with Prionas three times and the proper constitutional warnings were observed.

The evidence also established that in 1969 defendant established a second school, the Brookshire School, and again began ordering merchandise from various companies. The merchandise was ordered by Prionas under an assumed name, Lawrence Van Rick. The companies shipping the merchandise never received payment. These purchases were concentrated in no more than a three-month period in 1969.

Postal Inspector Schicker testified that he first had contact with the defendant in June 1968 when Postal Inspector Britz was investigating the Doncaster School. Schicker's participation in that investigation was limited to witnessing the Miranda warnings given to defendant.

Schicker again saw defendant on July 3, 1969 at the Brookshire School. He was investigating complaints against the school for failure to pay for merchandise. Schicker did not remember Prionas' name but remembered his face. Prionas first stated his name as Lawrence Van Rick but when Schicker disputed this, defendant told him his real name. Schicker advised defendant of his constitutional rights. Defendant stated he owned the Brookshire School. Inspector Schicker made some notes of several pieces of equipment in sight which included an amplifier, tape deck, two speakers and a projector. Schicker described the Brookshire School as a one-room affair with a cot in the corner, several lights and one chair. On July 7, 1969, defendant met with Schicker at which time a statement was taken from defendant.

In the statement given to the postal inspector, Prionas stated that on that day he was returning all the merchandise through American Express Company. He also stated that he would give Schicker the shipment receipt when the merchandise was returned. Defendant did not give Schicker any receipt nor was any merchandise ever returned. Between July 7, 1969, and September 15, 1969, Schicker unsuccessfully attempted to locate defendant at the Brookshire School address. However, Schicker did not attempt to locate defendant at the address and telephone given in the statement which was his parent's address and number.

Schicker next saw defendant on September 15, 1969, and again interviewed him concerning both the Doncaster and Brookshire Schools. Defendant gave Schicker permission to search his apartment. A quantity of merchandise in the nature of stereo, photographic and electronic equipment was found.

Defendant's evidence is as follows: Oliver Matthews, who gave his occupation as a sculptor, testified that in 1967 he was a student in the Doncaster School. He stated that the Doncaster School was a "real big apartment" with a lot of good new equipment of the kind that was used in sculptoring. Matthews further stated that he saw other people at the school who came and went and that there were no set classes. He also stated that he saw defendant helping others in their art work, that he never paid any money to defendant and that he didn't know whether the other students paid anything.

Miss Linda Gould testified that she did art work and was familiar with the Brookshire School. She first heard of the school from friends. She stated that she was a student of the Brookshire School in May and June of 1969 and that defendant instructed her in the art of sculptoring. She attended approximately eight times. She saw no other students but assumed there were other students because of the other works of art in progress. She stated that she was charged $6.00 a lesson.

The defendant took the stand in his own behalf. He stated that he started the Doncaster School in 1966 to teach sculpture in the Gaslight Square area of St. Louis. He described the Gaslight Square as an arty-minded neighborhood and himself as a self-educated sculptor. Defendant testified that he used the purchase orders as a financing method since he couldn't raise any money for the school. He stated that in the customary 30-60-90 day credit periods, he had expected income from the school to pay for the merchandise so ordered. Defendant testified that the incorrectness of the address for the Doncaster School on the purchase orders resulted from a printer's error. He also stated that at the time he placed the orders for Doncaster School he had intended to pay for the goods but because of the school's lack of success in attracting paying students, had sold some of the merchandise for rent and food. He further testified that he stopped the Doncaster School in the fall of 1967 after the inquiry by the postal authorities. His avowed reason for not returning the merchandise was a lack of funds for shipping costs.

Defendant further testified that he eventually left St. Louis and went to California for a couple of months returning to St. Louis in December 1968. He then started the Brookshire School in May 1969. It was closed in July 1969 after defendant was again investigated by the postal authorities. The avowed purpose of the Brookshire School was to teach sculpture. Before the...