United States v. Rosenfeld, 11656.

• Decision Date: 10 September 1956
• Docket Number: No. 11656.,11656.
• Citation: 235 F.2d 544
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. John D. ROSENFELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

235 F.2d 544 (1956)

The UNITED STATES of America, Plaintiff-Appellee, v. John D. ROSENFELD, Defendant-Appellant.

No. 11656.

United States Court of Appeals Seventh Circuit.

June 29, 1956.

Rehearing Denied September 10, 1956.

William T. Fitzgerald, Evansville, Ind., Lorin H. Kiely, Evansville, Ind., Darby & Fitzgerald, Evansville, Ind., of counsel, for appellant.

Jack C. Brown, U. S. Atty., Edgar D. Whitcomb, Asst. U. S. Atty., Indianapolis, Ind., for appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

Seymour S. Cutler, a co-defendant of Rosenfeld whose appeal is before us, owned the Consolidated Home Improvement Company of Evansville, Indiana. Rosenfeld was employed as a salesman for Cutler's firm. In counts 1 and 2, of a six-count indictment, Rosenfeld and Cutler were both charged with violating 18 U.S.C. § 1010 (1952 ed.) and with conspiracy under 18 U.S.C. § 371 (1952 ed.) Count 1 is eliminated in this appeal because Rosenfeld's motion for judgment of acquittal on it was sustained below.

Since much of Rosenfeld's appeal hinges on joinder and severance, we show the following analysis of the entire indictment:

                  COUNT   DEFENDANTS NAMED        CODE SEC
                  ----------------------------------------------
                  I       Cutler & Rosenfeld   18 U.S.C. § 1010
                  II      Cutler & Rosenfeld   18 U.S.C. § 371
                  III     Cutler & Wagner      18 U.S.C. § 1010
                  IV      Cutler & Wagner      18 U.S.C. § 371
                  V       Cutler & Robertson   18 U.S.C. § 1010
                  VI      Cutler & Robertson   18 U.S.C. § 371
                

Counts III and IV were severed for trial and Rosenfeld was convicted by a jury on the second count. It is clear that the gravamen of the indictment lies in 18 U.S.C. § 1010. Rule 8(b), Federal Rules of Criminal Procedure, 18 U.S.C. is standing refutation of Rosenfeld's argument in support of severance or faulty joinder:

"Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Nothing we said in our majority decision of United States v. Tuffanelli, 7 Cir., 1942, 131 F.2d 890, decided before that Federal Rule was adopted, collides with it. A clearly discernible pattern of action involving Cutler and his salesmen is traceable from the face of this record. McElroy v. United States, 1896, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355, pressed on us by defendant, being factually dissimilar from the offenses spelled out in the indictment accusing Rosenfeld fails in lending strength for his position.

Government exhibits 2B and 4B, contracts of sale "Consolidated Home Improvement Co.," each bear the signatures of Rosenfeld and Cutler; exhibits 2A and 4A, signed by Rosenfeld are F. H. A. Credit Applications, each showing Consolidated as the contractor. All the other contracts and credit applications, received in evidence, are in the name of Consolidated by Cutler and signed by other co-defendant salesmen. Section 1010 permeates this indictment and case. We think the indictment is sufficient and proper. Wong Tai v. United States, 1927, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; United States v. Lotsch, 2 Cir., 1939, 102 F.2d 35.

This record impressively attests the want of merit in defendant's position concerning his motions for judgment of acquittal, for a new trial, arrest of judgment and his challenge directed at the sufficiency of evidence underlying the jury's verdict. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Aman, 7 Cir., 1954, 210 F.2d 344, and United States v. Thayer, 7 Cir., 1954, 209 F.2d 534. Acting as Consolidated's salesman, Rosenfeld called upon Herbert Ray...