United States v. Scott

• Decision Date: 22 April 1971
• Docket Number: Crim. No. 70-93.
• Citation: 326 F. Supp. 272
• Parties: UNITED STATES of America v. Clarence SCOTT.
• Court: U.S. District Court — Eastern District of Pennsylvania

326 F. Supp. 272

UNITED STATES of America v. Clarence SCOTT.

Crim. No. 70-93.

United States District Court, W. D. Pennsylvania.

April 22, 1971.

Henry G. Barr, Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

Donald D. Rossetti, Monroeville, Pa., for defendant.

OPINION

TEITELBAUM, District Judge.

The defendant, Clarence Scott, was convicted of five of six counts of mail fraud in violation of Section 1342 of Title 18, United States Code. He has moved for a new trial, asserting the following reasons therefor:

1. That the Court erred in denying defendant's Motion for Judgment of Acquittal made at the conclusion of the Government's case and renewed at the conclusion of all of the evidence,

2. That the verdict is contrary to the weight of the evidence,

3. That the verdict is not supported by substantial evidence, and

4. That the Court erred in admitting evidence and testimony regarding defendant's use of credit cards not the subject of the indictment in the case and further erred in instructing the jury with respect to such transactions.

I find that each of the contentions are without merit and the motion will be denied.

Because counsel for the defendant has made no request for the transcription of the record of trial, the Court relies in its discussion upon notes of trial taken by the Court and certain excerpts read to the Court by the Court Reporter.

The indictment charged the defendant with engaging in a fraudulent scheme whereby he obtained cash or merchandise through the use of credit cards for which he had applied under fictitious names and which consequently were issued in those fictitious names and mailed to addresses where defendant would recover them. The six counts of the indictment charged that the defendant, in pursuit of this scheme, made six specific, fraudulent, applications for credit accounts: two applications to the Mellon National Bank and Trust Company in the fictitious names of Roy Foster and Ralph D. Cole; two applications to Atlantic-Richfield Company in the fictitious names of Daniel Dane and Roy Foster; an application to the Standard Oil Company in the fictitious name of Roy Foster; and an application to the Texas Oil Company in the fictitious name of Roy Foster.

It cannot be said that the evidence offered by the Government to establish the scheme and individual acts in pursuit thereof was insubstantial. The Government's evidence established the following. At some time before October 24, 1967, an application for a credit account in the name of Daniel Dane, 9509 Kempton Avenue, Cleveland, Ohio, was submitted to the Atlantic-Richfield Company, 1100 Chamber of Commerce Building, Pittsburgh, Pennsylvania.

On October 24, 1967, a credit card was issued in response to the application and mailed to the given address of the applicant. A large outstanding balance existed on this credit account at the time of trial.

The Kempton Avenue address was a dwelling house owned and inhabited by Mrs. Nellie Washington. In 1967, she leased the apartments in the dwelling, one to Jose Crittenden and another to Leonard Dickerson. The defendant resided with Leonard Dickerson for a four month period in the early Summer of 1967.

On October 12, 1967, defendant was lawfully apprehended by the Sheriff of Livingston County, New York in connection with an offense not the subject of the instant indictment. After full and sufficient warnings as to his rights in custody, an Officer asked the defendant how he thought he could outwit oil companies. Defendant replied that he had consulted with a lawyer, that there was nothing illegal about what he was doing, that neither the Federal Government nor the oil companies would prosecute and that if he took each oil company for up to Twenty Thousand Dollars ($20,000.00) a year, they could cross it off.

While in custody in New York, defendant voluntarily spoke with Mr. Bernard Ward, an investigator for Gulf Oil Company. The defendant offered to make a deal with respect to the information Mr. Ward desired, but Mr. Ward refused. Nevertheless, the defendant proceeded to tell Mr. Ward that he had engaged in a practice of securing cash at various gasoline stations by "tipping" operators of those stations for making false representations on credit invoices to the effect that defendant had purchased certain goods, when, in fact, he had not. Defendant also told Mr. Ward that Daniel Dane did not exist.

On December 16, 1967, a Missouri State Police Officer stopped a vehicle driven by the defendant and, upon the officer's request for an operator's license, defendant produced a document in the name of Daniel Dane indicating that said person had passed the Missouri motor vehicle operator's examination.

Incident to a lawful arrest of the defendant at his residence, 8138 Balson Avenue, St. Louis, Missouri on January 12, 1968, Missouri police officers conducted a proper pre-Chimel¹ search of the premises. Found in a study in the residence was a note purportedly signed by Daniel Dane and to the effect that permission was given to the defendant to use Daniel Dane's credit cards. A second item discovered was a receipt for an application for a duplicate Missouri operator's license in the name of Daniel Dane. Finally, there were seized numerous receipts for credit purchases totalling more than Nine Hundred Dollars ($900.00), reflecting purchases made within a period of a few days upon credit cards other than those subject of the instant indictment, but one of which was in the name of Daniel Dane.

The Atlantic-Richfield credit card issued in the name of Daniel Dane was the specific subject of Count Four of the indictment. The jury ultimately found the defendant Not Guilty of the fourth count but Guilty of the remaining counts of the indictment. Nevertheless, for reasons which are discussed in the latter part of this Opinion, I have concluded that the evidence relating to this credit card was relevant not only to establish the specific acts charged in the fourth count but also to establish the scheme with which defendant was charged and which was an essential element of each count, the identity of the defendant as the perpetrator of that scheme, and the intent with which he acted.

Turning to the credit cards which were the subjects of the remaining five counts of the indictment, the Government proved the following. At some time before June of 1968, an account was opened in the name of General Dynamics Company with the Hudson Answering Service, 1301 Clark Building, Pittsburgh, Pennsylvania. The account was opened by a person purporting to be Roy Foster. Listed with the Answering Service, as employees of a local branch office of the General Dynamics Company were the names of Roy Foster and Ralph D. Cole, among others. The Answering Service was to receive mail on behalf of the General Dynamics Company branch office and the persons listed as its employees and forward same to 714 East Schwartz Street, Edwardsville, Illinois. It was established that the aforementioned was the address of Effie Scott, defendant's grandmother, on or about June of 1968 and until some time in 1969, when she moved to 215 West Union Street.

It was established that applications for the five credit accounts which were the subject of the five remaining counts of the indictment were submitted to the Mellon Bank and the Oil Companies on or about the middle of 1968. The five applications, in the names of Roy Foster and Ralph D. Cole, stated as the addresses of the applicants 1301 Clark Building, Pittsburgh, Pennsylvania. Four of the five applications stated that the applicants were employees of General Dynamics Company. All five of the accounts had substantial outstanding balances at the time of trial.

An experienced document examiner for the Postal Inspection Service was of the opinion that the application of Roy Foster for a Mellon Bank credit account, involved in Count One, and the application of Ralph D. Cole for a Mellon Bank credit account, involved in Count Two, were completed on the same Royal Typewriter. The application of Ralph D. Cole stated a prior address of the applicant to have been 8138 Balson Avenue, St. Louis, which was established to have been the residence of the defendant from the Fall of 1967 through the date of trial.

The Atlantic-Richfield credit card issued to Roy Foster and the Boron (a Sohio subsidiary) credit card issued to Roy Foster, which were the subjects of Counts Three and Five respectively, were found in April of 1969 at the service station of Alan Zeman in St. Louis, Missouri in or about a stack of tires located beneath a telephone which the defendant was using a short time before, in an attempt to secure approval from the Skelly Oil Company to use a Skelly Oil Company credit card in the name of Michael Guerraro. The telephone conversation was prompted by the station-owner's suspicion of the Guerraro credit card and subsequent call to the Skelly Oil Company, a representative of which instructed the station-owner to dishonor and pick up the card.

With respect to the application for a Texas Oil Company credit account in the name of Roy Foster, involved in Count Six, it was established that the address of Roy Foster was changed on the records of the Company to 714 East Schwartz Street, Edwardsville, Illinois, the residence of defendant's grandmother, on December 17, 1968. It was also established that a person using the credit card issued on this account signed a credit invoice stating thereon the address of the user as 8138 Balson Avenue, St. Louis, Missouri, which was occupied by the defendant at the time the receipt was given.

It is my conclusion that the aforementioned constituted substantial evidence from which the jury reasonably could find both that the defendant had engaged in the scheme charged and that, in pursuit of this scheme, the defendant applied for and received through the United States mail, and used, five different credit cards issued in the names of fictitious...