United States v. Shipp

• Decision Date: 15 April 1966
• Docket Number: No. 16263.,16263.
• Citation: 359 F.2d 185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas W. SHIPP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.2d 185 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas W. SHIPP, Defendant-Appellant.

No. 16263.

United States Court of Appeals Sixth Circuit.

April 15, 1966.

William P. Streng, Cincinnati, Ohio (Ct. Appointed) (James P. Coleman, Ackerman, Miss., on the brief), for appellant.

William A. McTighe, Jr., Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Memphis, Tenn., Herbert J. Miller, Jr., Asst. Atty. Gen., Washington, D. C., on the brief), for appellee.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PHILLIPS, Circuit Judge.

Appellant was convicted under one substantive count of a multi-count indictment charging use of the mails to defraud in violation of 18 U.S.C. § 1341 and a conspiracy count charging violation of 18 U.S.C. § 371. He was sentenced to imprisonment of three years on each count, to run concurrently.

There were a number of co-defendants. Severances were granted to two co-defendants; as to one of these the indictment is still pending and as to the other a nolle prosequi has been entered. A motion for acquittal was granted as to two co-defendants who were tried with appellant, and all other co-defendants were found not guilty on all counts by the jury. Appellant was found not guilty on seven substantive counts and guilty on only two counts as indicated above.

Appellant contends: (1) that there is not sufficient evidence to support the verdict on either the substantive count or the conspiracy count; (2) that in any event there could be no conviction on the conspiracy count because all his co-defendants are now out of the case; and (3) that the district court committed reversible error in requiring that, if appellant desired to testify in his own defense, he be the first witness for the defense.

1) Sufficiency of the evidence

Early in 1962 appellant arranged for the construction of a working model of a vending machine that would sell accident and life insurance policies in motels, filling stations and similar locations frequented by tourists. On June 13, 1962, a Tennessee corporation was formed for the promotion and sale of such vending machines, with its place of business in Memphis.¹ Appellant was president of this corporation. The business was operated under the name of Roadmasters, Inc.

During June 1962 some of the co-defendants, all employees or agents of the corporation, began selling the machines, usually in blocks of ten, for the sum of $1,800 per unit. Some purchasers paid cash in full while others made only down payments. No machines ever were delivered to the purchasers and no money was returned to any of them.

The substantive count on which appellant was convicted charged that on or about June 1, 1962, and continuing until about November 1, 1962, appellant, along with his co-defendants, devised and intended to devise a scheme or artifice to defraud and to obtain money and property by means of false and fraudulent pretenses by selling said vending machines; and that sales were promoted by advertisements, personal visits and verbal representations, as well as by mail solicitation. Specifically the first count of the indictment charged that:

"On or about July 17, 1962, at Memphis, Shelby County, in the Western Division of the Western District of Tennessee, in violation of Section 1341, Title 18, United States Code, the said defendants, for the purpose of executing the aforesaid scheme and artifice to defraud, and attempting so to do, did place and cause to be placed in an authorized depository for mail matter, a letter from Roadmaster Company, Inc., signed Richard A. Beebe and addressed to:

Mr. William A. Rolston, Jr 3865 Chatfield Avenue Baton Rouge, Louisiana,

to be sent and delivered by the Post Office Establishment of the United States of America."

The seven other substantive counts, on which appellant and his co-defendants were found not guilty, charged mail solicitations of other persons on dates between July 11, 1962, and September 12, 1962.

Appellant contends that by its verdict of not guilty on other counts the jury found that the scheme to defraud existed only between July 11 and July 17 and that the government failed to prove that any mail solicitations occurred during this period. We do not think that the jury verdict may be so interpreted.

It is well established that each count of an indictment is to be considered separately. "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356; United States v. McGee, 315 F.2d 479, 481 (C.A.6). A jury does not have to be consistent in order to be effective. United States v. Johnson, 165 F.2d 42, 46 (C.A.3), cert. denied, 332 U.S. 852, 853, 68 S.Ct. 355, 92 L.Ed. 421. Appellant had no vested right in the punishment of his co-defendants, no matter how guilty they may have been. United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (C.A.2), cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002.

The evidence shows that William A. Rolston saw an advertisement in a Baton Rouge newspaper;² that he replied to this advertisement by an inquiry directed to Roadmaster; that he received letters from Roadmaster;³ that a representative from Roadmaster went to Baton Rouge and talked to him concerning the machines; that as a result of this conversation, Rolston purchased ten machines and at the time paid a deposit by check in the amount of $150.00 for which he was given a receipt; that a purchase agreement was signed by Rolston, taken to Memphis, signed by appellant, and mailed back to Rolston in Baton Rouge; that representations were made to Rolston that the machines would be delivered in about six weeks; that subsequently, on July 17, 1962, Rolston received a letter from Roadmaster,⁴ signed by Richard A. Beebe, office manager, requesting that he forward the balance of $1650 to Roadmaster in Memphis; that as a result of this letter, Rolston forwarded the balance by mail; that on July 25 receipt of this money was acknowledged for Roadmaster by Mr. Beebe; that when the machines were not delivered Rolston sent a telegram to appellant inquiring as to when the machines would be delivered; and that a letter⁵ was received by him from Mr. Beebe stating that the "machines are on the assembly line" and would be shipped within the next few days; and that the machines were never received and that no restitution of the money has been made.

The evidence shows that although a prototype of the proposed machine was built, no machines were actually manufactured for sale and delivery.

In considering whether there is sufficient evidence to support the verdict of the jury, we view the evidence as well as the inferences properly deducible therefrom in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Salter, 346 F.2d 509 (C.A.6).

The elements of the offense of mail fraud are a scheme to defraud and the mailing of a letter for the purpose of executing the scheme. Proof of the scheme to defraud requires establishment of the element of intent. Questions of intent are for the jury. United States v. Lichota, 351 F.2d 81, 89 (C.A.6), cert. denied, 382 U.S. 1027, 86 S.Ct. 647, 15 L.Ed.2d 540; and cases therein cited; United States v. Hopkins, 357 F.2d 14 (C.A.6) (No. 16,129, Feb. 17, 1966). Appellant contends that all the solicitations are shown to have been made by co-defendants who have been found to be not guilty. The proof is clear, however, that such solicitations were made in the name of Roadmaster, of which appellant was president, and that appellant was involved personally in the entire project. We hold that the evidence was sufficient for the jury to find that the letter of July 17, 1962 (footnote 4) was caused to be mailed by appellant or was mailed with his knowledge and approval and that there existed the requisite fraudulent intent on the part of appellant. We conclude that the evidence is sufficient to support the conviction on the substantive count.

Without lengthening this opinion with a further recitation of details, we also hold that the evidence is sufficient to support the conviction on the conspiracy count.

2) The charge of conspiracy

Appellant further contends that the conviction for conspiracy cannot stand in any event because he is the only party now remaining in the case, since two co-defendants were granted severance, and the others have been acquitted. We reemphasize that as to one of the defendants who was granted a severance, the district court granted a nolle prosequi upon motion of the government. The other defendant has not been tried nor has a nolle prosequi been granted.

Appellant relies upon Bates v. United States, 323 U.S. 15, 65 S.Ct. 15, 89 L.Ed. 13, and numerous similar cases to the effect that conspiracy requires more than one actor and that the reversal of the conviction of one of two conspirators dictates an acquittal of the other. A recent case to this effect is Lubin v. United States, 313 F.2d 419 (C.A.9). The present case is distinguishable on its facts from these cases.

In United States v. Fox, 130 F.2d 56 (C.A.3), cert. denied, 317 U.S. 666, 63 S.Ct. 74, 87 L.Ed. 535, the court held that a nolle prosequi was not the equivalent of an acquittal, that neither guilt nor innocence of the co-conspirator had been established, and thus the entry of a nolle prosequi as to all except one defendant will not vitiate the conviction of the remaining defendant on a conspiracy count.

Further it has been held that the conviction of one defendant may be sustained after acquittal of all other defendants when a severance has been granted as to some and final disposition has not been made as to the remaining defendant or defendants. DeCamp v. United States, 56 App.D.C. 119, 10 F.2d 984, 985 (C.A. D.C.); United States v. Koritan, 182 F.Supp....