United States v. Spiro

• Decision Date: 22 November 1967
• Docket Number: No. 15876.,15876.
• Citation: 385 F.2d 210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward J. SPIRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.2d 210 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Edward J. SPIRO, Defendant-Appellant.

No. 15876.

United States Court of Appeals Seventh Circuit.

October 23, 1967.

Rehearing Denied November 22, 1967.

Stanley A. Bass, Chicago, Ill., Edward K. Blodnick, Hicksville, N. Y., for appellant.

Edward V. Hanrahan, U. S. Atty., George E. Faber, Chicago, Ill., for appellee, John Peter Lulinksi, Gerald M. Werksman, Asst. U. S. Attys., of counsel.

Before HASTINGS, Chief Judge, MAJOR, Senior Circuit Judge, and KNOCH, Circuit Judge.

MAJOR, Senior Circuit Judge.

Defendant (appellant) was charged by indictment in the Northern District of Illinois with the offense of devising and intending to devise a scheme and artifice to defraud and obtain money and property by means of false and fraudulent pretenses, representations and promises, and transmitting and causing to be transmitted in interstate commerce, by telephone communications, sounds for the purpose of executing the said scheme and artifice, in violation of Title 18 U.S.C.A. Sec. 1343.

Defendant waived trial by jury and was tried by the court, which found him guilty. From the judgment entered thereon, defendant appeals.

While other contentions are advanced as reasons for reversal, we think the serious contention is that venue was improperly laid in the Northern District of Illinois and that the court, therefore, was without jurisdiction.

A brief statement of the facts will suffice, particularly as they relate to the jurisdictional issue. Defendant was registered at the Mansion Inn in Sacramento, California, from July 3 through July 8, 1965, giving his business address as Silmica Corp., Chicago, Illinois. On the morning of July 8, he placed a person-to-person call from Sacramento to the office of Raymond Rosen, president of Universe Chemicals, Inc., in Chicago. The operator advised that Rosen was out of town and defendant left a message requesting that Rosen call him.

On the same date Rosen, who was in New York City, called his Chicago office and was told of defendant's request. He called defendant in Sacramento and, after a lengthy conversation, agreed to hire him as a salesman for Universe Chemicals, Inc. He further agreed, as requested by defendant, to send him a presentation sales kit and $200 as a draw against future commissions. The money and the kit were sent to defendant in Sacramento. On July 9, defendant accepted delivery of the Universe sales kit at the Railway Express office in Sacramento, and also received and retained the proceeds from a $200 Western Union money order sent by Rosen. Almost immediately after accepting delivery of the sales kit, defendant ordered it reshipped to Silmica Corp. in Chicago (a competitor of Universe Chemicals, Inc.), with whom defendant had been previously and was subsequently employed.

The Railway Express agent in Sacramento, whose testimony defendant characterizes as crucial, testified:

"A. Well, he came in and he said he had a briefcase there, and he wanted to reship it. And I told him that he would have to accept it first, sign for it, and then he could do whatever he wanted with it. That\'s one of our rules, which he did.

Q. All right. Now, what happened after he accepted it?

A. Well, he said if I would do him a favor and not to say where it was going or if he had been there.

* * * * * *

Q. All right. Now, will you relate the conversation, please, after he accepted it.

A. Well, that was all that was said.

Q. And that was what?

A. That not to say anything, that he had been there or where the briefcase was going.

Q. And was the briefcase ever taken from your presence?

A. No.

Q. In other words, it was shipped out directly as of that time?

A. He accepted it and then reshipped it.

Q. And approximately how much time did this person spend in your presence?

A. Five minutes at the most."

That there was a scheme to defraud, conceived and executed by defendant who reaped the benefit therefrom, is hardly open to question. Defendant on brief states, "* * * defendant might well be liable for unlawful conduct at the time he reshipped the kit, perhaps mail fraud. But the central issue in this wire fraud prosecution is whether an unlawful intention to defraud was formed at the time of the overt act, the telephone call."

Defendant concedes that venue could have been properly laid in either Northern California or Southern New York, on the premise that it was the telephone call from Rosen in New York to him in California which resulted in sounds being transmitted between two points. This reasoning ignores the call from defendant in Sacramento to Rosen in Chicago, which is characterized as an "abortive" or incomplete call.

Defendant cites only Boruff v. United States, 5 Cir., 310 F.2d 918, in support of his venue contention. In that case there were two telegraphic transmissions, the first interstate, from Charlotte, Michigan, to Atlanta, Georgia, and the second intrastate, from Atlanta to Thomasville, Georgia. The court held that the first was complete upon its receipt...