United States v. Verville

Decision Date28 January 1966
Docket NumberNo. 15087.,15087.
Citation355 F.2d 527
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank Robert VERVILLE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Lee Feltman, New York City, for appellant.

Franklyn M. Gimbel, Asst. U. S. Atty., Milwaukee, Wis., James B. Brennan, U. S. Atty., William M. Coffey and Louis W. Staudenmaier, Jr., Asst. U. S. Attys., Milwaukee, Wis., for appellee.

Before DUFFY, KNOCH, and KILEY, Circuit Judges.

KILEY, Circuit Judge.

We think the district court erred in admission of bankruptcy records in the trial of this mail fraud case, and that defendant-Verville's conviction must be reversed and the case remanded.

The twenty-one count indictment was returned April 28, 1959, charging Verville in seventeen counts with use of the mails in a scheme to defraud,1 and, in one count, charging Verville, James Bishop, and others with a conspiracy to unlawfully transport, receive and sell in interstate commerce property obtained by fraud.2

Verville entered a plea of not guilty when arraigned, but subsequently changed his plea to guilty on Count 1, testified for the Government, and, with James Bishop, was sentenced in August, 1960 to three years imprisonment. In September, 1960, Verville moved to withdraw his plea of guilty and to vacate the sentence on the ground that his guilty plea had been induced by "a deal" with the Assistant United States Attorney. The motion was denied by the district court. Verville appealed to this court, where the United States Attorney confessed error because of the "impression" that Verville had of a promise of a lesser sentence, which made his guilty plea nonvoluntary. This court in September, 1961, reversed Verville's conviction and remanded the cause with directions to allow his motions.

Subsequently Bishop's guilty plea was withdrawn by leave of court. Verville and Bishop were tried together beginning June 8, 1964, and were each convicted on all counts in which they were named in the indictment. Verville was sentenced to four years imprisonment on each of the seventeen counts of mail fraud, the sentences to run concurrently, and on Count 21, the conspiracy charge, was fined $5,000.00.3 Verville alone has appealed.

Verville argues that the Government failed to prove a prima facie case of his guilt on any of the counts. He claims, on the mail fraud counts, a failure to prove (1) misrepresentations to the suppliers of merchandise, and (2) intent to defraud at or prior to obtaining the merchandise on credit. His claim, on the conspiracy count, is failure to prove a conspiracy and that the goods transported and sold were those obtained by the mail fraud. On appeal from jury verdicts we must take the view of the evidence, with reasonable inferences therefrom, most favorable to the Government. United States v. Sears, 332 F.2d 199, 200 (7th Cir. 1964). We hold that the district court did not err in submitting these counts to the jury.

The evidence of the acquisition by Verville and Bishop, under assumed names, of Scanlon's Radio and Music Shop, their mailing of post cards to suppliers soliciting catalogs and price lists of merchandise, the cards saying "Hello Again from Scanlon's" and "Here Since 1933," their manner of ordering, receiving, storing, transporting and disposing of goods received, and other evidence in this record justified reasonable inferences of misrepresentations in a scheme to defraud the suppliers.

There is no merit in Verville's contention that there was no evidence identifying the goods transported and sold as part of the goods which were sold to Scanlon's pursuant to the purchase orders sent by Bishop and Verville, and that the conspiracy count therefore should not have gone to the jury. The record does indicate that the identification testimony, as well as that of the value of the goods, is thin. However, the conspiracy count alleges the offense of receiving in interstate commerce goods which were obtained as a result of fraud. We think there is enough evidence of receipt of the goods by Bishop and Verville to justify submitting the conspiracy count to the jury. On retrial the district court should be careful to protect Verville in his right to have this issue kept from the jury unless sufficient prima facie evidence of all elements of the alleged crime on this issue is proven by the Government.

Over objection of Verville, the district court permitted the Government to introduce into evidence, under the conspiracy count, bankruptcy records consisting of thirty exhibits, petitions, documents and orders4 in an involuntary proceeding by creditors, from various states, against Bishop under the name "James B. Kelly," d/b/a Scanlon's Radio and Music Shop. The material was read to the jury. We agree with Verville that the court's ruling was reversible error.

In Berry v. United States, 15 F.2d 634 (5th Cir. 1926), the Fifth Circuit reversed a conviction for mail fraud on the sole ground that the trial court committed reversible error in admitting into evidence a petition for a receiver in a bankruptcy proceeding against both defendants, which alleged that there was danger of bankrupts' assets on hand being "lost, destroyed, or otherwise disposed of." The court thought this allegation could be understood as "involving the charge" that there was that danger. A similar result was reached by the Eighth Circuit in Todd v. United States, 221 F. 205 (8th Cir. 1915), also a mail fraud case. There one of Todd's alleged victims, Dykes, testified that "we replevined the goods," and on cross-examination he said that he was not present when replevin was brought and did not know if the ground for replevin was that the goods were not sold to Todd. The Government then introduced, over objection, a reclamation petition signed by an attorney for Dykes' concern which alleged the facts in the Todd indictment as to the alleged fraudulent scheme and prayed for return of the property. The court's ruling alone, in admitting the petition, was held to be reversible error as it admitted self-serving "written hearsay of verbal hearsay" for the purpose, according to the trial judge, of explaining testimony which Dykes "never gave," and the petition was inadmissible as against Todd under any "principle or rule of law." 221 F. at 208.

We reverse on authority of Berry and Todd. The prejudice in Verville's case is more aggravated than in Berry, since not only does the...

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3 cases
  • Harrell v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 3, 1967
    ...if they can later show why they made such denials. In such instances, the Government is equally at fault. United States v. Verville, 355 F.2d 527, 529 (7th Cir. 1966). Petitioner's assertion that he pleaded guilty to secure leniency toward his son has not been denied by any affidavit of the......
  • United States v. Halpin
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 8, 1967
    ...were re-tried on not-guilty pleas, and were convicted. Verville appealed and this court reversed and remanded. United States v. Verville, 355 F.2d 527 (7th Cir. 1965). Halpin had been granted a severance and his later trial resulted in the conviction before The substance of the overt acts a......
  • United States v. Verville, 59-Cr-52.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • March 5, 1968
    ...stood trial and was convicted. He appealed, and on December 28, 1965, the court of appeals reversed the conviction. United States v. Verville, 355 F.2d 527 (7th Cir. 1965). It remanded the case with instructions that a pretrial hearing be held. The reversal was not based upon the speedy tri......

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