Winel v. United States

• Decision Date: 13 September 1966
• Docket Number: No. 18144.,18144.
• Citation: 365 F.2d 646
• Parties: Vincent Edward WINEL, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

365 F.2d 646 (1966)

Vincent Edward WINEL, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18144.

United States Court of Appeals Eighth Circuit.

September 13, 1966.

Richard S. M. Emrich, III, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before VOGEL, Chief Judge, MEHAFFY, Circuit Judge, and McMANUS, District Judge.

VOGEL, Chief Judge.

Defendant-appellant, Vincent Edward Winel, Jr., also known as James Lewis, was charged with co-defendants Allan T. Solomon, also known as Paul Baer, and Morton Schulman, also known as Fred Evans, in a seventeen-count indictment with mail fraud, in violation of 18 U.S. C.A. § 1341. After the withdrawal of eight of the seventeen counts and trial by a jury, all defendants were found guilty on the remaining nine counts, each of which alleged a specific fraudulent act and use of the mails in perpetration thereof. The trial court denied motions for arrest of judgment and for a new trial and sentenced all three defendants to various terms of imprisonment, Winel to two years' imprisonment on each of the nine counts, the sentences to be served concurrently. All commenced appeal to this court but subsequently thereto defendants Solomon and Schulman moved to dismiss their appeals, such motions being granted. This appeal, then, concerns only the defendant Vincent Edward Winel, Jr. He claims two grounds of error entitling him to reversal:

I. Government's Exhibit 42 was received into evidence without proper foundation;

II. Motion for judgment of acquittal should have been sustained for there was insufficient evidence upon which to base a judgment of conviction.

We affirm.

We believe it would make for a better understanding hereof if we considered appellant's claims of error in reverse order. In doing so, we direct attention to the general rule that the evidence must be viewed in a light most favorable to the government as the prevailing party. All reasonable inferences must be resolved in favor of the government. Koolish v. United States, 8 Cir., 1965, 340 F.2d 513, 519, cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724; Smith v. United States, 8 Cir., 1964, 331 F.2d 265, 278, cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34, rehearing denied, 379 U.S. 940, 85 S.Ct. 321, 13 L.Ed. 2d 350. From the evidence and from a reading of the substantial transcript of testimony, it is apparent that the jury could have, and they undoubtedly did find that the Bahamas Land and Building Company, hereinafter referred to as Bahamas Company, was created by the three defendants as a front for the sole purpose of using the mails to fraudulently order and obtain merchandise without any intention of paying therefor. Solomon and Schulman were in charge of the St. Louis, Missouri, office, rented and advertised as the Bahamas Company. It was essential for the scheme to succeed that the Bahamas Company be able to obtain merchandise by credit. This was achieved by giving prospective vendors the name of a "bank" which would supply favorable credit information in response to telephone and other inquiries. Such credit information device was thus an integral part of the mail fraud scheme, for without the credit assurance it provided the mail fraud could not have been successfully perpetrated.

Although appellant Winel claims the record does not hold sufficient evidence to implicate him in the aforementioned scheme, from the record it is perfectly clear that:

1. Appellant and co-defendant Solomon traveled to Nassau, Bahamas, in September or October of 1963 and rented office space in a small building that also housed the United Mutual Bank of the Bahamas.

2. Appellant kept office hours at an office in the bank building during October 1963.

3. Appellant had access to the telephone calls and correspondence coming in to the "bank".

4. Appellant endorsed a check drawn on an account the Bahamas Company had in a St. Louis bank, using the assumed name "James Lewis", the same name under which credit references were furnished.

5. Numerous phone calls were exchanged between the Bahamas Company in St. Louis and "Mr. Lewis" at the "bank" in the Bahamas.

6. Phone calls requesting credit information were placed by vendors to the "bank" in the Bahamas and these vendors were given favorable credit references concerning the Bahamas Company by one who had at times identified himself as "Mr. Lewis".

Faced with this uncontradicted evidence (no one of the three defendants testified), it is impossible for us to say that the government has not met the substantial burden of proof required of it in a mail fraud prosecution. See United States v. Morley, 7 Cir., 1938, 99 F.2d 683, 685, cert. denied, 306 U.S. 631, 59 S.Ct. 463, 83 L.Ed. 1033. In the instant case, the jury's determination, based as it is upon very substantial testimony, must be upheld in the face of a charge of insufficiency. See Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916; Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520, rehearing denied, 321 U.S. 802, 64 S.Ct. 610, 88 L.Ed. 1089; Commercial Union Assurance Co. v. Berry, 8 Cir., 1966, 359 F.2d 510, 516.

We now consider appellant's first ground of error; that is, that the trial court received into evidence Government's Exhibit 42 without requiring the proper identification. Exhibit 42 is a reply portion of a printed credit inquiry postcard upon which there is entered a handwritten credit reference. It is appellant's contention that the card...