Wood v. United States, 16343

• Citation: 279 F.2d 359
• Decision Date: 27 June 1960
• Docket Number: 16344.,No. 16343,16343
• Parties: Merle Emery WOOD, Appellant, v. UNITED STATES of America, Appellee. Richard Beach GURNEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

279 F.2d 359 (1960)

Merle Emery WOOD, Appellant, v. UNITED STATES of America, Appellee.

Richard Beach GURNEY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16343, 16344.

United States Court of Appeals Eighth Circuit.

June 27, 1960.

Don H. Jackson and James A. Pratt, Council Bluffs, Iowa, filed brief and made oral argument for appellants.

F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, filed brief and made argument in behalf of appellee.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

SANBORN, Circuit Judge.

Merle Emery Wood and Richard Beach Gurney were two of nine defendants named in a twenty-three count indictment returned October 28, 1958, charging twenty-three separate violations of 18 U.S.C. § 1341, which makes it a crime to use the mails in execution of a scheme to defraud. Wood, Gurney, and one other defendant (Damm) stood trial. They were tried together, and each was found guilty by the jury, Wood upon twelve counts of the indictment, and Gurney upon eleven. The court sentenced Wood on July 1, 1959, to eighteen months imprisonment under each of the twelve counts on which he stood convicted, the sentences to run concurrently. Gurney was given a sentence of eighteen months imprisonment on each of the eleven counts on which he was found guilty, the sentences to run concurrently. Wood and Gurney have each appealed.

Since the validity of the indictment and the sufficiency of the evidence to sustain the convictions are not challenged by these appeals, it is unnecessary to detail the charges contained in the indictment or the facts which the Government's evidence tended to prove. If Wood and Gurney were properly convicted upon any single count of the indictment, the judgments appealed from must be affirmed, since the sentence imposed on each of these defendants upon all counts is less than the maximum sentence which might have been imposed under any one count. See: Gantz v. United States, 8 Cir., 127 F.2d 498, 501; Bowen v. United States, 8 Cir., 153 F.2d 747, 748-749 and cases cited; Myres v. United States, 8 Cir., 174 F.2d 329, 332.

As is usual in cases such as this, the indictment described the alleged scheme to defraud in the first count of the indictment. The scheme was, by reference to Count I, realleged in the other counts. Each count charged a different use of the mails in execution or attempted execution of the scheme, and each count is to be regarded as a separate indictment. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356.

For the purposes of this opinion, it is sufficient to say that the scheme was known as Midwest Business Service, was originated by Clarence Martin Brown at Carroll, Iowa, in 1955, and was thereafter operated by him and Albert Ellsworth Chapman; that it was used as a means of obtaining money from the owners of business establishments throughout the upper Midwest, whose businesses were for sale, by inducing them, through misrepresentations, false pretenses and promises made by salesmen employed by Brown and Chapman, to engage Midwest Business Service to obtain buyers for their respective businesses. In execution of this scheme, the mails were extensively used. The names of the victims of the scheme were procured through the mails. The scheme was characterized — as such schemes usually are — by high-pressure salesmanship, false and reckless representations, unfulfilled promises, and the payment of exorbitant commissions to the salesmen. What a salesman collected from a victim was divided about equally between the salesman and the management.

Pleas of not guilty were first entered by each of the defendants named in the indictment. The case was set for trial at Sioux City, Iowa, commencing on May 18, 1959. On May 16, two of the defendants — a manager, Brown; and Nair, a salesman — withdrew their pleas of not guilty and entered pleas of guilty. On May 18, before the jury was drawn, Chapman, one of the defendants, on a showing that he was ill and in a hospital at Omaha, was granted a continuance. That left six defendants to stand trial on May 18. Before the jury was selected, the court made the following statement to counsel, out of the presence of the jury panel:

"Now, counsel are informed that two of the defendants, Clarence Martin Brown and Merlin Woodrow Nair entered pleas of guilty here, Saturday, and the record as to their arraignment is a part of the files here, and at the start of the case, because the jury has the right to know where the other defendants are, and the Court will follow the procedure outlined in Davenport versus United States, found in 9 Cir. 260 Federal 2nd, 591, 596, and I will inform the jury that their pleas of guilty have been entered, but it is not to be considered as evidence as against the remaining defendants, or to give rise that a crime has been committed. The jury has a lot of common sense, and they are entitled to know where they are."

No objection was voiced to this proposed procedure. No other procedure was suggested in that regard. After the jury panel returned to the courtroom, the court explained the nature of the case, gave the names of all the defendants, stated that the defendant Chapman was ill and not on trial, and said:

"There are two other defendants to which I wish to make a statement: The defendants Merlin Woodrow Nair and Clarence Martin Brown, on Saturday, entered pleas of guilty to Count I of the Indictment; the fact that such pleas were entered does not mean the defendants here on trial are guilty with them. Those pleas are not evidence that the defendants here on trial are guilty or that the crime charged in the Indictment was committed.

"Those pleas do not give rise to any — to any inference as to the guilt of the defendants here on trial. The guilt or innocence of the defendants here on trial must be determined by you solely by the evidence introduced at the trial of this case. So that you may know, there are nine defendants, but there are six going on trial at the present time."

No objection or exception was taken to that statement.

The eighteenth of May was spent in obtaining a jury, and the actual trial commenced at 9:30 a. m. on May 19. At that time, the indictment was read in full to the jury by counsel for the Government, and the jury was advised that, to each of the twenty-three counts, each defendant on trial had entered a plea...