*1 GETCHELL, Hollis and Francis William F. Powers Appellants, v. America,
UNITED STATES Appellee.
No. Appeals Court of
United States Fifth Circuit.
Sept. *2 organizer Humkey, Cody Fowler, corporations. Harvie of both Walter Miami, Fla., DuVal, Kehoe, enterprise was, practically speaking, Emmett W. ,S. Phillips, enterprise. Harry Tam- Kiekliter, “his” was Paul S. Herbert S. Getchell Jacksonville, Fla., Bedell, ija, Chester son of Francis and was E. Getchell Fla., appellants. named Vice of for President and a director Palms, Florida He served as Inc. Atty., Guilmartin, S. L. U. James | promotional aide and to his father in Fla., appellee. Miami, for organizational activities, was the and Judge, RIVES, TUT- and Chief Before inventor, process purported, or real Judges. BROWN, and Circuit TLE enterprise designed which the to exploit. person- Hollis Rinehart was Judge. RIVES, Chief attorney al to and Francis E. Getchell attorney corporations. judgments of con for both appeal is from This addition, Secretary he was mail named as violation for of viction Inc., (1) Palms, 17(a) a director of statute,1 of Florida or of Section for a certain time was named also U.S.C.A. § of [15 Act Securities corporation. (1)], the twelve- Treasurer William 77q(a) Of or both. public indictment, be was a accoun- must certified counts Powers five count kept tant accounts who books and four defendants Each of the considered. Palms, guilty of Florida to be- Hollis Inc. He was Count Six. was found on Treasurer, Comptroller, come a di- Harry S. Getchell Rinehart Eight. Alpha Pulp Corporation guilty rector of Florida also on Count found guilty upon its formation. found E. Getchell was Counts also on of said Counts and both scheme, device, artifice or One, Five Nine.3 to in One of defraud described grew prosecutions by adopted out indictment and reference collapse repre- enter- of a business other financial each False Counts. embracing Inc., Palms, allegedly by prise Florida both sentations were proposed corporation called prospective purchasers to be defendants to Alpha Corporation. Fran- Pulp Palms, Florida Inc. and stock Florida figure pre-organization principal for stock certificates E. Getchell cis proposed enterprise Cor- and director —President developed Palms, promoter poration Inc., Getchells had dressed, any thing, such matter shall Frauds swindles or 1. “§ 1341. $1,000 imprisoned intending “Whoever, having fined not more than or devised or any years, more than five Title de- or both.” or to to devise artifice money property Code, obtaining fraud, States 18 United 1341. § for or or pretenses, by false or fraudulent means of 77(i. Fraudulent interstate transac- “§ promises, sell, representations, or to or tions alter, give dispose of, loan, exchange, per- “(a) any It shall be unlawful for distribute, supply, away, furnish or or any by in the sale son securities any procure for use counterfeit unlawful any means or use of instruments of trans- security, coin, obligation, spurious or or portation or communication interstate represented article, anything or other by mails, or di- commerce the use of the bo such intimated or held out be or indirectly— rectly or spurious article, or counterfeit employ any “(1) device, scheme, or executing purpose scheme or such * * * artifice to defraud *.” places attempting do, so or artifice 77q(a) (1). § U.S.C.A. Title 15 depository any post office or authorized Though any thing matter, not so what- indicated the district matter or mail imprisonment court, the sentences sent or the Post delivered ever actually Department, defendants corre- takes or receives several or Office thing, spond therefrom, on which number counts such matter guilty; is, Powers, knowingly mail was found causes be delivered each thereon, year, years, according or at two one direction years, place two at which is directed to be de- and Francis Get- person chell, years. whom it is ad- five livered charged Eight. alpha-cellulose on Count That Count process producing trees, cabbage 24th palm that the or about defendants on pulp from Sabal or day knowingly caused February, abundance are found *3 indict- letter Okeechobee, to be mail a certain area. delivered Fox, Ver- charged defendants addressed to Edward ment Florida, misrepresenta- Beach, Avenue, Daytona mont additional a number of j copyA prospective follows Fox as investors. this letter is to to tions ~ charged Eight de- Six and Counts & “Rinehart Gibbs of Section fendants violations “Counsellors at Law (1) (a) Act of the Securities “Ingraham Building charged them One, Nine Five Counts “Miami fraud statute. of the mail with violations “Cable Address particular A use of the mails “RINCAR in each Count constitute as essential to “Hollis Rinehart charged. the federal offense “William W. Gibbs Six, defend- each of the on which Count “February 24,1955 charged guilty, was found ants “Edward S. Fox day of about the 26th or defendants (sic) “318 Vermonth Avenue knowingly March, 1955, to caused “Daytona Beach, Florida sub- preorganization delivered mail Alpha Pulp Corp. “Re: Florida scription purchase of stock for the “Dear Mr. Fox: Corporation proposed Florida you may know, “As Mr. Getchell Curtis, 344 addressed C. William ready incorpora- complete about Daytona Beach, Avenue, Florida. Ribault Secretary, company. tion of the above As writing I am confirm all subscribers to as a of Curtis examination specifically subscription, their Government, mimeo witness for the learning just purpose how subscription for preorganization graphed wish certificates issued. their purchase of stock referred give “Please information me above identified Government Count Six was promptly. mailing only proof of its 75. The Exhibit truly “Very yours, testimony of Curtis that “(s) Hollis Rinehart” my “through mail it received purports home address.” The exhibit proof or both There that either signed by Trustee E. Getchell as F. knowingly Rine- of the Getchells caused by E. on behalf of Florida and Palms, F. Getchell Apparently to mail letter. hart this (cid:127) Inc. district court admitted Before was Rinehart’s own idea. letter receiving against E. 75 in evidence Exhibit letter, Fox had its addressee time of but at the its introduc fully paid subscriptions, and had for his it be con tion directed that “is not to actually sold hundred four five this other de sidered at time by him thousand subscribed for shares There was no evidence fendants.” subscription $4,000.00, price for knowingly any the other defendants four thousand the entire shares. this exhibit to be caused mailed. Eight charges a violation of 15 Count was never introduced evi exhibit quoted 77q(a) (1), in foot- § U.S.C.A. against any of the defendants dence which, supra, convenience, note E. Getchell. As than other Francis again quoted: Six, therefore, is clear that the 77q. Fraudulent interstate “§ refusing direct court erred in district transactions Powers, acquittal of the defendants “(a) any It shall be unlawful for S. Getchell. Rinehart any person the sale securities Rinehart, Harry the use of or instru- S. Getchell and means transportation or com- also ments were convicted considerably commerce munication in interstate use mails” removed directly mails, securities," or use “the sale of but imme- indirectly— diately adjacent “willfully employ or said scheme, defraud,” and artifice to so that device, “(1) employ any ordinary meaning and natural defraud, scheme, artifice to ” charge “by * * is that * * defendants did mails, willfully employ the use of the ambiguous provision is somewhat scheme and artifice to defraud.” mailing (when, inas type of toas offers, Rinehart’s letter contained no charged) case, mails is the use of promises representations. em- is, statute; *4 will violate ployed directly indirectly any neither nor (1) be used must mails whether the device, scheme, or artifice to defraud. effecting (2) sale, in the simply or Compare States, Parr v. United 363 scheme, U.S. device, employment of the 370, 1171, 80 S.Ct. 4 L.Ed.2d 1277. pro- The criminal defraud. artifice to was, most, “merely at incidental and col- certain- Act are of the Securities visions (alleged) lateral to the scheme and not ly fraud the mail those of as broad as part States, 1944, of it.” Kann v. United depend- They may broader, be statute.4 ing 88, 95, 148, 151, 323 U.S. 65 89 S.Ct. of the or the use fraud on whether opinion, L.Ed. 88. In our the district gist of the considered be mails is judgment court should have directed a Pro- Act. offense under the Securities acquittal of each of the defendants as to that the cases notes his view fessor Loss Eight. judgments Count The of convic- gist of the fraud is the which hold that Harry Powers, tion of Rinehart considered, seem better offense “ ** * Getchell must therefore be reversed. authority that there some of conviction of 17(a) of the Securities under Section * * * Getchell alone remains to considered. mails is the use Act corpus ‘gist’ delicti of the offense—the enterprise question dates back n —-asit is under statute.” the mail fraud 1953, to the summer of when Francis E. Regulation, p. 877. He Loss Securities Getchell arrived the town of Okeecho- ease,5 ex- further cites a Commission pressing bee, purpose visit, Florida. The of his arrival, nothing the view that as disclosed after his soon language mail fraud statute in the organize promote corporation “which the Securities Act paper pulp which would manufacture justify requirement cabbage palm. from the a venture Such intimately re- or device must be more was, discloses, so far as the record entire- * * * of the' mails lated to the use ly novel, promised extremely but it under other.” under one statute than lucrative if successful.7 And Getchell statutory possi- question maintained that such construc- success was regard optimism case, appar- His for ble. in this tion need not be decided ently phrase “by proc- Eight stemmed from places his belief in a defraud, 1953, States, Cir., would and did 200 in the sale of se- 4. v. 5 Price United namely, preorganization 655; Kopald-Quinn 652, curities: v. sub- & Co. F.2d scriptions 628, Cir., 1939, States, A Class and Class B 101 F.2d stock 5 United proposed Alpha Pulp Monjar, Cir., 632; v. Cor- States United poration, willfully 920; mails, 1944, 916, Kelling the use of the v. F.2d Unit employ 1951, 299, States, Cir., said scheme and artifice to de- 193 F.2d ed fraud, use the mails in the 301. following, manner to wit:” Corp., 10 S.E.C. Polk-Peterson hope profits high quite 7. rea- 1136, n. 4. sonable in view of the fact the cab- bage palm extremely cheap day would be or about the 24th of Febru- “2. On practi- ary, raw material. cally Such trees are District the Southern having present defendants, Florida, no commercial value at the so the said industry. technology level and artifice the said devised possi working subscription, mam there were two had been which he ess son, the success of the ven- ble obstacles to his many years on which first, capital build ture: the need for contend- least so or at plant; and, second, possible fail- significant advances. ed, made unproved process. ure The neces- arrival, Getchell Immediately upon his sary assured, had raw materials been enterprise get started. his out to set plant secured, and labor site been step execution first His amply available. the ranchers with contracts number of whereby obtained living in the area Subscriptions for the stock of cabbage palm right and remove cut Alpha Pulp were not solicited on the help of theWith land. their trees from open Rather, market. the subscribers local Coker, director C. Jackson group were a small of investors acquaint- Commerce, whose Chamber area, who became and in- familiar with arrival, shortly after ance he enterprise, terested in the and those cutting eventually obtained friends with whom communicated.8 rights 449,000 of land acres to some subscriptions In order facilitate persons. seventeen different stock, Getchell, the aid of ac- *5 assist- point, Powers, with prepared countant At this William a attorney setting Hollis of his brochure ance forth the current status corporation Flor- organized enterprise known as estimating and 'its fu- earnings. Palms, cut- The aforementioned Inc. ture ida This brochure was the placed in ting primary or leases were contracts stimulus for the initial investors corporation, enterprise. all new Subsequently, name of this in the in- new to members which was issued appealed the stock of vestors and re-investors were family: by him- to Getchell of the Getchell direct communications from Getch- Harry Getchell; son, ell, self; pilot and to plant, to his demonstrations at a com- daughter, wife and investors, the elder Getchell’s munications from other involved in this case. independent of whom is neither from communications mem- industry.9 pulp bers of the plan, were but Under Getehell’s steps promotion and preliminary in the organizational meeting theAt organization corporation,' the second Alpha Pulp Corporation Florida April Alpha Pulp Corporation, which Florida 1955, majority of the investors became figure primary in the enter- to be the was prise. disenchanted with Getchell and his enter- step next was initiated prise. investigation When an revealed Commerce of Okeecho- the Chamber of $140,000 that some of the investors’ forty-acre body purchased That bee. spent nothing funds had been for which tract of land and deeded it to Florida shown, substantial could be Getchell was understanding Palms, Inc., on enterprise. from control of ousted A plant used site the land was to be as brought against civil action was then Pulp proposed Alpha for the Florida Cor- Palms, Getchell and Florida Palms, thereupon poration. Inc., Florida Inc., stipulation a decree en- was twenty-five purchased an additional acres complaining tered in favor of the inves- adjoining tract in order assure According $143,500.99. proposed corporation adequate for tors plant brief, parties-plaintifif site. Government’s eventually approxi- recovered suit Thus, the stock when Pulp mately Corporation placed Alpha of their investments. Fi- for 20% re-printed was, fact, deliberately brochure 8. Getchell restricted the num- 9. The on each occasion re-circulated when ber of investors in order to avoid the subscription expenses registration launched a new un- connected campaign, indicates record laws. der state and federal significance only in these sub- minor campaigns. sequent nally, proceeding process insti- this criminal Getchell knew that mak- ing paper pulp cabbage palm tuted. from the that, consequently, was worthless and posi- Government has taken enterprise succeed;10 (2) would never sought prove tion and has falsely represented po- that Getchell very enterprise was, its process tential investors inception, nothing a scheme more than responsible work persons and that brief- investors. Summarized defraud industry had so concluded after investi- ly, Government’s case to the exist- as gation upon results obtained of a rests scheme to defraud ence deceiving following process;11 (3) (1) that, contentions: after statute, 1, up n. under de- 10. Both the mail fraud su- built the direction of the pra, and n. the Securities Act of fendant Francis E. Getchell to three- quarters supra, are and artifices aimed at schemes million dollar concern. comprehen- “(j) Company An That Blaw-Knox to defraud. over-all and charged Pittsburgh, Pennsylvania, greatly ex- sive scheme and artifice is prior alpha pulp process, having One been devised cited about the said pursued day May 1953, plant the 1st would build a Alpha continuously Pulp Corporation ar- thereafter. range financing by for its Na- the Mellon specific representations 11. Various are al- Pittsburgh. tional Bank of leged parts to have been of said “(k) Regis Paper That the St. Com- representations artifice. The highly pany buying interested in and fraudulent are to have been false output Corpo- mill of Florida quoted from the indictment: ration, and that it would entire take the “(a) palm pulp process de- production plant two first vised Francis E. Getchell *6 years would like to enter into fully perfected. Getchell had been agreement output to take the five for producing “(b) process That said for years, keep pro- in but that order to their alpha pulp patented. cellulose had been going, they duction linos had to as- proposed Alpha “(c) That Florida palm pulp daily. tons sured of 200 of Pulp Corporation operation would inbe “(1) Machinery That Noble & Wood company October, 1954, and in that the Company Falls, York, of I-Ioosick New capacity had sale for the entire impressed process were so with said that plant, and that investors stock of this they plant would build a for Florida corporation would receive in divi- $1.00 Alpha Pulp Corporation and would ar- during for each invested $1.00 dends range corpo- financing, its for which said year operation. first pay produced pulp. ration could off as it “(d) machinery equipment That “(m) Machinery That Noble & Wood proposed plant Alpha for of Florida Company engaged making machin- Pulp Corporation $265,000. would cost ery proposed plant for the of Florida “(e) pulp produced by proc- That said Pulp Corporation. Alpha cabbage palm from ess trees has chemi- Burlington “(n) That Mills of Greens- analysis alpha cellulose, cal and that 88.25% boro, Carolina, North was a substantial its unbleached form it has acetate, by-product user of of said alpha content of cellulose. 96.92% process buy and was anxious to from it “(f) cabbage That are there sufficient Alpha Pulp Corporation. pro- palm trees in Southern Florida to Alpha Corporation Pulp Sandy “(o) the Florida vide That Hills Brass and Iron supply Company Falls, York, of raw material of Hudson New grew years highly thought Pulp Alpha if another tree never back. so of the Florida Corporation’s project they “(g) That the defendant Francis E. engineer plant. wanted to finance the expended $10,000 had the sum of Getchell Paper “(p) Company That Products of to securing provide palm timber leases to Swarthmore, Pennsylvania, had offered proposed plant. for the trees output plant entire take the “(h) That the defendant Francis E. corporation. proposed spent had several hundred thou- Getchell process developing “(q) Corpora- dollars in said sand That American Viscose manufacturing pulp cabbage tion, Armstrong Company, from Cork Ameri- palms. Cyanimid Company, can Union Carbide “(i) Engineering Company, the Industrial and Carbon and the DuPont Corporation Tampa, Florida, Company, acquire had been were anxious money spect process during campaign into putting his into investors these ap- Corpora- wrongfully promote Alpha Pulp enterprise, Getchell began outset, use. from money tion. Almost he his own propriated that important exam- the most concerns must be contact contentions these Each of alpha-cellulose paper pulp in the dustry in- separately. ined get their reactions as to is origin process the Getchell The feasibility process. commercial of his process to aon doubt. Research not in unlikely have Getchell could pulp paper from alpha-celluloseand make convincing hopes entertained begun by In- cabbage palm was long-established experienced con- Engineering Corporation of dustrial process cerns that a useless was valua- Florida, Tampa, of Getchell at behest strong contrary, ble. On the there ais directing of that affairs he was when probability that he these firms contacted ousted corporation. When thought, rightly wrongly, because he or agreed position, to take he from process that his was valuable. had claims process lieu all corporation which consisted Moreover, response from these salary The capital due. stock and immediately firms was such as to dis- appear does not these claims amount of courage Getchell. ad- The Government record. mits that a salesman of Noble & acqui- During his the interim between Machinery Company Wood stated subsequent process sition presence company Getchell’s that his Cor- promotion of Florida thought highly process so it poration, maintained has engineer arrange would proc- improvements in the son financing plant aof for the Getchell en- nothing confirm There is ess. terprise. goes Government thought it true that Getchell point out that such a statement hand, On the other was true. Wood, been authorized Noble n & had, nothing that Getchell to show prove it nowhere does that Getchell knew have, disenchanted become should even response this. the other concerns acquisition. inference with his enthusiastic, was not so but neither was strong testimony seem to be discouraging. entirely Rather, *7 about the enthusiastic Getchell adopt seemed to wait-and-see attitude began pro- least until he process, at reasonably quite which Getchell could Corpora- Alpha Pulp of motion nothing have assumed was indicative of tion. ordinary than the more conservatism' of large light firms. of all of the is reinforced circum- conclusion This foregoing, the stantially by Government has not made actions with re- Getchell’s bankruptcy only pay and process failure because vari- and would millions of dollars recognized people ous had Getchell it. of the use processes inventions, originally “(r) 40,000 had valuable shares of- That wresting price per had succeeded in of control block $5.00 at fered 22,000 by unscrupulous legal group 50,000 from said Getchell of of second shares per priced and means. maneuvers $10.00 at block had shares “(v) fully That the defendant E. Francis subscribed. been upon annuity pro retired “(s) had an in- Getchell That a forma balance sheet per profit $800.00 month.” come and loss statement Corporation many The evidence disclosed that was true representations, Getcliell’s instead be- correct. part proved ing “(t) of an Francis E. over-all That the defendant artifice, En- lost control of Industrial were isolated and had Getchell separately Corporation gineering different individual as the result of practically part unprincipled potential . scheming investors. For all representations there was some people. though fact, corporations some, “(u) basis in indeed which various mosti exaggerated. grossly had were Getchell the defendant had resulted in and dominated controlled strong conten- its its these inves- ease to substantiate same intended process to be tion knew his tors.
worthless. an “He has been described en- optimist, thusiast with unbound- second Government’s When the ed faith the ultimate outcome examined, however, con contention is prospect. may men be While proved. Govern clusion is better good faith, convicted for acts done in long points instances ment to a series of nevertheless schemes devices clearly appears rather in which Getchell making induce the stock invest- misrepresented investors to have plainly ments which would not oth- responses received nature he made, knowingly erwise be among inquiries from his the established representation false of material guarded industry. A wait- firms in the culpa- conditions, facts and show a report response invariably and-see bility jus- which enthusiasm cannot ed investors as a most enthusiastic re tify, optimism nor excuse.” purchase sponse. entire Offers to points The Government to Getchell’s potential output enter mishandling money investors’ reported prise where most that were buttress its representations contention that mis- occurred was an offer could have criminally were motivat- output not re Getchell to sell his Upon examination, however, ed. outright. brought There is fused thus appears little, any, support if operation principle so into expressed of law well aspect the Government States, in Linn v. United missing $140,000 case. Most of Cir., 552: actually spent enterprise. Many on the honestly “The insistence that Linn expenditures of these were doubtless fool- pos- property great this had believed sibilities, light ish es, all circumstanc- that, get if he could certainly not criminal. it, large profits hold it and work appears that Getchell did some use speedily come to himself and $15,000 of the investors’ funds main- might those whom he to purchase induce to family during tain himself and his may stock, shares of the years engaged promoting two he was when, be conceded. But in order to enterprise. may This have amount- money, raise represent devises a scheme to agreement ed to violation of between intending pur- stock Getchell and the investors that he was to company pres- chasers that his salary during period. receive no title, possession, control, op- ent hand, On the other the withdrawals could property, eration and a vast offer justified perhaps be as a “refund of mon- it, this, for knowledge, when all to his certain *8 ey agreement advanced” in line with an false, then these per- between Getchell and the investors the constitute scheme or artifice to mitting such refunds. intending purchasers defraud these any case, probative weight In the of making purchases they into concerning evidence this Getchell’s han- make, not and otherwise is to con- dling certainly of the investors’ funds wholly apart sidered from the faith be considered de must minimis under all might have, if, Linn that the circumstances. might manner, this raise suffi- funds, get he would cient then hold Our observations from an examination property, prof- and make vast of the record in this case have been set also, States, 12. See Adams United Cir., 1931, v. States rel. ex v. Butler United 10 53 McCann, 1942, 269, 283, 800, 804; 317 U.S. States, 63 S.Ct. F.2d Moore v. United 236, (dissenting opinion); Cir., 1924, 839, 843; L.Ed. 87 268 2 F.2d 7 Pandolfo Oldenburg, Cir., 1943, Cir., States, States v. 1922, 8, United 7 v. United 7 286 F. 616, 617; Foshay 13; Sparks States, Cir., 19] E.2d 7, 135 v. United v. United 6 States, Cir., 1933, 205, 210; 68 F.2d 782. rosy pro only too es- reason- forma” statement or prove the forth not to anticipated profits; and his jury timate of personal open able conclusion lawyer opti- attorney, there- whose simply incurable an Getchell exaggerate, impeccable reputation tofore was attest- tendency to mist with a jury ed ex-Governor of prevaricate; or that even to beyond Judge, a State Circuit further reasonably infer find or could not alleged fact he had to become a mem- risen doubt a reasonable ber of State Board of Control which with and artifice was infected necessary administers the affairs of the universi- the crimes constitute long point ties charged.13 of State.15 The indictment Rather, out we “reeking recognized by judge as cry the district one this case is a far being prejudicial defendants, guilt.” with jury was not sent out with the when too leaves his all case was submitted for their delibera- paper from the strenuous efforts make judge Instead, prepared tions. cabbage possessed palm14 more of of no jury sent to the each his “brief outline of goods entered. when he this world’s than advising count,” out- them to use this Stripped the sheriff’s assets you copy “since line will have a against him the consent sale to enforce during your the indictment itself delib- complaining judgment in- in favor of the jury erations.” After had remained vestors, appeal prosecutes this eight they hours, out more than pauperis. in forma message judge they sent a kind This is the of case which we Upon jury’s wanted the indictment. justice think that a court should be courtroom, returned their miscarriage prevent possible alert to requested sup- foreman “the area which justice. present instance, es- * * * ported each of those six counts pecial required for alertness is not support the detail of the counts, of the six clearly prosecution record shows description or the the factors prejudice, springing be infected with arriving at those six counts.” Over mostly disappointment from the extreme objections the strenuous of the defend- disgruntled losing investors. ants, judge the district then allowed the jury description copy to take with “scheme of the six them upon counts which the artifice to defraud” covered twelve case was submit- pages typed error, do hold Into ted. We that this was record. it were agree son; original public drawn certified but we view Getchell’s accountant, long kept the district court who recital the books prosecution’s theory fraud con- whose chief fault was that he authored Practically proof against As to all of the the functions duties of the attorney explained by assuming can be district court on motion for acquittal review, had firm that he of this Court confidence belief Riggs States, integrity Cir., see v. United his client. He stated Cominole, 280 E.2d 949. in his letter to Dr. Bruce one complaining investors: might possibly 14. Efforts which have been may “I add that all the above ven- appears successful, following from the failing *9 as did —Mr. Getchell tures — was colloquy: clearly honest and ‘sold’ so that he Basically, gentlemen, “The Court: and, invested his own monies on most any dispute you there that can’t make occasions, salary deferred all to himself. paper thing? out of this absolutely There personally indication that he They “Mr. Duval: have stated in their profitted (sic) enriched they anything. indictment can’t do management. as a result of his I himself Counsel, you “Mr. Guilmartin: should always high found him honest and have part read that of the indictment. integrity. you I believe I stated to “Mr. I did. Duval: my opinion, his one fault was his over- only “Mr. Guilmartin: We not didn’t optimism.” enthusiasm say that, proved you but we ourselves paper can make out of it.” prej- tended to himself in tained in the indictment favor complaining might have udice the defendants. investors well impressed jury idea that with the original investors, twenty-three Of the guilt. Getchell had confessed his appeared defense six witnesses for the as liability distinction between civil express confidence to their continued may criminal responsibility not have honesty integrity, while Getchell’s lay jury. been clear prosecution. ten were witnesses for testimony prosecu- able, prose- vigorous, An In ten those and zealous cuting appears witnesses, attorney rang changes tion-investor on all tendency scapegoat prejudicial find natural circumstances when failing enterprise many ap- expressions obvious he such used “Look at the as peals sympathy prejudice. For sophistication charm and ex- that was example, Mary Gates, women investors be- one of the ercised on little Miss snow “* * * necessitating job wept, crime”; came emotional and No. 1 in this charming suspension language could lip of the trial until she from flowed government composed. The lead become man, mouth of this master con Fran- Gall, witness, Getchell”; you volunteered stop J. William cis “Did and think following: feelings about what emotional these in- * ** through vestors went who had come same “Mr. Gall: public in here in a courtroom and tell period I induced Mr. time William about how were conned into this Daytona young Beach a Curtis of “con,” “conned,” situation ?” words wife, man with two children man,” game” “con re- “confidence put who a thousand dollars this. peated and reiterated more than sixteen it from his He told me he borrowed G.I. Insurance— n liberally “gim- interspersed times mick,” with screen,” pitch,” “smoke “a “sales mind he “The Court: Never what marker,” mooch,” “a and “taken.” said he did. junior Getchell was referred to as “that Honor, object Duval: Your I “Mr. man,” con while Francis Getchell was that. “a senior con man” or “a master eon Objection “The Court: is sustain- man.” Reference was made to bro- “this ed, Watch, is not evidence. going people.” chure out to little At Gall, you con- Mr. do relate place argument another the inves- you people versations that had with “simple people, tors were referred not on trial here.” persons some of lesser that were To make sure that the effect of this it, people all of them who had to work for prejudicial matter had not been de- living, taken”; again, Gall, “J. William stroyed, Curtis himself later testified: working fellow”; again, a hard “those have didn’t the thousand dollars “We persons, two little Scotch those hard savings, so I a thousand dollars borrowed working people, Tarling Mr. and Mr. my insurance.” G.I. life Christie.” length very itself, of the trial indicating There was no evidence stretching over ten weeks Febru- previous Getehell’s business failures had ary 17, April 29, (the 1958 to rec- by fraud, been infected but the United pag- comprises typed more than ord Attorney implied plainly States as much nearly documentary plus es exhib- using preju- those failures to further likely impress jury its), was jury: dice the importance Government at- “Now, pattern ais familiar prosecution tached presumed with the assuages by which the con man gravity people whom still wants to hold defraud. (sic), explains, onto helped as Rinehart *10 by prosecution explain, why Proof the of the civil him he had in which enterprises. action Getchell consented to failed in these other Engineering imprisonment only can come after the "Now, Industrial at they defendant has been impartial working pulp, accorded a fair and but on were doing trial. affirm supposed other We cannot judgment Equip- E. conviction of Francis things, At Gas failed. and it imprison- things, failed. Getchell and the sentence of ment, and it other imposed upon Harry ment finan- failed him. As to American Cebastolite cially. Getchell, S. record Hollis has a William man This Powers, judgments F. flitting enterprise enter- are reversed disgrun- leaving prise, wake in his causes remanded with directions money, making judgments stockholders, acquittal. no enter tled As carrying always judgment this him Francis E. is re- but least, counsel, versed Rinehart —at and the cause Hollis remanded for fur- during proceedings period ther of time that not inconsistent with operate opinion. in this this has been able Florida. District Southern Reversed and remanded. high that we took “It time good activities.” look at those Judge TUTTLE, (concurring Circuit part dissenting registered part). objection True, argument parts of the of the
to those part I opinion concur in that of the Attorney we have to which United States judgment reverses, with direc- failed to Court referred. The District acquit, tion to William F. on Powers by only objection made Getch- rule Count Six. refer- counsel, to a veiled which ell’s every With deference to the views the Getch- failure of either of ence my colleagues, I must dissent from that testify: ells to part opinion judgment “ * * * had a word to Have we reverses, Court that with direction to ac- representations that contradict Harry made, Harry quit, S. Getchell and Hollis Rine- in accordance with hart, part and also from opin- haven’t witnesses? We Government ion and which reverses for single contradict those word to disposition further the conviction of representations that were made. Francis E. Getchell. Let the record re- Curtis: “Mr. First, as conviction of William objection to the last re- our flect Powers, agree only I that the evidence marks counsel.” showing any use of the mails connec- Six, only tion with Count one on failure to rule Whether or convicted, which Powers was was admit- objection calling was error on that ted the Court as foregoing reversal, one of the oc Thus, opinion Getchell alone. as the error, would, itself, plain currences majority points out, there was no evi- the cumulative effect of all them makes dence connect Powers with of- probable jury’s too verdict it all fense. weight brought about, foregoing Second, evidence, as to the conviction Rine- sympathy, prejudice appeals to and hart and other Getchell under Count Eight, passion majority the district court left un it seems to me that authority misapprehended meaning reproved. The of this Court has charged sponte plain statute. The indictment sua errors and de to notice “having affecting rights defendants, devised substantial the fects right ap [the transforms scheme defraud, fully scheme to defendant16 mail cases one of peal in criminal into sub stance, One of the indictment] and furnishes an additional af arti- guarantee defraud, would and in the sale that conviction did fice firmative Procedure, 52(b), 16. Rule Federal Rules of Criminal U.S.C. *11 mails, determine whether there was sufficient securities, by use of the the support jury’s evidence to the employ verdict wilfully' scheme artifice being Harry par- in Rinehart S. Getchell defraud, mails said use ticipated (empha- following, the fraudulent scheme. towit:” the manner mailing majority attempt Court did not added), the then is sis against pass question. on this The case Fox, ma- set out of the letter to defendants, particularly these jority opinion. against attorney Rinehart, weaker the is says: Count, Treating the Court against than can- Francis E. Getchell. I offers, prom- no letter contained “[This] support not find that it was insufficient to employed ises, representations. It finding by Jury device, indirectly any directly nor neither knowingly participated I think scheme, to defraud.” artifice light defraud, particularly scheme to need letter perfectly that the clear it is jury of all of the evidence which the support the tests to meet none of Harry’s could believe about efforts to con- thing, proof of one It was indictment. magic ceal the secret formula in his “little only: thing defendants that the one bottle.” As to I would not any engaged securi- “in the sale judgment granting dissent from a him a * * * mails.” by the use ties along new trial with Francis E. Getchell. in such added.) (Emphasis Proof directing I do dissent an order mails, the the device, sale, e., use of sale i. acquittal. “any employed scheme defendants Finally, against as to the case Fran- found to defraud” artifice or by Getchell, cis E. I think with all deference participation showing defendants’ entirely unprece- the Court follows an defraud, which scheme in the basic setting dented course in aside the verdict proved Fran- says as to majority jury. because, This is so while Getchell, it did cis E. although conceding, with evident reluc- Harry S. Getch- Rinehart as to reach tance, that there was sufficient evidence ell. Getchell, to convict the Court succeeds proof, and it repeat, letter To making appear man, who, it that this sale was a proof, was essential any possible dispute, without nu- in the letter mentioned securities factually merous false statements ob- proof, and it need There was mail. taining money for his unsuccessful ven- any proof the existence of not be ture, was more sinned sin- than scheme, letter be need the nor fraudulent ning. And this the Court does without as would the scheme in furtherance pointing single to a error sufficient in prosecution. mail fraud under the case jury’s work itself to a reversal of the way the other turned is This statute and, verdict, apparent what is not made is statute. It mail from the about grounds majority opinion, on that is made here mails use of vague that are so insubstantial or so The use of the gist offense. they are not mentioned or even hint- gives merely Federal Govern- mails byat counsel Getchell in the ed three employment jurisdiction. It is ment this Court briefs filed behalf. gist that is defraud of a scheme fully sympathize I can with an accused employment of offense, such any who, previous without criminal rec- crime where the made a ord, finds himself convicted the crime by mail. is made securities sale very ap- mail fraud late in life. It is asking opinion Certainly parent, Court, letter a con- from the of colleagues subscription my jury feel stock that of a
firmation asking the stock was be is- have convicted how should not but it equally apparent, me, sued, “sale use of seems to evidence necessary they are unable to find basis of thus becomes error mails.” *12 ally power setting of review here as- broadened the conviction. aside to warrant majority by the me, serted on his behalf Truly, this is an extreme it seems saying, the Court. the truth of the illustration bad law.” make “hard cases judgment I would affirm the con- toas both Getchells. viction majority opinion, no As stated grounds of error which one of the the verdict reverses this Court jury to the attention of called was trial, one of ten-week no trial court in this complained them counsel stating grounds of in Getchell either argument appeal in Court. his ap- in which counsel is not a case This urging pears in that we take this Court 52(b), plain under Rule
notice error WORKMAN, Appellant, F.R. course, Thus, matter F.R.Cr.P. v. presented Court for con- was not HARRISON, of Selected W. M. Trustee such Aside from sideration. Corporation and Selected Investments being with all the attended evils Fund, Capitol Trust Investments argued by point not on Gate, Inc., Appellees. decision based parties, appears to it me that No. 6224. jury standards for review verdict Appeals Court of United States seriously impaired criminal cases will be Circuit. Tenth circumstances, if, in such future Sept. jury reject we can the verdict general grounds, such some of are which completely opinion stated even Court.1 reading clearly
A of this record indi- sensitive, that this defendant
cates
enginuous optimist. dreamer or Several letters, notably one woman his complained he defrauded her
who he made under
and whom restitution prosecution, he
threat indicate that sufficiently worldly-wise aggres- jury’s attitude to
sive warrant the guilty
finding of wilful certainly record
fraud. The does not
depict in need of a defendant the extraor-
dinary protection extended the unusu- dictment, says length prej criticizes but then tended to The Court indictment, specifying without udice the Court then where defendants. surprising long prejudicial. is the indictment was makes what to me state length majority weighs ment, very of the trial it character evi “The * * * likely impress light one dence in favor of defendant self jury importance public offices held with the the Gov character prosecution witnesses, I matter think ernment attached to is en presumed power gravity tirely beyond function of grounds majority Thus of re scheme to defraud.” to consider. this Court clearly says opinion are hinted at without it was error for the trial versal jury permit defined. to road the in court