United States v. Maxine Wilson

under because statutes which the appli-

dictment was drawn rejected cation of the “national stand- obscenity question.

ard” to the Supreme Court dismissed similar

arguments Hamling States, v. United

418 U.S. 41 L.Ed.2d S.Ct. (1974), po Court this finds by defendants-appel advocated

sitions

lees meritless. See Smith v. United

States, Cir., 505 F.2d 824 judgment district court is

reversed and the cause is remanded for proceedings

further consistent herewith. America,

UNITED STATES Plaintiff-Appellee, al., et Defendants-

Maxine WILSON Appellants.

Nos. 73-1308 73-1311. Appeals,

United States Court Circuit.

Seventh

Argued Feb. 1974.

Decided Nov. Karzen, Williams,

Nicholas M. Walter Samuels, Cachor, Ronald S. Thomas J. Chicago, 111., defendants-appellants. Thompson, Gary R. Atty., James U. S. Groark, L. Starkman D. Michael Attys., Chicago, 111., Asst. U. S. plaintiff-appellee. Before FAIRCHILD CUM Judges, MINGS, JAMESON, Circuit Judge.* Senior District * Judge Senior sitting William J. designation. Jameson of the District of Montana in this The checks Judge. dealers. FAIRCHILD, Circuit points dis- to dealers issued case were Evans, defendants, Wilson, Col Four Chicago from tant lins, judgments from Patton Chicago various bank charging partici of counts on conviction period a short area within pation fraud scheme. 18 U.S. in mail Although the Govern- dates of issuance. C. 1341. § payees any produce ment did not thirteen, of which Each count of not been testify had the checks that defendants, de- these did not involve the indorsements or that received Ameri- to defraud scribed American Oil forged, the cashier Company Al- Travis W. which can Oil in each instance Company that testified possession of checks len obtained replacement Company had issued Company to reim- American issued Oil requested the First National credit for sales made burse dealers its Chicago, they were on Bank customers, defendants card and these original drawn, stop payment on the by negotiate and others would the checks Presumably personnel of the checks. existing checking depositing them in Company the checks satisfied that savings opened in accounts or accounts astray. gone had withdrawing names and then fictitious Hayes that Octo- Ronald testified charged proceeds. Each count Hayes 1971, ber, him that if told Allen alone or with another defendant permit deposit a check would Allen to account, they mailed an American check to a bank Hayes’ split would bank (or individual) for one instance to an check, proceeds. If asked about the executing purpose the scheme. gam- Hayes say he won it was to bling. gave deposit slip Hayes Allen a I. ALLEN PROOF OF THE SCHEME Hayes’ and Allen told for account later AND BY THE PARTICIPATION Hayes deposited a check. that Allen had DEFENDANTS. approxi- conversations occurred These mately and one other were Defendant Allen Ocober fugitives de- at the time trial. Other 27, First National Bank On October guilty early pleaded fendants deposit by slip mail a and check received proceeded on two trial. The trial then savings deposit account of charging counts Collins and one count Marie Evans. The check was fendant charging each the other three defend- 766789, Company # American Oil Check appealing. eye-wit- ants There was now 13, 1971, in dated the amount October testimony association be- ness as to the $3,982.77. payable It was Peter Fuel Allen, tween the Collins and Co., Oakland, Maryland and was wholly on cir- relied Corp. dorsed “Peter Fuel W. Peters —F. defend- cumstantial evidence to connect Dist. Evans.” Her balance before Marie Al- ants Evans and Patton with 1, deposit November On $52.27. argue len. The latter three $3,900.00 in cash and the she withdrew evidence was insufficient slip the notation “Re- withdrawal bears prove guilty knowledge had November she with- fund Check.” On concerning the checks and acted con- leaving cash, drew balance $134.04 cert of one common scheme. keep $1.00, minimum Taking of the evidence view most open. questioned lat- the account When Government, favorable to the it is sum- authorities, postal er said she de- she marized as follows. posited to a man the check as a favor recently company and De- she On various dates October met Company cember, 1971, is- had said American Oil Johnnie Mae Wilson who gambling. Chicago processed she had sued at for mail- he won it said She given payable proceeds a number to retail him the but had not seen of checks deposit mailing and checks would be again. contact Allen mail. in the bank account to the bank was When notified that the checks had was found Evans 2 which Mrs. cleared, arrange people Davis was to to withdraw from the account. deposit to was a On October cheeking Mae account of Johnnie 30, 1971, Olympia On December State (not presumably defendant, be- deposit slip and Bank received mail a deposit was not made cause deposit check for to the Bell account. mail). deposit consisted Company The check was American Oil # American Oil Check Check # dated December 21, 1971, dated in the amount October $1,131.37. in the amount of $6,199.40. payable Kir- to Laurie It was payable Ruleville, Maxwell, R. L. by, City, indorsed Lake Florida and Mississippi and was indorsed “R. L. Kirby M. “Laurie Wilson.” Johnnie Pay Harry Maxwell to the T. Order Harry Bell T. Bell.” Collins later 29, re- On Bank October Standard $1,000.00 structed Davis to withdraw deposit slip check ceived mail a $1,000.00 and Davis wrote a check for checking deposit for to account payable to his uncle it who cashed at Wilson, Wilson, Albert Jr. Idell January 8, Davis, kept bank on parents Maxine Wilson. gave the balance to $300.00 Collins Company The check was American Oil mailing deposit and Allen. The #768875, 21, 1971, Check dated October mailing charged 8, was in on $3,877.17. pay- in the amount of It was guilty. which Collins was found Co., Knoxville, able to Knoxoil Tennessee and was indorsed “Knoxoil Frank Co. January 4, Olympia On Bank re- State On Marcus Pres. Albert Jr.” deposit slip ceived mail a and check 9, proc- November the Standard Bank deposit for to Bell account. The pay- essed a on check the Wilson account Company check was American Oil Check $3,800.00. able to cash the amount of #782135, 1971, 22, dated December questioned, later When defendant Wilson $1,644.66. payable the amount of It was deposited said she had to her the check McCorkle, Greenville, to R. B. South father’s account a man favor to a she Carolina and was indorsed “R. B. Mc- recently had had met and who said he Pay Harry to T. Corkle the Order of gambling. given won it him She Harry Shortly before, Bell T. Bell.” $3,800.00 proceeds of the and had not envelope Davis had mailed a bank at again. seen of the Later, request. Collins' instruct- Collins posit mailing charged was the in Count proceeds. ed Davis withdraw the On 7, on which January Miss Wilson was found 13, Davis cashed a Bell check guilty. $1,500.00, payable cash, for and took $1,100.00 to Collins and Allen. The (named Lee Davis in the indictment mailing deposit mailing- was the participant defendant) as a a but not in Count on which Collins November, 1971, testified that late he was found looking met defendant while for Collins days work. A later, few Collins intro- At the time Davis turned over the duced Davis to Allen. Collins told Davis $1,100.00, Allen indicated he was mail- presence Allen’s $3,000.00 that he could deposit make to the Bell ac- money by opening bank January account 14, Olympia count. On State turning deposit slips over the Al- deposit slip Bank received a and check opened len. On December deposit Davis to the Bell account. The checking account under the name of Company check was American Oil Check Harry Olympia T. #782176, Bell at State dated December brought slips Bank and $3,050.21. payable and enve- the amount of It was lopes Georgia Collins. Collins told he Phillips, Jasper, Davis to Tom M. Harry together, Phillips, Mae who lived “Tom M. Johnnie indorsed neighbors Only.” also Deposit Unlike and also visited Bell For T. involved, American back and forth. Hawkins had seen Al- Oil

other checks talking Compton Company stop payment len and had order arrived seen Compton clearing prevent of this American time several Oil large Company Bank and was checks amount. check First National Olympia Bank Jan- returned to State It seems clear that Allen had a means peo- uary told Davis to 19. Collins obtaining recently issued American each, ple $1,000.00 make withdrawals Company during checks at times Oc- a friend but when sent Davis December, tober and 1971. Since January Olympia 23 to Bank State be mailed to dealers distant check, arrested. the friend was cash expected locations, it could be that some period elapse before failure to January 10, Na- the North Shore On reported receive the check could be by mail Ameri- Bank tional received interim, American Oil. In the #782177, dated can Oil Check personal could in the amount December confederates, the time allowed for $7,285.62. payable to Geo. W. expire, money clearance would and the Salem, Pickering Co., Massachusetts ample could be withdrawn. There ev- Pickering Pres was indorsed “Geo. W. joined idence that defendant Al- Collins Savings Mary Account A. Patton (and enterprise. Davis) len In- no there was #124772.” Because deed, Collins makes no claim on posit slip, for de- a teller made one out the evidence was insufficient. savings posit to account of defend- the Mary The correct account ant Patton. think there is cir We sufficient previous The bal- number was 149118. cumstantial evidence to link $327.94, ance had been more than $3.87 knowing par defendants with Allen in outstanding against account. a loan ticipation in his scheme. Mary January 28, Patton withdrew On $5,000.00, $4,500.00 in cash and $500.- Evans, Similarities between Max- personal money told the 00 order. She Mary ine Wilson and Patton transac- going buy ear. On teller she was tions, hand, on the one and the Collins January $2,289.49, withdrew she participa- in transaction which Allen’s leaving $324.07, the exact a balance of directly shown, tion and trans- was held ac- amount of loan Hayes proposed Allen actions which January 31, Also, count. on $500.00 persuasive and Hawkins are themselves personal money order cashed in was was an Allen Compton. The mail- name of Cleveland participated. The checks each defendant deposit was the involved are all of one maker and all Mrs. Pat- on which promptly possession came into ton was found persons depositing This with them. fact that all other circumstances indicates Hawkins, Jr. testified that Preston through Defend- the checks came Allen. December, $1,000.00 he won late Evans, Mae and ant Johnnie Wilson gambling. offered Allen (cid:127)from Allen Compton other. Cleveland knew each Company cheek but an American Oil Compton’s pos- and contact with Allen paid Allen later refused it Hawkins Company session American checks Oil by means. Hawkins saw him other directly established. Defendant were of American a number Allen had implausible exculpatory state- Evans’ Company to different drawn that Johnnie Mae Wilson ment indicated could Hawkins Allen said names and experience a similar cashing money by them. one of make exculpatory statement similar to the testi- Hawkins also refused. Hawkins explan- given by and the Maxine his Evans was that defendant fied neighbor Hayes. suggested by Allen Compton ation and Cleveland 1257 denied, transaction Mae Wilson 1297 similar Johnnie cert. the same date a check and U.S. S.Ct. 28 L.Ed.2d 217. immediately prior sequence charge Here the indictment did not by deposited Maxine the defendant check conspiracy. count, In each one defend- parents’ her account. Wilson in together ant charged, on trial Mary deposited Pat check Allen, having deposited and caused imme ton issued the same date deposited to be certain mail execution diately sequence the cheek followed in of a described scheme. Bell account on Allen trial, Allen, on defendants oth- personal January mon 14. The $500.00 identity ers devised the scheme. The ey represented part of the order which being sufficiently the Allen scheme es- proceeds deposited into the check tablished, knowing partici- and also the cashed Cleveland Patton account was pation partic- the defendant in a Although Compton. the failure of the count, ular we think there is no sound payees checks and the for to receive the why reason that defendant need be gery not di of their indorsements was proved to have known of the activities rectly proved, several that these the fact of other defendants other than persons payable considerable cheeks prove order to guilt that defendant’s Chicago negotiated from distances that count. Chicago peri within a short area It is not essential that the in willingness issuance, od separate charg dictment contain a count replace American Oil to issue ing conspiracy in order to take advan basis for ment checks are a sufficient tage peculiar conspir of the doctrines stolen,1 the inference that acy. Joyce, F.2d and, course, recently so as to stolen prosecution In a knowledge guilty permit the inference fraud, agreement mail once to a scheme into whose of the defendants adequately established, any plausible they went without agreement party responsible is explanation.2 for the acts and of declarations another suffi- We think these circumstances party in furtherance of the common ciently of establish the existence an inte- scheme, whether or he knew or not gral defend- Allen scheme in each agreed specific any mailing. United knowingly participated ant and either Joyce, supra. States v. mailing charged mailed or caused the her, each II. him or whether SEVERANCE. identity fendant was aware Collins, Defendants argue participation of other or defendants prejudiced Patton that each was not. being jointly tried with the others. a defend Even where number of The Government’s short answer that is conspired having requested ants are with none of Moreover, them severance. prove together, good deal, all, not the Government need a if not of the each iden that defendants knew other’s same evidence would have been admissi tity or each direct contact with oth ble to show the character the Allen er, although they separate must know each scheme in a trial Collins and probably only admissible, v. Var other’s existence. United States not but essen elli, 1969); 735, (7th F.2d tial 407 742 Cir. because of the circumstantial nature Nasse, 1293, F.2d proof, separate v. 432 United States of the in the trial may denied, 868, 128, 1. “make common sense infer 375 U.S. 84 11 L.Ed. S.Ct. proven v. ences from facts.” Webb United 2d 95. 1965) States, ; F.2d 364 347 Cir. Hines, States, F.2d United v. 256 564 Barnes v. 412 States United U.S. (2d (1973). Zim See S.Ct. 37 L.Ed.2d 380 ple, F.2d cert. knowledge full but that of the details” unable We are each of others. knowledge person such has no joint “a trial. prejudice in a discern a happens joint enterprise, to act but REQUESTED object pur- way IN- or OF REFUSAL which furthers III. enterprise, pose joint does said STRUCTION. thereby member.” not become instruction requested an Defendants finding stated that before court as follows: membership “the evidence could be made charged that has The Government beyond a show reason- the case must joined each other the defendants enterprise joint doubt that the able knowingly a scheme Travis Allen or formed that defendant Company. American defraud the person any to have “who claimed has is, the Government That willfully participated in a member together or acted that the defendants jointly, plan ad- the unlawful with the intent to single in furtherance object purpose or vance or further some I to defraud. common scheme joint enterprise.” of the any may you find you not struct you guilty unless defendants For reasons indicated above find that first proved given by I, the Part instructions beyond doubt that a reasonable more court have been favorable single common was such there required, defendants than the law to defraud. any they adequately event covered requested by substance the instructions you doubt find that a reasonable If the defendants. was, may or as to exists whether been, separate and a series you find schemes, then must distinct AT ALLEGED CONFUSION IV. all not defendants TRIAL you find that the defendants If argue All defendants on this acting not of the same they prejudiced by what scheme, you must find them then confusing, termed inconsistent and dis- guilty, you they, if or even find that orderly conduct of the trial. It any them, acted with intent to de- course, clear, of la- that the Government fraud. under bored difficulties absence give figure. The court did not the instruction of Allen was a central Evi- who did, requested. however, might form readily have been ad- dence against instruct that the must Government missible against him admissible was prove beyond only doubt de- a reasonable that the trial con- defendants on any ditionally upon representation fendants or one or more of them that participated in a scheme to defraud and all the its when evidence relevan- cy against probative the that mails were used in furtherance force defend- length apparent. of it. It trial, instructed at some con- ants on would become cerning meaning “joint of a enter- same of was true evidence trans- The prise proof by persons mail fraud or the scheme” actions not on trial but allegedly establishing pattern to establish there was such that a similar clarity a scheme and that a defendant was to with such as be circumstantial knowingly it; a member evidence that the transactions jury directly should first determine whether or the defendants were joint enterprise not “the mail fraud ex- the same overall scheme. indictment”; activity isted as in the and Evidence of one de- as willfully only immediately then whether a defendant be- fendant not ad- pointing against it. comes a member of After defendant but missible out that “one become a member when combined with a cumulation of ev- enterprise joint activity a criminal full without idence of the of others could circumstantially participation sufficient properly to establish the be considered all that defendant with Allen in his defendants. as evidence scheme. by began of- the trial proof Notwithstanding fering with the items of the fact that much various representation ultimate- evidence was admitted with the ly up. district At first the limitation that against connected was to be considered procedure. accepted only defendant, this Counsel one court and that objected limiting meticulously to for defendants instruction was not withdrawn directly during obviously proof trial, rele- jury not all we think the must respective defendants. vant to the have done what common sense would during carefully sought clearly require, district court and have considered all for the trial restrict to course similarities between the transactions being tending evidence time the consideration the other facts circum- the de- stantially Government to offered to link the transactions to- directly in- gether, In fendant involved. several I, set forth under Part in or- the district court sustained stances der to determine whether there was an objections to evidence of transac- fense Allen scheme as described in the indict- think, might, ment, tions which we within adhered to each defendant on discretion, proper trial, ad- court’s particular and furthered conditionally. did The court mitted to each defendant. any during jury time instruct V. made DISPARITY OF trial the Government had SENTENCE. prima joint enterprise facie case of suf- Defendant Collins to was sentenced permit of evi- ficient consideration imprisonment years for five on each against one dence admitted defendant consecutively. count to run Proof toas against others, but in instructions very indicated active role told after the close trial court enterprise. Evans, Defendants jury subject qualifica- that, to the usual nego- Wilson and Patton, each of whom tions, by any person statements acts check, tiated one were sentenced to im- found be a of a criminal member prisonment year. for one Defendants joint enterprise may be considered pleaded guilty early who had stages jury any as evidence placed of the trial had been found to have been a member the probation. Evans, Defendants joint enterprise. criminal argue disparity and Patton that the be- their tween sentences and the sentences reading own Our the record probation punishment constituted persuades us that the evidence and rul exercising right their to stand trial. ings presence jury made disparity been held that a likely did not result confusion imposed between a sentence on a defend misapprehend cause the is pleads guilty ant who another proofs. Surely sues and the the defense not, who is convicted trial stand position rulings object is in no or ing alone, enough to establish instructions more favorable than punished exercising latter has a been for requires. law right.3 constitutional peculiarity The of this as case Collins, except year imposed all defendants as one sentence for the whose transactions with Allen there was here cannot deemed severe be eyewitness testimony, type activity is that of defend which these Although not could convict unless it ants were a heav considered convicted. characteristics of the transactions of ier for been con all sentence one who has lighter defendants as circumstantial evidence victed after trial and a sentence Melendez, (7th 1965); Simpson States, v. States 355 F.2d 917 Cir. United v. (7th 342 F.2d 645 Cir. effective, Court, yet re- guilty not pleads in but a sense are who one quire its court to state reasons coin, it is within sides of the same two proper investigation. having Review preserve not such the court bounds for usually one has the failure to call for leeway extend it is able to so that coopera- in a determination resulted leniency consideration abused, penitence not Unit- superficial court's discretion was at least tion and Rosciano, pleads ed v. F.2d 166 one who evidence Here, Lehman, 1974), and cases cited therein.- We United States paucity think, however, of rele- that the 468 F.2d at 109 suggesting three de- information about these vant court made remarks district light fendants, might the amount have en- these defendants probably have leniency information which would joyed extended to the same produced presentence report, been in a guilty, pleaded think but we those who here, made it an abuse of discretion dis- applies in Lehman the discussion pense with one. as well. agree Although we do not BY VI. CLAIMS ERROR OF RAISED who of the three defendants the claims DEFENDANT EVANS. sentences, just year dis one received cussed, par do we conclude Sufficiency A. the Indictment. an abuse of it was ticular circumstances summary that Al- Count 2 presentence dispense awith discretion to investigation including len and others Evans devised impose and sentence Compa- defraud American Oil imprisonment three on these without ny in Allen would obtain stolen report. benefit of a persuade, “request, checks and would arrange each form and for” otherwise about three information these negoti- the other defendants to assist fendants to the district court available ating by depositing them bearing upon appropriate sen- withdrawing proceeds, unusually tence limited. Evidence pur- and Evans for the and that Allen concerning their transactions was en- scheme, knowingly pose executing tirely revealing nothing circumstantial, willfully mailed and caused more about their character than fact specific mailed American Oil guilt Miss and that Mrs. Evans and National Bank. check to the First gave Patton, not Mrs. false They explanations postal authorities. Ev If we understand except testify, for brief allo- did not argument, her de it is that since ans’ opportunity cution, little the court had posit have been of the stolen check them as individuals. None evaluate arranged for, the element otherwise guilty except of them had record a criminal her intent on connection with the transactions bar. did, charged. sufficiently how brought Miss Wilson out that charge participation Counsel ever, her with old, years lives unmarried, devising .and to defraud the scheme steadily parents, em- her ployed and has been leaving high using knowingly willfully the mail school. Mrs. since find no defect it. can to execute We separated, is Patton is regularly married but the indictment. supported employed, and has Particulars. B. Bill of mother. Ev- four children and her Mrs. sought particulari- Evans Defendant married, with two chil- ans indict- elements zation of certain dren. asked that ment. She re- whether state Dispensing presentence a persuaded, other- quested, informed or discretionary investigation under is nego- arranged although her to assist 32(c), F.R.Cr.P., wise present Rule tiating checks; “oth- to define Supreme what proposed amendment, arrange means; Judge CUMMINGS, (dissent- erwise for” to state Circuit repre- pretentions, part). false and fraudulent promises to, who sentations and referred Judge opinion I concur Fairchild’s them, made,

made to whom and when exception sponte with the the sua re- made; and or to state whether Allen resentencing pre- mandment after a Evans have stolen investigation report sentence completed are checks. Wilson, as to defendants Pat- Surely ton and Evans. seasoned counsel Defendant Evans concedes presented argument would have if this ordering particulars a bill is within my view, warranted this In record. the court’s Here the docu discretion. there was no abuse of discretion mentary respect Evans evidence ordering presentenee investigation was made to her advance available report for each of three defend- these appar the trial. The Government was ently unprepared though ants, generally even the bet- to show the details practice ter to do so. United States v. assistance, to how Allen Evans’ obtained (7th Rosciano, 499 F.2d Cir. stolen, whom the checks were nor 1974). Therefore, I affirm pretenses false implicit than those judgments. depositing a check with forged already As set indorsement.

forth, proof things must that these happened was circumstantial.

has not been demonstrated that any surprise evi on her at the during oth

dence the course trial nor prejudice

er as a result of denial of requested particulars.4 BARON, Sr., ESTATE William LE al., Plaintiffs-Appellants, et C. Inadvertent Misdirection v. Court COMPANY, ROHM AND HAAS and Mon During testimony the course of Company, santo Defendants- postal relating inspector succes Appellees. Collins, sive interviews with defendants No. 74-1351. Evans and the court inadver Appeals, United Court States tently named rather than Evans Ninth Circuit. person as the to whose tes case certain Nov. timony should be limited. The misun

derstanding and cor misstatement were

rected. We consider frivolous the claim misled. Collins, On the of defendant judgment of conviction and sentence appeals

are affirmed. On the of defend- Wilson, Evans, Patton,

ants

judgments affirmed, of conviction are are sentences vacated and resentencing

causes remanded for investigations reports under Rule

32, F.R.Cr.P. Hutul, Wells, 4. See v. F.2d ed States 387 F.2d at 808 denied, cert. 396 U.S. 1012, 90 24 L.Ed.2d 504 Unit S.Ct. 573.

Case Details

Case Name: United States v. Maxine Wilson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 13, 1974

Citation: 506 F.2d 1252

Docket Number: 73-1308 to 73-1311

Court Abbreviation: 7th Cir.