Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
Defendants, Donald J. Garrison (alias Jack Sullivan) and Clovis N. Ooley (alias C. N. Ooley), together with Helen Ooley and J. Tom Miles, were charged in an eleven-count indictment with conspiracy and mail fraud violations. Helen Ooley and J. Tom Miles were acquitted on motion and are not parties to this appeal.
Count I of the indictment charged each defendant with conspiring under Title 18 U.S.C.A. § 371 to violate the mail fraud statute, Title 18 U.S.C.A. § 1341.
Counts II to XI, inclusive, of the indictment charged each defendant with devising and engaging in a scheme to defraud certain persons named in Count II in violation of Title 18 U.S.C.A. § 1341, and each of Counts II to XI sets forth a separate and specific instance of use of the mails to defraud by each defendant in furtherance of such scheme to defraud.
A jury found each defendant guilty on all eleven counts of the indictment, and judgment was entered accordingly. Each defendant was assessed a fine of $5,000 on Count I and was sentenced to serve three years imprisonment on each of said Counts II to XI, inclusive, the terms of imprisonment under each of said counts to run concurrently. These appeals followed: Garrison in No. 12823 and Ooley in No. 12824. We shall consider both appeals together in this opinion.
Defendants assert error arising out of the denial of their motions for judgment of acquittal because of insufficiency of the evidence to support the verdicts of the jury; insufficiency of Counts III to XI, inclusive, because of failure to allege facts constituting an offense; denial of motions for mistrial based upon a prejudicial question asked by Government counsel and an allegedly prejudicial comment by the court during the trial; rulings on evidence; and certain instructions given to the jury by the court.
Count I of the indictment alleged that in furtherance of the scheme to defraud the ten persons named therein, defendants made eleven false and fraudulent pretenses, representations and promises (setting them out in detail), knowing at the time that all such pretenses, representations and promises were false when made; that it was the plan of the conspiracy and the intent of defendants to use the United States mails in the execution of such conspiracy; and further that twelve overt acts were committed by defendants.
Count II of the indictment sets forth all of the alleged misrepresentations charged in Count I. It further alleges that defendants knowingly placed false and misleading newspaper advertising in four newspapers named therein to induce the persons to be defrauded to contact defendants; and that defendants, for the purpose of executing the scheme to defraud, caused to be placed in the United States mail a certain letter addressed to and received by one of the ten persons alleged to have been defrauded.
Counts III to XI, inclusive, each reallege all of the allegations of the first paragraph of Count II by reference thereto; set out the newspaper allegations contained in Count II; and each alleges the use of the mails with reference to a different one of the other nine persons alleged to have been defrauded.
Defendants contend that there was insufficient evidence to support the verdict of guilty on any count in the indictment; that the evidence adduced by the Government failed to show any conspiracy on their part to violate the mail fraud statute; and that the evidence failed to show any scheme or device to defraud anyone. After a careful examination of the record, we do not agree. On the contrary, we believe the evidence as a whole was more than sufficient to warrant the jury in returning its verdicts of guilty.
The evidence in the record establishes the following course of events. Defendants had worked as salesmen for several months prior to March, 1956, for Silver King Distributing Corporation in St. Louis, Missouri, where they sold vending machines for the automatic vending of Gillette Blue Blades (safety razor blades). They determined to go into business for themselves.
About March 26, 1956, at St. Louis, Missouri, defendants obtained from the United States Post Office Department a mailing permit for a corporation to be known as Bell Merchandising Automatically, Inc.
On April 2, 1956, defendants caused to be formed a Missouri corporation under the name of Bell Merchandising Automatically, Inc., 1183 Hodiamont Avenue, St. Louis, Missouri. Defendants were named as the principal officers of the corporation, Garrison acting as president and Ooley as vice-president. Each owned 49 shares of stock, with the remaining two shares owned by their respective wives. The primary purpose of the corporation was to deal in automatic vending machines and merchandise to be sold therefrom.
About the first of April, 1956, defendants caused advertisements to be placed in four newspapers published in the Eastern District of Wisconsin, all of which newspapers circulated through the United States mail. These newspapers were the Milwaukee Sentinel, Cudahy Reminder Enterprize, Fond du Lac Commonwealth Reporter and Appleton Post Crescent. Typical of such advertisement was the following:
"Reliable man or woman will be selected for this area to handle the world famous 'Gillette' blue blades through our new modern type merchandising dispensers. An unusual opportunity to secure your future. Will not interfere ...