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United States v. Cobb

June 10, 1968

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HOWARD FRANKLIN COBB AND MAURICE F. STEHMAN, DEFENDANTS-APPELLANTS



Schnackenberg, Swygert and Fairchild, Circuit Judges.

Author: Fairchild

FAIRCHILD, Circuit Judge.

Howard F. Cobb, Maurice F. Stehman, Walter J. Kessler, and Gertrude M. Cobb were charged with 12 offenses against the mail fraud statute*fn1 and with conspiracy to violate it. Kessler was granted a separate trial and was a government witness at the trial of Mr. and Mrs. Cobb and Stehman. These three were convicted, and Mr. Cobb and Stehman have appealed.

The twelve substantive counts alleged eleven mailings and one receipt of mail, each for the purpose of executing a scheme to defraud, described in detail. Defendants do not challenge the sufficiency of the evidence.

Condensed and summarized, the scheme to defraud, alleged and proved, was as follows:

Defendants would create an identity for a sham retail business under the name of Kessler Furniture Galleries at Quincy, Illinois, induce a large number of firms to supply furniture on credit, dispose of the merchandise for cash through auction houses and like channels, conceal the proceeds, and disappear as soon as it seemed likely that further operation would be dangerous.*fn2

Defendants' five contentions, and our dispositions of them, are as follows:

1. Sufficiency of the indictment. Defendants assert that the indictment is fatally defective in that the substantive counts fail to set out the contents of the mail matter. They say they were denied sufficient notice to enable them to prepare a defense or to identify the offense charged with sufficient certainty to be able to avoid second jeopardy.

It is true that the indictment neither quotes nor summarizes the text of the mail matter, but defendants have cited no authority that this is indispensable.

In each of Counts I through XI, the indictment charged a mailing, on or about a specified date, at Quincy, alleging in some instances that the matter was a letter and in others that it was a postal card. The name and address of each addressee were alleged. In Count XII, the indictment charged receipt from the post office at Quincy of a piece of certified mail. The number of the certified article, the name and address of the sender, and the name and address of the addressee were alleged.

Count I included a very detailed description of the scheme to defraud, and this material was realleged in each other count. Each count alleged that the mailing or receipt of mail was for the purpose of executing the described scheme. One part in the alleged scheme was furnishing a false financial statement to a named mercantile agency, and Count I alleged the mailing of a letter to that agency. The object of the alleged scheme was to obtain property by fraud from named suppliers, and the alleged scheme included ordering merchandise, promising payment, and making false representations. The addressees of the mail involved in Counts II through XI, and the sender in Count XII were all suppliers named in the description of the scheme.

Defendants did not seek a bill of particulars under Rule 7(f), F.R.Cr.P., nor inspection of the articles under Rule 16(b), F.R.Cr.P. We hold that the indictment adequately identified each piece of mail matter and sufficiently charged an offense in each count.

2. Evidence of prior and subsequent transactions. Defendants argue the court erred in admitting testimony as to so-called "pattern" transactions in other jurisdictions and at other times.

The indictment alleged that defendants devised their scheme for the Quincy operation on or about May 1, 1965 and continuously thereafter until on or about March 1, 1966. The earliest alleged ...


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