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United States v. Hauff

decided: February 8, 1973.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD HAUFF, DEFENDANT-APPELLANT



Knoch, Senior Circuit Judge, Fairchild and Pell, Circuit Judges.

Author: Knoch

KNOCH, Senior Circuit Judge.

Defendant-appellant Richard Hauff has taken this appeal from his conviction in a jury trial on a four-count indictment charging violations of Title 18 U.S.C. ยง 1341 in his use of the mails on four different occasions in the execution of a scheme to defraud Rudolph and Florence Velasquez. Defendant was sentenced to a term of three years on each count, to run concurrently.

Mr. Velasquez testified that when he met defendant in 1967, the defendant offered him employment as a window washer and that the two became friends. He said that defendant told him of a conversation with Mrs. Velasquez in which she had said she was going to divorce Mr. Velasquez. Defendant suggested forestalling that divorce by converting all assets into cash to be placed in a safety deposit box.

Mr. Velasquez said he acted on this suggestion. He sold his and his wife's interest in two mutual funds and in an apartment building, cashing checks or depositing the proceeds in his savings accounts from which he made a series of withdrawals.

He described the general procedure as follows: in the company of the defendant, Mr. Velasquez would cash the checks given in payment for assets liquidated or withdraw several thousand dollars, usually in denominations of $50 or $100. About $51,000 was secured in this fashion in the course of time. He would count it and place it on the counter. The defendant would then pick it up and in nearly each instance put it into an envelope which he placed in his own coat pocket. On arrival at the safety deposit company, Mr. Velasquez would sign the access slip, but both men would go into the vault area. Defendant would drop an envelope into the safety deposit box or hand one to Mr. Velasquez to put into the box.

The safety deposit access slips were government exhibits at the trial. Bank tellers and a vault attendant testified to defendant's presence with Mr. Velasquez at the withdrawals of cash and the access to the vault. A thumbprint on the flap of one envelope found in the box was identified as defendant's.

When Mr. Velasquez later visited the box alone on October 24, 1968, he testified that of the nine envelopes he found there, none contained bills of a higher denomination than $1.00. He returned the same afternoon with his wife who testified that some of the envelopes contained paper cut up like money.

On the advice of his lawyer, Mr. Velasquez informed the United States Attorney's office, and with Postal Inspector Ostby again visited the box on October 31, 1968. Inspector Ostby testified to finding nine envelopes which contained altogether 304 $1.00 bills.

On October 29, 1968, when Mr. Velasquez discussed the contents of the box with defendant, they had agreed that the box contained at least $51,000. At that time defendant urged Mr. Velasquez not to visit the box without him. Later, on November 4, 1968, when told about the missing money, defendant told Mr. Velasquez that the money was all safe but refused to discuss the disposition of the envelopes. The next day he advised Mr. Velasquez that they were partners in a business deal and promised to advance $30,000 for the Velasquez children.

During these three conversations Mr. Velasquez carried a transmitter. Transcripts were made and tendered to the defendant prior to trial. The government states that these were held inadmissible under the decision in United States v. White, 7 Cir., 1970, 405 F.2d 838, subsequently reversed, 1971, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453. In oral argument in this court, counsel for the defendant, however, asserted that the material would have been inadmissible in any event because it was incoherent and inaccurate.

After his plea of not guilty, entered August 8, 1969, defendant was granted twenty days to file motions. On September 12, 1969, he filed his notice of Request for Pretrial Discovery, employing the wording of Local Criminal Rule 2.04(a) of the Northern District of Illinois, reading in pertinent part as follows:

(1) Permit defendant's attorney to inspect and copy or photograph any relevant written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government;

(2) Permit defendant's attorney to inspect and copy or photograph any relevant results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the case, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by ...


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