Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 72 CR 643 Julius J. Hoffman, Judge.
Fairchild and Cummings, Circuit Judges, and Jameson, Senior District Judge.*fn* Cummings, Circuit Judge, dissenting in part.
FAIRCHILD, Circuit Judge.
Four defendants, Wilson, Evans, Collins, and Patton appeal from judgments on conviction of counts charging participation in a mail fraud scheme. 18 U.S.C. § 1341.
Each count of thirteen, some of which did not involve these defendants, described a scheme to defraud the American Oil Company in which Travis W. Allen obtained possession of checks of American Oil Company issued to reimburse its dealers for sales made to credit card customers, and these defendants and others would negotiate the checks by depositing them in existing checking and savings accounts or accounts opened in fictitious names and then withdrawing the proceeds. Each count charged that Allen alone or with another defendant mailed an American Oil check to a bank (or in one instance to an individual) for the purpose of executing the scheme.
I. PROOF OF THE ALLEN SCHEME AND PARTICIPATION BY THE DEFENDANTS.
Defendant Allen and one other were fugitives at the time of trial. Other defendants pleaded guilty early in the trial. The trial then proceeded on two counts charging Collins and one count charging each of the other three defendants now appealing. There was eye-witness testimony as to the association between the defendant Collins and Allen, but the Government relied wholly on circumstantial evidence to connect defendants Wilson, Evans and Patton with Allen. The latter three argue on appeal that the evidence was insufficient to prove that they had guilty knowledge concerning the checks and acted in concert as part of one common scheme.
Taking the view of the evidence most favorable to the Government, it is summarized as follows.
On various dates in October and December, 1971, American Oil Company issued at Chicago and processed for mailing a number of checks payable to retail dealers. The checks involved in this case were issued to dealers at points distant from Chicago and were deposited to various bank accounts in the Chicago area within a short period after the dates of issuance. Although the Government did not produce any of the payees to testify that the checks had not been received or that the indorsements were forged, the cashier of the American Oil Company testified that in each instance the Company had issued replacement checks and requested the First National Bank of Chicago, on which they were drawn, to stop payment on the original checks. Presumably personnel of the Company were satisfied that the checks had gone astray.
Ronald Hayes testified that in October, 1971, Allen told him that if Hayes would permit Allen to deposit a check in Hayes' bank account, they would split the proceeds. If asked about the check, Hayes was to say that he won it gambling. Hayes gave Allen a deposit slip for Hayes' account and Allen later told Hayes that Allen had deposited a check. These conversations occurred approximately October 26.
On October 27, First National Bank received by mail a deposit slip and check for deposit to the savings account of defendant Marie Evans. The check was American Oil Company Check #766789, dated October 13, 1971, in the amount of $3,982.77. It was payable to Peter Fuel Co., Oakland, Maryland and was indorsed "Peter Fuel Corp. -- F. W. Peters Dist. Marie Evans." Her balance before the deposit was $52.27. On November 1, she withdrew $3,900.00 in cash and the withdrawal slip bears the notation "Refund Check." On November 4, she withdrew $134.04 in cash, leaving a balance of $1.00, the minimum required to keep the account open. When questioned later by postal authorities, she said she deposited the check as a favor to a man she had recently met in the company of Johnnie Mae Wilson and who had said he won it gambling. She said she had given him the proceeds but had not seen him again. The mailing of the deposit to the bank was the mailing charged in Count 2 on which Mrs. Evans was found guilty.
On October 23, there was a deposit to the checking account of Johnnie Mae Wilson (not a defendant, presumably because the deposit was not made by mail). The deposit consisted of an American Oil Company Check #768874, dated October 21, 1971, in the amount of $6,199.40. It was payable to Laurie Kirby, Lake City, Florida and indorsed "Laurie Kirby Johnnie M. Wilson."
On October 29, the Standard Bank received by mail a deposit slip and check for deposit to the checking account of Albert Wilson, Jr. and Idell Wilson, the parents of defendant Maxine Wilson. The check was American Oil Company Check #768875, dated October 21, 1971, in the amount of $3,877.17. It was payable to Knoxoil Co., Knoxville, Tennessee and was indorsed "Knoxoil Co. Frank Marcus Pres. Albert Wilson Jr." On November 9, the Standard Bank processed a check on the Wilson account payable to cash in the amount of $3,800.00. When later questioned, defendant Wilson said she had deposited the check to her father's account as a favor to a man she had recently met and who said he had won it gambling. She had given him $3,800.00 of the proceeds and had not seen him again. The mailing of the deposit was the mailing charged in Count 7, on which Miss Wilson was found guilty.
Lee Davis (named in the indictment as a participant but not a defendant) testified that in late November, 1971, he met defendant Collins while looking for work. A few days later, Collins introduced Davis to Allen. Collins told Davis in Allen's presence that he could make some money by opening a bank account and turning over the deposit slips to Allen. On December 11, Davis opened a checking account under the name of Harry T. Bell at the Olympia State Bank and brought the slips and envelopes to Collins. Collins told Davis he would contact Allen and checks would be deposited in the bank account by mail. When notified that the checks had cleared, Davis was to arrange for people to withdraw from the account.
On December 30, 1971, Olympia State Bank received by mail a deposit slip and check for deposit to the Bell account. The check was American Oil Company Check #782134, dated December 22, 1971, in the amount of $1,131.37. It was payable to R. L. Maxwell, Ruleville, Mississippi and was indorsed "R. L. Maxwell Pay to the Order of Harry T. Bell Harry T. Bell." Collins later instructed Davis to withdraw $1,000.00 and Davis wrote a check for $1,000.00 payable to his uncle who cashed it at the bank on January 8, 1972. Davis kept $300.00 and gave the balance to Collins and Allen. The mailing of the deposit was the mailing charged in Count 8, on which Collins was found guilty.
On January 4, Olympia State Bank received by mail a deposit slip and check for deposit to the Bell account. The check was American Oil Company Check #782135, dated December 22, 1971, in the amount of $1,644.66. It was payable to R. B. McCorkle, Greenville, South Carolina and was indorsed "R. B. McCorkle Pay to the Order of Harry T. Bell Harry T. Bell." Shortly before, Davis had mailed a bank envelope at Collins' request. Later, Collins instructed Davis to withdraw the proceeds. On January 13, Davis cashed a Bell check for $1,500.00, payable to cash, and took $1,100.00 to Collins and Allen. The mailing of the deposit was the mailing charged in Count 9, on which Collins was found guilty.
At the time Davis turned over the $1,100.00, Allen indicated he was mailing a $3,000.00 deposit to the Bell account. On January 14, Olympia State Bank received a deposit slip and check for deposit to the Bell account. The check was American Oil Company Check #782176, dated December 22, 1971, in the amount of $3,050.21. It was payable to Tom M. Phillips, Jasper, Georgia and was indorsed "Tom M. Phillips, Harry T. Bell For Deposit Only." Unlike the other checks involved, the American Oil Company stop payment order arrived in time to prevent the clearing of this check at First National Bank and it was returned to Olympia State Bank on January 19. Collins told Davis to have people make withdrawals of $1,000.00 each, but when Davis sent a friend to the Olympia State Bank on January 23 to cash a check, the friend was arrested.
On January 10, the North Shore National Bank received by mail an American Oil Company Check #782177, dated December 22, 1971, in the amount of $7,285.62. It was payable to Geo. W. Pickering Co., Salem, Massachusetts and was indorsed "Geo. W. Pickering Pres Mary A. Patton Savings Account #124772." Because there was no deposit slip, a teller made one out for deposit to the savings account of defendant Mary Patton. The correct account number was 149118. The previous balance had been $327.94, $3.87 more than a loan outstanding against the account. On January 28, Mary Patton withdrew $5,000.00, $4,500.00 in cash and a $500.00 personal money order. She told the teller she was going to buy a car. On January 31, she withdrew $2,289.49, leaving a balance of $324.07, the exact amount of the loan held against the ...