United States v. Green (494 F.2d 820, 1974)

AINSWORTH, Circuit Judge:

Appellants Richard William Payne and Rita Carpenter Green were each convicted on nine counts of violation of the federal mail fraud statute, 18 U.S.C. § 1341, for devising a scheme to defraud through the unlawful use of credit cards. They were each sentenced to five years’ imprisonment on each of the first two counts, these terms to run consecutively. Sentences on the remaining counts were suspended, and appellants were placed on probation for five years, to run consecutively to the sentences imposed. On appeal, they raise issues concerning the scope of the mail fraud statute and the sufficiency of the evidence, as well as other assorted contentions. We affirm in part and reverse in part.

The relevant portions of the mail fraud statute provide:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 1341.

The first six counts of the indictment under which appellants were convicted contained these common allegations: (1) on or about October 1, 1970, and continuing until mid-1972, appellants “devised and intended to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations and promises”; (2) as part of such scheme and artifice, appellants “would apply for and obtain credit cards from businesses they intended to defraud, among such businesses would be Texas Bank and Trust Company of Dallas, BankAmericard Center, Diners Club, American Express Company, Mobil Oil Corporation, Gulf Oil Corporation, Texaco, Inc., Humble Oil and Refining Company and Shell Oil Company”; (3) “[i]n submitting credit card applications to such businesses, [appellants] would willfully make false and misleading representations in order to make it appear that they were worthy of credit and to induce the businesses to be defrauded to issue credit cards to them”; (4) the credit cards so obtained would be used by appellants “to purchase large quantities of merchandise and many services from business establishments . . . when in fact they intended not to pay for such purchases”; (5) “[u]p