United States v. Richard Dennis Lynn, 461 F.2d 759, 10th Cir. (1972)

461 F.
2d 759
UNITED STATES of America, Plaintiff-Appellee,

v.
Richard Dennis LYNN, Defendant-Appellant.
No. 71-1655.
United States Court of Appeals,

Tenth Circuit.
May 19, 1972.
Rehearing Denied Aug. 4, 1972.
Franklin J. Smith, Cheyenne, Wyo., for defendant-appellant.

Jack Speight, Asst. U. S. Atty. (Richard V. Thomas, U. S. Atty., and Tosh
Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for plaintiffappellee.
Before PICKETT, * HILL and DOYLE, Circuit Judges.
HILL, Circuit Judge.
This is a direct appeal from a conviction by a jury in the District of Wyoming

of possession of matter stolen from the United States mails, and conspiracy to
commit mail fraud.
This case arose out of a trip made by Richard Dennis Lynn, Richard Allison
Marnette II, his co-defendant, and others from Salt Lake City, Utah, through
Wyoming, Nebraska and Iowa to Minnesota. Purchases were made at Little
America and Cheyenne, Wyoming, by Lynn and Marnette with a
BankAmericard issued to Vera C. Ross. It was undisputed at trial that it had
been Lynn and Marnette who had made the purchases in question by use of the
Ross BankAmericard without Mrs. Ross' permission.
Lynn and Marnette were jointly charged in a two-count indictment. Count I

charged violation of 18 U.S.C. Sec. 1708, unlawful possession of material
stolen from the United States mails; Count II charged violation of 18 U.S.C.
Sec. 371, conspiracy to use the mails to defraud, and the commission of overt
acts in furtherance thereof in violation of 18 U.S.C. Sec. 1341, use of the
United States mails to defraud. Separate trials were granted the co-defendants.
Lynn was tried to a jury; the jury returned a verdict of guilty on both counts. He
was sentenced pursuant to the Federal Youth Corrections Act on Count I; two
years probation to commence at the termination of confinement pursuant to the
Youth Corrections Act was ordered on Count II. Lynn appeals.
4
Appellant attacks his conviction on three grounds. First, he asserts that he was
denied effective assistance of counsel at the trial; second, that he was denied a
fair trial; and third, that the government failed to prove all material elements of
the indictment beyond a reasonable doubt. After a close reading of the record,
we conclude that sufficient evidence does not support Lynn's conviction.
Accordingly, we reverse. As appellant's conviction is reversed on the basis of
insufficiency of supporting evidence, we will not treat appellant's other
contentions.
A review of the essential elements of the offenses charged will be helpful in

evaluating the evidence presented at the trial. To support a finding of guilt of
violation of 18 U.S.C. Sec. 1708, as charged in Count I of the indictment, the
government must prove beyond a reasonable doubt that the material in question
was stolen from a United States mail route or depository and that the defendant
possessed that material with knowledge that it was so stolen. Count II of the
indictment charged a conspiracy to defraud by use of the mails in violation of
18 U.S.C. Secs. 371 and 1341. The government has the burden of proving
beyond a reasonable doubt that a conspiracy to defraud existed, that the
defendant was a party to the conspiracy, and that an act or acts which would
constitute use of the mails were performed in furtherance thereof.
Appellant's contention that the government failed to prove all material elements
of the indictment is in essence a question of sufficiency of the evidence to
support the jury verdict. An appellate review of the sufficiency of the evidence
is made pursuant to the principle that the evidence presented in the trial court is
viewed in the light most favorable to the government to ascertain if there is
sufficient substantial proof, direct and circumstantial, together with the
reasonable inferences to be drawn therefrom, upon which a jury might find a
defendant guilty beyond a reasonable doubt.1
The evidence presented concerning Count I of the indictment is as follows. The

testimony of Kirk Larsen, a representative of BankAmericard, did establish that
the credit card in question had been mailed on May 27, 1969, to Mrs. Vera C.
Ross, who resides in Salt Lake City, Utah. Mrs. Ross was not able to honor a
subpoena to testify at the trial because of ill health. The government attempted
to establish the element of theft of the credit card from a United States mail
depository by the testimony of Farold Christiansen. Christiansen, a
BankAmericard inspector, testified that during the early part of July, 1969, he
had personally inspected the mailbox in which Mrs. Ross receives her mail and
had found a defective lock thereon. Although testifying for the government,
Marnette denied that he had stolen the credit card from Mrs. Ross' mailbox or
that he or Lynn had any knowledge that it was stolen from the mails. Lynn
likewise denied theft of the card or knowledge that it was stolen from the
United States mails. There was no further evidence admitted to establish the
element of knowledge.
8
We find no evidence supporting beyond a reasonable doubt the government's

theory that the BankAmericard was stolen from the United States mails, and
that Lynn possessed the card knowing it to be stolen therefrom. We have
reviewed recent Tenth Circuit decisions affirming convictions of violation of 18
U.S.C. Sec. 1708.2 The quantum of evidence supporting a theory of theft of the
material from the United States mails, as well as possession of the material with
knowledge that it was stolen therefrom, is significantly greater in those cases
than the quantum of evidence before the trial court in the instant case. It is at
best an inference that the credit card was stolen from Mrs. Ross' mailbox; it is
inference on inference that Lynn possessed the card with knowledge of the
theft. We hold that the evidence does not support beyond a reasonable doubt the
jury verdict that the appellant possessed the credit card in question with
knowlege that it had been stolen from the United States mails.
The following testimony was introduced at the trial concerning Count II of the
indictment. Norma Jean Mandrose, who is employed at Little America,
Wyoming, where purchases were made with the Ross credit card, testified that
the credit card sales drafts from purchases made at Little America are sent by
registered mail to the Little America accounting office in Cheyenne, Wyoming.
Gordon Wayne Rogers, another Little America employee, testified that the
drafts are then deposited in the First National Bank of Cheyenne. H. Charles
Sasse, the proprietor of a filling station in Cheyenne where a purchase was
made with the Ross credit card, testified that the credit card sales drafts for
purchases at his station are deposited in the First National Bank and Trust
Company of Wyoming at Cheyenne. Virgil Adams, an employee of that
institution, testified that the sales drafts are sent to the Colorado National Bank
in Denver by armored car service. Larsen testified that the BankAmericard
sales drafts are then sent from the Colorado National Bank in Denver to the
First National Bank in Salt Lake City, Utah, by the United States mails.
Marnette and Lynn both denied that they had placed the BankAmericard sales
drafts made on the Ross credit card in the United States mails, or had caused
them to be placed therein.
10
The gist of the offense of mail fraud lies in the use of the mails to obtain money
or property by fraudulent means.3 Utilization of the mails after the scheme has
been fully consummated and completed in all of its parts cannot supply the
essential ingredients for this offense.4 An examination of Tenth Circuit
decisions affirming convictions of violation of 18 U.S.C. Sec. 1341 reveals that
the defendants in those cases consciously availed themselves of the use of the
mails in completion of their scheme.5 We view the transactions in Little
America and Cheyenne, Wyoming, by use of the Ross credit card as completed
when the goods were received in exchange for the credit card sales drafts. It is
immaterial what method the retail establishments chose to collect from
BankAmericard.6 Use of the mails was not an essential element of this scheme.
The federal mail fraud statute does not purport to reach all frauds, but only
those instances in which the use of the mails is a part of the execution of the
fraudulent scheme. All other cases are to be dealt with by appropriate state
law.7 We hold that the evidence presented at the trial does not support beyond a
reasonable doubt the government's theory that the appellant conspired with his
co-defendant to commit mail fraud.
11
It is a well established principle of American criminal justice that the proof

presented at the trial must conform to the allegations contained in the
indictment.8 When the proof presented only establishes the defendant's guilt of
an offense other than that with which he has been charged, the conviction
cannot stand.9 Accordingly, appellant's conviction on both counts of the
indictment is reversed, and the case is remanded to the trial court with
directions to dismiss the indictment.
Judge Pickett participated in the decisional process, but due to illness did not
participate in the opinion
United States v. DeLuzio, 454 F.2d 711 (10th Cir. 1972); United States v.
Holmes, 453 F. 2d 950 (10th Cir. 1972)
See United States v. Baker, 444 F.2d 1290 (10th Cir. 1971), cert. denied 404
U.S. 885, 92 S.Ct. 222, 30 L.Ed.2d 167; Pinelli v. United States, 403 F.2d 998
(10th Cir. 1968), cert. denied 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755;
Webb v. United States, 347 F.2d 363 (10th Cir. 1965)
Marvin v. United States, 279 F.2d 451 (10th Cir. 1960); Palmer v. United
States, 229 F.2d 861 (10th Cir. 1956), cert. denied, 350 U.S. 996, 76 S.Ct. 546,
100 L.Ed. 861; Gates v. United States, 122 F.2d 571 (10th Cir. 1941), cert.
denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558
4
United States v. Cohen, 145 F.2d 82 (2d Cir. 1944), cert. denied, 323 U.S. 799,
65 S.Ct. 553, 89 L.Ed. 637; Mitchell v. United States, 126 F.2d 550 (10th Cir.
1942), cert. denied, 316 U.S. 702, 62 S.Ct. 1307, 86 L.Ed. 1771; Dyhre v.
Hudspeth, 106 F.2d 286 (10th Cir. 1939)
See Mesch v. United States, 407 F.2d 1286 (10th Cir. 1969), cert. denied sub
nom. Baldwin v. United States, 395 U.S. 979, 89 S.Ct. 2133, 23 L.Ed.2d 767;
Sparrow v. United States, 402 F.2d 826 (10th Cir. 1968); Steiger v. United
States, 373 F.2d 133 (10th Cir. 1967); Hofmann v. United States, 353 F.2d 188
(10th Cir. 1965); Beasley v. United States, 327 F. 2d 566 (10th Cir. 1964)
Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944)
Id. at 95, 65 S.Ct. 148
Goodman v. United States, 341 F.2d 272 (5th Cir. 1965)
Marvin v. United States, 279 F.2d 451 (10th Cir. 1960); United States v.
Tandaric, 152 F.2d 3 (7th Cir. 1945), cert. denied, 327 U.S. 786, 66 S.Ct. 703,
90 L.Ed. 1012

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461 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Franklin J. Smith, Cheyenne, Wyo., for defendant-appellant.

This is a direct appeal from a conviction by a jury in the District of Wyoming

Lynn and Marnette were jointly charged in a two-count indictment. Count I

A review of the essential elements of the offenses charged will be helpful in

The evidence presented concerning Count I of the indictment is as follows. The

We find no evidence supporting beyond a reasonable doubt the government's

It is a well established principle of American criminal justice that the proof

Id. at 95, 65 S.Ct. 148

Goodman v. United States, 341 F.2d 272 (5th Cir. 1965)

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