holding. that the variance in overt acts did not prejudice the defendant's right to avoid double jeopardy because the difference in the facts underlying the two overt acts was "slight"
How later courts described this case
- holding. that the variance in overt acts did not prejudice the defendant's right to avoid double jeopardy because the difference in the facts underlying the two overt acts was "slight"
- reasoning that the district court’s instructions were sufficient to cure the jury’s possible impression that the government was commenting on the defendant’s failure to testify
- holding that the defendant had fair notice of the charges against him because the difference in the facts underlying the two overt acts was "slight"
- noting the defendant's failure to claim that his right against double jeopardy was violated by the variance as an indication that such right had not been prejudiced by the variance in proof of overt acts
Written by the judges who cited it.
The opinion
HASTIE, Circuit Judge
(concurring).
I join in the opinion of the court and add these supplementary observations only to elaborate my understanding of the controlling difference between this case and United States v. Maze, 414 U.S. 395 , 94 S.Ct. 645 , 38 L.Ed.2d 603 (1974).
In Maze , the Supreme Court held that the mailing of vouchers to a credit card company by motel owners from whom the accused had obtained services and goods by the use *41 of a stolen credit card was not sufficiently related to the complete execution of the wrongdoer’s fraudulent acquisition of goods and services without paying for them to establish a violation of the federal mail fraud statute. The wrongdoing wayfarer was a stranger to the motel owners who accepted the credit card in good faith. Once he had obtained goods and lodging and had departed without paying for them, the wrongdoer had no interest in the occurrence or outcome of any resultant transaction between the motel operator and the credit card company. As the Supreme Court put it: “there is no indication that the success of . [the fraudulent scheme] depended in any way cn which of his victims [the motel or the credit card company] ultimately bore the loss.” 414 U.S. at 402 , 94 S.Ct. at 649 , 38 L.Ed.2d at 609 .
Here, as Judge Rosenn points out, there is undisputed testimony that some merchants, among them defendant Largemann, who accepted the credit cards, knew Kearney and other conspirators and also knew that the credit cards they presented did not belong to them. In these circumstances, the willingness of these merchants to sell goods to the wrongdoers on credit depended upon their confidence that they could mail vouchers to the credit card companies and obtain payment. To create this assurance the wrongdoers often took advantage of a known practice of the credit card companies to honor individual small vouchers for not more than a certain sum, even though it should be determined that an invalid use had been made of their credit card. This practice applied only where the card in question did not appear on a current list of invalid cards, a so-called “hot sheet,” that the credit card company had published to the trade. Kearney and his associates knew this and selected cards not yet on a hot sheet for numerous small purchases from knowing merchants. Only by thus tailoring these individual transactions so that the credit card companies would honor the merchants’ vouchers as mailed to them could the wrongdoers make their fraudulent scheme work, as it did, in their dealings with merchants who were privy to the wrongdoing. In all such instances the credit card companies were to be the victims and the use of the mails was an integral feature of the successful execution of the fraudulent scheme.
Thus analyzed, the present case is essentially different from the Maze case.