Petition — Watkins v. United States

Supreme Court, C. L

-— FILED

AUG 6 1977

| MICHAE

IN THE { Lome RODAK, JR,

Supreme Court of the Unifed States

OCTOBER TERM, 1977

No. 77-2094

ROBERT DOUGLAS WATKINS,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Cecil Emerson

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

Wayne Hancock

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

Counsel for Petitioner

: SCOFIELDS’ QUALITY PRINTERS, P. O. BOX 53096. N. O. LA. 70153 - 504/622-1611

— a

SUBJECT INDEX

Page

TABLE OF AUTHORITIES ...........cccccccccces ii

r e 1

eee ene. io a

QUESTIONS PRESENTED FOR REVIEW 2

CONSTITUTIONAL AND STATUTORY

...einen ss cove 2

STATEMENT OF THE CASZEZEZgEzZgg . 3

SUMMARY OF THE ARGUMENT ................ 4

ARGUMENT

FATAL VARIANCE BETWEEN INDICT-

Z oon vtckcccccscecdeescnccess 5

„ BOUNMENS cncvccccccccctccccece 8

, .be 11

CERTIFICATE OF SERV Et 12

APPENDIX:

Opinion of Fifth Circuit Court of Appeals ....... la

Order of Fifth Circuit Denying Motion for

r ² eVV ease 32a

Motion for Stay of Mandate 33a

Stay of Mandate by Fifth Circuit ................ 36a

ii

TABLE OF AUTHORITIES

Cases: Page

Ex parte Pickerill, (1942), 44 F.Supp. 741 .......... 9

Gilstrap v. Goodwin, (1974), 388 F. Supp. 1013 10

Kotteakos v. U.S., (1946), 328 U.S. 750. 7

U. S. v. Perez, (1973), 489 F. 2d 11111. 4.7

Other Authorities:

Constitution, Amendment. 2

Constitution, Amendment ................... 3,9,10

„ cins soncvadesenekcoss sae 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ROBERT DOUGLAS WATKINS,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

THE OPINION OF THE COURT OF APPEALS

BELOW IS SET FORTH IN THE APPENDIX. THE

OPINION OF THE DISTRICT COURT BELOW WAS

NOT REPORTED.

JURISDICTION

(i) The judgment of the Court below was entered on

the 9th day of June, 1977.

(ii) Timely Petition for Rehearing was filed and it

was denied on July 8, 1977.

2

(iii) This Court has jurisdiction to review the judg-

ment of the Court of Appeals for the Fifth Circuit

by writ of certiorari pursuant to Title 28, U.S.C.

Section 1254(i).

QUESTIONS PRESENTED FOR REVIEW

WHETHER A VARIANCE EXISTED BETWEEN THE

INDICTMENT CHARGING A SINGLE CON.

SPIRACY AND THE PROOF OF TWO CON-

SPIRACIES.

WHETHER PETITIONER WAS DENIED THE RIGHT

TO A SPEEDY TRIAL CONSISTENT WITH THE

PRINCIPLES OF THE SIXTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

CONSTITUTION, AMENDMENT 5

No person shall be held to answer for a capital.

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due process

of law, nor shall private property be taken for

public use, without just compensation.

3

CONSTITUTION, AMENDMENT 6

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial.

STATEMENT OF THE CASE

On April 11, 1974, a 13-count mail fraud and con-

spiracy indictment was returned naming Petitioner

and others. Trial was set for June 10, 1974, but the date

was passed to allow the Grand Jury to return a

superceding indictment. The new indictment (which

differed from the original indictment only as to the

number of counts under which certain defendants

were charged) was handed down on June 26, 1974.

Counts 1 through 12 of the indictment named

various defendants as actors in perpetrating the alleg-

ed fraud against specific prospective dealers, either

by using the mails to send them contracts or by caus-

ing them to use the mails to send their repayment

checks to Diversified Marketers, Inc. or ICU Corpora-

tion. Count 13 alleged a conspiracy to conduct the

fraudulent scheme by mail.

Trial was set for December 16, 1974, but was post-

poned when Kochs suffered a heart attack on

December 14.

Van Note pleaded guilty to Count 1 of the indict-

ment and, after sentencing, was dismissed from the

cause on September 29, 1975.

Trial was set for December 1, 1975, but docket and

witness complications caused its postponement until

4

January 26, 1976. Kochs was severed from the cause

due to his continuing heart ailment. He was too ill to

appear at trial and died shortly afterward.

On February 6, 1976, the jury returned verdicts of

guilty against Petitioner and the three remaining

defendants.

SUMMARY OF THE ARGUMENT

The Court of Appeals summarily dismissed

Petitioner’s argument that there was a fatal variance

between the indictment and the proof as being without

merit. It offered no explanation but cited United States

v. Perez, 5 Cir., 1973, 489 F.2d 51, 62, cert. denied, 417

U.S. 945, 94 S.Ct. 3067, 41 L.Ed. 664 (1974).

This conclusion by the Court of Appeals cannot

stand. It ignores the proof of two separate and disiinct

conspiracies and views them as asingle conspiracy as

alleged in the indictment.

The Petitioner would show that the delay of 21%

months between the indictment and the date of trial

was a denial of his constitutional guarantee of a

speedy trial, created an unnecessary hardship upon

Plaintiff both personally and financially, caused him

to lose communication with a witness with whom he

considered material to his defense and seriously im-

paired his ability to properly defend his position at the

trial of the cause.

5

ARGUMENT

I. Fatal Variance Between Indictment and Proof

Petitioner would show that a variance existed

between the indictment charging a single conspiracy

and the proof which revealed distinct conspiracies.

Todd Van Note, Charlie Sheppart and Howard Eu-

gene Mason incorporated Diversified Marketers, Inc.,

or DMI, on July 21, 1971. Defendant Watkins became

vice-president of DMI and defendant Chambers sales

manager.

According to Van Note’s testimony, the purpose of

the company was to sell automotive filters through a

network of consignment dealers.

ICU Corporation was formed on February 11, 1972.

Van Note, Watkins and Chambers were the incor-

porators. Chambers was president and Watkins was

vice president. ICU was operated as a consignment

dealership program. The products involved were

different — oil additives, automotive waxes and

polishes, and other products, instead of filters.

Count 13 of the indictment under which Petitioner

was convicted alleges a conspiracy in violation of 18

U.S.C. § 1341 in the following language:

1. Prior to on or about July 17, 1971, and con-

tinuing thereafter until on or about

Novémber 1, 1972, the exact dates being to

the Grand Jury unknown, the defendants

TODD VAN NOTE, ROBERT DOUGLAS

WATKINS, DONALD BYRD CHAMBERS,

GERALD THATCHER, WILLIAM

NETTERVILLE, and O. B. KOCHS, in the

Northern District of Texas and elsewhere,

did knowingly, wilfully, and unlawfully

conspire, combine, confederate and agree

among themselves, with each other, and

with other persons to the Grand Jury un-

known, to commit certain offenses against

the United States, to-wit: to wilfully and

knowingly use and cause the mails to be

used in execution of a scheme and artifice

to defraud. A violation of Title 18, United

States Code, Section 1341.

2. All of the allegations contained in the

preceding 12 counts of this indictment are

hereby realleged and are incorporated in

this count as fully as if they were repeated

herein, and each and all of the said acts of

each and all of the defendants so described

are designated as Overt Acts of said defen-

dants, done in pursuance of and to effect

the objects of the conspiracy, and in addi-

tion thereto, the defendants, in perfor-

mance of said conspiracy and to effect the

objects thereof, did commit the following

described separate Overt Acts:

Although the indictment alleged a Single con-

spiracy, the evidence adduced in the trial of this case

proved, as was noted in the opinion of the Court of

Appeals, two separate and distinct operations. If the

conspiracy was proved, then the proof was the ex-

istence of two conspiracies, to-wit:

7

(1) An operation in which the Petitioner was

an employee working for a corporation

called Diversified Marketers, Inc., whose

business purpose was to sell automotive

filters through consignment dealers.

(2) A subsequent undertaking of ICU Cor-

poration, a company in which Petitioner

was an incorporator and officer whose

business purpose was the marketing of

oil additives, waxes and polishes.

The proof adduced in the trial of the cause was that

two companies were engaged in the marketing of

different products. The selling operations conducted

by Diversified Marketers, Inc. preceded the operations

of ICU Corporation. Petitioner would show that the

variance between the indictment and the proof sub-

stantially affected his rights in the trial of this cause.

This Court has held that such a variance is fatal.

Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct.

1239, 90 L.Ed. 1557.

The Court of Appeals summarily dismissed

Petitioner's argument that there was a fatal variance

between the indictment and the proof as being without

merit. It offered no explanation but cited United States

v. Perez, 5 Cir., 1973, 489 F.2d 51, 62, cert. denied, 417

U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).

The indictment did not name two of the original in-

corporators, of DMI, to-wit: Charlie Sheppart and

Howard Eugene Mason. Accordingly, the “hub” test

advanced in the Perez opinion, cited by the Court of

Appeals, will not stand. In this case the “hub” of the

two separate operations was not the same.

A simple test to determine whether only one con-

spiracy existed, or more than one conspiracy existed

is to determine whether the government could, if it

elected, return an indictment on one conspiracy

without including the other conspiracy in such an in-

dictment. If it could, then no amount of legal jargon or

fictional analogy can refute the fact that two or more

conspiracies are in existence.

In this case it is clear that the government could

have returned two indictments, one on the alleged DMI

conspiracy and one on the ICU Corporation con-

spiracy, and should have done so.

This conclusion by the Court of Appeals cannot

stand. It ignores that proof of two separate and distinct

conspiracies and view them as a single conspiracy as

alleged in the indictment.

II. Constitutional Right To a Speedy Trial

Appellant was indicted April 11, 1974 and arraigned

May 3, 1974. The case was set for trial on June 10, 1974.

Trial was postponed by the prosecution for the pur-

pose of obtaining a re-indictment of the defendants.

The defendants were arraigned September 27, 1974 and

the case was set for trial December 16, 1974. The case

was continued and re-set for December 1, 1975, passed

— and finally set for January 26, 1976 when it was

ried.

Petitioner has alleged that as a result of the undue

lapse of time between the date of the indictment and

the date of the trial when coupled with the prior period

of impending indictment that his domestic affairs

debilitated, and as a result, his wife obtained a divorce

during the period between the indictment and trial.

The state of affairs brought about by the delay of trial,

the unhappy state of his domestic affairs and his

weakening financial position resulted in a complete

demoralization of his life for the period of delay and

thoroughly impaired his ability to prepare for his

defense.

In the deteriorating circumstances, the accused lost

contact with a witness, to-wit: Kennedy, former presi-

dent of First Security Bank and Trust, the corporation

by which he was employed, did business. His inability

to contact and produce Kennedy as a witness was

brought on by the undue delay of the trial of this

matter. The accused asserts and believes that the

testimony of Kennedy would have materially im-

proved his position at the trial and would have cast an

entirely different view upon his association in the con-

spiracy. His inability to produce the witness had a

direct bearing upon his condition and was a direct

result of the undue and unnecessary delay of the

prosecution in bringing this case to trial.

The purpose of constitutional provision entitling

accused to “speedy trial” is not solely to obtain ac-

cused’s release from imprisonment in event of acquit-

tal, but also to obtain release from harassment of a

criminal prosecution and anxiety attending it and to

prevent loss of witnesses which might result from

long delay. Every person charged with an offense has

a legal right to speedy settlement of charge that is

asserted against him. U.S.C.A. Const. Amend. 6. Ex

parte Pickerill, 44 F.Supp. 741 (D.C.Tex. 1942).

10

Speedy trial provisions of constitution and rules

seek to prevent lengthy pretrial imprisonment where

accused is unable to make bail, or pretrial restriction

of movement when bail is available, to minimize anx-

iety and attendant evils which are invariably visited

upon one under public accusation but not tried, and to

insure that ability of accused to answer charge will

not be impaired on account of lost witnesses and fad-

ed memories due to passage of time. U.S.C.A. Const.

Amend. 6; Fed. Ruies Crim. Proc. rule 48(b), 18 U.S.C.A.

Petitioner would show that this delay of twenty-one

and one-half (214) months between the date of indict-

ment and date of trial seriously impaired his ability to

properly prepare and present his defense of the

accusations made against him and effectively de-

prived him of the Sixth Amendment right to a speedy

trial. U.S.C.A. Const. Amend. 6. It has been held that a

delay of twenty-three (23) months between the return

of the indictment and trial would presumptively result

in prejudice from failure to accord Defendant a speedy

trial. Gilstrap v. Goodwin, 386 F.Supp. 1013, D.C.Va.

1974.

The delay of 214 months, between the date that trial

was first set and the date of the final trial, was suf-

ficient delay to prejudice the rights of the accused and

to impair his defense. For these reasons, it is respect-

fully requested that a Writ of Certiorari be granted.

11

PRAYER

For the foregoing reasons, the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit should be granted.

Respectfully submitted,

Cecil Emerson

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

Wayne Hancock

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

12

CERTIFICATE OF SERVICE

All parties required to be served with copies of the

Petition for Writ of Certiorari have been served. Three

copies of the Petition for Writ of Certiorari were

served upon the Solicitor General by depositing same

in a United States mail box, with air mail postage

prepaid, addressed to Solicitor General, Department

of Justice, Washington, D.C. 20530, on the day of

August, 1977. One copy of the Petition for Writ of Cer-

tiorari was served upon the United States Attorney by

depositing same in a United States mail box, with first

class postage prepaid, addressed to Judith A.

Shepherd, Assistant United States Attorney, Room

16G28, Federal Building, 1100 Commerce Street,

Dallas, Texas 75242 on the ____ day of August, 1977.

WAYNE HANCOCK

la

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

v.

William NETTERVILLE, Gerald L. Thatcher, Robert

Douglas Watkins, and Donald Byrd Chambers,

Defendants-Appellants.

No. 76-1670.

United States Court of Appeals,

Fifth Circuit.

June 9, 1977.

Appeals from the United States District Court for

the Northern District of Texas.

Before COLEMAN, AINSWORTH and INGRAHAM,

Circuit Judges.

AINSWORTH, Circuit Judge:

This criminal case involves a 13-count conspiracy

indictment against several defendants charging

violations of 18 U.S.C. § 1341.1 relative to use of the

1 The text of 18 U.S.C. § 1341 follows:

Frauds and swindles

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,

2a

United States mails to defraud. The present

appellants, Robert Douglas Watkins, Donald Byrd

Chambers, Gerald Thatcher and William Netterville,

and others, were charged in the indictment with use of

the mails in the execution of a scheme to defraud and

obtain money by means of false pretenses from per-

sons induced to purchase oil products dealerships.

The jury returned verdicts of guilty on at least some

counts against each of the four appellants. Their

appeal contends that the evidence at the trial was

insufficient for the jury to find a conspiracy; that the

evidence was insufficient to support convictions on

various substantive counts; that they were denied

their right to speedy trial; and other errors. We find

these assertions to de without merit and affirm the

judgment below.

Todd Van Note, Charlie Sheppart and Howard Eu-

gene Mason incorporated Diversified Marketers, Inc.,

or DMI, on July 21, 1971. Defendant Watkins became

vice president of DMI and defendant Chambers sales

manager.

According to Van Note’s testimony, the purpose of

the company was to sell automotive filters through a

representations, or promises, or to sell, dispose of, loan,

exchange, alter, give away, distribute, supply, or furnish

or procure for unlawful use any counterfeit or spurious

coin, obligation, security, or other article, or anything

represented to be or intimated or held out to be such

counterfeit or spurious article, for the purpose of execut-

ing such scheme or artifice or attempting so to do, places

in any post office or authorized depository for mail mat-

ter, any matter or thing whatever to be sent or delivered by

the Post Office Department, or takes or receives therefrom,

any such matter or thing, or 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 per-

son 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.

3a

network of consignment dealers. To acquire dealers

DMI placed classified ads in newspapers. Interested

potential dealers were to call a Dallas telephone num-

ber, at which they reached the DMI offices. Callers

were told that they would be contacted by a salesman;

the home office would then refer the names of the

callers to salesmen in the field, who would contact the

callers personally. The presentations made by the

salesmen were based upon promotional materials

including a sales manual compiled by Van Note and

Chambers.

Several prospective dealers who were given the

sales presentation appeared as witnesses at the trial.

According to their testimony the salesmen repre-

sented that for about $3,000 paid in advance they would

be granted a dealership, that inventory would arrive

within three to six weeks, and that fifteen (sometimes

more) retail locations would be arranged for them.

Should a dealer become dissatisfied, DMI guaranteed

to buy back any unsold inventory at a small discount.

The sales manual contained a list of allegedly

successful dealers whom the prospect could contact

by telephone. Among the names listed was that of

“Don Mason.” The telephone number listed for

“Mason” actually reached defendant Netterville, who

played the part of the fictitious dealer and made what

one witness described as “quite enthusiastic” false

claims concerning the success of his “distributor-

ship.” Several witnesses testified that calls which

they made to such numbers proviced by salesmen

were influential in their decisions to apply for

dealerships.

Prospective dealers who were persuaded by the

sales presentation would sign dealership agreements,

4a

and execute checks as advance payment. The signed

agreements and checks would be sent, often by mail, to

DMI in Dallas. Watkins would evaluate and “accept”

the new dealer, execute a contract and repurchase

agreement, and mail these and a welcoming letter

dack to the new dealer.

The money received from new dealers was supposed

to be used to purchase and ship inventory and sales

materials, and to establish retail locations for the new

dealer, according to Van Note’s testimony. Instead the

money was used to pay the day-to-day operating ex-

penses of DMI (and later of ICU). By February of 1972,

however, DMI “reached a point where our overhead

was ahead of our income,” Van Note testified. When

cash could not be raised through bank loans or

through individual investors, it was decided, upon

Chambers’ suggestion, to form a new corporation

which could provide cash. Accordingly, ICU Corpora-

tion was formed on February 11, 1972. Van Note.

Watkins and Chambers were the incorporators. Cham-

bers was president and Watkins was vice president.

ICU was operated as a consignment dealership

program similar to DMI except that the products in-

volved were different — oil additives, automotive

waxes and polishes, and other products, instead of

filters. Van Note testified that Chambers was basical-

ly in charge of putting the packet together” for ICU’s

promotion and sales.

At about the time ICU was being formed DMI retain-

ed Jack Howard and Associates, a Dallas advertising

firm, to assist in recruiting new dealers. Roy Stamps,

who handled the account for Howard, testified that

between January and August of 1972 DMI and ICU

spent about $190,000 on advertising for new dealers.

He testified that Chambers, Watkins and Van Note

participated in preparing the ads, and that Van Note

had final say. The ads were placed in newspapers in

almost every state in the Union.“ Stamps testified. A

typical DMI newspaper ad which appears in the

record said:

DISTRIBUTOR NEEDED. Be in business for

yourself, full or part time, for twenty one year

old auto products company. No direct selling.

Service dealers only. Economy does not affect

our business. Profit potential is extraor-

dinary. Inventory secured with a guaranteed

buy-back. Phone collect, Mr. Peters, area code

201-343-7771.

A similar ad for ICU described that company as sixty

years old. Stamps testified that he felt these descrip-

tions to be ethicai even though the two companies

were each less than one year old, because the products

which they distributed bore trademarks or copy-

rights which were respectively 21 and 60 years old.

As early as December of 1971 DMI was experiencing

“backlogging” difficulties in the shipment of prom-

ised merchandise to dealers, according to the

testimony of one employee. By February of 1972 the

two corporations were making agreements which

they were unable to honor; merchandise was in some

cases not shipped and the buy-back agreements were

not honored. After “acceptance” new dealers began to

be advised by letter that DMI had filled its quota” of

new dealers and that no additional dealers would be

employed; the prepayments made by such dealers

were in many cases not returned. Nevertheless, DMI

6a

and ICU continued to solicit new dealers — Stamps

testified that he was doing business amounting to 85.

000 to $6,000 weekly with the DMI/ICU account — and

to enter into additional agreements with prospective

dealers until August of 1972. The corporations con-

tinued to encourage and to attempt to mollify its deal-

ers, often by letter, until as late as October, 1972. Some

dealers received small amounts of their investment

back, and others received nothing.

On April 11, 1974, a 13-count mail fraud and con-

spiracy indictment was returned naming Van Note,

Oliver B. Kochs, and the present appellants. Trial was

set for June 10, 1974, but the date was passed to allow

the grand jury to return a superceding indictment. The

new indictment (which differed from the origina] in-

dictment only as to the number of counts under which

certain defendants were charged) was handed down on

June 26, 1974. The elements alleged as false or

fraudulent in the indictment included the repre-

sentation as to the ages of the companies, the agree-

ment to repurchase, the guarantee of locations, the

promise to deliver merchandise within three to six

weeks, claimed profit expectancy of $90 per day

(invluded in some ads but not all), and the use of Kochs

and “Mason” as bogus established dealers or

“singers.” Counts 1 through 12 of the indictment

named various defendants as actors in perpetrating

the alleged fraud against specific prospective deal-

ers, either by using the mails to send them contracts or

by causing them to use the mails to send their prepay-

ment checks to DMI or ICU. Count 13 alleged a con-

spiracy to conduct the fraudulent scheme by mail.

Trial was set for December 16, 1974, but was post-

poned when Kochs suffered a heart attack on

December 14.

7a

Van Note pleaded guilty to Count 1 of the indictment

and, after sentencing, was dismissed from the cause

on September 29, 1975.

Trial was set for December 1, 1975, but docket and

witness complications caused its postponement until

January 26, 1976. Kochs was severed from the cause

due to his continuing heart ailment. He was too ill to

appear at trial and died shortly afterward.

On February 6, 1976, the jury returned verdicts of

guilty against each of the four remaining defendants.

All were found guilty on Count 13, the conspiracy

count. Watkins was convicted on 10 substantive

counts alleging mail fraud. Chambers was found guil-

ty on one of five substantive counts in which he was

named. Netterville was found guilty on both substan-

tive counts naming him, and Thatcher on five of seven.

Watkins was sentenced to a total of eight years’

imprisonment; Chambers received two concurrent

five year terms; Thatcher received a total of seven

years, and Netterville received three concurrent five

year terms. All four appeal their convictions.

On appeal each of the appellants complains that he

was denied a speedy trial. Each challenges the suf-

ficiency of the evidence relating to the conspiracy

count and to the substantive counts on which he was

convicted. Thatcher and Netterville assert that an

erroneous instruction as to intent was given to the

jury. Thatcher and Watkins complain of admission of

evidence of allegedly extraneous offenses. Chambers

contends that certain conduct by the prosecutor dur-

ing the trial was prejudicial. We find all of these points

of error to be meritless.

The conspiracy count

In order for us to sustain appellants’ convictions for

conspiracy, the proof must be sufficient to show that

two or more persons conspired for an illegal purpose.

The illegal purpose alleged by the government in this

case is mail fraud; the elements of mail fraud are a

scheme to defraud, and use of the mails in execution of

the scheme. Altogether, the proof must show a con-

spiracy to defraud, in execution of which the mails are

used. As seen below, the proof was adequate to satisfy

each of these elements.

When the sufficiency of the evidence to convict is

challenged, we must sustain the guilty verdict if it is

supported by substantial evidence taking the view

most favorable to the government. Glasser v. United

States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680

(1944). “The essential elements of a conspiracy are an

agreement by two or more persons to combine for an

illegal purpose and an overt act by one member in fur-

therance of the agreement,” United States v. Lowry, 5

Cir., 1972, 456 F.2d 341, 344; see 18 U.S.C. § 371. Direct

proof of the agreement is not required. As we have

said,

Since a conspiracy by its very nature is born

and clothed in secrecy, the first element of the

offense — agreement — is seldom susceptible

of direct proof. Proof of the agreement or com-

mon purpose therefore must rest upon in-

ferences drawn from relevant and competent

circumstantial evidence — ordinarily, the acts

and conduct of the conspirators themselves.

9a

United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 830,

cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58

(1971).

That the four appellants associated in a single

scheme involving DMI and ICU is clear from the facts.

Van Note operated DMI; he hired Watkins and Cham-

bers; Chambers hired Netterville and Thatcher with

Van Note’s approval. Van Note, Chambers and

Watkins incorporated ICU. Thatcher worked for both

companies. Netterville pretended to be Don Mason“

for callers interested in dealerships with both com-

panies.

The illegal purpose alleged by the government is

mail fraud under 18 U.S.C. § 1341. “The essential

elements of an offense under the mail fraud statute are

‘(1) a scheme to defraud, and (2) the mailing of a letter,

etc., for the purpose of executing the scheme.’ Pereira

v. United States, 347 U.S. 1, 8, 74 S. Ct. 358, 362, 98 L.Ed.

435 (1954).”” United States v. Melvin, 5 Cir., 1977, 544

F.2d 767, 773. The statute “condemns any scheme to

defraud in which the mails are employed,” id.

In order to constitute a “scheme to defraud” the

scheme must be shown to be

reasonably calculated to deceive persons of

ordinary prudence and comprehension. The

intent of the crime is shown by the scheme

itself — here, the active promotion of a com-

pany known to be inescapably insolvent by

making impossible representations of possi-

ble wealth to potential investors,...

10a

United States v. Bruce, 5 Cir., 1973, 488 F

‘ a 4 2d 1224, 1229,

cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L. Ed. 2d ‘

(1974) [emphasis in the original].

In the present case, the classified advertising u

by DMI and ICU to attract prospective dealers is ae

in some respects and in others so misleading as to

amount to a falsehood. Ads promising that all inven-

tory would be “secured” by the buy-back guarantee

continued to run until August, 1972, although no buy-

back guarantee was honored after January of 1972

according to Van Note. The ads promised delivery of

inventory within acertain time, as short as three to six

weeks, but Van Note testified that as early as January

of 1972 DMI was having “difficulties” supplying in-

ventory; several witnesses testified that they received

no inventory at all. The ads promised that retail

locations would be arranged, but dealers who

appeared as witnesses testified that they received no

locations and no effort was made to arrange locations

for them. The ads referred to “extraordinary” profit

potential, but there is no indication that any ex-

perience existed on which such aclaim could be based.

Finally, the ads represented that DMI was 21 years old

and ICU was 60 years old. We need not decide whether

as Stamps testified, these assertions were “ethical” in

light of the age of the trademarks or copyrights secur-

ing the products being sold. These representations as

to the ages of the companies give the unmistakable

impression that the other claims in the ads are based

upon decades of dealer experience, while in truth the

claims were baseless, as we have seen. Thus, the

representations as to the ages of the companies in con-

junction with the balance of the matter in the ads were

lia

grossly misleading. Taking all of these factors

together we find that the ads were false. Intent to

deceive can be inferred from the fact that the ads con-

tinued to run months after DMI and ICU had ceased

honoring the promises made in the ads, and after they

had lost the ability to honor the agreements due to in-

sufficient cash flow. The jury could correctly find,

therefore, that the ads were part of ascheme to defraud

under section 1341.

The buy-back guarantee already discussed was

repeated by salesmen in personal presentations to

prospective dealers, and a memorandum of the agree-

ment was executed at company headquarters and

returned to the new dealers. In light of what has

already been said concerning the buy-back agreement

and in light of the emphasis placed upon it by the com-

panies in recruiting new dealers, the buy-back agree-

ment could correctly have been found to be part of a

scheme to defraud.

In addition to the buy-back agreement, other por-

tions of the salesmen’s presentation were false. For

example, the presentations included representations

that DMI had 300 successful distributors, that earn-

ings of $25,000 per year were assured, and that profits

could amount to 55 cents on the dollar. False repre-

sentations made in the classified ads as to arrival time

of inventory, guaranteed retail locations, and that the

companies would provide a lifetime bookkeeping

system were repeated by the salesmen. In this manner

prospective dealers were intentionally deceived into

believing that they were dealing with established

companies which would take steps to reward their in-

vestments and to keep their investments secure. The

=.

12a

jury could correctly find that the salesmen's presenta-

tions were a part of a scheme to defraud.

Included in at least some of the presentations, and

available in the sales manuals, were names and

telephone numbers which prospective dealers were

told were those of successful dealers; prospective

dealers were invited to contact them to discuss the in-

vestment. In fact, at least two of these “established

dealers” were bogus. One, Don Mason,” did not exist

at all. His telephone number reached Netterville, who

identified himself as Mason“ and made extravagant,

false claims for the success of the Mason dealer-

ship. The other was Kochs; Kochs was a real person

but, as his affidavit shows, he was never a DMI or ICU

dealer. He was hired to represent himself as a suc-

cessful dealer. We conclude that the jury could find

from the evidence that the intentional deception of

prospective dealers concerning the success of the

Mason“ and Kochs dealerships was part of a scheme

to defraud.

In sum, the jury correctly found that in using false

representations to recruit new dealers, and in making

agreements with the new dealers which they would be

unable to fulfil, the operators of DMI and ICU were

conducting a scheme to defraud.

The mails were employed as “an integral part of the

scheme to defraud,” United States v. Melvin, supra,

544 F. ad at 775. Many prospective dealers’ checks and

signed agreements were mailed to DMI or ICU. Ex-

ecuted dealership contracts, buy-back agreements

13a

and letters of welcome were mailed from DMI and ICU

to new dealers. After the scheme began to collapse,

mollifying letters and other assurances were mailed

to dealers; see United States v. Maze, 414 U.S. 395, 403,

94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974).

From the foregoing the jury correctly found that the

DMI and ICU consignment dealership operations

constituted a conspiracy to obtain money by means of

false or fraudulent representations or promises, by

using or causing the nails to be used — in other words,

a mail fraud conspiracy according to the terms of sec-

tion 1341.

Watkins’ argument that the DMI/ICU scheme con-

stituted not one but two conspiracies so that a fatal

variance exists between the indictment and the proof

is without merit. See, e. g., United States v. Perez, 5

Cir., 1973, 489 F.2d 51, 62, cert. denied, 417 U.S. 945, 94

S.Ct. 3667, 41 L.Ed.2d 664 (1974).

Having established to the jury’s satisfaction the

elements of a mail fraud conspiracy, it remained for

the government to adduce evidence to show each of the

appellants’ “knowing participation” in the con-

spiracy, United States v. Oliva, 5 Cir., 1974, 497 F.2d

130, 133. “Proof of agreement in conspiracy trials must

usually rest on the inferences to be drawn from cir-

cumstantial evidence,” id. at 134; see United States v.

Warner, supra, 441 F.2d at 830. The “necessary agree-

ment to commit criminal acts” must be shown by

something more than “mere proof of association with

one ‘bad man.“ United States v. Oliva, supra, 497 F. 2d

at 134. See United States v. Owen, 5 Cir., 1974, 492 F.2d

1100, 1103-09, cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42

14a

L. Ed. 2d 180 (1974). “In this circuit only slight evidence

is required, for purposes of appellate review of con-

spiracy cases, to connect a particular defendant with a

conspiracy, once the conspiracy is shown.” United

States v. Binetti, 5 Cir., 1977, 547 F.2d 265, 267. That

evidence must show that the defendant wilfully

associated himself with the criminal venture, par-

ticipated in it, and sought by some act to make it

succeed. Id., at page 267.

Watkins, hired by Van Note in “August or

September“ of 1971, was described by Van Note as his

“right arm.” Watkins was vice president of both com-

panies and an incorporator of ICU. It was Watkins who

approved the new dealers’ contracts and buy-back

agreements and mailed them to the dealers with an en-

couraging letter. He was responsible for arranging

shipment of merchandise to DMI and ICU dealers. He

was contacted in person by dissatisfied dealers.

Because of his involvement in accepting new dealers

and in shipping merchandise, he could not escape

knowing that the DMI and ICU contracts were not be-

ing honored. Watkins testified that he was aware of the

companies’ difficulties in meeting their obligations

concerning merchandise in the late spring of 1972; and

that he was aware that merchandise was not being

shipped to some dealers because the companies lack-

ed the necessary funds. Nevertheless, he continued to

approve additional dealer contracts and buy-back

agreements as late as August of 1972. Enough has been

said to show that “the defendant’s actions here went

beyond mere association,” United States v. Binetti,

supra, at page 268, and provided a basis for the jury to

find that Watkins knew of the scheme to defraud and

wilfully acted in a manner calculated to make it

succeed, id.

15a

Chambers was hired by Van Note at about the same

time as Watkins. As sales manager at DMI, Chambers

hired the salesmen and furnished them wiih the

material for their sales presentations, including the

names of bogus “successful dealers.” Chambers was

instrumental in formulating the false and misleading

advertising discussed earlier, according to Stamps. It

was Chambers who suggested the formation of ICU

and Chambers who prepared the promotional

materials for that company. Van Note testified that

Chambers knew that DMI was behind in meeting its

commitments to dealers as early as January, 1972. He

further testified that it was because there was insuf-

ficient cash flow to meet overhead that Chambers

suggested forming ICU. Chambers’ actions clearly

went beyond “mere association”, and the jury correct-

ly found that he knew of the scheme and actively

furthered it.

Thatcher was hired to be a salesman for DMI; later

he became sales manager for ICU. As a salesman he

“sold” three new dealers who appeared as witnesses;

each testified that he made the false promises and

representations to them which are discussed above.

Thatcher recruited several of the bogus “successful

dealers” whose telephone numbers he and other

salesmen gave to prospective dealers. Checks payable

to Don Mason” were deposited to Thatcher's bank ac-

count. Again, the jury correctly concluded that

Thatcher must have known of the scheme and actively

furthered it.

Netterville asserts that he was recruited by Van

Note to manage the “Don Mason Service Company”

which was to serve as a distributorship for the Dallas-

16a

Fort Worth area. While the Don Mason company was

being organized, Van Note asked Netterville to

answer a certain telephone, and to give any telephone

callers certain information concerning the success of

the Don Mason operation. Netterville testified that he

was provided with information to read, and that he

simply read it having no way of knowing whether it

was true or false. Witnesses testified, however, that

Netterville represented himself as Mason when

called, and played the part with “enthusiasm.”

Another witness, a postal inspector who interviewed

Netterville in connection with this case, testified that

Netterville told him that he told callers about money

and sales which he anticipated making. Netterville,

then, understood that he was deceiving the people who

telephoned him. Netterville introduced at least one

prospect, Lynn Rountree, to Van Note. Rountree

bought a “double” dealership. The jury could correctly

infer that Netterville understood from the nature of the

calls and the content of his false representations that

he was furthering a fraudulent scheme. See United

States v. Morrow, 5 Cir., 1976, 537 F.2d 120, 126. He did

so in association with Van Note, the principal

orchestrator of the scheme. It was not necessary that

Netterville know of all facets of the scheme or know all

of the otherconspirators. United States v. Rodriguez, 5

Cir., 1975, 509 F.2d 1342, 1348. Netterville’s conscious

falsehoods went beyond “mere association” and the

jury correctly found that he knew of the scheme and

wilfully acted to further it. Once a defendant becomes

associated with a conspiracy he is responsible for all

acts of the conspiracy, United States v. Dearden, 5 Cir.,

1977, 546 F.2d 622, 625, even though the acts occurred

before or after his association with the conspiracy, id.,

see United States v. Heathington, 5 Cir., 1977, 545 F.2d

972, 973.

17a

In sum we find that the jury was justified in finding

that aconspiracy existed and that Watkins, Chambers,

Thatcher and Netterville each knew of the scheme and

wilfully acted to further it and that the mails were used

in execution of the scheme. We therefore affirm the

conviction of each appellant under Count 13 of the in-

dictment.

Speedy Trial

All four appellants appeal the trial judge's denial] of

their pretrial motion to dismiss for lack of speedy

trial. The trial judge heard the motion at length, taking

testimony from the appellants, their lawyers, the

prosecutor, and other witnesses, and determined that

under the circumstances dismissal was not required.

We have carefully reviewed the transcript of the mo-

tion hearing and agree with the conclusion of the trial

judge that the appellants were not denied their right to

a speedy trial, and that their motion to dismiss on this

ground should have been denied.

The due process c use of the fifth amendment

protects defendants from unreasonable delay

preceding commencement of prosecution. The sixth

amendment protects against unreasonable delay

between the commencement of prosecution and trial.

We treat the appellants’ briefs as raising both issues,

and find no merit in them.

Delay preceding prosecution. As to delay

preceding prosecution, we have said,

Absent a showing of extreme prejudice

amounting to a Fifth Amendment denial of due

18a

process, the commencement of prosecution is

controlled exclusively by the applicable

statute of limitations.

United States v. Davis, 5 Cir., 1973, 487 F.2d 112, 116.

The pre-accusation delay would constitute a

violation of the appellants’ due process rights

if they could show (1) that they incurred sub-

stantial prejudice as a result of the

government's delays and (2) that the prosecu-

tion had intentionally employed the delay to

gain a tactical advantage.

United States v. Avalos, 5 Cir., 1976,541 F.2d 1100, 1107.

In the present case there is no allegation that

prosecution was not commenced within the applicable

limitations period. Therefore, in order to prevail on

this issue the appellants must show, at least, “extreme

prejudice.”

The investigation into this case began in October or

November, 1972 according to Postal Inspector Teel,

who conducted it. The original indictment was return-

ed April 11, 1974. Thus a period of eighteen or nineteen

months elapsed between commencement of the in-

vestigation and indictment. The indictment charged

culpable acts occurring as early as December 16, 1971

so that indictment followed these acts by as long as

thirty months. Nevertheless the appellants in their

briefs refer to no specific prejudicial factors arising as

a result of this delay. The three appellants who

appeared at the motion hearing each testified that

postal inspectors and police alerted them to the ex-

19a

istence of the investigation almost as soon as it was

begun. The tenor of the testimony of these appellants

and of their lawyers at the hearing was that they were

satisfactorily prepared to proceed at the first trial set-

ting in June, 1974. It is apparent that the pre-

indictment delay did not prejudice appellants’

preparation of a defense. They do not attempt to show

any intentional employment of delay on the part of the

government calculated to gain tactical advantage.

Thus, the pre-indictment delay did not violate their

due process rights under the fifth amendment.

Delay following commencement of prosecution.

Next we must determine whether the appellants’ sixth

amendment rights were prejudiced by the delay

between commencement of prosecution and trial. See

Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303,

303-04, 46 L.Ed.2d 205 (1975); United States v. Palmer, 5

Cir., 1976, 537 F.2d 1287, 1288-89. The Supreme Court

has recognized the sixth amendment as an important

safeguard to prevent undue and oppressive incarcera-

tion prior to trial, to minimize anxiety and concern ac-

companying public accusation and to limit the

possibilities that long delay will impair the ability of

an accused to defend himself.“ United States v.

Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d

468 (1971), quoting United States v. Ewell, 383 U.S. 116,

120, 86 S.Ct. 773, 776, 15 L.Ed.<d 627 (1966). In deter-

mining whether the appellants’ sixth amendment

rights were violated, we are governed by the balanc-

ing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182,

33 L.Ed.2d 101 (1972). We have said that pursuant to the

Barker test

the conduct of the prosecution and the defen-

dant is balanced, on an ad hoc basis, giving

particular attention te four factors: (i) length

of delay, (ii) the reason for the delay, (iii) the

defendant's assertion of his right, and (iv) pre-

judice to the defendant.

United States v. Davis, supra, 487 F. ad at 117. The test

is more suggestive than exhaustive, and this Court

has found implicit in Barker other factors to be thrown

into the balance” including the complexity of the case

and the availability of evidence. United States v.

Avalos, supra, 541 F.2d at 1110.

Length of delay. The length of the delay involved

must be sufficient to be “presumptively prejudicial,”

otherwise “there is no necessity for inquiry into the

other factors that go into the balance.” Barker v.

Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192. The

length of delay is usually computed from the time that

financial, social and psychological prejudice may

begin to accrue to an accused. United States v. Marion,

supra, 404 U.S. at 320, 92 S.Ct. at 463; see Dillingham v.

United States, supra, 423 U.S. at 64-66, 96 S.Ct. at 303-

04. The present appellants date their alleged prejudice

from the return of the first indictment on April 14,

1974. For present purposes we shall adopt the same

date.

Trial commenced on January 26, 1976. All parties

waived any speedy trial objection, however, for the pe-

riod between December 1, 1975 and January 26, 1976.2

2 The transcript of the hearing on the motion to dismiss for lack

of speedy trial shows that the trial judge herein designated

another, older criminal case involving other defendants, for trial

on December 1, displacing the present case. The prosecutor found

that the next convenient time to assemble all witnesses and make

other arrangements in the present case would be late January. All

parties agreed to a continuance until January 26, and all agreed to

waive any speedy trial complaint as to the period between

December 1, 1975 and January 26, 1976.

Zia

The length of the delay to be considered is thus April

14, 1974 until December 1. 1975 or 19 months and 2

weeks. Accordingly, there is sufficient delay to re-

quire inquiry into the other Barker factors.

Assertion of the right. Sixth amendment rights are

fundamental in nature so that a failure to assert them

does not constitute waiver. Prince v. Alabama, 5 Cir.,

1975, 507 F.2d 693, 700-701. However, the timeliness

and vigor with which the right is asserted may be con-

sidered as an indication of whether a defendant was

denied needed access to a speedy trial over his objec-

tion, or whether the issue was raised on appeal as

afterthought. Barker v. Wingo, supra, 407 U.S. at 528-

29, 534, 92 S.Ct. at 2191, 2194; United States v. Avalos,

supra, 541 F.2d at 1115. In Barker the Supreme Court

said that courts may, for example,

attach a different weight to a situation in

which the defendant knowingly fails to object

from a situation in which his attorney ac-

quiesces in long delay without adequately in-

forming his client, or from a situation in

which no counsel is appointed. It would also

allow a court to weigh the frequency and force

of the objections as opposed to attaching

significant weight to a purely pro forma objec-

tion.

407 U.S. at 529, 92 S.Ct. at 2191.

Thatcher waited to assert his speedy trial right until

December 16, 1975; Watkins until January 22, 1976;

Chambers until January 21, 1976, and Netterville until

January 20, 1976.

22a.

At the motion hearing on January 22, 1976,

Thatcher’s position appeared ambivalent as to

whether he would assert deprivation of the right to

speedy trial or move for an additional 30-day stay to

improve the possibility that Kochs, who was ill, could

appear at trial. Finally, saying we're not claiming

any right to speedy trial.“ Thatcher’s attorney moved

for the stay. Netterville’s attorney said that Mr.

Netterville is essentially in the same position as Mr.

Thatcher, needing Mr. Kochs’ testimony” and re-

ferred to this testimony as a “key to our defense.”

Netterville did not join Thatcher in moving for an

additional stay; nevertheless the attitude of Thatcher

and Netterville toward Kochs’ testimony may help ex-

plain why they did not assert the speedy trial right at

an earlier date: they were waiting for Kochs to get well

so that he could testify.

Chambers did not make any appearance at the mo-

tion hearing and no evidence was adduced on his

behalf.

Watkins did appear and present evidence at the

hearing. We note, however, that Watkins’ motion

asserting his speedy trial right, which appears in the

record, is dated January 22, 1976 — the same day as the

motion hearing.

In short the appellants, although represented by

counsel during the entire pendency of this case, failed

to assert their speedy trial right until the last possible

moment, and then their assertions lacked vigor. We

find that the record does not show that

the appellants aggressively asserted that

desire for speedy trial which they now urge

has been thwarted. That fact will militate

against a claim that speedy trial was denied.

United States v. Avalos, supra, 541 F.2d at 1115.

Reasons for delay. The trial judge at the motion

hearing found that the delay between indictment on

April 14, 1975 and the second trial date of December 16,

1974 occurred because the case was returned to the

Grand Jury for a superseding indictment. The super-

seding indictment was handed down on June 26, 1974;

arraignments under the new indictment took place on

September 27. Trial pursuant to the indictment was

scheduled for December 16, 1974. The trial judge found

that as to this series of events and consequent passage

of time there “was no speedy trial problem,” that is,

that this delay was “justifiable,” not “negligent,” or

“deliberate.” See Barker v. Wingo, supra, 407 U.S. at

531-33, 92 S.Ct. at 2192-93; United States v. Avalos,

supra, 541 F.2d at 1111-14. Particularly in light of the

complexity of this multi-state conspiracy case and of

the number of defendants, we agree that this portion of

the delay was justified.

As to the remaining period, that between December

16, 1974 and December 1, 1975, the trial judge found that

the December 16 trial date was passed due to the heart

attack of defendant Kochs on December 14. The trial

judge took into account the complexity of the case and

that the case was transferred from one prosecutor to

another and finally to a third during that period. The

trial judge noted that Kochs’ attorney received letters

from Kochs’ physician to the effect that Kochs was in

congestive heart failure and consequently unable to

stand trial in June, 1975 and again in August, 1975; and

that as of October, 1975 Kochs was still too ill to stand

trial. Again we agree with the trial judge that these

circumstances amount to justifiable delay. This delay

should not weigh against the government, United

States v. Avalos, supra, 541 F.2d at 1114.

Prejudice to the appellants. The Supreme Court

has identified the interests to be protected by the

speedy trial right as follows:

(i) to prevent oppressive pretrial incarcera-

tion; (ii) to minimize anxiety and concern of

the accused; and (iii) to limit the possibility

that the defense will be impaired. Of these the

most serious is the last, because the inability

of a defendant adequately to prepare his case

skews the fairness of the entire system. If wit-

nesses die or disappear during a delay, the

prejudice is obvious. There is also prejudice if

defense witnesses are unable to recall ac-

curately events of the distant past.

Barker v. Wingo, supra, 407 U.S. at 532,92 S. Ct. at 2193.

None of the four appellants was incarcerated, so that

the first interest was not compromised. Additionally,

the freedom of all four appellants during the entire

pendency of this action allowed each the maximum

opportunity to prepare his defense.

Chambers, as already noted, did not appear at the

motion hearing and no evidence was adduced in his

behalf at the hearing. In his brief on appeal, Cham-

bers refers to the length of time between the first in-

dictment and trial, and observes in a general way that

the passage of time “will impair witnesses [sic]

r 2mory” and that this may be true of some witnesses

whose testimony would have benefitted Chambers.

General allegations of loss of witnesses and failure

of memories is insufficient to establish prejudice.”

United States v. Beckham, 5 Cir., 1975, 505 F.2d 1316,

1319, cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d

104. As to Chambers, then, the record shows no sub-

stantial prejudice as a result of the delay between in-

dictment and trial.

Thatcher's brief on appeal asserts that his defense

was prejudiced in two ways. First, “Appellant was de-

prived of the testimony of O.B. Kochs.“ We have

already seen that Kochs suffered a heart attack short-

ly before the December, 1974 trial setting and, accord-

ing to his physician, was too ill to stand trial during

much of the succeeding year; and he suffered a second

heart attack shortly before the trial of the case and was

severed. It was not the delay which deprived Thatcher

of Kochs, but the unavailability of Kochs which

caused the delay. We do not credit this point of pre-

judice.

Thatcher further argues that “the accurate

testimony of the persons involved in the acts, which

occurred approximately four years previous to the

trial, was denied by the delay.” This is a “general

allegation of loss of witnesses and failure of

memories” and is insufficient to establish prejudice.

United States v. Beckham, supra, 505 F.2d at 1319.

Thatcher’s final allegation of prejudice involves

what Barker characterizes as the ‘anxiety and con-

cern of the accused” which the protection of the sixth

amendment is intended to minimize. Thatcher claims

to have lost his job and to have been unable to secure

another; to have suffered severe financial hardship;

and to have experienced severe family problems as a

result of his indictment. These are complaints of the

sort “present to some degree in virtually every case

and do not necessarily amount to actual prejudice,

United States v. Avalos, supra, 541 F.2d at 1115,

because they are the result of the indictment itself and

not of the delay which followed the indictment. Pre-

judice may accrue when such suffering is “extended”

by delay. United States v. Beckham, supra, 505 F. ad at

1320. Thatcher's tardiness and lack of vigor in assert-

ing his speedy trial right, however, are inconsistent

with his present complaints. His long silence

“suggests that any hardships he suffered were either

minimal or caused by other factors.” Palmer v. United

States, supra, 537 F.2d at 1288. Taking all of Thatcher’s

problems into account in light of his silence we find

that they did not rise to the level of substantial actual

prejudice.

Watkins asserts that a witness, Joseph Kennedy,

became unavailable to him because of the dels He

does not relate what evidence Kennedy would have of-

fered. At the motion hearing, Watkins testified that

despite retaining counsel in April, 1974 and despite be-

ing aware of the necessity of a defense during the en-

tire pendency of this matter, he failed to keep in touch

with Kennedy although he did keep in touch with other

witnesses. Watkins testified that he realized that

Kennedy might be helpful to him only a few weeks

before trial. We cannot attribute the loss of this

witness to delay. :

Watkins further asserts that he was prejudiced by an

unfavorable newspaper article which appeared short-

ly after his first indictment; and that shortly after the

27a

second indictment, as a result of his involvement in

this matter, his wife divorced him. We agree with the

trial judge that these circumstances occurred quickly,

as a result of the indictment and were not the result of

any delay.

Watkins finally asserts that the long pendency of

this action has caused him severe financial and

emotional strain, and that his social relationships

have been impaired. Again, these problems were not

caused by the delay but by Watkins’ involvement ina

criminal action. Like Thatcher, Watkins failed to

assert his speedy trial right early or vigorously. As

with Thatcher, we find that the record does not indicate

that Watkins’ asserted troubles amounted to es

tial actual prejudice.”

Netterville makes the strongest case among 195

appellants of prejudice to his defense. Nettervill

relates that one witness, Jameson Brinkmeyer, died

during the pendency of this matter and that two others,

Lynn Rountree and Ricky Cheung, became un-

available.

Netterville asserts that Brinkmeyer would have

testified to a conversation in which Van Note alleged-

ly implied or stated that he had “duped” Netterville

into playing a role in the conspiracy. Van Note could

have been questioned about this conversation, but was

not. Further, Brinkmeyer died during the period for

which the speedy trial right was waived by all parties.

Netterville contends that Rountree, an ICU dealer,

would have testified that only through Netterville's ef-

forts did Rountree receive his inventory; and that

Netterville told him that he had quit working for ICU

because he “didn’t like the way they were operating

the company.” Another witness, Shari Martin, testi-

fied concerning Netterville’s resignation. Van Note

could have been questioned concerning Netterville’s

efforts on Rountree’s behalf. Thus, Rountree’s

testimony would have been cumulative. Further,

Netterville testified that in 1975 he was in touch with

Rountree: at that time he knew he was going to trial,

and was represented by counsel, yet he failed to keep

track of this witness. Netterville offers nothing to in-

dicate that the delay caused him to lose touch with

Rountree; he shows only that during the delay contact

was lost.

Finally, Netterville asserts the loss of Ricky

Cheung, his former employer, who Netterville

believes returned to Hong Kong during the delay.

According to Netterville, Cheung would have testi-

fied to a conversation in which Van Note recruited

Netterville to manage the “Don Mason Service Com-

pany,” which served as the basis for duping Netter-

ville into playing the part of Don Mason.” Extensive

testimony by Netterville and exhibits tending to sup-

port Netterville’s theory, going far beyond Cheung's

alleged potential testimony, were admitted at trial.

Further, the conversation to which Cheung would

have testified C place before Netterville undertook

hie “ues as Don Mason.” It would therefore, not con-

tradict evidence of Netterville’s knowing complicity

once he actually began acting as “Mason.” In light of

this, we cannot say that Cheung’s testimony was

“critical” to Netterville’s defense, United States v.

Scallion, 5 Cir., 1976, 533 F.2d 903, 912.

In sum, we note that the absence of the witnesses

does not appear to have been critical to Netterville's

defense.

The balance. Having evaluated the assertions of

the appellants as to the four Barker factors, we weigh

them to determine whether such prejudice accrued to

any of the appellants of such a nature as to deprive

them of their right to a speedy trial.

We conclude that the trial judge was correct in deny-

ing the appellants’ motion to dismiss for lack of a

speedy trial.

Other Issues

Netterville and Thatcher argue on appeal that the

trial judge erred in giving the following instruction to

the jury:

The law presumes that every man intends

the natural and probable consequences of his

own knowing acts. Wrongful acts knowingly

or intentionally committed can neither be

justified nor excused on the ground of inno-

cent intent. The color of the act determines the

complexion of the intent. The intent to injure

or defraud can be presumed when the unlawful

act which results in loss or injury is proved to

have been knowingly committed. It is a well

settled rule that the intent can be presumed

and inferred from the results of the action.

Netterville argues vigorously that to instruct that in-

tent is to be “presumed” rather than that it is inferable.

30a

from actions of the accused, amounts to plain error. He

points out that intent is a critical element of the crime

charged, and that his defense was “pitched” on lack of

intent. It is true that we have disapproved use of

“presumptive” instructions, see United States v.

Wilkinson, 5 Cir., 1972, 460 F.2d 725, 733; but their use is

reversible error only when they mislead the jury to the

extent that they tend to reverse the burden of proof in

the jury’s mind, id. We must view the instruction com-

plained of in the context of the full charge given the

jury, see, e. g., United States v. Green, 5 Cir., 1974, 494

F. 2d 820, 829, cert. denied, 419 U.S. 1004, 95 S.Ct. 325, 42

L.Ed.2d 280; United States v. Cisneros, 5 Cir., 1974, 491

F.2d 1068, 1072. The complained-of instruction must

remain uncured in the context of the full charge to re-

quire overturning the jury’s verdict, Poole v. Georgia,

5 Cir., 1977, 551 F.2d 683, 685; United States v. Wilkin-

son, supra, 460 F.2d at 732.

We have reviewed the trial judge’s instructions in

this case and find that in the context of the entire

charge the proper burden of proof was made un-

mistakably clear. See Poole v. Georgia, supra, at page

3 For example, in addition to the complained-of language, the

trial court also ch the jury as follows:

So the presumption of innocence alone is sufficient to ac-

quit the defendant, unless the jurors are satisfied beyonda

reasonable doubt of the defendant's guilt from al! the

evidence in the case.

The burden is on the Government to prove each of these

essential elements of the offenses charged beyond a

reasonable doubt.

As stated before, the burden is always upon the prosecu-

tion to prove beyond a reasonable doubt every essential

element of the crime charged; the law never imposes upon

a defendant in a criminal case the burden of duty orcalling

any witness or producing any evidence.

31

685. In the present case, the words complained of were

not so misleading in the context of the entire charge as

to require overturning the jury’s verdict.

Thatcher and Watkins complain on appeal that the

trial judge erroneously admitted testimony concern-

ing alleged offenses extraneous to the indictment. The

allegedly extraneous offenses complained of related

to sales which were attempted and made pursuant to

the DMI/ICU scheme but not charged in the indict-

ment. To allow such evidence was not error; the

government is not limited to overt acts pleaded in

proving a conspiracy. It may show other acts of the

conspirators occurring during the life of the con-

spiracy.” United States v. Perez, supra, 489 F.2d at70.

Finally, Chambers argues that the trial court erred

in allowing the government to examine witnesses in

an impermissibly suggestive manner.‘ We have ex-

amined the record and find no objection to the

government's examination by Chambers at trial;

therefore, we could reverse on this issue only if we

could find that to allow the prosecutor's questions

amounted to plain error within the meaning of Rule

52(b), F.R.Crim.P. We find no error of this magnitude,

and thus find this issue to be without merit.

Fraudulent intent is one of the essential elements of the

offense of which the defendant is charged, and such intent

must be clearly proved or inferred from the evidence

beyond a reasonable doubt to warrant a conviction.

4 These assertions refer to the evidence that some DMI adver-

tisements instructed interested readers to telephone a “Mr. Byrd

at DMI. Several witnesses testified that they talked by telephone

with someone at DMI who identified himself as Mr. Byrd.

Chambers complains that the prosecutor, through his manner of

questioning, attempted to insinuate that Chambers, whose middle

name is Byrd, was in fact this “Mr. Byrd.

In conclusion, we have examined the various con-

tentions of the appellants and for the reasons given,

find each to be without merit. Accordingly, we affirm

the judgment of the trial court.

AFFIRMED.

In the United States Court of Appeals

for the Fifth Circuit

No. 76-1670

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM NETTERVILLE, GERALD L. THATCHER,

ROBERT DOUGLAS WATKINS, and DONALD BYRD

CHAMBERS,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Texas

ON PETITIONS FOR REHEARING

(July 8, 1977)

Before COLEMAN, AINSWORTH and INGRAHAM,

Circuit Judges.

33a

PER CURIAM:

IT IS ORDERED that the petitions for rehearing

filed in the above entitled and numbered cause be and

the same are hereby Denied

ENTERED FOR THE COURT:

/s/ ROBERT A. AINSWORTH, JR.

United States Circuit Judge

MOTION TO STAY MANDATE

In the United States Court of Appeals

Fifth Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus No. 76-1670

ROBERT DOUGLAS WATKINS,

Defendant-Appellant

Defendant-Appellant, ROBERT DOUGLAS

WATKINS, by his attorney, comes now and moves this

Court to issue its order staying issuance of the man-

date in this appeal, pending application for a writ of

certiorari, under the provision of 28 USC § 2101 (f) and

Rule 41 (b) of the Federal Rules of Appellaie

Procedure, and continuing Defendant-Appellant on

bail, on the terms and conditions heretofore ordered,

pending determination of such application.

The Application for a writ of certiorari will be sub-

stantially based on the following grounds:

34a

I.

The Court of Appeals determined by inference that

Defendant-Appellant, being vice- president of both

companies and an incorporator of ICU, must have

been aware that the merchandise sold under contract

was not being shipped to some dealers, because his

companies lacked the necessary funds. Having this

knowledge, Defendant-Appellant continued to ap-

prove additional dealer contracts and buy-back

agreements as late as August of 1972. On these in-

ferences, this Court concluded that Watkins knew of

the scheme to defraud and wilfully acted in a manner

calculated to make it succeed.

This finding of guilt on the basis of inferential

evidence was error in the Court below and the finding

should have been reversed by the Court of Appeals.

II.

The Court of Appeals overlooked the point that in

the prosecution for a conspiracy to use the mails to

defraud, intent to use the mails was a necessary ele-

ment. The Court of Appeals found that a conspiracy

existed and that Watkins, Chambers, Thatcher and

Netterville each knew of the scheme and wilfully act-

ed to further it; and that the mails were used in execu-

tion of the scheme. However, the Lower Court failed to

find the Defendant-Appellant’s intent to use the mails

in furtherance of the conspiracy. This omission to

prove intent to use the mails to defraud renders the

conviction of Defendant-Appellant under Count 13 of

the indictment a nullity. The scheme to defraud alleg-

ed in Counts 1 through 12 of the indictment is baseless

if the charge of conspiracy is nullified.

35a

III.

Defendant-Appellant was indicted April 11. 1974 and

arraigned May 3, 1974. The case was set for trial on

June 10, 1974. Trial was postponed by the prosecution

for the purpose of obtaining a re-indictment of the

defendants. The defendants were arraigned September

27, 1974 and the case was set for trial December 16,

1974. The case was continued and re-set for December

1, 1975, passed again and finally set for January 26,

1976. This delay caused a serious impairment of his

ability to properly prepare and present his defense of

the accusations made age inst him, and resulted in

Defendant-Appellant’s loss of his constitutional right

to a speedy trial.

WHEREFORE, DEFENDANT-APPELLANT

PRAYS that this Court make and enter an appropriate

order staying the issuance of the mandate in this cause

pending final determination upon his application for

writ of certiorari.

Attorneys for Defendant-

Appellant:

/s/ CECIL EMERSON

CECIL EMERSON

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

(214) 528-9571

/s/ WAYNE HANCOCK

WAYNE HANCOCK

Two Turtle Creek Village

Suite 920

Dallas, Texas 75219

(214) 528-9571

(Filed: July 15, 1977]

0

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-1670

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM NETTERVILLE, GERALD L. THATCHER,

ROBERT DOUGLAS WATKINS, and DONALD BYRD

CHAMBERS,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Texas

ORDER:

The motion of APPELLANTS, NETTERVILLE and

WATKINS for stay of the issuance of the mandate

pending petition for writ of certiorari is DENIED. See

Fifth Circuit Local Rule 15, as amended January 11,

1972.

The motion of APPELLANTS, NETTERVILLE and

WATKINS for stay of the issuance of the mandate

pending petition for writ of certiorari isGRANTED to

and including August 7, 1977, the stay to continue in

37a

force until the final disposition of the case by the

Supreme Court, provided that within the period above

mentioned there shall be filed with the Clerk of this

Court the certificate of the Clerk of the Supreme Court

that the certiorari petition has been filed. The Clerk

shall issue the mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or upon

the expiration of the stay granted herein, unless the

above mentioned certificate shall be filed with the

Clerk of this Court within that time.

/s/ JAS. P. COLEMAN

UNITED STATES CIRCUIT

JUDGE

(Filed: Jul. 28, 1977]