Kroll v. United States

433 F.2d 1282, 1970 U.S. App. LEXIS 6678
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 2, 1970
DocketNo. 24583
StatusPublished
Cited by53 cases

This text of 433 F.2d 1282 (Kroll v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kroll v. United States, 433 F.2d 1282, 1970 U.S. App. LEXIS 6678 (5th Cir. 1970).

Opinion

SIMPSON, Circuit Judge:

The appellants, Mark H. Kroll, William Cahn, William Criswell, Jack Chernau, John S. Hunt, Robert C. Brown and Fred H. Adler, are here seeking relief from judgments of conviction entered after jury verdict of guilty1 in the district court. They raise a myriad2 of grounds upon which they claim that the convictions are defective. We affirm.

The indictment charged and the jury found that the defendants had engaged in a scheme to defraud investors in the offer and sale, through American Bonded Mortgage Company, Inc. (ABM), and affiliated companies, of notes secured by mortgages, promissory notes, evidences of indebtedness, investment contracts and mortgage insurance bonds during the period from about January 20, 1958 to about December 31,1961.

The facts of this case are multi-faceted and extremely complicated. Because of the nature of the challenges raised here and discussed infra it is not necessary that we recount in detail the lengthy and involved scheme alleged. Succinctly stated, it was alleged that the defendants engaged in an intensive campaign whereby, risky and virtually worthless mortgages were purchased from sources affiliated with ABM, a company established to deal in mortgages, were represented to be fully insured as to. interest and principal by what in fact was a financially unsound ABM-affiliated insurance company, and were sold to the public by means of false and misleading advertisements and other false statements made to investors. In December, 1961, ABM was petitioned into bankruptcy along with its affiliated companies after allegedly defrauding investors of millions of dollars.

We proceed to discuss in some detail the points raised which we consider worthy of discussion.

I.

SUFFICIENCY OF EVIDENCE TO SUSTAIN CONVICTION

Each of the defendants except Cahn asserts that there was insufficient evidence in the record to. support his conviction, and that it was error for the [1285]*1285court to deny the respective motions for judgments of acquittal. On a motion for judgment of acquittal the test is whether, in the view most favorable to the government, a reasonably-minded jury might accept the relevant evidence as adequate to support a conclusion of the defendants’ guilt beyond a reasonable doubt. Glasser v. United States (1942) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Mortensen v. United States (1944) 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331; Davis v. United States, 5 Cir. 1967, 385 F.2d 919; Lambert v. United States, 5 Cir. 1958, 261 F.2d 799; Vick v. United States, 5 Cir. 1954, 216 F.2d 228, 232. These jury verdicts, then, must be permitted to stand if there is substantial evidence to support them, taking the view most favorable to the government, without weighing conflicting evidence or testing the credibility of the witnesses, and allowing in favor of the verdicts all reasonable inferences from the evidence.

The government introduced evidence tending to prove that the defendants developed a highly-organized sales campaign replete with half-truths, misrepresentations, and other deceptive techniques in order to interest investors in purchasing mortgages. The salesmen were furnished with complete sales kits extolling the financial soundness of the program offered. The sickly financial condition of ABM was not disclosed to investors. Salesmen were instructed to tell prospective investors that the mortgages were on “preferred, selected, single-family Florida homes”, when in truth many of the mortgages encumbered much less desirable properties. It was represented that the mortgages were insured by a policy which was authorized by the Florida Insurance Commissioner, when the Commissioner had not so approved the policy. Investors were told that investments in mortgages were 100% safe because the mortgages were insured, when in fact the ABM-affiliated insurance company was inadequately financed to insure fully the risks presented. Relevant matters withheld from investors included: ABM’s lack of mortgages in inventory, the poor quality and near worthlessness of mortgages assigned, the fact that mortgages were often on vacant land and hence uninsurable or illegally insured under Florida law, the fact that mortgages were junior to other liens of millions of dollars, and finally the fact that the insurance bonds were of little protection and were issued by an insurance firm affiliated with ABM. Evidence indicated that investors’ funds were used to make interest payments to other investors because defaults on mortgages had reduced ABM’s cash supply. Evidence also tended to show that the defendants had improperly diverted company funds for their own personal use, and for the purpose of financing other projects of interest to the defendants.

Defendants contend that they relied in good faith on the advice of counsel in operating this business. Significantly, however, the counsel upon whose advice they claim they relied was not called as a witness. In fact evidence was introduced by the government that house counsel had admonished the defendants that delivery of mortgages before houses were completed on the properties might be fraudulent, and that Florida law did not allow insurance of vacant lot mortgages. Outside counsel had also advised that apparent misrepresentations might be violations of the anti-fraud provisions of the securities . laws. Letters from Aetna and Kemper insurance executives, who issued fidelity bonds to ABM, indicate their concern over misrepresentations made in ABM’s advertising. Nevertheless the operation continued.

Although the numerous defendants were involved at different times and to differing degrees in the perpetration of this scheme, there was plentiful evidence at trial from which a jury could reasonably find beyond a reasonable doubt that all participated knowingly in the unlawful acts for which they were indicted. The defendants were free to introduce evidence of good faith reliance upon counsel as tending to prove they lacked [1286]*1286criminal intent, but the jury was not bound to accept this evidence. The record contained other competent evidence from which the jury could find that the defendants in fact acted with the requisite intent to defraud.

II.

PRE-INDICTMENT DELAY

The indictment which was returned on February 15, 1966, alleged that the conspiracy terminated on December 31, 1961. The appellants contend that they were deprived of a fair and speedy trial by virtue of a delay of over four years measured from the date of termination of the scheme to the date of the return of the indictment.

The applicable statute of limitations in this case is five years. It is well-settled in this Circuit that the Sixth Amendment right to a speedy trial and the rights granted by F.R.Crim.P. 48(b) do not accrue to a defendant until after a prosecution is instituted. United States v. Grayson, 5 Cir. 1969, 416 F.2d 1073, 1076-1077, cert. denied 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753 (1970); Harlow v. United States, 5 Cir. 1962, 301 F.2d 361, cert. denied 371 U.S. 814, 83 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Hankton
Fifth Circuit, 2022
State v. Edgar Vasquez
Court of Appeals of Texas, 2018
State v. Cruz Suarez
Court of Appeals of Texas, 2018
Roger Evan Garrett v. State
Court of Appeals of Texas, 2015
Gonzales v. State
435 S.W.3d 801 (Court of Criminal Appeals of Texas, 2014)
Gonzales, Lionel
Court of Criminal Appeals of Texas, 2014
State v. Sayre
552 A.2d 553 (Court of Appeals of Maryland, 1989)
United States v. Craig C. Wirsing
719 F.2d 859 (Sixth Circuit, 1983)
United States v. Charles Goss and George C. Benson
650 F.2d 1336 (Fifth Circuit, 1981)
United States v. Leovigildo Bazan
637 F.2d 363 (Fifth Circuit, 1981)
Brown v. State
376 So. 2d 1382 (Court of Criminal Appeals of Alabama, 1979)
United States v. Jesse Lewis
592 F.2d 1282 (Fifth Circuit, 1979)
United States v. Barrentine
591 F.2d 1069 (Fifth Circuit, 1979)
United States v. Richard Lee Willis
583 F.2d 203 (Fifth Circuit, 1978)
United States v. E. John Wentland
582 F.2d 1022 (Fifth Circuit, 1978)
United States v. Jose Avalos and Rudolfo Castrillon
541 F.2d 1100 (Fifth Circuit, 1976)
United States v. Sherman
426 F. Supp. 85 (S.D. New York, 1976)
United States v. Terry Ray Uptain
531 F.2d 1281 (Fifth Circuit, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
433 F.2d 1282, 1970 U.S. App. LEXIS 6678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kroll-v-united-states-ca5-1970.