United States v. Smallwood

443 F.2d 535, 1971 U.S. App. LEXIS 9621
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 14, 1971
DocketNos. 20000, 20001, 20010
StatusPublished
Cited by39 cases

This text of 443 F.2d 535 (United States v. Smallwood) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smallwood, 443 F.2d 535, 1971 U.S. App. LEXIS 9621 (8th Cir. 1971).

Opinion

MATTHES, Chief Judge.

These appeals stem from judgments of conviction entered upon jury verdicts in the United States District Court for the Eastern District of Missouri. Appellants Smallwood and Lay were found guilty on all 15 counts submitted to the jury — seven counts of securities fraud in violation of 15 U.S.C. § 77q(a), seven counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of mailing an unregistered security in violation of 15 U.S.C. § 77e(a) (2). Appellant Conell was found guilty only of the count charging a violation of 15 U.S.C. § 77e(a) (2).1

The illicit activities which formed the basis for these convictions took place from 1965 to 1969. In November of 1965, Diversified Brokers Company was incorporated under the laws of the State of Missouri by appellant Smallwood, his wife, and appellant Lay, all of whom were also shown by the corporate records to be the shareholders and directors of the company. Smallwood was the President of Diversified, Lay the Vice President and Secretary. Minutes of an annual meeting of the Board of Directors in November of 1967 show that Conell was at that time elected Treasurer of the corporation.

The basis of the fraudulent scheme engaged in consisted of selling promissory notes to investors for cash received. The sales were induced by representing to prospective investors that they would receive exorbitant rates of return on these investments ranging up to 100% interest per annum. In addition to promising to pay these unusually high rates of interest, appellants also induced persons to loan money to Diversified by misleading and false representations including statements that each investment was assigned to a specific “project” identified by number, that the business projects engaged in consisted of buying and reselling government surplus and distressed merchandise at huge profits, when, in fact, the amount of [537]*537Diversified’s business in distressed merchandise was infinitesimal compared to the total sum received from investors. Instead of using the funds so obtained to purchase surplus merchandise for resale, large sums were wrongfully and unlawfully diverted to purchase personal property consisting of jewelry, objects of art, luxury automobiles and expensive yachts which were taken possession of in large part by appellants Small-wood and Lay.2 The result was inevitable — the company was operated at a substantial loss each year. The record shows that literally thousands of persons from a number of states loaned millions of dollars to Diversified under the impression that the company operated a highly profitable and legitimate business. As might be expected, many of the investors were those persons most likely to succumb to appellants’ misrepresentations — clergy and active members of religious organizations, elderly persons investing life savings in the venture, laborers, and generally those elements of society unsophisticated in the ways and means of financial enterprise. While it is difficult to determine the amount that will eventually be restored to the investors, for the reason that the assets recovered by the receiver are now being liquidated in bankruptcy proceedings, it is apparent that a substantial over-all loss will be sustained.

Appellants Smallwood and Lay have consolidated their assignments of error on appeal. They do not contest the sufficiency of the evidence to support the jury verdict except as to Count Twenty-one which charged the mailing of an unregistered security. In addition, they assert that the trial court erred: (1) in overruling their second supplemental motion to suppress evidence; (2) in admitting into evidence certain government exhibits; (3) in overruling their motion for a bill of particulars; (4) in imposing the punishments assessed. As seen below, appellant Conell limits his assignment of error on appeal to issues which relate to the sufficiency of the evidence to support his conviction on the charge of mailing an unregistered security. Each of these contentions will be considered seriatim.

MOTION TO SUPPRESS

In their second supplemental motion, appellants Smallwood and Lay sought to suppress from evidence Grand Jury Exhibits Nos. 10 and 11 consisting of 20 files of documents, including invoices and sales contracts evidencing purchases of automobiles, boats, real estate, insurance policies, diamonds and contracts for the painting of a home and installation of a burglar alarm system.

On February 17, 1969, the Securities and Exchange Commission filed a complaint in the United States District Court, Eastern District, Missouri (Civil Action No. 69C57(2)) against Diversified Brokers Company and appellants charging violations of the Securities Act of 1933. On February 27, 1969, Diversified and all three appellants consented to a final judgment enjoining and restraining Diversified from violating the Securities Act and to the appointment of a receiver to take charge of all the assets and property of Diversified. After his appointment, the receiver took possession of the corporate offices and their contents and also obtained numerous files and records from the offices of Satz and Ponfil, attorneys for Diversified. On March 19, 1969, the receiver was served with a subpoena to appear before the Grand Jury and to bring all the records of Diversified. Pursuant to that subpoena, the records which appellants sought to suppress in their second supplemental motion were turned over to agents of the government.

In the district court, appellants alleged that Grand Jury Exhibits Nos. 10 and 11 [538]*538consisted of personal, not corporate, records, and that they therefore had standing to challenge the admissibility of these records into evidence on the ground that they were obtained as the result of an unlawful search and seizure. Alternatively, appellants maintained that even if the records were corporate, they still had standing to object to the search and seizure under the doctrine of Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968).

Assuming they had such standing, appellants contended that the search and seizure was unreasonable because made without a warrant and without their consent. This argument was premised upon the theory that attorneys Satz and Ponfil who voluntarily turned over many of the files to the receiver, could not validly consent to or waive appellants’ right to contest the search and seizure.

After an evidentiary hearing, the district court denied appellants’ motion, finding that the records sought to be suppressed were corporate records3 and holding that appellants had no standing to attack their search and seizure and that the records were properly obtained. In asserting that the district court erred, appellants rely upon the same arguments presented in support of their motion in the trial court.

We find no merit in appellants’ contention that these records were personal. Appellants offered absolutely no evidence to support their allegation that the papers in question were their personal files.

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Bluebook (online)
443 F.2d 535, 1971 U.S. App. LEXIS 9621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smallwood-ca8-1971.