United States v. Terry Ray Uptain

Fifth Circuit

United States v. Terry Ray Uptain

552 F.2d 1107, 1977 U.S. App. LEXIS 13214, 1 Fed. R. Serv. 1026

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 26, 1977

Docket76-3677

StatusPublished

Cited by3 cases

This text of 552 F.2d 1107 (United States v. Terry Ray Uptain) 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

United States v. Terry Ray Uptain, 552 F.2d 1107, 1977 U.S. App. LEXIS 13214, 1 Fed. R. Serv. 1026 (5th Cir. 1977).

Pincite

Opinion

PER CURIAM:

Appellant, Terry Ray Uptain, was indicted for wire fraud, a violation of 18 U.S.C. § 1343, arising out of his scheme to defraud *1108 Van T. and Zelda H. Bates of nearly $4000. He promised to deliver 260 eases of “The Living End,” a “rectal cleaning agent,” though he never did. The jury found him guilty on both counts, and he was sentenced to five years in prison on each count, sentences to run concurrently. We affirm.

Appellant brings forward four points, none of which have any merit. He claims that the trial judge should have granted a judgment of acquittal because use of the wires was never proved; that the testimony of several witnesses was erroneously admitted; that the court should have granted £ mistrial after accepting the testimony of George T. Wilson; and that the court should not have admitted evidence of a tape procured by an Agent which allegedly was one of Uptain’s sales pitches.

First, the government clearly proved all elements establishing appellant’s violation of the statute, including the use of the wires. Second, the testimony of the other witnesses, stating that similar acts of conduct had been perpetrated by the appellant, were admissible under Rule 404(b) of the Federal Rules of Evidence to show knowledge, intent, and a consistent pattern and scheme of operation. The trial judge made the proper limiting instructions. Third, the witness’ comment that the president of a company was in jail for bank robbery was completely unpredicted by both sides. Any prejudicial effect was minimal, and the judge used limiting instructions. Finally, the cassette tape was found in an abandoned office, and thus, appellant cannot complain of its seizure. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). Further, the tape was useful in establishing the requisite fraudulent intent.

Accordingly we AFFIRM.

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

PER CURIAM:

Appellant, Terry Ray Uptain, was indicted for wire fraud, a violation of 18 U.S.C. § 1343, arising out of his scheme to defraud *1108 Van T. and Zelda H. Bates of nearly $4000. He promised to deliver 260 eases of “The Living End,” a “rectal cleaning agent,” though he never did. The jury found him guilty on both counts, and he was sentenced to five years in prison on each count, sentences to run concurrently. We affirm.

Appellant brings forward four points, none of which have any merit. He claims that the trial judge should have granted a judgment of acquittal because use of the wires was never proved; that the testimony of several witnesses was erroneously admitted; that the court should have granted £ mistrial after accepting the testimony of George T. Wilson; and that the court should not have admitted evidence of a tape procured by an Agent which allegedly was one of Uptain’s sales pitches.

First, the government clearly proved all elements establishing appellant’s violation of the statute, including the use of the wires. Second, the testimony of the other witnesses, stating that similar acts of conduct had been perpetrated by the appellant, were admissible under Rule 404(b) of the Federal Rules of Evidence to show knowledge, intent, and a consistent pattern and scheme of operation. The trial judge made the proper limiting instructions. Third, the witness’ comment that the president of a company was in jail for bank robbery was completely unpredicted by both sides. Any prejudicial effect was minimal, and the judge used limiting instructions. Finally, the cassette tape was found in an abandoned office, and thus, appellant cannot complain of its seizure. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). Further, the tape was useful in establishing the requisite fraudulent intent.

Accordingly we AFFIRM.

Cite This Page — Counsel Stack

Bluebook (online)

552 F.2d 1107, 1977 U.S. App. LEXIS 13214, 1 Fed. R. Serv. 1026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terry-ray-uptain-ca5-1977.

Opinion

Related

Cite This Page — Counsel Stack