The opinion of the court was delivered by: FOLLMER
This matter is before the Court on motions of John U. March for judgment of acquittal and for new trial.
Defendant March was charged with codefendant, Robertus Shoemaker, in a one count indictment, with devising and intending to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises from certain named persons in violation of 18 U.S.C. § 1341.
On January 28, 1966 defendant March filed additional reasons for new trial alleging:
1. The Court erred in failing to charge the jury that good faith on the part of the defendant would render him not guilty.
2. The Court erred in refusing to grant defendant's thirteenth point for charge, which read as follows:
"If the Defendant March did whatever he did, no matter how ridiculous, in good faith and lacked criminal intent, he would not be guilty of anything."
After the filing of the transcript of the trial, counsel agreed that briefs would be submitted by both defendant and the Government and that the Court would dispose of the motions without oral argument.
Defendant's brief confines itself exclusively to the Court's refusal of defendant's thirteenth point, supra, and claims that the Government failed to prove the intent to defraud and that in consequence thereof, defendant March is entitled to an acquittal. No mention is made in defendant's brief of the earlier motions for new trial, including the reference to the alleged conduct of representatives of the United States Government which it is claimed deprived defendant of an impartial trial. This is a very serious charge and cannot be permitted to remain in the record unsupported and unchallenged.
In view of the fact that defendant has quite obviously decided not to press the reason given for new trial in Paragraph 3 of the motion filed July 12, 1965, Paragraph 3 will be stricken from the record.
Defendant's claim here is predicated on the refusal by the Court to affirm his Point No. 13, supra.
This point was refused because, as the Court stated, it was covered in the charge. No exceptions were taken to the charge or rulings on submitted points by defendant March, nor did the said defendant make any request of the Court for clarification thereof.
During the trial the Government produced the testimony of persons associated with defendants in the enterprise, the fourteen victims from fourteen different states mentioned in the indictment, the bank account and cancelled checks of the enterprise, the Postmaster of the Post Office in which the uses of the mail were made in ...