found in possession of vehicle operator's documents in the name of Daniel Dane and that credit cards in the name of Roy Foster were found at a gas station in a place where, under the existing circumstances, only the defendant could have dropped them. It is my conclusion that the great weight of the evidence favored the Government, and defendant's second ground for new trial is rejected.
Defendant asserts that it was error to deny his motions for acquittal at the conclusion of the Government's case and later, after all of the evidence had been received. Since there was more than adequate evidence from which the jury could have found, beyond a reasonable doubt, that defendant engaged in the scheme charged and committed, in pursuit thereof, five if not all six of the acts charged in the individual counts of the indictment, this contention also is rejected.
One particular matter raised by defense counsel in his initial motion for acquittal warrants comment here. Defense counsel requested, inter alia, the dismissal of Count Four of the indictment, which involved the Atlantic-Richfield credit card issued to Daniel Dane, 9509 Kempton Avenue, Cleveland, Ohio, on the ground that the transactions relating to this credit card occurred in the latter part of 1967 and were not shown to be connected with the use of the Hudson Answering Service, 1301 Clark Building, Pittsburgh, Pennsylvania, in the middle of 1968, as were the five other transactions charged in the indictment. It is argued that an essential part of the scheme charged in the indictment was the alleged use of the Hudson Answering Service and that the issuance of the credit card to Daniel Dane earlier in time and at a different address, was unrelated to the scheme charged.
However, the indictment charged, and the facts educed at trial tended to prove, a scheme of a much broader nature. The indictment charged the defendant with devising a scheme to defraud various business firms and corporations by making false representations to these firms or corporations in order to obtain property or merchandise from them. It was charged, that, as one means of effectuating this scheme, the defendant utilized a commercial answering service. I do not interpret the indictment as delimiting the scope of the alleged scheme to the use of a commercial answering service in connection with his application for, and use of, credit cards issued in fictitious names. The indictment provided ample notice to defendant that he was being charged with a scheme of fraudulently using credit cards and this scheme encompassed transactions both within part of 1967 and during 1968.
It may be observed that Section 1342 of Title 18, United States Code, as it incorporates Section 1341 of the same Title, proscribes a specific act of using the United States mail to effectuate a fraudulent scheme. As essential elements of the offense, both the scheme and the act in pursuit thereof must be established. To justify the joinder in one indictment of separate acts or offenses, it need not be shown that each act was, in all respects, identical with all others, but merely that each was committed in pursuit of the common scheme charged. Rule 8(a) of the Federal Rules of Criminal Procedure.
The evidence profered by the Government substantiated the existence of a scheme broader than what defense counsel contends for. By plaintiff's own admission while in custody in New York in October of 1967, he was then engaged in nothing less than an enterprise to defraud business firms of substantial sums of money or property through the use of a number of credit cards. Plaintiff also acknowledged that, as a part of this scheme, he engaged in a practice of "tipping" gasoline station operators to induce them to pay him cash and report on credit invoices that he had purchased merchandise. The search of defendant's home in January of 1968 revealed credit receipts for a substantial number of transactions conducted within a short period of time upon a multitude of credit cards. Again, in April of 1969, two of the credit cards in question here were discovered at a gasoline station where defendant was attempting to use a third credit card in the name of another individual. This was evidence from which the jury reasonably could conclude that the defendant was engaged in a continuing scheme whereby he obtained cash and merchandise through the fraudulent use of credit cards, that various devices were used to effectuate the scheme and that the scheme extended in duration at least from October of 1967 through April of 1969. It therefore was proper to refuse to dismiss Count Four on the ground that the Hudson Answering Service was not used as a part of the transactions surrounding the credit card involved therein.
Defendant's remaining contention is that it was error to admit testimony and physical evidence regarding defendant's use of credit cards not the subject of the indictment, which testimony and physical evidence tended to show that the defendant was engaged in offenses other than those charged in the indictment. The general rule applicable to the admission of such evidence was stated by Judge Goodrich in the case of United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1959):
"Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime."
Variously, it has been stated that evidence relevant to the offenses charged is not rendered inadmissible by virtue of the fact that such evidence incidentally tends to establish other offenses. United States v. Pugliese, 153 F.2d 497, 499 (2d Cir. 1945).
In the instant case, the defendant is charged with engaging in a fraudulent scheme and committing six distinct acts in pursuit thereof. Both the existence of the scheme and the commission of a given act in pursuit thereof are requisite elements of the offense of mail fraud. It is well established in cases involving mail fraud that evidence of other offenses is admissible where relevant to establish the fraudulent scheme or plan charged. Goodman v. United States, 273 F.2d 853, 857 (8th Cir. 1960); King v. United States, 144 F.2d 729, 732 (8th Cir. 1944); Harper v. United States, 143 F.2d 795, 803 (8th Cir. 1944); Hatem v. United States, 42 F.2d 40, 41 (4th Cir. 1930). Here, evidence of defendant's use of credit cards other than the ones designated in the indictment clearly was relevant to establish the scheme with which he was charged, i.e., the obtaining of cash or merchandise through the use of credit cards issued in names other than his own and without any intention of paying for the cash or merchandise.
Moreover, insofar as the evidence of collateral credit card transactions tends to show that the defendant was engaged in the fraudulent scheme charged, it also had a bearing upon the related questions of defendant's identity as the person committing the specific acts charged and the intent with which he acted. Instructive here is the analysis of Professor Wigmore in II, Wigmore on Evidence, Section 300 (3d Ed. 1940), wherein he states at page 193:
"In proving design, the act is still undetermined, and the proof is of a working plan, operating towards the future with such force as to render probable both the act and the accompanying state of mind. The Intent is a mere appendage of the act; the Design is a force producing the act as a result."