Credit, was charged with manipulating the purchase of contracts, knowing them to be false, and then transmitting the proceeds to Gerald Schall. Theodore Torbich was alleged to be involved by going to the homeowners and doing unnecessary work on their furnaces, by intercepting coupon books evidencing the financing of the contracts through G.E. Credit (with whom the homeowners had no contact whatsoever), and by delivering a large portion of the proceeds of these loans to Schall from Homemakers by way of Associated.
Without attempting to summarize the thirty-four page Opinion filed at the conclusion of the trial, suffice it to say that the testimony received in the three weeks of trial substantiated beyond a reasonable doubt that the home improvement contracts which existed on the records of G.E. Credit were substantially larger than any contracts authorized by the homeowners and in not a single instance did the homeowners know anything about the fact that Associated was in any way connected with the transaction. G.E. Credit's books even showed some collections of monthly payments on accounts from homeowners (a lulling technique) who testified that they had never made any payments to G.E. Credit and that they were completely unaware of even the existence of such loans.
It was clear that Homemakers regularly processed their accounts and contracts (including the contracts of Associated) through a computer center in Canton, Ohio. The mailing counts of the Indictment were in pairs; that is, for each alleged fraudulent contract the odd numbered count represented the mailing of a contract from the office in Monroeville, where it was discounted, to G.E. Credit in Canton, Ohio, the processing center; and the second or even numbered counts represented the subsequent mailing from Canton, Ohio of a payment book directly to the homeowner in the Pittsburgh area.
The convicted Defendants have now filed Motions for Judgment of Acquittal and for a New Trial. In our opinion the Motions must be denied. We consider seriatim the grounds for a new trial raised by Defendants which we have attempted to distill from the thirty-three paragraphs of the Motion (Appendix to this Opinion) many of which are repetitious:
(1) The Opinion and Decree did not comply with Rule 23(c) of the Federal Rules of Criminal Procedure because the findings made are clearly erroneous and are not sufficiently set forth to indicate the guilt of the Defendants as to each count. (Paragraphs 1, 6, 7, 13, 19, 20 and 33 of the Motion).
(2) The Court erred in not suppressing in-court identification of some of the Defendants because of alleged improper out of court use of photographs. (Paragraph 2 of the Motion).
(3) The Court erred in not granting an Evidentiary Hearing in regard to an alleged inspection by the Court of the Jencks statements. (Paragraph 3 of the Motion).
(4) The Court erred in not holding an Evidentiary Hearing concerning information which reached the Court of the alleged intention of one of the Defendants toward the end of the case to enter into plea bargaining. (Paragraph 4 of the Motion).
(5) The Court erred in permitting evidence of dealings with Homemakers Loan and Consumer Discount Company when the Indictment alleged General Electric Credit Corporation as being the party defrauded. (Paragraph 11 of the Motion).
(6) The Court erred in finding that the trial evidence justified that the mails were to be used as part of the scheme to defraud. (Paragraphs 5, 6, 7, 8, 10 and 15 of the Motion).
(7) The Court erred in permitting numerous counts to be tried when only one crime was involved, i.e., the prosecution split one scheme of mail fraud into sixty criminal acts. (Paragraphs 1, 9 and 17 of the Motion).
(8) The Court erred in considering the three Defendants as jointly responsible for the activities of the others when no conspiracy count was involved nor was any aiding and abetting involved. (Paragraphs 9 and 28 of the Motion).
(9) The Court erred in interpreting the testimony of the various named witnesses and in the weight to be given to their testimony. (Paragraphs 23, 24, 25, 26, 27, 29, 30, 31 and 32 of the Motion).
(10) Finally, we also consider the Defendants' contentions that they are entitled to Judgments of Acquittal because the verdicts were against the weight and sufficiency of the evidence and that the interests of justice require a new trial.
I. SPECIFIC FINDINGS OF THE COURT IN COMPLIANCE WITH RULE 23(c) F.R.CR.P.
Defendants assert that the Court's Opinion and Decree did not comply with Federal Rule of Criminal Procedure 23(c) because the Findings and Conclusions were not sufficiently specific.
At the time of the filing of the original Opinion and Decree in this case, this Court had carefully reviewed the Opinion of the Third Circuit by Chief Judge Seitz in the case of United States v. Livingston, 459 F.2d 797 at page 798 (3rd Cir. 1972) in which the following appears:
"Findings of fact in non-jury criminal cases primarily aid the defendant in preserving questions for appeal and aid the appellate court in delineating the factual bases on which the trial court's decision rested. See 8 Moore's Federal Practice (Cipes, 2d ed.), Para. 23.05. Indeed, it has been suggested that findings under Rule 23(c) are a prerequisite to preserving for appeal issues concerning the significance or existence of a particular fact. See Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1957); Cesario v. United States, 200 F.2d 232, 233 (1st Cir. 1950). Findings of fact are essential to proper appellate review of a conviction resulting from a non-jury trial. This was an important consideration when the present text of Rule 23(c) was promulgated, altering pre-existing law and requiring the trial judge to make special findings, if requested. See Barron & Holtzoff, Federal Prac. & Proc., § 2124 (Rules ed.). Compare United States v. Weber, 437 F.2d 1218, 1221 (7th Cir. 1971) with Lofland v. United States, 357 F.2d 472, 477 (9th Cir. 1966). Rule 23(c) entitled the defendant to request and receive special findings. Howard v. United States, 423 F.2d 1102, 1104 (9th Cir. 1970)." (Emphasis added)
In particular, this Court approached the innocence or guilt of these Defendants with the mandate of our Circuit in mind as expressed in United States v. Dreer, 457 F.2d 31 (3rd Cir. 1972), where Circuit Judge Biggs in commenting upon mail fraud stated the following (at Page 33):
"This crime against the United States . . . [is] the use of its mails in carrying out the scheme to defraud, and it was, therefore, necessary for the government to allege in the indictment, and prove at the trial, that the defendant devised a scheme or artifice to defraud; used the mails; and either sent or received mail connected with the scheme." (Portion of a quote from United States v. Marrin, 159 F. 767, 774 (E.D. Pa. 1908), affirmed 167 F. 951 (3rd Cir. 1909).