The opinion of the court was delivered by: MARSH
James A. Ashton, a practicing attorney in Allegheny County, was convicted by a jury of two counts of mail fraud. He filed a "Motion for Arrest of Judgment" and a "Motion for a New Trial ". In our opinion both motions should be denied.
The reason assigned in support of the motion for arrest of judgment states: "The indictment does not charge an offense against the United States under the applicable interpretation of the law." This reason was not supported by argument or authority. It is our opinion that each of the eight counts in the indictment adequately charges an offense against the United States, i. e., Count 1, criminal contempt, 18 U.S.C. § 402, and Counts 2 through 8, mail fraud, 18 U.S.C. § 1341. The counts are briefly summarized as follows:
The first count alleged in substance that the defendant settled a wrongful death suit in favor of Mary Ellen Lipscomb, Executrix, for $75,000 before the Honorable Barron P. McCune, a judge of this court, who distributed the proceeds, inter alia, to the widow Lipscomb and her two children and to the defendant, as attorney for the Executrix. A draft was issued payable to the Executrix and the defendant, her attorney, for the sum of $75,000 which was endorsed by the payees and deposited by the defendant in his name in a bank escrow account at the First National Bank and Trust Company of Washington, Pennsylvania. It was alleged that the defendant wilfully disobeyed the order of court in that he ordered and received cashiers checks drawn on his escrow account containing the Lipscomb funds and made the cashiers checks payable to six persons not named as distributees in the court order for distribution which disobedience constituted criminal contempt. After Judge McCune was advised of this alleged conversion, he called the defendant and a few days later defendant restored the Lipscomb funds. Among the six unauthorized persons to receive part of the Lipscomb funds by way of cashiers checks were Beatrice Hommer, $14,250, and Jack Hommer, $3,375.
The 2nd and 3rd counts charged the defendant with mail fraud in that he settled a personal injury action in favor of his client, Beatrice Hommer for $25,000 (GX30), but pursuant to a scheme to defraud and in violation of certain state statutes
prohibiting conversion, he falsely represented that the proceeds of the settlement which he received in January, 1972, were not available. Mrs. Hommer's share of the proceeds was not paid to her until March, 1974. In the meantime, the defendant mailed two checks to Mrs. Hommer, each for $2,500 (GX22 and GX23) ostensibly as advances or loans against the "expected" funds which he had deposited in his personal bank account. Retaining her funds for almost 26 months constituted a detriment to Mrs. Hommer. The March, 1974, payment to her, was made out of the funds converted from the Lipscomb estate mentioned in Count 1. (GX40).
Upon defendant's pretrial motion, Count 1 was severed and the prosecution elected to proceed to trial on the mail fraud counts.
The jury found the defendant guilty of Counts 2 and 3, and found him not guilty of Counts 4 through 8. Thereafter, upon motion of the Government, Count 1 was dismissed.
The defendant's pretrial motion to dismiss the indictment was denied.
The defendant's pretrial motion to strike paragraphs 2, 3 and 4 of Counts 2 and 3, and paragraphs 3 and 4 of Counts 4 through 8 was granted.
In his motion for a new trial (reasons 1 and 2) the defendant asserts error in that Counts 2 and 3 were not severed from Counts 4 through 8. He cites Rule 8, Fed.R.Crim.P.
Counts 2 through 8 charge violations of the mail fraud statute, 18 U.S.C. § 1341. They are crimes of similar character which may be joined under Rule 8(a). The defendant's burden of showing prejudice under Rule 14, Fed.R.Crim.P. was not met prior to or during the trial. The fact that the jury was able to distinguish between the counts, finding defendant guilty of Counts 2 and 3 involving the Hommer conversion and mail frauds, and finding defendant not guilty as to Counts 4 through 8, involving the Watson conversion and mail frauds aided by forgeries, is strongly indicative that there was insufficient prejudice to have justified separate trials under Rule 14, Fed.R.Crim.P. Obviously, the evidence of guilt as to Counts 2 and 3 was not used by the jury to carry over or infer guilt as to Counts 4 through 8 upon which the defendant was found not guilty. United States v. Hatcher, 423 F.2d 1086 (5th Cir. 1970). See also, United States v. Tillman, 470 F.2d 142 (3rd Cir. 1972). The fact that 2 1/2 years separated the Hommer conversion from the Watson conversion is insufficient in itself to show prejudice resulting from refusal to sever Counts 2 and 3 from Counts 4 ...