John Milton Phillips, Jr., Jack Cecil Cherbo and Richard Dale Walker v. United States

356 F.2d 297 John Milton PHILLIPS, Jr., Jack Cecil Cherbo and Richard Dale Walker, Appellants, v. UNITED STATES of America, Appellee. No. 19646. United States Court of Appeals Ninth Circuit. Oct. 18, 1965, Rehearing Denied March 22, 1966. E. F. Bernard, William E. Hurley, Bernard, Bernard & Hurley, Portland, Or., for appellant Richard Dale Walker. W. H. Morrison, Robert R. Carney, Winfrid K. Liepe, Maguire, Shields, Morrison, Bailey & Kester, Portland, Or., for appellants John Phillips, Jr., and Jack Cherbo. Sidney I. Lezak, U.S. Atty., Donal D. Sullivan, 1st Asst. U.S. Atty., Jack G. Collins, Asst. U.S. Atty., Portland, Or., for appellee. Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges. HAMLEY, Circuit Judge. 1 This is a mail fraud and conspiracy case involving asserted violations of 18 U.S.C. 1341 and 371 (1958). The final form of the indictment contains fifteen counts charging mail fraud and one count charging conspiracy. Seven defendants were named in each count, namely: John Milton Phillips, Jr., Jack Cecil Cherbo, Richard Dale Walker, Maurice Arthur Hall, George Edward Isaacs, David Frank Koolish and Abraham Leonard Koolish. The named defendants were jointly tried…

This is a mail fraud and conspiracy case involving asserted violations of 18 U.S.C. §§ 1341 and 371 (1958). The final form of the indictment contains fifteen counts charging mail fraud and one count charging conspiracy. Seven defendants were named in each count, namely: John Milton Phillips, Jr., Jack Cecil Cherbo, Richard Dale Walker, Maurice Arthur Hall, George Edward Isaacs, David Frank Koolish and Abraham Leonard Koolish. The named defendants were jointly tried before a jury. Phillips, Cherbo and Walker were convicted on all counts and join in this appeal. The other four defendants were acquitted on all counts.

Summarizing the first fifteen substantive counts relating to mail fraud, all seven defendants, in order to obtain money, by means of false representations induced various persons to purchase lots in a land subdivision called “Lake Valley,” situated in Harney County, Oregon. They organized the Harney County Land Development Corporation for the purpose of acquiring, subdividing, advertising for sale and selling the land. The defendants inserted advertisements in newspapers to induce purchasers to remit five-dollar deposits together with a coupon clipped from one of the…

(concurring).

I concur in the foregoing opinion and in Judge HAMLIN’s concurrence, post.

(concurring).

I concur in the foregoing opinion. I feel that there was ample evidence in the case to justify the jury’s finding of appellants’ guilt. I reluctantly concur in the reversal, however, because there may be merit in the contention that the given instructions on the question of notice and the failure of the court to give the instructions offered by the appellants on the same subject could be said to have been prejudicial to the appellants.