United States v. Jerry R. Mastelotto, and Willis B. Inglesby

Mastelotto and Inglesby appeal their convictions on two counts of mail fraud in violation of 18 U.S.C. § 1341 (1976) and eight counts of wire fraud in violation of 18 U.S.C. § 1343 (1976). Each timely appealed. We have jurisdiction under 28 U.S.C. § 1291 (1976).

Defendants contend that the indictment under which they were tried is duplicitous since each of its counts alleges the defendants’ participation in two independent fraudulent schemes. They further assert that, even if the indictment itself is not duplicitous, the trial court’s failure to give a “same single scheme” instruction prejudiced defendants’ right to a unanimous jury verdict and to be tried only for that for which they were indicted. We conclude that while the indictment is not duplicitous as drawn, the failure to give proper instructions to the jury requires reversal.

I

This case involves allegations of numerous fraudulent transactions conducted over a ten-year period in Utah, Nevada, and California by and through three corporations engaged in the processing and sale of oil products. The evidence produced at trial related to two distinct sorts of fraudulent transactions. In the “mislabeling” transactions, oil…