United States v. Richard Von Stoll

726 F.2d 584 UNITED STATES of America, Plaintiff-Appellee, v. Richard VON STOLL, Defendant-Appellant. No. 83-1144. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1983. Decided Feb. 24, 1984. Fred Morrison, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. Sandra Gillies, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant. Appeal from the United States District Court for the Eastern District of California. Before WRIGHT, CHOY and POOLE, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Von Stoll was convicted of two violations of 18 U.S.C. Sec. 2314 and two of 18 U.S.C. Sec. 1343 . There are two major issues: (1) whether the conviction on Count I should be reversed because the indictment charged that Von Stoll took $10,000 from one person, while the proof showed that he took it from that person's business partner; and (2) whether the conviction on Count III should be reversed because it was based on Von Stoll's confession without adequate corroborating evidence. FACTS 2 Von Stoll's convictions arose from his involvement in an advance fee scheme. He communicated with persons who needed loans and promised funds from a…

Von Stoll was convicted of two violations of 18 U.S.C. § 2314 and two of 18 U.S.C. § 1343 . There are two major issues: (1) whether the conviction on Count I should be ’ reversed because the indictment charged that Von Stoll took $10,000 from one person, while the proof showed that he took it from that person’s business partner; and (2) whether the conviction on Count III should be reversed because it was based on Von Stoll’s confession without adequate corroborating evidence.

FACTS

Von Stoll’s convictions arose from his involvement in an advance fee scheme. He communicated with persons who needed loans and promised funds from a nonexistent family trust, collected an advance fee, and absconded with the money.

Count I of the indictment charged Von Stoll with transporting in interstate commerce $10,000 that was taken by fraud from Ron McCallum. The proof showed that McCallum and his business partner, *586 Helmut Hofer, met Von Stoll in the Grand Cayman Islands. They discussed a possible loan, but did not pay Von Stoll an advance fee. Later, Hofer met with Von Stoll and gave him $10,000. The trial judge’s instructions allowed the jury to find Von Stoll guilty on Count I if it…

concurring and dissenting.

I concur in the majority’s rulings sustaining the convictions under Counts II and IV of the indictment, but disagree with the rulings affirming the convictions under Counts I and III of the indictment.

Von Stoll was convicted on four counts related to schemes fashioned by him to defraud. The majority has affirmed all four convictions. This is wrong as to Count I because there was a clear variance between the charge of the indictment and the proof at trial which prejudiced the defendant, and the proof as to Count III was insufficient as a matter of law because the only evidence, Von Stoll’s confession, was entirely lacking in corroboration.

THE INDICTMENT AND SENTENCES

Count I alleged that Von Stoll concocted a scheme by which he would fraudulently represent that he had family trust money available for loans in order to enable him to obtain advance fees from such would-be borrowers; and that between October 22 and 24, 1981, in the execution of the fraud, he “did knowingly and willfully, [sic] transport in interstate and foreign commerce * * $10,000, knowing the same to have been taken by fraud from Ron McCallum,” in violation of 18 U.S.C. § 2314 . The…