OpenJurist

498 F2d 394 United States v. Miles

498 F.2d 394

UNITED STATES of America, Appellee,
v.
John Sherman MILES, Appellant.

No. 72-1730.

United States Court of Appeals, Eighth Circuit.

June 17, 1974, Rehearing and Rehearing En Banc Denied July 10, 1974.

James R. Wyrsch, Kansas City, Mo., for appellant.

Bert C. Hurn, U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, LAY and ROSS, Circuit Judges.

PER CURIAM.

1

Judgment of conviction of defendant under 28 U.S.C. 1341 was affirmed by this court on September 10, 1973. On March 18, 1974, 415 U.S. 970, 94 S.Ct. 1553, 39 L.Ed.2d 867, the Supreme Court of the United States vacated the judgment of conviction and remanded the case to this court for reconsideration in light of United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Upon review of the record and supplemental briefs filed by the parties, we affirm the judgment of conviction.

2

We hold that the use of the mails by the defendant was an essential and integral element of the fraudulent scheme. The scheme here did not reach fruition until the cattle were sold by the defendant and the monies divided among the coconspirators. The defendant specifically contemplated the use of the mails by the banks to process the bogus check which was used to purchase the cattle. The delay in processing the check was not simply relied upon by the defendant to 'postpone' discovery of the fraud; the evidence demonstrates it was part of the scheme itself. In this particular we find the facts distinguishable from United States v. Maze, supra.

3

We affirm the judgment of conviction.