text:
    Application of Francis William KIRSCH et al.
    Patent Appeal No. 9062.
    United States Court of Customs and Patent Appeals.
    June 27, 1974.
    Barry A. Bisson, Wilmington, Del., attorney of record, for appellants,
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Jack E. Armore, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This is an appeal from the decision of the Patent Office Board of Appeals sustaining the rejection of claims 51-56, 58, 60-63, 65-69, 75, 77 and 86 of appellants’ application.

The Invention

The invention relates to a paraffin-olefin alkylation process, described in appellants’ amended Abstract of Disclosure as follows:

-Olefin-paraffin alkylate is prepared by contacting C3-Ca monoolefin with C^-Cs isoparaffin (which can, if desired, be prepared in situ from other paraffin isomers) in liquid phase with a substantially anhydrous acidic crystalline alumino-silicate zeolite, and stopping such contacting after substantial alkylation (which can include self-alkylation of the isoparaffin) has occurred but before the weight rate of production of unsaturated hydrocarbon becomes greater than the weight rate of production of saturated hydrocarbon. The degree of conversion of olefins and paraffins to saturate products can be increased by use of halide adjuvants containing bromine, chlorine or fluorine.-

Claims 51 and 77 are representative:

51. A paraffin-olefin alkylation process which comprises contacting at least one monoolefin of the C2-C9 range in admixture with paraffin of the C4-C6 range and in the presence of an alkylation-promoting amount of a halide containing chlorine, bromine or fluorine with a substantially anhydrous acidic crystalline alumino-silicate zeolite under alkylating conditions.
77. Process for the preparation of an olefin-paráffin alkylate comprising contacting isobutane with monoolefin selected from the group consisting of isobutylene, butene-2, and butene-1, and with a substantially anhydrous acidic crystalline alumino-silicate zeolite, at a temperature in the range of 25-120 °C. and at a pressure such that each of the reactants is substantially in liquid phase,
(i) said contacting being effected utilizing sufficient agitation so that substantially all of said zeolite is maintained in suspension in the liquid reaction mixture,
(ii) the amount of unreacted olefin in the reaction mixture being maintained at less than 7 mole percent based on the unreacted isobutane, and
(iii) wherein the mean weight hourly space velocity of the hydrocarbons in the reaction mixture is in the range of 2-20 gram hydrocarbon per hour-gram catalyst; and wherein said contacting is in the presence of an alkylation-promoting amount of a halide containing chlorine, bromine or fluorine.

Claim 86, the only other independent claim on appeal, differs from claim 77 in being directed to contacting butene-1 in the presence of n-butane and in additionally reciting that the contacting of step (1) is “in the presence of an alkylation-promoting amount of a halide containing chlorine, bromine or fluorine.” The other appealed claims depend either directly or indirectly from claim 51. The brief for the Commissioner succinctly describes the additional recitations in those claims as follows :

Claim 52 recites a C3-C9 monoolefin and a C4-C6 isoparaffin, with reaction at a “temperature below the critical temperature of the lowest boiling hydrocarbon reactant and at a pressure such that the reactants are substantially in liquid phase.” In claim 53, the monoolefin is butene-1, butene-2 or isobutylene and the isoparaffin is isobutane. The concentration of unreacted olefin in claim 54 “is kept sufficiently low that px-edominantly saturated paraffin-olefin alkylation products are obtained rather than unsaturated products.” A range of hydrocarbon space velocity is added in claim 55 and unreacted olefin is kept at less than 12 mole percent based on paraffin content in claim 56. Added limitations regarding the alumino-silicate zeolite appear in claims 58, 60 to 63, and 67. Claim 65 provides for a continuous process. The alkylate has no more than 0.5% of unsaturated products in claim 66. The zeolite is in suspension in claim 68. The reactants and temperature range (25° to 120°C) are specified in claim 69 and one product of reaction is a paraffin hydrocarbon [obtained] by hydrogen transfer in claim 75.

The References

Garwood relates to the alkylation of branched chain hydrocarbons in the presence of an acidic crystalline alumino-silicate catalyst having active cites which provide selective activity for effecting alkylation with different alkylating agents. The reference emphasizes alkylation of branched chain paraffins including isobutane with the preferred alkylating agents being “ethylene, propylene, dodecylene and the like (those containing 2 to 12 eax-bon atoms being particularly suitable).” The zeolite catalyst may be exchanged with rare earth metal cations including those of cerium. It is stated that “[a]dvantageously,” the temperature of the alkylation process may extend “from room temperature to 600 °F.; preferably the process operating at 50° to 300°F.” Garwood discusses “liquid phase operation” and states that it is particularly desirable for allowing certain catalysts “to exhibit greater selective activity for alkylation without promoting undesirable side reactions such as polymerization that may occur during vapor phase operation.” Liquid hourly space velocity of the isoparaffins may be “from about 0.1 to 10.” While the reference refers to relative molar ratios between the isoparaffins and the alkylating agents on the order of about 3 to 1, it states that “higher molar ratios, e. g., about 12 to 1 may be desirable for certain reactions.”

Rabo discusses various type zeolite catalysts for use in a number of hydrocarbon conversion processes. Inclusion in the catalysts of polyvalent metal cations, including cerium cations, is described as preferred to enhance activity. Such processes as “isomerization, reforming, hydrocracking, alkylation and dealkylation” are given particular mention. Further, Rabo states:

It should be emphasized that the present catalyst, unlike those of the prior art, does not employ the usual corrosive halide activators, i. e., such as chlorine, fluorine, etc. to enhance its activity. Moreover, the present catalyst is water-resistant under the reaction conditions set forth above. This feature is a direct result of the avoidance of halide activators. If halide activators were present in the catalyst, by adding water, corrosive hydrogen chloride or hydrogen fluoride would be formed and would leave the catalyst. Water amounts up to 1000 parts per million in the hydrocarbon feed, however, are tolerable for short periods of time to the catalyst of the present invention. In the prior art, on the other hand, the water in the feed had to be below 20 parts per million. Hence, the feed in the prior art had to be thoroughly dried before use. This feature is completely avoided by the process of the present invention. It should be emphasized, however, that under certain conditions activators may be employed in the process of this invention. However, even without the use of activators the equilibrium in the isomerization of the hexane and pentane fractions can be approached with facility. [Emphasis added.]

The patent also emphasizes the effectiveness of certain of its zeolite catalysts in conducting reactions at lower temperatures than heretofore “except in some instances wherein the prior art employed relatively large amounts of corrosive, acidic activators.” However, it continues:

It should not be inferred from this that the new catalysts must not under any circumstances have added thereto or to the reactant feed some Lewis acid type halide containing activator. When desired for special effect, activators may be employed. The benefit achieved through the addition of an activator will vary with changes in feed compositions, temperature of reaction, moisture or other impurity in the feed, and the like. In some instances such as in hydrocracking, hydroisomerization and hydrodealkylation the activation may be employed to assist in reaching stable operating conditions more quickly and easily.

In a specific discussion of alkylation, Rabo states:

In this embodiment of the present invention, isoparaffins and aromatics can be alkylated. Typical of the feed stocks for such a conversion process are iso C4-C6 paraffins plus gaseous C2-C6 olefins or aromatic hydrocarbons such as benzene and substituted benzene such as phenol and chlorobenzene plus gaseous and liquid C2-Ci5 olefins.

Miale “is concerned with a method wherein an organic charge undergoes catalytic conversion in the presence of a volatile metal halide and a catalyst consisting essentially of specified crystalline aluminosilicates.” It states that the activity of the catalyst is “unexpectedly enhanced or promoted upon contact with a volatile activating compound.” The reactions catalyzed include “hydrocarbon cracking, alkylation, dealkylation, disproportionation, isomerization and polymerization.”

The Rejection

All of the appealed claims except claim 86 stand rejected under 35 U.S.C. § 103 as obvious over Garwood et al. (Garwood) in view of Rabo et al. (Rabo) or Miale et al. (Miale). Some of the claims, including claim 86, stand rejected as vague and indefinite under 35 U.S.C. § 112, second paragraph.

OPINION

Turning first to the rejection based upon the prior art, appellants recognize that Garwood teaches the basic catalytic paraffin-olefin alkylation process involved here, including the “substantially anhydrous acidic crystalline aluminosilicate zeolite.” They refer to the “one point of novelty in the Claim 51 process” as “the requirement-that the contacting be ‘in the presence of an alkylation-promoting amount of a halide containing chlorine, bromine or fluorine.’ ” The board found that feature to be taught by both Rabo and Miale, and that to include it in the process of Garwood would be obvious to a person of ordinary skill in the art. We agree.

It is true that Rabo does not prefer to use halide activators with his aluminosilicate or zeolite catalyst because of the corrosive effect they apparently have. However, Rabo does recognize the benefits of the halides as activators and states they may be employed under certain conditions — as the board stated, “for their beneficial effects if the concomitant corrosion problem is accepted.” The board further found that Miale is particularly directed to the activating effect of volatile metal halides and that it points out the superior results provided when crystalline aluminosilicates are so activated.

Appellants emphasize that Rabo and Miale refer to cracking and dealkylation as among the processes which are promoted by the metal halides. They argue that those two processes are diametrically opposed to alkylation and urge that the references, accordingly, teach away from appellants’ alkylation process. No merit can be seen in the argument since it overlooks the fact that both references specifically refer to their inventions as being also directed to alkylation processes. The board took special note of appellants’ argument, but rejected it stating:

In general, the crystalline aluminosilicates are both alkylating and dealkylating catalysts (see Rabo et al. and Miale et al.), depending on feeds and reaction conditions, and an improvement in the latter activity would not necessarily contraindicate an improvement in the former activity.

Referring specifically to Miale, the board further commented:

the fact that activation with volatile metal halides improves cracking and dealkylation activity does not lead away from alkylation processes, because the crystalline aluminosilicates are both alkylation and dealkylation catalysts, depending on feeds and reaction conditions. The Miale et al. specific reference to alkylation of aromatics ... is not inconsistent with the general reference to alkylation [in it] . . . or with the general improvement in catalytic activity discussed in [it]

We do not find appellants to have made any persuasive rebuttal of the board's reasoning. Thus we do not think that a person skilled in the art would regard the reference to other hydrocarbon conversions to negate the specific teaching of alkylation by the references.

Appellants further argue that proper weight has not been given “to the showings, in the specification and the affida-1, vit of Dr. Kirsch, of “[the] unexpected, beneficial result, provided by appellants’ invention” (emphasis in original). The board stated that it carefully studied the Kirsch affidavit, but concluded that it “merely confirms the unexpected improvement in catalytic activity which is emphasized particularly by Míale et al.” It apparently referred particularly to the statement in Miale that the catalyst was “unexpectedly” enhanced by the contact with “a volatile activating compound.” We too have carefully examined the Kirsch affidavit but do not see that it demonstrates any improvement in appellants’ claimed process that would not be expected in view of the disclosure in both of the secondary references that the addition of volatile metal halides enhances the activity of zeolite catalyzed reactions. So far as the record appears, appellants may have simply made the choice, offered by Rabo, of tolerating the corrosive effect of the “usual corrosive halide activators” to attain the enhanced activity they provide.

A limitation of certain of the dependent claims and of claim 77, specifically argued by appellants, requires that the process be carried out in liquid phase. However, we, like the board, are convinced that both Garwood and Rabo do include definite disclosures of what is clearly liquid phase operation as described and claimed by appellants.

The examiner having discussed at length the specific recitations added to the various other claims, the board found it unnecessary to do so. Rather it made the holding, in which we find no reversible error, that:

Certain of the claims include additional features, such as specific reactants, mixing, low olefin concentration, space velocity, specific aluminosilicates, continuous operation, and temperature. Comparison of these features with the cited art indicates that they are either not novel or not unobvious departures from the teachings of the references. At the best, such variations as may be expressed are well within the expected skill of the technician of ordinary ability in this art.

Two features mentioned in the above holding, “low oelfin concentration” and “space velocity,” appear in claim 77 as well as in some of the dependent claims. The examiner, as the solicitor noted, considered the disclosure in Garwood pertaining to the paraffin to olefin mole ratio — “higher molar ratios, e. g., about 12 to 1” — to be suggestive of a ratio of 14 to 1, which amounts to about 7 mole percent. We consider that teaching adequate to negate unobviousness here, particularly since the recited percentage is not disclosed as or proved to be critical vis-a-vis the reference ratio. As to the recitation that the space velocity in the reaction mixture is in the range of 2-20 gram hydrocarbons per hour-gram catalyst, the examiner referred in his answer to Garwood’s disclosure of space velocities “as high as 10,” obviously depending on the disclosure of “about .1 to 10” quoted in our description of that reference. Despite considerable argument in their briefs about space velocity, appellants do not deny that this disclosure of Garwood falls within their recited range.

Accordingly, the board’s treatment of the rejection of claims 51-56, 58, 60-63, 65-69, 75 and 77 under 35 U. S.C. § 103 is free of reversible error and will be sustained.

Therefore, the rejection of claim 86 alone under 35 U.S.C. § 112 requires our consideration although the rejection also applied to some of the other appealed claims. The basis of that rejection is that the recitation therein (reading like item (ii) of claim 77), requiring the amount of unreacted olefin in the reaction mixture be maintained at less than 7 mole percent based on the unreacted isobutane, is vague and indefinite. The rejection is based on the view that the language of the recitation sets only a maximum amount of olefin and hence “is inclusive of substantially no olefin, resulting in the termination of any reaction.” We see no merit in this rejection. The claim requires a process for the preparation of olefin-paraffin alkylate by contacting the two reactants under defined conditions. The imposition of a maximum limit on the quantity of one of the reactants without specifying a minimum does not warrant distorting the overall meaning of the claim, to preclude performing the claimed process. The rejection of claim 86 will not be sustained.

The decision is affirmed as to claims 51-56, 58, 60-63, 65-69, 75 and 77 and reversed as to claim 86.

Modified.

      . Serial No. 716,190, filed March 26, 1968, which includes certain additional claims that the board noted were “indicated to be allowable in substance.”

      . The board noted that item (ii) of claim 86 (reading the same as the corresponding item in claim 77) refers to “unreacted isobutane” whereas the body of the claim is directed to the reaction of n-butane, but that matter is not before us.

      . Patent No. 3,251,902, issued May 17, 1966.

      . Patent No. 3,236,762, issued February 22, 1966.

      . Patent No. 3,354,078, issued November 21, 1967.

      . Since we reverse this rejection on the merits we see no occasion to consider appellants’ argument that the hoard improperly considered the examiner to have included this and certain other claims with still other claims, which the examiner specifically rejected on the same grounds. Also, we have given no consideration to the matter discussed in note 2, supra.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    J. E. FAGUNDEZ et al., Plaintiffs-Appellants, v. OAKLAND RAIDERS PROFESSIONAL FOOTBALL CLUB, a California Partnership, et al., Defendants-Appellees.
    No. 9-10.
    Temporary Emergency Court of Appeals.
    June 24, 1974.
    Edmund B. Schultz, Pleasant Hill, Cal., for plaintiffs-appellants.
    Herman Cook, Hardin, Cook, Loper, Engel & Bergez, Oakland, Cal., for def endants-appellees.
   OPINION

Before CARTER, CHRISTENSEN and ESTES, Judges.

CARTER, Judge.

The plaintiffs commenced a class action on behalf of themselves and all season and individual game ticket purchasers of the Oakland Raiders Professional Football Club, seeking to recover damages from the Oakland Raiders Club and others based on an alleged violation of Executive Order 11615 issued August 15, 1971, arising from a prior sale of season tickets to home football games of the Raiders. Admittedly, the Raiders increased ticket prices over and above the prices charged for the 1970 season tickets. The increase amounted to 50 cents for all seats other than box seats, which were increased by $1.00.

Although the complaint lists only the Executive Order as the source of plaintiffs’ legal rights, plaintiffs also appear to contend that they have a right under Section 210(a) of the Economic Stabilization Act Amendments of 1971 to recover the amount of the price increase and a right under Section 210(b)(2) to recover treble damages and attorneys’ fees. December 22, 1971, P.L. 92-210, 85 Stat. 743. Plaintiffs also appear to base their right of recovery upon the Economic Stabilization Act of 1970. August 15, 1970, P.L. 91-379, 84 Stat. 799.

This appeal is taken from an order of the United States District Court for the Northern District of California, dismissing plaintiffs’ amended complaint.

Neither the Economic Stabilization Act of 1970, swpra, nor Executive Order No. 11615 (August 15, 1971) expressly creates a private cause of action for damages. See, Acorn Iron & Supply Co. v. Bethlehem Steel Co. (E.D.Pa.1951) 96 F.Supp. 481 (Defense Production Act of 1950 imposed quotas but did not expressly authorize private damages actions for violation of the quotas).

Nor does the Act by implication create a private cause of action for damages. The Act has been held to be a penal statute. United States v. Futura, Inc. (D.C.N.D.Fla.1972) 339 F.Supp. 162, 166. Courts have refused to find an implied private cause of action under penal statutes. Van Daele v. Vinci (N.D.Ill., 1968) 294 F.Supp. 71, 74 (involving various federal penal statutes); Chavez v. Freshpict Foods, Inc. (10 Cir. 1972) 456 F.2d 890, 894 (involving the Immigration and Nationality Act and the Farm Labor Contractor Registration Act of 1963); Daly v. Columbia Broadcasting System, Inc. (7 Cir. 1962) 309 F.2d 83, 85 (The Communications Act of 1934); Odell v. Humble Oil & Refining Co. (10 Cir. 1953) 201 F.2d 123 (action based on 18 U.S.C. § 1503).

For a case where the penal or non-penal character of the statute was not discussed, see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Provisions in Amtrak Act for public enforcement by Attorney General negated any implied right of action for private parties).

Plaintiffs have no cause of action based on the 1971 Amendment Act, because that Act was enacted at least four and one-half months after plaintiffs had purchased and received their tickets. Statutes are given only prospective application unless there is a clear and unambiguous legislative intent that they are to operate retroactively. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938); Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Soria v. Oxnard School District Board of Trustees (9 Cir. 1972) 467 F.2d 59, 60.

No such intent to make the 1971 Act applicable retroactively so as to create a cause of action ex post facto appears in the statute or the legislative history. Section 211(h) of the 1971 Act, dealing with judicial review, is the only amendment providing for retroactive application.

The judgment is affirmed.


author: BARRETT, Circuit Judge.

text:
    Leo BURGERT and Mrs. Leo Burgert, Plaintiffs-Appellees, v. Jerry TIETJENS and Terry Tietjens, Individually and as partners d/b/a Sycamore Springs Recreation Area, Defendants-Appellants.
    No. 73-1928.
    United States Court of Appeals, Tenth Circuit.
    Argued May 17, 1974.
    Decided July 3, 1974.

      J. Roger Hendrix, Topeka, Kan. (Herbert A. Marshall, Topeka, Kan., on the brief), for plaintiffs-appellees.
    Howard A. Spies, Topeka, Kan., for defendants-appellants.
    Before LEWIS, HOLLOWAY and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Jerry Tietjens and Terry Tietjens, individually and as partners d/b/a Sycamore Springs Recreation Area, appeal from a judgment in a diversity action tried to the court, awarding the parents of the decedent, (appellees here), Robert Burgert, the sum of $30,539.95 under the Kansas Wrongful Death Statute, K. S.A. 60-1901 to 60-1905 (1967).

On August 24, 1969 the Burgerts were engaged in a farming operation near Pawnee, Nebraska. That day their son Robert, age 12, travelled with a church-sponsored group of youngsters and several adult supervisors from Pawnee City, Nebraska, to the Sycamore Springs Recreation Area owned and operated by the appellants near Sabetha, Kansas. The group had planned a late after-noon of swimming, picnicking, and rollerskating at the facility following their arrival.

At approximately 4:00 p. m. following arrival, Robert and a companion, John Neal, went to the swimming pool. They paid admission and shared a basket to store their clothes while swimming. Robert was last seen alive by John Neal at approximately 5:00 p. m. while playing in the shallow end of the pool. At approximately 5:30 p. m. an adult supervisor of the church group called the children from the pool for a picnic supper. Some of the youngsters, including John Neal, did not leave the pool area immediately, however. When young Neal departed the pool at about 6:00 p. m. he discovered that Robert’s clothes were still present in their shared basket. Neal returned to the pool area where he unsuccessfully searched for Robert before proceeding to the picnic. He did not mention to any of the adults that Robert’s clothes were still in the basket until some time later that evening. While Robert apparently did not eat at the picnic supper, his absence went unnoticed.

A search for Robert began when one of the appellants’ lifeguards discovered Robert’s clothes still in the basket at approximately 9:30 p. m. after the pool had been closed. His body was discovered by divers shortly thereafter at the bottom of the pool in about six feet of water. Futile attempts were made at that time to resusitate the boy. Cause of death was determined as drowning by the doctor summoned to the scene; however, no autopsy was performed and there was a conflict in the testimony as to how thorough an examination was performed by the doctor in reaching his conclusion. The condition of the body indicated that Robert’s death had occurred more than two and one-half hours prior to its recovery from the pool. Prior to the discovery of the body, none of the lifeguards, occupants of the pool, or spectators had observed any signs of distress in the pool area.

The pool was approximately 75 feet in width and 140 feet in length, divided by a rope with colored buoys near the middle of the pool, separating the shallow from the deep end. The depth of the pool ranged from two feet in the shallow end to ten feet in the deep end. It was supplied by water from natural springs which had resulted, up until a year prior to Robert’s death, in a condition of such poor water clarity that the bottom of the pool could not be seen. The appellants had installed a water filtration system a year prior to Robert’s death to alleviate this situation. However, for unexplained reasons, on the date in question the water clarity was such that a person could not see below the surface of the water beyond a maximum depth of two and one-half to three feet, and could not, therefore, see the bottom of the pool at the point where Robert’s body was discovered. Various witnesses described the water condition that day as being “cloudier than usual” (Tr., Vol. 3, p. 39); “very murky” (Tr., Vol. 3, p. 127); “cloudy; kind of green” (Tr., Vol. 3, p. 39). This water condition was known to appellants prior to the time the pool was opened to the public at 1:00 p. m. on August 24, 1969.

The court below found that: the cause of Robert’s death was in fact drowning; Robert was a business invitee in the swimming pool, and as such was owed a duty by the appellants to use ordinary and reasonable care for his safety; the appellants breached that duty when they allowed patrons in the pool on August 24, 1969, at a time when the water was so cloudy that the bottom of the pool could not be seen; that Robert’s body would have been visible from the surface had it not been for the cloudy condition of the water; that proper safety standards would require a lifeguard to be able to see the bottom of' the pool; that patrons should not be allowed in a swimming pool if the condition of the water is such as to render it impossible to see the bottom thereof in the deep end; that appellants’ lifeguards could not perform their duty of underwater surveillance and rescue because of the water condition; that the cloudy condition of the water constituted negligence on the part of the appellants, and that this negligence was the proximate cause of Robert’s death. Further, the Court found neither Robert Burgert himself, nor the appellees, to be guilty of contributory negligence, and that Robert had not assumed any risk by swimming in the pool.

On appeal it is contended that the trial court erred: (1) in finding that Robert met his death by drowning; (2) in finding that the water condition constituted negligence and was the proximate cause of Robert’s death; (3) in not charging Robert with contributory negligence or assumption of the risk; (4) in assessing the amount of damages awarded; and (5) in establishing standards of care for swimming pool operators absent statutory or case authority to support those standards.

I.

Appellants contend the trial court erred in determining that appellees had shown by a fair preponderance of the evidence that Robert met his. death by drowning. This contention is apparently predicated upon discrepancies in the record as to the thoroughness of the examination made of Robert’s body by Dr. Virgil E. Brown, the attending physician, preceding his conclusion that the cause of death was drowning. Testimony as to the scope of this examination ranged from that of Dr. Brown, on deposition, as intensive, consuming 10 to 15 minutes, during which he checked for eye signs, examined skin coloration, made use of a stereoscope, checked for water in the lungs, etc., to that of other witnesses as simply a cursory examination of the general appearance of Robert’s body lasting five minutes or less. Without Dr. Brown’s testimony, appellants allege, the evidence reveals only that Robert Burgert died, and not that he died from drowning.

The findings of a trial court will not be reversed on appeal unless they are clearly erroneous. Transwestern Pipeline Company v. Kerr-McGee Corporation, 492 F.2d 878 (10th Cir. 1974) ; Woods v. North American Rockwell Corporation, 480 F.2d 644 (10th Cir. 1973) ; Rule 52(a) Fed.R.Civ.P. 28 U.S.C.A.

Apart from the testimony of Dr. Brown, which the trial court indicated it had not exclusively relied- upon, the record reveals the following: (1) Robert was in good health prior to August 24, 1969; (2) his body was discovered in six feet of water at the bottom of the pool; (3) his body was stiff and blue when brought out of the water; (4) the hands were closed over the abdomen and the legs flexed at the knees; (5) no bruises or abrasions indicating external trauma were found on the,body; and (6) no suggestion other than death by drowning was offered or inferred from these facts. The existence of these factors, in combination with the finding of death by drowning made b,y Dr. Brown, leads us to conclude there was substantial evidence to support the finding of death by drowning made by the trial court. The testimony by the appellants’ expert witness, a pathologist, to the effect that drowning was only a possibility, does not materially detract from the sufficiency of this evidence.

II.

Appellants contend the trial court erred in finding that the water condition constituted negligence and was the proximate cause of Robert’s death.

Appellants correctly cite Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902 (1931), for the proposition that under Kansas law the owner of a swimming pool open to the public is not an insurer of those making use of the pool. Such owner is liable, however, for injury or death due to his negligence. Swan v. Riverside Bathing Beach Co., supra, at 903. Kansas has defined negligence as the failure to exercise care as the circumstances justly demand. Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590 (1947) ; Elliot v. Chicago, Rock Island and Pacific Railroad Company, 203 Kan. 273, 454 P.2d 124 (1969). The standard of care for the owner of a public beach is “to use reasonable care under the circumstances and to provide appliances reasonably fitted for the purpose for which they were to be used.” (Emphasis added). Vukas v. Quivira, Inc., 166 Kan. 439, 201 P.2d 685, 688 (1949).

The Kansas courts have defined proximate cause as “that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result.” Rowell v. City of Wichita, supra, 176 P.2d at 596, citing Consolidated Electric Light & Power Co. v. Koepp, 64 Kan. 735, 68 P. 608 (1902). While the negligence charged must have been the proximate cause of the injury, Rowell v. City of Wichita, supra; Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053 (1958), the inquiry as to whether there was proximate cause is to be determined on the facts of each case, and is to be answered in accordance with common sense and common understanding. Rowell v. City of Wichita, supra. It is normally a question of fact for the jury. Elliot v. Chicago, Rock Island and Pacific Railroad Company, supra.

Appellants’ reliance upon those cases holding that a pool owner’s negligence is not established where it is shown by the evidence that the lifeguards were exercising reasonable care, is misplaced. As noted by the trial court, the charge of negligence is predicated here not upon any act or omission by appellants’ lifeguards, but rather upon the fact that these lifeguards were practically prevented from acting to effectuate a rescue due to the condition of the water in the pool.

The Court finds no evidence to sustain a claim that the guards were negligent in performing their duties. A dozen guards present at the pool would have been unable to detect a swimmer in difficulty in the deep end of the pool. The negligence in this case consisted of permitting the pool to operate with the water in such a cloudy, murky condition that the lifeguards present could not perform their functions and duties.
(Tr., Vol. 1, p. 57>

Appellants further contend that the trial court, of necessity, had to resort to speculation in its finding that the clarity of the water was the proximate cause of the failure of the lifeguards to perform a rescue. We disagree. Appellants’ reliance, in this regard, on Nolan v. Young Men’s Christian Ass’n., 123 Neb. 549, 243 N.W. 639 (1932), is unwarranted. The Nebraska Supreme Court in that case did in fact find that one would have to resort to conjecture as to whether a “dark” water condition, caused by the absence of two lights in the pool, was in any way the proximate cause of the drowning there in question. However, the critical distinction between that case and the present one is that there the court specifically found:

The proof is that, when notice was given that Nolan was missing, the guard was able to see his body at the bottom of the pool and promptly recover it. (Emphasis added).
243 N.W. at 642.

The inference is that, had the guard not been able to see the body, a finding of proximate cause could have been arrived at without resorting to conjecture. The evidence in this case is unrefuted that Robert’s body could not be seen at the bottom of appellants’ pool. It would seem to be a justifiable inference that this condition materially interfered with any possible rescue activity.

After a careful examination of the entire record we are convinced that the trial court’s findings, that appellants were negligent in opening the pool to the public when they knew a cloudy water condition existed which might interfere with the duty of their lifeguards, and that this condition was the proximate cause of Robert’s drowning, were fully warranted by the evidence and constitute a reasonable application of the Kansas law of negligence and proximate cause set out above.

III.

Appellants contend the trial court erred in not charging Robert with contributory negligence or assumption of risk.

Considering first assumption of risk, we agree with the trial court that nothing in the record indicates that Robert “knowingly” placed himself in peril of an “appreciated” danger as required under the test prescribed in the leading Kansas case of Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227 (1957). The fact that Robert or other patrons of the pool did not object to the condition of the water does not necessarily lead to the inference that Robert knew or appreciated the danger he was being exposed to. Where different inferences may be drawn, appellate courts will not substitute their judgment for that of the trial court. Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973); Colby v. Cities Service Oil Company, 254 F.2d 665 (10th Cir. 1958).

We would, perhaps, go further. The Kansas Supreme Court has intimated that the doctrine of assumption of risk would not be available as a defense in a negligence action such as this even if knowledge and appreciation of the danger could be shown. In Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959), the Kansas court stated:

The defense of assumption of risk is generally confined to master and servant situations. We have never applied that doctrine as a defense to an action arising under the guest statute and we are not disposed to do so now.
339 P.2d at 39.

And in Shufelberger v. Worden, 189 Kan. 379, 369 P.2d 382 (1962):

In the instant case the defendant failed to show that there was any employer-employee relationship or any contractural relationship, express or implied; nor can it be found in the record that plaintiff received any benefit from the transaction, and in order for assumption of risk to be a defense one or more of the aforementioned conditions must exist. Defense counsel cite no authority where the defense of assumption of risk has been applied in a tort action such as the instant case, and in. our limited research we have failed to discover any such authority.
369 P.2d at 386-387.

See also Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971). While it might be argued that Robert had received a benefit in the form of the privilege to swim in appellants’ pool, this is no greater than the benefit received by one riding in a car as a guest, and yet in the latter cases the defense has not been allowed, Perry v. Schmitt, supra,. The type of benefit received necessary to allow the defense would seem then to have to be more in the nature of a pecuniary benefit to the plaintiff. No such relationship or “benefit received” existed in the present case. a

Finally, in Smith v. Blakey, 213 Kan. 91, 515 P.2d 1062 (1973), the Kansas Supreme Court succinctly stated:

Defendant concedes the doctrine of assumption of risk is generally confined to a master-servant relationship. We believe it should remain so confined . . . . We do not abandon the doctrine because its application is deeply imbedded in our master-servant case law . . .; but we refuse to broaden its application to other situations.
515 P.2d at 1070.

Considering next the issue of contributory negligence, the test under Kansas law as to the contributory negligence of children is set down in Weber v. Wilson, 187 Kan. 214, 356 P.2d 659 (1960) :

The rule of law with respect to the negligence of an adult and that of a child of tender years is quite different. Children of tender years are not held to the same strict accountability of an appreciation of danger and of need for care of themselves as persons of full age, but are required to exercise such care as persons of their age, experience, capacity and intelligence are ordinarily expected to exercise under like circumstances . . . the question of capacity of a particular child at a particular time in avoiding a particular danger is one of fact, falling within the province of a jury to determine. .
356 P.2d at 663-664.

See also Morlan v. Smith, 191 Kan. 218, 380 P.2d 312 (1963); Riley v. Holcomb, 187 Kan. 711, 359 P.2d 849 (1961); Krentz v. Haney, 187 Kan. 428, 357 P.2d 793 (1960).

The fact that Robert and other invitees made use of the very facility they had paid an admission fee to use, without objecting to its condition, does not lead to a necessary inference of contributory negligence. Robert had a right to assume that the appellants had performed their duty to provide “appliances reasonably fitted for the purpose for which they were to be used”, and a right to assume that if the pool was not in a reasonably safe condition he would have been warned. Campbell v. Weathers, 153 Kan. 316, 111 P.2d 72 (1941).

There is no evidence that Robert was using the facility in any manner inconsistent with appellants’ invitation, manifested by their opening the pool to the public on August 24, 1969; the pool was open when Robert arrived and lifeguards were on duty; others were swimming in the pool; Robert had not been in the pool previously and could not have known what the normal water condition was; the condition of the water at the shallow end of the pool where Robert entered was not as cloudy as at the deep end.

Under these circumstances we cannot say that the trial court was clearly erroneous in finding that Robert, by merely entering the pool, was exercising such care as persons of his “age, experience, capacity and intelligence” would ordinarily have been expected to exercise.

IV.

Appellants allege the trial court committed clear error in assessing damages in amount of $30,539.95 where no direct evidence of “dollar value of a loss of life” was offered by the appellee.

The general statement as to the measure of damages in an action for the wrongful death of a child is set forth in Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763 (1969):

The measure of damages for the wrongful death of any person is difficult for a jury to compute. When children of tender years are involved the difficulty is compounded. Questions as to how to compensate for the mental anguish, suffering or bereavement of parents . . . are questions which the legislature has wisely placed in the hands of the court and jury.
462 P.2d at 772.

In Roda v. Williams, 195 Kan. 507, 407 P.2d 471 (1965), the court stated:

We recognize that the loss recoverable is not to be limited to pecuniary loss . no definite and precise rule can be applied and the matter of assessment of damages in a case such as this must necessarily be left to the judgment and common experience of the jury, to be guided by the facts and circumstances.
407 P.2d at 477.

In accord, the applicable Kansas statute provides:

In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances ....
K.S.A. 60-1903.

Appellees did not produce any direct evidence of pecuniary loss resulting from the death of their son. It has been held, however, that in the death of a minor living with his parents there is an implication of pecuniary loss in addition to an implication of loss due to bereavement and mental anguish. Corman v. Weg Dial Telephone, Inc., 194 Kan. 783, 402 P.2d 112 (1965). While no evidence of pecuniary loss was present in Roda v. Williams, supra, the jury award was upheld.

In Atchison, T. & S. F. Ry. Co. v. Fajardo, 74 Kan. 314, 86 P. 301 (1906), the court held:

It is not essential to a recovery in the case of a child that there should be proof of valuable services already rendered, nor direct evidence of the exact value of the services which would have been rendered had he lived, nor yet a fixed amount of pecuniary loss sustained in his death. This is not practicable.
86 P. at 304.

When we consider the testimony given as to Robert’s age, intelligence, conduct and relationship with his parents, we hold that the appellees proved a basis for the reasonable expectation of lost pecuniary benefit resulting from the death of Robert. In addition, there was ample testimony in the record indicating the non-pecuniary loss suffered by appellees of the type enumerated in K.S.A. 60-1904.

Our review of the record as a whole discloses that the trial court did not err in its award of damages in the amount of $30,539.95.

V.

Appellants allege the trial court erred in setting standards of water clarity for swimming pool operators in Kansas absent Kansas statutes or case authority to support those standards.

We first note that a federal district judge sitting as a state trial judge in a diversity action, may, where there exists no specific state law in point, look to other states’ laws in his effort to reach the same result that would probably be reached were the question to be litigated in a state court. Symons v. Mueller Company, 493 F.2d 972 (10th Cir. 1974); Cottonwood Mall Shopping Center, Inc. v. Utah Power & Light Company, 440 F.2d 36 (10th Cir. 1971), cert. denied, 404 U.S. 857, 92 S.Ct. 107, 30 L.Ed.2d 99 (1971). While the trial court indicated it did not rely upon the laws of any other states, its reliance, if any, upon those standards of care required in other states would not constitute error.

In any event, the trial court’s specific finding that proper safety standards would require a lifeguard to be able to see the bottom of the swimming pool and to scan his area of assignment every 30 seconds, would appear to be only supplementary to its basic finding that in this case the inability of the lifeguards to see more than three feet below the surface of the pool constituted negligence. The prior finding is not essential and merely suggests a standard which might have been adopted had the case been tried in state court. This anticipation of state law is not fatal under these circumstances.

Finally, appellants’ reliance on the assertion that the water in the pool was in “as good or better” condition than that of other pools in the area, is not conclusive. Kansas has adopted the following rule as to “customary conduct” from 65 C.J.S. Negligence § 16:

The common usage of a business or occupation is a test of care or negligence, and is a proper matter for consideration in determining whether or not sufficient care has been exercised in a particular case, at least where the conduct in question is not inherently dangerous; but customary methods or conduct do not furnish a test which is conclusive or controlling on the question, and negligence may exist notwithstanding the conduct pursued or the methods adopted were in accordance with those customarily pursued or adopted. (Emphasis added).

We think the record here would support a finding under this test that the water condition in the pool was inherently dangerous or otherwise constituted actionable negligence notwithstanding the customary conduct of other pool operators in the area concerning water condition.

Affirmed.


author: CUMMINGS, Circuit Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. JOYCE et al., Defendants-Appellants.
    Nos. 73-1014 to 73-1016.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 21, 1974.
    Decided May 9, 1974.
    As Amended on Denial of Rehearing in Nos. 73-1014, 73-1016 May 28, 1974.
    Rehearing Denied in No. 73-1015 June 4, 1974.

      Herman R. Tavins, Gerald M. Werksman, Richard J. Horka, Anna R. Lavin, Burton Sherre, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Arnold Kanter, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   CUMMINGS, Circuit Judge.

A 15-count mail fraud indictment was returned against defendants Joyce, Sherre, Wallace and Robert L. Ostrander. Ostrander pled guilty to count 14, but this count was dismissed as to the other three defendants. Joyce was convicted under counts 1, 8, 9, 10, 11, 13 and 15; Sherre was convicted under counts 9, 10, 11 and 13, and Wallace was convicted under count 5. The only prison terms imposed were on Joyce, who received a one-year sentence on count 1, and on Wallace, who received a one-year sentence on count 5. Fines and probationary terms were imposed upon Joyce and Sherre under the other counts. This appeal involves the validity of convictions under eight counts (counts 1, 5, 8, 9, 10, 11, 13 and 15) of the 15-count indictment.

Count 1, the lead count of the indictment, charged that the four defendants (including Ostrander) devised a scheme to defraud firms engaged in the business of placing insurance risks, denominated in the indictment as “insurance brokers and agents,” certain state departments of insurance, denominated in the indictment as “state insurance agencies,” and persons who were induced to purchase insurance policies from Global Surplus and Excess Limited (Global), a company organized in the Bahamas.

According to the lengthy allegations contained in count 1, defendants caused Trust No. 15385, an Illinois land trust, to be entered into between Global and the Cosmopolitan National Bank of Chicago. Thereafter, defendants represented that the trust was established to protect the United States and Canadian policyholders of Global. They also entered into an agreement giving Sherre a power of attorney to direct the trust. They conveyed certain Illinois real estate into the trust and represented that it was an asset of Global for the benefit of its policyholders. They had the Cosmopolitan National Bank circulate copies of the trust agreement to insurance brokers and agents and state insurance agencies to induce them to place and permit the placing of insurance risks with Global. They prepared letters of appraisal for the trust real estate assigning an excess value thereto, and they caused the letters of appraisal to be circulated to insurance brokers and agents and state insurance agencies in order to induce them to use and permit use of Global. They also omitted to advise the insurance brokers and agents and state insurance agencies that some of the trust real estate was heavily mortgaged. They formed an Illinois corporation known as Global Surplus and Excess Limited of Illinois and represented that it was a holding company for the trust real estate. They were charged with making the following false representations in financial statements of Global:

1. The stock of Global Surplus and Excess Limited of Illinois was an asset of Global and had a value of $770,000.
2. Four vacant lots owned by Global in Kenosha County, Wisconsin, had a value of $60,000.
3. 41,250 shares of stock in Howard Savings and Loan Association of Chicago were owned by Global and had a value of $175,000.
4. 1,000 shares of stock in Wor-Wid Construction Company were acquired by Global in 1966 and had a value of $200,000.
5. Fifty shares of stock in Ever-last Development Company of Illinois were acquired by Global in 1966 and were worth $150,000.

The grand jury also charged that defendants circulated these false financial statements of Global to insurance brokers and agents and to state insurance agencies. Defendants allegedly converted funds deposited in the checking accounts of various banks that had been deposited for the protection of Global policyholders.

Each of the subsequent counts repeated these general allegations by reference. All fifteen counts alleged a different mailing in violation of 18 U.S.C. § 1341, the mail fraud statute.

Various pre-trial motions of defendants were denied by the district court before the commencement of the jury trial. After a few trial days, the Government moved to dismiss count 2 as to all defendants and count 15 as to defendant Wallace, and the trial judge acceded. The jury found Joyce guilty on all counts (except the dismissed count 2). It found Sherre guilty on counts 7 through 15, and Wallace guilty on counts 5, 6 and 8. The district court granted Joyce’s post-trial motions for acquittal as to counts 3 through 7 and 12 and 14. The court also granted Sherre’s motion for acquittal on counts 7, 8, 12 and 14, and Wallace’s motion for acquittal on counts 6 and 8. As noted above, Joyce is appealing his conviction on counts 1, 8, 9, 10, 11, 13 and 15; Sherre is appealing on counts 9, 10, 11, 13 and 15; and Wallace on count 5.

Defendants rather half-heartedly contend that the scheme was not proven because there is no showing that the misstatements of assets were made' with intent to defraud rather than negligently. The magnitude of the misrepresentations is alone sufficient to support the jury’s finding that they were not made negligently. Additional evidence of scienter is summarized infra at p. 21 in the discussion of Sherre’s separate contention that he was simply Global’s attorney and was never aware of the fraud being perpetrated by his clients.

Defendants next contend that the evidence failed to sustain the charges concerning the individual mailings. In the interests of an orderly presentation, we will take up the counts assailed in numerical sequence.

Count 1

Joyce is the only defendant convicted under this count, which charged that Joyce and his co-defendants caused a letter to be mailed- to Joyce from the Industrial Valley Bank & Trust Company. The letter was addressed to Joyce by W. Kenneth Clark of that bank and agreed to send Joyce duplicate statements of Global’s account with the bank commencing with the May 1966 statement. The Government has argued that the letter furthered the scheme because it was essential for Joyce to keep track of the balance in the account so that he and other defendants could withdraw funds from the account for their own use, although they represented that it was to be a reserve to pay losses. Since the district court found that Joyce had drawn a $2,359.65 check on the account payable to American Express, it concluded that “a reasonable mind could thus have fairly found beyond a reasonable doubt that the count letter was incident to a'n essential element of the conversion scheme — knowledge of the balance in the account.” We agree that the trier of facts could have drawn the inference that the American Express check was not drawn to pay a policyholder’s claim. Whether the check paid for business or personal expenses is of no moment — either use is inconsistent with maintenance of the account as a loss reserve for policyholders.

Conceding this arguendo, Joyce argues that he only requested a bank statement, and that the mailing charged was not a bank statement, but an unexpected acknowledgement of his request —a mere courtesy letter. He argues that he did not cause the mailing of the courtesy letter, and that the courtesy letter could not have furthered the scheme. However, the letter was more than a mere acknowledgment; it also informed Joyce that there would be a $1 per month fee for the service he requested. It was foreseeable that there would be a charge, and that the bank would not impose the charge without an explanation. Joyce could thus foresee that his request would cause the mailing of a letter advising him of the fee, and this is sufficient. “[0]ne ‘causes’ the mails to be used where he ‘does an act with knowledge that the use. of mails will follow in the ordinary course of business, or where such use can reasonably, be forseen, even though not actually intended * * *.’ ” United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 648, 38 L. Ed.2d 603, quoting from Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435. The count letter also furthered the scheme since it was impossible for Joyce to obtain the needed bank statements without causing the mailing of the count letter.

As to the proof of mailing of this count letter, witness Clark testified that he dictated the letter and that his secretary’s practice was to send out all dictated letters (other than interoffice correspondence) by mail. Testimony as to office practice is sufficient proof of mailing. United States v. Shavin, 287 F.2d 647, 652 (7th Cir. 1961); United States v. Silvern, 484 F.2d 879, at 884-885, reheard en banc on other grounds, 484 F.2d 879 (7th Cir. 1973); United States v. Flaxman, 495 F.2d 344, at 349 (7th Cir. 1974). While the evidence in those cases was somewhat stronger than here, we hold that Clark’s testimony was sufficient proof of mailing. Even weaker proof of mailing was held sufficient on some counts in King v. United States, 25 F.2d 242, 244 (6th Cir. 1928).

Joyce also contends that venue has not been established despite the showing that the usual procedure was to mail such a letter from Pennsylvania to the recipient at the address shown on the letter, here 7019 West Higgins Avenue, Chicago. Illinois 60656. In the normal course of the mails, we presume that a letter is sent to the address shown, so that venue was adequately established. Cf. Grannis v. Ordean, 234 U.S. 385, 397-398, 34 S.Ct. 779, 58 L.Ed. 1363; Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 37, 11 S.Ct. 691, 35 L.Ed. 332; Marston v. Bigelow, 150 Mass. 45, 22 N.E. 71, 73 (1889).

Count 5

Wallace is the only defendant presently convicted under count 5. That count charged defendants with the December 21, 1966, mailing of a letter to International Express Agency, Inc. in Cleveland, Ohio. The letter was from Burton Sherre to Mr. Paterson of the International Excess Agency. It stated that Wallace, Joyce ■ and Ostrander had agreed that some of the cost of Sherre’s legal services should come from Global funds held by Paterson’s office. This request was refused by Paterson because the Ohio Department of Insurance had asked him to keep all Global funds in escrow. With Wallace’s and Joyce’s consent, Sherre was attempting to obtain for himself funds that were segregated for the benefit of policyholders’ claims in Ohio. The letter thus falls within the conversion scheme alleged.

At the time this letter was sent, Wallace was still active in Global’s affairs. As a member of a mail fraud scheme, Wallace was responsible for any letter which any other member of the scheme caused to be mailed in execution of the scheme. Pritchard v. United States, 386 F.2d 760, 764 (8th Cir. 1967), certiorari denied sub nom. Borchelt v. United States, 390 U.S. 1004, 88 S.Ct. 1247, 20 L.Ed.2d 104; Babson v. United States, 330 F.2d 662, 665 (9th Cir. 1964), certiorari denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1045; Sherwood v. United States, 300 F.2d 603, 605 (5th Cir. 1962), certiorari denied, 371 U.S. 838, 83 S.Ct. 65, 9 L.Ed.2d 74; Blue v. United States, 138 F.2d 351, 358 (6th Cir. 1943), certiorari denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570; Tincher v. United States, 11 F.2d 18, 21 (4th Cir. 1926), certiorari denied, 271 U.S. 664, 46 S.Ct. 475, 70 L.Ed. 1139; Silkworth v. United States, 10 F.2d 711, 717 (2d Cir. 1926), certiorari denied, 271 U.S. 664, 46 S.Ct. 475, 70 L.Ed. 1139; cf. Kann v. United States, 323 U.S. 88, 93, 65 S.Ct. 148, 89 L.Ed. 88. In its memorandum opinion of August 10, 1973, the district court stated that it had erroneously granted Joyce’s motion for acquittal on count 5 since the Government had not drawn its attention to the language in the count 5 letter stating that Joyce had also agreed to Sherre’s request. But under the rule just stated, each schemer was responsible for Sherre’s acts in furtherance of the common scheme, whether or not he knew of or agreed to the specific mailing. We have been directed to no 7th Circuit cases applying this rule in the absence of a separate count charging conspiracy; somewhat surprisingly, the issue appears not to have arisen in this Court. But we have upheld the admissibility of hearsay declarations by persons shown to be coconspirators in cases where conspiracy was not charged. United States v. Jones, 438 F.2d 461, 466 (7th Cir. 1971); United States v. Blue, 432 F.2d 1191, 1194 (7th Cir. 1970), certiorari denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824; United States v. Bernard, 287 F.2d 715, 719-721 (7th Cir. 1961), certiorari denied, 366 U.S. 961, 81 S.Ct. 1921, 6 L.Ed.2d 1253. We therefore have no hesitation in joining at least six other circuits in applying conspiracy principles to a multimember mail fraud scheme. The nature of the group activity is the same whether or not a conspiracy is charged.

Count 8

Joyce is the only defendant whose conviction was left standing under count 8. This count charged that Joyce and the other defendants caused International Excess Agency of Cleveland, Ohio, to mail Joyce a copy of its letter of February 16, 1967, to Carl Brown in St. Louis, Missouri, enclosing a copy of Joyce’s false statement of assets, so that Brown could secure approval for Global to do business in Missouri. This of course furthered the scheme. Perhaps recognizing that the sending of a copy of this letter to Joyce helped him keep track of who had been told what in the scheme of misrepresentations, his brief merely states that it is “inconceivable that a carbon copy of a letter to an alleged schemer could in any way have furthered the scheme charged.” We find it quite conceivable.

Joyce is somewhat more persuasive in his contention that proof of mailing of this count letter was lacking. The Government concedes that the proof of mailing as to count 8 is “possibly the most circumstantial.” The trial court granted Sherre’s and Wallace’s post-trial motions for acquittal on count 8, stating “the government merely proved the mailing of a letter from Cleveland to St. Louis, Missouri, which bore the notation ‘cc: Mr. Thomas Joyce.’ This is not a sufficient basis for a reasonable inference that a copy was mailed to Joyce.” We disagree, for the witness Paterson testified that the notation meant a carbon copy was directed to Joyce, and that the customary procedure was to place such a copy in a separate pile of mail going to Joyce or Global, and then to mail the pile in. one envelope. That was sufficient. United States v. Shavin, supra. Since the copy was sent to Joyce in Chicago, venue was present.

Count 9

This count involves both Joyce and Sherre. It charges that the defendants caused the Cosmopolitan National Bank of Chicago to send a letter to E. P. Littlejohn & Company in Marshall, Texas, telling the addressee that the beneficiary of Trust No. 15385 was Global and that the party to contact under the trust was Burton Sherre at 7019 West Higgins Avenue, Chicago. Neither defendant contends that the letter was not in furtherance of the scheme. They do contend that there is no proof of mailing of this count letter. Corrinne Bek, assistant vice president of the bank and sender of the letter, testified that the signed letter was placed in an envelope and put in the “outbox going out for the mail” and that the bank’s mail boys would “pick it up, * * * run it through the postage meter and then * * * bag the mail and take it to the Oak Street Post Office.” Under United States v. Shavin, supra, this was sufficient proof of mailing. Defendants argue that there is no evidence Miss Bek testified of her own knowledge, but she purported to do so, and in the absence of some indication that she only knew what the mail boys told her, we assume she knew the procedures in her own office. We doubt that defendants seriously disagree, since Miss Bek was not cross-examined as to the source of her knowledge. Mailing can be proved by office custom without producing as a witness the person who personally placed the letter in a United States mailbox. United States v. Flaxman, supra.

Counts 10 and 11

Both Joyce and Sherre were convicted under counts 10 and 11. These counts concern a written inquiry and a letter forwarding the inquiry and therefore will be considered together. The count 10 letter is from B. Carvalho of the Bala-Cynwyd, Pennsylvania, company bearing his name, and is addressed to the Cosmopolitan National Bank. The letter states that Carvalho & Company, Inc. is a correspondent of Global and “its largest producer of premiums” and that it would like to know the status of Trust 15385. The count 11 letter is Miss Bek’s letter to Global, attention of defendant Sherre, stating that the inquiry should receive his immediate attention. Since defendants were inducing insurance brokers to rely on this trust as a protection for policyholders, the count 10 letter was certainly foreseeable. The .letter was written at a time when Carvalho was attempting to have defendant pay for losses claimed by policyholders, so that he was of course interested in the assets of the trust. Part of the trust agreement with the Cosmopolitan Bank was to forward correspondence concerning the trust to defendant Sherre. This enabled defendants to continue their misrepresentations about the trust instead of permitting the bank to divulge its true value. The jury was entitled to consider these letters as furthering the scheme.

As to proof of mailing, Carvalho testified that he or his secretary would take outgoing mail to the post office at the end of each day and that this procedure was followed with respect to the count 10 letter. He further testified that the letter, which was found in the files of. the Cosmopolitan National Bank, was not hand-carried from Pennsylvania to Chicago. The proof of mailing was accordingly sufficient.

With respect to the count 11 letter, the proof of its mailing was supported by Miss Bek’s testimony about office procedure described under count 9, and her testimony that she put the count 11 letter into the normal course of that procedure.

Defendants’ argument that counts 10 and 11 deal with the same letter so that they cannot be separately and cumulatively punished for each count is too. frivolous to require treatment under a separate heading. The substantive offense is use of the mails, and “there is no doubt that the law may make each putting of a letter into the post office a separate offence.” Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706.

Count 13

Joyce and Sherre were convicted under this count which involved a letter from Morton Olken to defendant Ostrander. The count letter is a copy of this letter allegedly sent by Olken to Fred Pearson at 223 West Jackson Boulevard in Chicago. The letterhead was that of Atlantic Insurance Agency, Inc., Chicago, Illinois. Although Pearson testified that the letter had been opened by his mail department and stamped accordingly, he also stated that the mail department opened and stamped privately delivered letters as well as letters received through the mail. He concluded that it was possible that Olken dropped the letter off at his office. Particularly since both men’s offices were in Chicago, we cannot accept the district court’s view that Pearson’s doubt was no greater than the possibility of error “inherent in any situation where the government seeks to prove mailing by evidence of customary procedures.” Since the only witness had a reasonable doubt whether the letter was mailed, the jury had to speculate to reach its verdict. We hold that the Government did not sufficiently show that the mails had been used with respect to this communication. We need not consider defendants' additional contention that this letter did not further the scheme.

Count 15

Joyce and Sherre were also convicted under this count, which charges defendants with causing a February 29, 1968, letter to be sent by Sherre to E. P. Littlejohn & Son in Marshall, Texas. In the count letter, Sherre stated that Global had received from Cosmopolitan a copy of an unpaid claimant’s letter sent to Cosmopolitan. The original of that letter had been sent to Littlejohn, stating, according to the count letter, that the complaining insurance broker was “quite concerned over not being paid on a claim.” Sherre admonished Littlejohn that “unfortunately this type of letter [from the claimant] may perplex our bank.” The letter could be deemed in furtherance of the scheme because defendants would not wish the Cosmopolitan to correspond with brokers and divulge the true value of the trust. Defendant Sherre testified that he did not hand this letter to Littlejohn but “in all probability mailed it to him.” This was sufficient proof of mailing.

Applicability of United States v. Maze.

At the oral argument, the parties discussed the impact of United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603, on this case. There the Supreme Court held that the mail fraud statute was not violated where respondent had used a stolen credit card at motels that thereafter mailed the underlying sale invoices to an out-of-state bank. The Court held that the mailings were not “for the purpose of executing such scheme” (18 U.S.C. § 1341) because respondent’s scheme had reached fruition when he checked out of the motels and “the mailings from the motel owners here to the Louisville bank increased the probability that the respondent would be detected and apprehended” (414 U.S. at 403 [94 S.Ct. at 650]). In contrast to Maze, the scheme here was to earn profits by persuading people to place insurance with the under-capitalized company. Therefore, any letter which was incident to the running of Global and which tended to give the impression that all was well, that risks were adequately protected, and that business was being transacted normally, was in furtherance of the scheme under prior Supreme Court cases approved in Maze. While inquiries to Cosmopolitan were aimed at detecting any fraud which might exist, it was necessary to permit such inquiries to persuade some victims that the trust was as represented. Defendants were found to have arranged favorable replies to such inquiries, so that these mailings were also in furtherance of the scheme. Maze does not affect the foregoing analysis of the mailings involved in this appeal.

Pre-Indictment Delays

Defendants claim that their rights under the Sixth Amendment and Rule 48(b) of the Rules of Criminal Procedure were violated by the 34-month delay between the first presentation of the case to the grand jury and the return of the indictment. However, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, establishes that the Sixth Amendment speedy trial provision has no application until defendants are accused, either by indictment, information, or arrest. Marion also decided that Rule 48(b) is limited to post-arrest situations. Id. at 319. Defendants claim that they were accused when the case was first presented to the grand jury. But Marion clearly did not consider such “targeting” an accusation which triggers the right to a speedy trial. In Marion, newspapers stories in October 1967 quoted the United States Attorney as saying the matter was under investigation and indictments would be forthcoming. In summer 1968, Marion delivered his company’s records. to the United States Attorney and was interviewed about the case. Id. at 309. The Court held that there was no accusation until Marion was indicted on April 21, 1970. Id. at 313.

The Marion opinion did say that the due process clause requires dismissal of an indictment if pre-indictment delays caused substantial prejudice to defendants’ right -to a fair trial and were an intentional device to gain tactical advantage over them. Id. at 324. Here the pre-indictment delays did not extend beyond the period of the applicable statute of limitations, and Marion clearly implies that the limitations period is the only protection against delay unless specific prejudice is shown. Two district judges, one before trial and one after, independently examined defendants’ claims of prejudice and found them insubstantial. We agree. The only specific complaint is that two witnesses died. The first, a Mr. Black, would allegedly testify that he filed Global’s financial statement with the Pennsylvania Insurance Department, even though Joyce told him not to file it because it was erroneous. Since Global did business in Pennsylvania, defendants had to know that papers had been filed with the Pennsylvania Insurance Department, and they could have shown any attempts to correct Black’s misstatements by cross-examining the witness from the Department. Defendants’ only argument as to the second witness, John Carvalho, is that witness Paterson testified to many conversations to which Carvalho was a party. While it might have been helpful to defendants to question Carvalho, their due process rights were protected by cross-examination of Paterson. It is also significant that defendants’ brief indicates that Carvalho died “around 1968,” so that even if the Government had proceeded much more quickly than it did, Carvalho would probably have died before trial.

Nor is there any showing of intentional delay by the Government. The voluminous transcript and exhibits show that this scheme was a complex one that must have required a lengthy investigation. Judge Marovitz found that the first grand jury to hear the case did not indict, but designated a postal inspector to investigate further. Defendants’ due process claims based on Marion cannot be sustained.

Post-Indictment Delays

Defendants also complain of the 12-month delay between their indictment and trial. The leading case in this area is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, where the Court held that the constitutional right to a speedy trial must be determined by weighing the conduct of the prosecution and that of the defendant in the light of four factors: “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530. A 12-month delay, while not insignificant, is not extreme. In Barker, the delay was well over five years, but other factors led the Court to find no denial of a speedy trial. In United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), we found a 19-month delay justified.

The reasons for the delay are attributable in varying part to the defendants, the Government, the district court’s docket, and the complexity of the case. Of course, more delay is tolerable in a complex case. 407 U.S. at 531. Defendants’ first round of pre-trial motions, originally due July 1, 1971, were not all filed and briefed until August 23. The Government was given ten days to respond, and took thirty; defendants’ reply was due five days thereafter, but was not filed for twenty days. At each step the district judge granted extensions or accepted late filings, and this appears reasonable in light of the number and complexity of the motions. The motions were finally ruled on on November 19 and the case was set for trial on January 31, 1972. At this point the Government requested a continuance, explaining that the attorneys responsible for the case were involved in lengthy trials before other judges of the district court which would persist until just before January 31. According to the docket sheet, this was its only such request. The trial was reset for March 6, and the Government’s attorneys agreed to meet at night during their other trials to negotiate stipulations on technical aspects of the case. Shortly thereafter the case was reassigned to a newly appointed judge who could not try it on the day set. Barker indicates that delay due to reasons such as overcrowded courts should be considered against the Government, but should not be weighed very heavily. 407 U.S. at 531. The case did proceed to trial as soon as the new judge had a date available; defendants continued to file additional pre-trial motions until the eve of the June 15th trial.

Although defendants did make a timely assertion of their right to a speedy trial, they have not satisfactorily shown actual prejudice. There is no allegation of specific prejudice from post-indictment delay; defendants rely entirely on the two pre-indictment deaths and the likelihood that memories faded over the total four-year period. Because prejudice was so slight, because only part of the delay is attributable to the Government, and because there is no indication that the Government-caused delay was deliberate or due to culpable negligence, we do not consider this a close case. The right to speedy trial was not violated.

Denial of Severance

Defendants insist that the district court should have granted their motion for severance because Wallace took the stand and blamed the scheme on Joyce. This is an insufficient reason to require a separate trial. United States v. Hutul, 416 F.2d 607, 620 (7th Cir. 1969), certiorari denied sub nom. Sacks v. United States, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499; United States v. George, 477 F.2d 508, 515 (7th Cir. 1973). Furthermore, .Joyce’s attorney did not bother to cross-examine Wallace to show that the jury should disbelieve his testimony. It is said that this was because Joyce himself was absent, but after Wallace’s direct testimony and before his cross-examination, Joyce executed a written waiver of his right to be present, even though his hospitalization would almost certainly have justified a continuance or severance if requested. In any event, if Joyce had been severed and Wallace’s trial completed, Wallace’s testimony would have been available to the Government at Joyce’s second trial.

Finally, it is no justification for severance that Joyce and Sherre wanted a bench trial, while Wallace insisted on a jury trial. There is no right to a bench trial (Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630), and. avoidance of duplicate two-week trials is certainly a legitimate reason for withholding consent to the proffered jury waiver. We conclude that Joyce has not shown sufficient prejudice to justify reversal.

Sufficiency of Evidence as to Sherre

Sherre attempts to void his conviction by claiming a lack ,of knowledge during his association with Global. The evidence refutes this claim. Sherre was centrally involved in the scheme, since he handled most of the correspondence from Global’s Chicago office. It would be extraordinary . if he never learned what was going on. This does not mean he can be convicted by association, but it does increase the significance of any evidence tending to show his actual knowledge of the scheme’s nature.

According to the credited testimony, Sherre was first involved in this scheme in May 1965. On May 26, he was at a meeting with Joyce, Ostrander and Wallace and a Mrs. Chambers. Joyce told the others that he would place certain property, which he described to the group as worth more than $750,000, into the trust fund at Cosmopolitan. In Sherre’s presence, he then dictated a letter describing the trust property as worth $1,180,000. In the presence of Sherre and the others, Mrs. Chambers typed the letter and signed the name Raymond Kusniar to it.

A Mrs. Lewis testified that in November 1965, she met with Sherre, Joyce and Ostrander. She warned all three that they were under government scrutiny and that there was particular concern about the land trust. She also com-: plained about not being paid, and in Sherre’s presence, Joyce told her that Global was insolvent. She responded that there had been “several occasions” when it had enough money to pay her.

Sherre had the power of direction over the trust at Cosmopolitan. As an attorney, he must have known that Cosmopolitan, as trustee of an Illinois land trust, was completely subject to his directions on behalf of Global, and had no independent power to protect the policyholders. Sherre wrote the count 15 letter, urging brokers not to correspond directly with Cosmopolitan, which indicates he was aware that Cosmopolitan would not support Global’s representations.

The evidence concerning Sherre’s involvement justified the jury’s conclusion that he participated in the common plan to defraud with the requisite criminal intent.

Evidentiary Rulings

Defendants protest that appraisal evidence should not have been received because the Government inadvertently failed to disclose the appraisals to defense counsel. Rule 16(g) of the Federal Rules of Criminal Procedure offers a district judge four sanctions for a violation of the Government’s duty to disclose. Here the judge chose one of the alternatives, namely, a continuance as to the appraisal witness, to give defendants time to prepare for cross-examination. Defendants declined the continuance. Therefore, there was no error in receiving the appraisal testimony.

Asserting a hearsay objection, defendants complain that witness Minner, the chief of the Surplus Lines Division for the Pennsylvania Insurance Department, was permitted to read from Government Exhibit 145, in which the Royal Bank of Canada advised the Pennsylvania Insurance Department that Global no longer had any account with that bank. Since none of defense counsel objected to the receipt of Exhibit 145 in evidence, it was accordingly received. Once the exhibit was in evidence and could go to the jury, it can not have been error to allow Minner to read from it. Furthermore, the hearsay objection was not made below. Defendants’ only complaint was that the reading of the exhibit on redirect was outside the scope of cross-examination.

Defendants also assail the testimony of Mrs. Lewis discussed supra at p. 21. Such testimony bore on scienter and therefore was properly admitted.

Finally, it is complained that witness Paterson was permitted to testify that in addition to $2500, his company “lost a great deal else in the way of reputation.” Since the mail fraud statute covers “any scheme or artifice to defraud, or for obtaining money or property” (note 2, supra; emphasis added), the Government did not have to confine its proof to monetary loss. Cf. United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932).

Instructions to Jury

First of all, defendants complain of Government Instruction No. G-31 which defined “scheme to defraud” and was substantially the same as La-Buy Jury Instruction 16.02, 36 F.R.D. 601. The last sentence reads “It is essential only that one or more of them [pretences, representations and acts charged in the indictment] be proved to show the existence of the scheme.” Defendants suggest that this is erroneous because it would permit the jury to convict where only part of a scheme was proved. On the contrary, it is well established that every allegation of an indictment charging a scheme need not be proved in order to convict. Schaefer v. United States, 265 F.2d 750, 753 (8th Cir. 1959), certiorari denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82; Myrick v. United States, 332 F.2d 279, 281 (5th Cir. 1963), certiorari denied sub nom. Bergman v. United States, 377 U.S. 952, 84 S.Ct. 1630, 12 L.Ed.2d 497. We would prefer that the instruction be modified in the future to track more closely the cases cited, so as to avoid any possible implication that the jury must find a scheme if it finds that any one allegation of the indictment is proved. The Schaefer version of this instruction avoids that ambiguity by providing that the government must “prove one or more or a sufficient number of the representations to indicate and show that the scheme alleged was actually set up * * * " 265 F.2d at 753. While such a variation of the LaBuy instruction would be more appropriate, the chance that the instruction given was misunderstood is not great enough to rise to the level of reversible error. Moreover, no objection was made to the instruction, as required by Rule 30 of the Federal Rules of Criminal Procedure, so that any error in this regard was waived. United States v. Zweig, 467 F.2d 1217, 1222 (7th Cir. 1972), certiorari denied, 409 U.S. 1111, 93 S.Ct. 921, 34 L.Ed.2d 692.

Defendants also object to the court’s use of the following sentence from LaBuy Instruction 4.05 (33 F.R.D. 553):

“No person can intentionally avoid knowledge by closing his eyes to facts which should prompt him to investigate.”

We adhere to United States v. Grizaffi, 471 F.2d 69, 75 (7th Cir. 1972), certiorari denied, 411 U.S. 964, 93 S.Ct. 2142, 36 L.Ed.2d 684, upholding the propriety of this instruction. See also United States v. Squires, 440 F.2d 859, 864 (2d Cir. 1971).

Defendants assail one sentence from the court’s charge with respect to reasonable doubt but ignore other instructions concerning reasonable doubt that were also given. Defendants assert too that the portion of the reasonable doubt charge quoted in note 6 is contradicted by a later portion of the charge concerning evidence of good character. In our judgment, these instructions taken together were not so confusing or contradictory as to prejudice the defendants. We think the jury properly understood these later instructions to modify, rather than contradict, the instruction in note 6. But that instruction would be better worded if it avoided the troublesome phrase “sufficient legal evidence” and simply told the jury that it must convict if persuaded of guilt beyond a reasonable doubt.

The majority concurs in Part III of Chief Judge Swygert’s dissent. The views there expressed apply with equal force to counts 5 and 8. The difference between us is only that we do not believe the jury’s verdict on those counts is unsupportable as a matter of law.

For the foregoing reasons, the judgments are affirmed except that Joyce’s and Sherre’s convictions under count 13 are reversed.

SWYGERT, Chief Judge

(dissenting in part).

I respectfully dissent in part. I cannot agree with the majority that there was sufficient evidence to support a conviction of Wallace on Count 5 and Joyce on Count 8, and accordingly I would reverse the convictions on these counts.

I

Count 5, briefly restated, charged all four defendants with the mailing of a letter to Tom Paterson of International Excess Agency, Inc., Cleveland, Ohio from codefendant Burton Sherre. In his letter, Sherre represented that codefendants Wallace, Joyce, and Ostrander agreed that “some of the cost” of Sherre’s legal fees for settling claims should come from Global funds held by International. The sum of $1,000 was specified. Sherre was found not guilty-on this count by the jury, and the trial judge granted Joyce’s post-trial motion for judgment of acquittal. Thus Wallace is the only defendant who now stands convicted under Count 5.

The majority has affirmed Wallace's conviction upon a finding of the following: Wallace was active in the affairs of Global at the time the letter was sent; the count letter falls within the conversion scheme; and Wallace was responsible for any letter which any other member of the scheme caused to be mailed in execution of the scheme.

I am unpersuaded that the count letter falls within the conversion scheme. The scheme as outlined in the indictment alleges that Global Surplus and Excess had represented that defendant held out inflated and non-existent assets to insurance brokers and state insurance agencies. The scheme was not use of the mails to defraud by settling claims and seeking payment from retained premiums to pay legal counsel. The letter upon which the conviction under Count 5 is based is solely an effort by Sherre to secure compensation for legal services rendered in effecting settlement of claims.

Assuming, arguendo, that the count letter can be said to fall within the conversion scheme, I cannot agree that the Government proved Wallace was in any way responsible for the letter. That letter, written by Sherre, merely indicates that Wallace along with the other codefendants, agreed to Sherre’s request made to Paterson. Conspicuous by its absence from the record, however, is any evidence of the following: that Wallace and the other codefendants had in fact agreed on how Sherre should be compensated for his services; that Wallace knew of the letter or of its mailing; that Wallace asked Sherre to send the letter; or that Wallace in any way ratified Sherre’s letter. Reliance upon the language in the letter without more is insufficient to support a finding of authorization or ratification by Wallace for the mailing of the letter.

I also harbor doubt as to how active Wallace was in the affairs of Global at the time the letter was sent since the record is replete with evidence that Wallace at the time was estranged from his codefendants.

II

I am additionally disposed to disagree with the majority in their affirmance of Joyce’s conviction on Count 8. That count charged defendants with causing International to send Joyce a copy of its letter to Carl Brown of Royal Excess Underwriters, St. Louis. The count letter informed its recipient that a financial statement of Global was enclosed with the consent of Joyce. Joyce is the only defendant who now stands convicted under this count. His eodefendants were acquitted on the count on the basis of their post-trial motions.

Setting aside the question of whether the letter can be construed as a part of the scheme alleged in the indictment, I find the record will not support a conclusion that there was sufficient evidence to establish proof of mailing a copy of the letter to Joyce or his receipt of it. The concession by the Government, “that the proof of mailing as to Count 8 is probably the most circumstantial” is close to demonstrating the vulnerability of the proof of mailing.

The Government unsuccessfully attempted to establish proof of mailing through the testimony of Tom Paterson who directed a subordinate to draft the letter and enclose a financial statement of Global. While Paterson testified to the customary procedures for mailing letters and copies in his office, it is significant that he did not personally prepare the letter and that he did not know whether he was in his office on the date shown on the letter. In this posture, Paterson could not say that a copy of the letter was ever mailed or received by Joyce in Chicago. No other testimony was offered by the Government to establish proof of mailing. The notation in the count letter “ec: Mr. Thomas Joyce” standing by itself is an insufficient basis from which to conclude that a copy was mailed to Joyce. Accordingly, the conclusion is inevitable that even when the evidence is viewed in a light most favorable to the Government, the record will not support a reasonable inference that a copy of the letter was sent to Joyce. ■

After the notice of appeal had been filed in this court, we remanded to the district court for the limited purpose of disposing of certain post-trial motions filed by Joyce. On remand a motion for judgment of acquittal on Counts 3 through 7 and 12 and 14 (on which Joyce had been found guilty) was granted. The district court denied the motion as to Count 8.

Later, Joyce’s codefendants secured a similar remand to the district court. The motion for acquittal on Count 8 was granted to Joyce’s codefendants Sherre and Wallace. In ordering acquittal, the district judge stated:

Count 8 alleges that defendants caused a letter to be mailed from Cleveland, Ohio, to defendant Joyce in this district. No such letter was ever offered in evidence. Instead, the government merely proved the mailing of a letter from Cleveland to St. Louis, Missouri, which bore the notation “cc: Mr. Thomas Joyce.” This is not a sufficient basis for a reasonable inference that a copy was mailed to Joyce. Without such an inference, a reasonable mind could not fairly conclude that the evidence showed the essential element of mailing beyond a reasonable doubt.

Afterward, Joyce asked for equal treatment. His request was denied, the judge reasoning that the district court had lost jurisdiction over Joyce because the limited remand as to him had terminated when his post-motions had been acted upon. This recitation of facts clearly demonstrates the unfairness to this defendant through an affirmance of Count 8.

Moreover, since the record is barren of any evidence to establish that Joyce ever received a copy of the letter in Chicago, it must be concluded that proper venue has not been established.

Ill

Although I do not dissent from the affirmance of the convictions under Counts 1, 10, and 11, I am troubled by them.

In my opinion, the Government has stretched to the breaking point the mail fraud statute by using as the count letter in Count 1 the acknowledgment from W. Kenneth Clark of the Industrial Valley Bank and Trust Company, Philadelphia, of Joyce’s request for a monthly bank statement of the Global account. The- acknowledgment letter was only tangentially related to the fraudulent scheme. I believe the intent of the statute would be better served by using mailings that have something more than a strained relation to the scheme, and not a miscellaneous, random piece of correspondence that requires tortuous reasoning on the Government’s part to sustain the conviction. •

The foregoing observation is equally applicable to Counts 10 and 11 where the count letter in Count 10 becomes the underlying basis for Count 11 since the latter count dealt with merely a forwarding of a photostatic copy of the Count 10 letter from the original addressee, Cosmopolitan National Bank, to Global. If the copy of the original letter had been forwarded several times through the mail, presumably the Government would have been able to indict for each separate mailing. It seems to me the prosecutor has a responsibility to exercise restraint and should not approve indictments on essentially irrelevant or duplicative mailings in order to increase the number of counts.

ORDER

Wallace’s petition for rehearing asserts that he must be acquitted on Count 5 since the jury acquitted codefendant Sherre and since the district court “erroneously” acquitted codefendant Joyce on that count (see p. 16). His claim is wide of the mark, for Count 5 is a substantive count, making inapplicable the federal rule that a jury may not convict one defendant of conspiracy and acquit his alleged conspirators.

When, as here, the jury found a scheme to defraud and that Wallace, Sherre and Joyce joined it, any inconsistency in its verdict as to one of the substantive crimes in furtherance of the scheme is governed by Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356. Furthermore, this point was not previously raised and comes too late.

The petition for rehearing is denied.

SWYGERT, Chief Judge, voted to grant the petition for rehearing.

      . As explained infra, the district court granted post-trial motions of acquittal as to some of the other counts.

      . Section 1341 of the Criminal Code provided as follows at the times of the mailings charged in the indictment:
      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . The indictment refers to this bank as being “of Philadelphia, Pennsylvania”; the bank officer testified that the letter was mailed from the suburban Marion, Pennsylvania, branch. Defendants do not assail this discrepancy.

      . The check payable to American Express is the only one of a series of checks drawn on the account (Govt. Ex. 116) on which both the payee and the date are legible. The district judge relied on this check because it was dated later than the count letter. We note that there 'are also six checks with illegible dates (but lower check numbers than the check to American Express) payable to defendants: two to Thomas Joyce, two to Burton Sherre, and two to Robert Ostrander.

      . Consequently, it is unnecessary to accept the Government’s additional argument that Joyce required these bank statements in order to misrepresent the balances on deposit in that bank.

      . The sentence in question provides :
      “Indeed the law requires a conviction where there is sufficient legal evidence to show the defendant is guilty beyond a reasonable doubt.”

      . For example, defendant’s Instruction No. 15 provided:
      “You cannot find any defendant guilty unless you believe beyond a reasonable doubt that he acted with the requisite intent. Evidence of a defendant’s relationship with Global Surplus and Excess Ltd. and his stake or lack of one in the financial success of that enterprise may be considered on the issue of intent. If you believe that a defendant lacked the requisite intent, then, as I indicated, it is your duty to find him not guilty.”
      A similar instruction was given on good character (note 8, infra), and on good faith.

      . The supposedly contradictory sentence provides :
      “The circumstances may be such in a particular case that evidence of good character may alone create a reasonable doubt of defendant’s guilt, -although without it the other evidence would be convincing.”

       Sherre remains convicted on.Counts 9, 10, 11 and 15 and Joyce on Counts 1, 8, 9, 10, 11 and 15.