Curley v. United States

• Citation: 81 US App. DC 389,160 F.2d 229
• Decision Date: 13 January 1947
• Docket Number: No. 9208,No. 9215.,9209,9208,9215.
• Parties: CURLEY v. UNITED STATES. SMITH v. SAME. FULLER v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

81 US App. DC 389, 160 F.2d 229 (1947)

CURLEY v. UNITED STATES.

SMITH v. SAME.

FULLER v. SAME.

Nos. 9208, 9209, No. 9215.

United States Court of Appeals District of Columbia.

Argued June 6, 1946.

Decided January 13, 1947.

Writ of Certiorari Denied June 2, 1947.

Mr. William E. Leahy, of Washington, D. C., with whom Mr. Nicholas J. Chase, of Washington, D. C., was on the brief, for appellant in No. 9208.

Mr. William A. Gallagher, of Washington, D. C., for appellant in No. 9209.

Mr. T. Emmett McKenzie, of Washington, D. C., for appellant in No. 9215.

Mr. William A. Paisley, Sp. Asst. to the Atty. Gen., with whom Mr. Edward M. Curran, U. S. Atty. at the time the brief was filed, of Washington, D. C., was on the brief, for appellee.

Mr. Sidney S. Sachs, Asst. U. S. Atty., of Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, WILBUR K. MILLER and PRETTYMAN, Associate Justices.

Writ of Certiorari Denied June 2, 1947. See 67 S.Ct. 1511.

PRETTYMAN, Associate Justice.

Appellants were indicted for violation of the mail fraud statute¹ and for conspiracy to violate that statute.² Trial was had before a jury. At the conclusion of the case for the prosecution, the defendants moved for directed verdicts of acquittal. The court denied the motions. Defendants Curley and Fuller stood on the motions and offered no evidence. Defendant Smith presented eight character witnesses and proffered certain documentary evidence. These three defendants were convicted on the conspiracy count. They were acquitted on some of the substantive counts and convicted on others. The appeals were consolidated for argument.

The evidence can be skeletonized for present purposes. There was an organized group, called Engineers' Group, later incorporated. The membership in the Group was identified, consisting, so far as here material, of its officers. Certain activities were carried on in the name of the Group, and the mails were used in furtherance thereof. Those activities included the negotiation and execution of contracts with manufacturing and construction concerns and the receipt of money from those concerns. The contracts related to the procurement of government war work and housing construction, and the furnishing of engineering and similar service in connection with that work. In the negotiation of the contracts, representations were made in the name of the Group as to business controlled by it, its staff, its assets, and the existing status of various government projects. The money was received by the Group under agreements that it be held as deposits and returned if contemplated business projects did not materialize.

The representations were false, and the agreements were not kept, except that three refunds were made from funds paid in by other people. The Group was represented as having within its control the designation of contractors on certain government housing projects and war work. It had none. Its staff was represented as large and experienced. It was not. It was represented as having large amounts of cash in bank and extensive security holdings. It had no such amounts or holdings. Certain housing projects were represented as having been approved by the Federal Housing Administration. They had not been. Commitments on financing were represented as having been made by financial institutions on certain projects. No such commitments had been made. These various representations were inducements for the contracts made by the Group with its customers or clients. They were made verbally, in letters, in contract agreements, and in a brochure widely distributed. The money received as deposits was not held but was spent as received.

The representations above described, or some of them, were made to every concern with which the Group concluded a contract, and to others with whom no contracts were concluded. The money received as deposits was the only money the Group ever received. No money was paid in to it as capital, although the corporation's financial statements indicated outstanding stock in the amount of $20,000; and none was loaned it by its owners or otherwise.

Engineers' Group began activities in June or July, 1941, and was incorporated in October of that year. The venture disintegrated in February, 1942, with overdrafts at the bank, unpaid wages to employees, and other unpaid bills. About $67,000³ had been received from customers and about $9,600 refunded to them.

The representations made in the name of the Group were usually made by appellant Fuller, its vice president. The contracts were in large part negotiated by Fuller, and all were executed by him. The office was managed by him, and he controlled the disposition of the funds on hand. He withdrew about $18,000 "in checks to himself or otherwise."

Appellant Curley was president of the Group from June 26, 1941, and of the corporation from its incorporation until his resignation about the middle of December, 1941. He introduced several customers, or clients, to Fuller, with statements such as that Fuller, "our man in Washington", had a project that was all ready to materialize, all ready to go; and "Mr. Fuller is our man who handles the details of these matters"; and "this group had several jobs and several contracts and they needed contractors to do them." Curley at one time sought to secure a "loan" from a bank to the Group, upon an understanding that the amount would remain in the bank as an account in the name of the Group, not subject to withdrawal; and that the bank would advise any inquirer that the Group had that amount on deposit at the bank. Curley knew money was being received by the Group upon condition that it be returned, as at least one depositor invoked his aid in securing a return of his deposit. Curley was frequently at the office of the Group in Washington and upon occasion was in the room while Fuller was discussing possible contracts with customers.

Curley did not execute any contracts. He did not, so far as the record shows, know of the brochure. He signed no letters. Except for the introduction of clients to Fuller and statements of the nature of those which we have quoted, he did not participate in the negotiation of contracts with customers. There is a dispute as to the source of a payment to him of $3,500 in currency, which he used on August 8 to take up the second of two checks signed by one Newcomb, payable to and endorsed by Fuller, which had not cleared. The first money shown by the record to have been received by the Group was not received until August 12. Curley testified in the Municipal Court of the City of Boston that he had received that amount "from one of the officials of the Engineers' Group", shown to have been Fuller, and that he "worked with them in the development of business." He said that in the transaction he had acted "as a messenger or agent." There is no evidence purporting to show that Curley received any other money from the Group.

The principal point made by appellant Curley is that the trial court erred in refusing to direct a verdict of acquittal as to him. It is not disputed that upon a motion for a directed verdict, the judge must assume the truth of the Government's evidence and give the Government the benefit of all legitimate inferences to be drawn therefrom. Appellant relies upon statements of this and other courts concerning the tests by which a trial judge must determine the proper action upon the motion. For example, in Hammond v. United States, 1942, 75 U.S.App.D.C. 397, 127 F.2d 752, 753, this court quoted from Isbell v. United States⁴ as follows: "Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt it is the duty of the appellate court to reverse a judgment against him."

It is true that the quoted statement seems to say that unless the evidence excludes the hypothesis of innocence, the judge must direct a verdict. And it also seems to say that if the evidence is such that a reasonable mind might fairly conclude either innocence or guilt, a verdict of guilt must be reversed on appeal. But obviously neither of those translations is the law. Logically, the ultimate premise of that thesis is that if a reasonable mind might have a reasonable doubt, there is, therefore, a reasonable doubt. That is not true. Like many another rule become trite by repetition, the quoted statement is misleading and has become confused in application.

The functions of the jury include the determination of the credibility of witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts. It is the function of the judge to deny the jury any opportunity to operate beyond its province. The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy. The critical point in this boundary is the existence or non-existence of a reasonable doubt as to guilt.⁵ If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make. The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge's function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fair...