United States v. Walker

• Decision Date: 25 July 1949
• Docket Number: Docket 21357.,No. 267,267
• Citation: 176 F.2d 564
• Parties: UNITED STATES v. WALKER.
• Court: U.S. Court of Appeals — Second Circuit

176 F.2d 564 (1949)

UNITED STATES v. WALKER.

No. 267, Docket 21357.

United States Court of Appeals Second Circuit.

July 25, 1949.

Martin Kingsley, New York City, for appellant.

Harold J. McAuley, New York City, for appellee.

Before L. HAND, Chief Judge, and CLARK and FRANK, Circuit Judges.

L. HAND, Chief Judge.

The defendant appeals from a conviction under an indictment in two counts, for transporting from Houston, Texas, to New York City sums of money, "taken feloniously by fraud and with intent to steal and purloin."¹ The first count alleged the transportation of $26,000 on February 17, 1947; the second, that of $23,500 on June 1, 1947. The defendant complains of five alleged errors committed during the trial: (1) that testimony was admitted against him of other similar offences; (2) that the evidence did not prove that he acquired any money by fraud; (3) assuming that he did, that the money which he "transported" was not that which he had so acquired; (4) that the court admitted the testimony of agents of the Federal Bureau of Investigation of admissions made by him to them before he had been arraigned; (5) that his wife was allowed to testify against him. The gravamen of the crime was obtaining two large sums of money by fraud from one, Mary Ashe, and taking them with him from Houston to New York, after he had gone through the form of marrying her, when he was already married to another. He had made Mary Ashe's acquaintance on a train and by his glitter impressed her with his importance; he followed her to Houston, which was her home, and, pretending that he was a man of great wealth and position, he inveigled her into marrying him. A former husband had settled upon her a warehouse in Houston which the defendant prevailed upon her to mortgage; and she gave him the proceeds, most of which he took with him on their wedding trip to New York. That was the offence charged in the first count. About three months later he persuaded her to sell the equity in the same warehouse and again to give him the proceeds, with which he and she once more went from Houston to New York. That was the offence charged in the second count. It is not necessary to state in detail the rodomontade by which he led on his unfortunate victim. We do not understand that he denies that, if it was false, he obtained the money by fraud; what he does assert is that the prosecution did not prove that in fact it was false. The money which he got from her the first time she gave him in the form of a cheque that she had received from the mortgagee. She went with him to a bank where he cashed it, and got in exchange two cheques of the bank to the order of the Railway Express Agency (one for $10,000 and one for $7,000), $3,000 in American Railway Travellers cheques, and $6,000 in cash. On the same day he exchanged the $7,000 cheque for an "unlimited" cheque (whatever that was), and the $10,000 cheque for 100 Travellers cheques. The evidence amply supported a finding that he carried much more than $5,000 of the Travellers cheques from Houston to New York. The transactions by which he exchanged the second cheque for the equity were so like the first, that we need not state them. On this occasion also he took more than $5,000 in Travellers cheques from Houston to New York.

The first alleged error is the admission of the testimony of two witnesses — Clara Duerr Walker and Sally Grehan — whom the defendant had defrauded in the same way that he defrauded Mary Ashe. He had gone through the form of marriage with both these women, and in the case of Clara Duerr Walker this resulted in a lawful marriage. Each of these witnesses testified that he picked her up, one at a restaurant, the other on a train, as he had picked up Mary Ashe; and that he followed up the acquaintance and persuaded her to marry him. He married Clara Duerr Walker on June 8, 1945, and, although it does not appear that he got any money from her thereafter, he had already persuaded her to lend him over $15,000, to obtain which she was obliged to sell her real estate. The braggadocio which he fed her was in large measure identical with that by which he hoodwinked Mary Ashe. Finally he dispatched her, first to Canada, and later to Alaska, where she lived in destitution until her eyes were at length opened, and at the time of the trial she had brought a suit against him for divorce. He proceeded in substantially the same way to defraud Sally Grehan of over $20,000, to obtain which she was obliged to sell most of her property, and to make herself also nearly destitute.

The judge admitted the testimony of these witnesses upon the issue of the defendant's fraudulent intent in the transactions charged, under the doctrine that, whenever specific intent is an element in a crime, other transactions of the same kind are relevant to show that the required intent was present upon the occasion in question. The doctrine is general and well established; we discussed its rationale in National Labor Relations Board v. National Seal Corporation;² and we know of no exception in this circuit unless it be Marshall v. United States,³ which we have several times declared that we would not follow.⁴ So far as that decision can be thought to have any vestigial authority, we take this occasion definitively to overrule it. Such testimony must indeed relate to an occasion near enough in kind to be rationally probative; but in the case at bar the defendant in dealing with Mary Ashe followed the pattern that he had employed in the cases of Clara Duerr Walker and Sally Grehan almost to the letter. The admission of this testimony was plainly right.

It is difficult to treat seriously the second alleged error: i. e. that there was no evidence to support a finding that the allurements, by which the defendant cajoled Mary Ashe out of her money, were not proved to be false. He appears to suppose that the prosecution failed on this issue, because it did not show in detail that he was not a man of ample means, that he did not own a racing stable with its proper colors, that he had no trust funds, "tied up" by income tax troubles, that he needed money only for temporary pecuniary relief from his embarrassments, or any of the other lies that he told Mary Ashe. That was not necessary, for the record discloses the trail of a patent swindler, who three times played upon the credulity of single women, fleeced them of all they had, and abandoned them. A jury who did not infer from this history that the enticements were false by which he abused his victims' confidence, would be incompetent to serve at all.

The third alleged error is a trifle more debatable: i. e. that, even conceding that the two cheques which Mary Ashe gave to the defendant were "taken feloniously by fraud", he did not violate the statute, because he did not carry either of them with him from Houston to New York. We are by no means prepared to hold that, whenever any one fraudulently obtains the property of another, the proceeds are not also "taken feloniously by fraud", into whatever form he may convert them. That is the view of equity, and it is impossible to find any reason in the purpose of the statute to distinguish between the original property and its substitute. We do not wish therefore to imply that it is not enough in every case that the accused has utilized "the channels of interstate commerce to make a successful get-away and thus make the state's detecting and punitive processes impotent."⁵ However, we need not go so far in the case at bar; arguendo we may concede that there are goods, procured by means of the property of the victim, whose transportation is not within the statute. Even so, it cannot be seriously argued that, if the accused defrauded his victim of bills of a large denomination and changed them into smaller bills, or vice versa, he would escape; and we recognize no distinction between such a case and the exchange of money from ordinary bank cheques into Travellers cheques.

The next supposed error was the reception of admissions made by the defendant to two agents of the Federal Bureau of Investigation. It is doubtful whether the defendant meant to object to the competence of this testimony upon the ground which he now argues: i. e. that the admissions were obtained in violation of the doctrine of McNabb v. United States,⁶ as expounded in Upshaw v. United States,⁷ However, we will assume that the objection was adequate, because we do not find enough in the record to support it in substance. The arrest took place on August 31st at a race-track in a small town in Maryland, called Cumberland. The 31st was a Sunday and the next day was Labor Day; and it does not appear that any commissioner was available before the admissions were obtained on September 2d. In view of the undisputed testimony of one of the agents that he told the defendant that he was free to be silent, if he chose, the testimony was prima facie competent, because the admissions were "voluntary." On the other hand, we read Upshaw v. United States, supra,⁷ as holding that, although admissions may be in fact "voluntary." they are nevertheless incompetent, if they are obtained after the time has expired within which the accused should be arraigned, as provided by Rule 5(a) of the Federal Criminal Rules of Procedure, 18 U.S.C.A. That is a separate and independent ground of exclusion; and the critical question here is whether there was a violation of Rule 5(a), and that depends upon whether it was possible to arraign him before a commissioner on Sunday, or on Labor Day. Although it is true that the prosecution offering such a statement must, as a condition of its reception, make affirmative proof that it was "voluntary," the burden of proving that the rule was violated should, we think, rest upon the defendant. Whatever may appear upon another trial, on this record, that was not shown and the testimony was properly admitted.

The fifth and last alleged error was the...