Brady v. United States

• Citation: 24 F.2d 399
• Decision Date: 03 January 1928
• Docket Number: No. 7786.,7786.
• Parties: BRADY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

24 F.2d 399 (1928)

BRADY v. UNITED STATES.

No. 7786.

Circuit Court of Appeals, Eighth Circuit.

January 3, 1928.

Clyde Taylor, of Kansas City, Mo. (Ernest S. Ellis, of Kansas City, Mo., on the brief), for plaintiff in error.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

James E. Brady, the plaintiff in error, William S. McClintock, and Arthur J. Baxter were charged by indictment with violations of sections 215 and 37 of the Penal Code (USCA tit. 18, §§ 338 and 88). The indictment contained nineteen counts. The first eighteen counts charged violations of section 215, and the nineteenth count charged a violation of section 37 of the Penal Code.

Brady and Baxter were tried jointly. While it does not clearly appear, we infer from the record that McClintock was not tried. Baxter was found not guilty under instructions of the court on each count.

Brady was found guilty under counts 1, 2, 3, 4, 5, 6, 8, 9, 13, 14, 15, 17, and 19. He was sentenced to imprisonment in the penitentiary as follows: On the first count, five years; on the second count, five years, "to begin at the expiration of the imprisonment imposed on the first count"; on the nineteenth count, two years, "to begin at the expiration of the imprisonment imposed on the second count"; and, on each of the remaining counts, five years, to run concurrently with the sentence imposed on the first count.

Count 1 charged that Brady, McClintock, and Baxter, hereinafter called defendants, "did knowingly, willfully, unlawfully, and feloniously devise and intend to devise a scheme and artifice to defraud Leo A. Mergen, the Union National Bank of Beloit, Kansas, * * * by obtaining money and property by means of false and fraudulent representations, pretenses, and promises."

It further alleged that the scheme and device was as follows: That defendants, in order to induce the Union National Bank to purchase from them certain notes and certificates of deposit, would by means of personal visits, solicitations, conversations, and correspondence, represent to Mergen, as cashier of the Union National Bank, that such notes and certificates of deposit were legal, valid, subsisting obligations of the individuals, partnerships, and corporations whose names were signed thereto or indorsed thereon, and that such notes and certificates of deposit were worth their face value and would be paid in full when due by the makers and indorsers thereof. It further alleged that it was a part of such scheme that the defendants would agree with Mergen to deposit with such notes and certificates of deposit collateral securities, to wit, stock of the Suburban Utilities Company and the Penny Products Vending Company, and would represent that such collaterals were of a value equivalent to or greater than the amount of money to be paid to defendants upon the note or certificate of deposit for which such stock would be deposited as collateral. It further alleged that it was a part of such scheme that the defendants would agree to deposit with such notes and certificates written guaranties of the worth of such notes and certificates of deposit, signed by James E. Brady and R. N. Stout, and would represent to Mergen that Brady and Stout were responsible parties and financially able to make such guaranties. It further alleged that it was a part of such scheme that defendants would furnish to Mergen what would purport to be a true and correct financial statement of the financial worth and responsibility of the companies and individuals whose names were signed as makers of such notes, and of the companies and corporations, the certificates of stock of which were to be pledged as security for such notes. It further described certain certificates of deposit and promissory notes and alleged that such notes and certificates were the ones intended by the defendants to be sold to the Union National Bank pursuant to such scheme, and that such notes were in fact sold and transferred to the Union National Bank. It further alleged that it was a part of such scheme that the collateral security to be deposited would be entirely worthless and of no value at the time said securities would be deposited, that the written guaranties would be signed by persons who would not be responsible for the amounts represented by such notes and certificates of deposit at the time such guaranties would be given, and that the financial statements would be entirely false and fraudulent. It further alleged that it was a part of such scheme that, by means of the false and fraudulent representations, pretenses, and promises, the Union National Bank would be induced to purchase such notes and certificates of deposit and pay to the defendants certain sums of money on such notes and certificates of deposit. It further alleged that the defendants at all times knew that the representations, pretenses, and promises to be made and which were in fact made, would be and were false and fraudulent, and that they intended thereby to defraud the Union National Bank out of money and property.

Count 1 then alleges that the defendants, "in the execution of the said scheme and artifice to defraud * * * and to further the purpose of the same, did on the 10th day of February, A. D. 1923, knowingly, willfully, unlawfully, feloniously, and fraudulently cause to be delivered to one Leo A. Mergen at Beloit, Kansas, * * * through the United States mails by the United States post office at Beloit, Kansas, * * * a certain * * * letter."

Count 1 then sets up a letter dated February 8, 1923, addressed to L. A. Mergen, Beloit, Kan., and signed by W. S. McClintock.

Count 1 then alleges "that said letter * * * had theretofore been deposited, or caused to be deposited, by the said defendants in the United States mails at the United States post office at Kansas City, Missouri."

Counts 2 to 18, inclusive, are substantially the same as count 1, except they set up different letters, and except the letter set up in count 7 is signed by McClintock, Quant & Ferguson, and the letters set up in counts 8, 16, 17, and 18 are signed by J. E. Brady.

Count 19 charged that the defendants "did * * * knowingly, willfully, unlawfully, and feloniously, conspire, combine, confederate, and agree together, in devising and intending to devise a scheme and artifice to defraud Leo A. Mergen of Beloit, Kansas, and the Union National Bank of Beloit, * * * and it was a part of said conspiracy, for the purpose of executing said scheme and artifice, and attempting so to do, to cause to be delivered through the United States mails by the United States post office at Beloit, Kansas, * * * certain letters and communications, which the defendants had theretofore caused to be deposited in the United States post office at Kansas City, Missouri, * * * and which scheme and artifice to defraud was that set forth and described in count one of this indictment, * * * that in furtherance of said combination, confederation, conspiracy, and agreement, and to effect the object thereof, said defendants did do and perform and cause to be done and performed certain overt acts, which said overt acts consisted of the causing to be delivered to Leo A. Mergen at Beloit, Kansas, through the United States mails, * * * the various letters, envelopes, and communications set out in counts one to eighteen, inclusive."

Counsel for defendant contend that the court erred in overruling defendant's demurrer to the indictment. They assign three principal grounds: First, because each of the first eighteen counts referring to the letter set up therein alleged in the alternative "that said letter had theretofore been deposited, or caused to be deposited, by the said defendants in the United States mails at the United States post office at Kansas City, Missouri"; second, because it failed to sufficiently charge the scheme to defraud; third, because it alleged a scheme to obtain, not money or property, but credit.

The allegations in the several counts of the indictment relative to the depositing of the several letters in the post office at Kansas City, Mo., is no part of the gravamen of the charge. Each count is adequate in law without such allegation. It alleges facts which are not necessary ingredients of the offense charged. It may be omitted without injurious effect to the material allegations of the charge. It is therefore surplusage. An indictment will not be held bad as in the disjunctive or alternative, where the alternative statement may be rejected as surplusage. Brady et al. v. U. S., No. 7788 (C. C. A. 8) 24 F.(2d) 397 (opinion filed January 3, 1928).

While the formation of a scheme or artifice to defraud is an essential element of the offense defined in section 215, supra, the gist of the offense is the use of the mails for the purpose of executing or attempting to execute such scheme, and it is therefore sufficient to charge the scheme with such particularity as will enable the accused to know what is intended and to apprise him of what he will be required to meet on the trial. Horn v. U. S. (C. C. A. 8) 182 F. 721, 727; Brooks v. U. S. (C. C. A. 8) 146 F. 223, 227; Redmond v. U. S. (C. C. A. 1) 8 F.(2d) 24, 28; Foster v. U. S. (C. C. A. 6) 178 F. 165, 171. The scheme need not be pleaded with all the certainty as to time, place, and circumstance required in charging the gist of the offense. Savage v. U. S. (C. C. A. 8) 270 F. 14, 18; Gardner v. U. S. (C. C. A. 8) 230 F. 575, 578; McClendon v. U. S. (C. C. A. 8) 229 F. 523, 525; Brooks v. U. S., supra; Chew v. U. S. (C. C. A. 8) 9 F.(2d) 348, 351; Mathews v. U. S. (C. C. A. 8) 15 F.(2d) 139, 143.

It is our opinion that counts 1 to 18, inclusive, each set forth the scheme with sufficient certainty to acquaint the defendant with the charge against him and...