41 F.2d 157 (9th Cir. 1930), 6028, Alford v. United States

Docket Nº:6028.
Citation:41 F.2d 157
Case Date:May 26, 1930
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 157

41 F.2d 157 (9th Cir. 1930)




No. 6028.

United States Court of Appeals, Ninth Circuit.

May 26, 1930

Rehearing Denied June 26, 1930.

DIETRICH, Circuit Judge, dissenting.

Page 158

Leo R. Friedman, of San Francisco, Cal., for appellant.

Samuel W. McNabb, U.S. Atty., and P. V. Davis and Gwyn S. Redwine, Asst. U.S. Attys., all of Los Angeles, Cal.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was convicted of using the mails to execute a scheme to defraud in violation of 18 USCA § 338, Criminal Code, Sec. 215. Appellant claims that one of the essential elements of the scheme alleged in the indictment was not proved, and that therefore he was convicted of a different scheme than that alleged in the indictment, and that thus his conviction is in violation of the Fifth Amendment of the Constitution (article 5), requiring that prosecutions be instituted by indictment. To understand this contention the allegations of the indictment which are rather lengthy will be summarized. The alleged scheme was to secure money from the victims by representing to them that the appellant was drilling and would continue to drill a development well upon a large tract of potential oil land in Cimarron county, Okl., of about 30,000 acres at a cost of $300,000; that the purchaser of such land from the appellant would secure by his grant deed to be executed when payment was completed a fee-simple title to the acre or more described in the contract of sale therefor which was to be executed by the appellant upon pary payment of the purchase price. It is alleged that appellant did not have title to the land sold and that he had no intention of securing title; that he did not intend to execute a deed; that the appellant was not drilling an oil well thereon as stated and he made the promise to continue to drill the development well without any intention of doing so. That is to say, he was to secure money by a fraudulent promise to convey land which he had no intention of conveying and by a fraudulent promise to drill a well he had no intention of drilling, and by a false representation that he was in fact then drilling such a development well which he was not drilling. The misstatement as to actual drilling was capable of direct contradiction and was so contradicted. The fraudulent intent with which the promise to convey title, and to continue to drill a development well, were made was necessarily to be proved by circumstantial evidence. Many of the allegations of the indictment are statements of the evidence tending to prove that these promises were made fraudulently with no intention to perform the same. These other evidentiary features of the alleged scheme or plan, it will be observed, set forth a plan not intended to be disclosed to the public. Along this line it is alleged that on January 17, 1927, the appellant secured an option on said 30,000 acres of land, which he had no intention of exercising; that the option required the payment of $25,200 in thirty-one days on February 18, 1927, whereupon a deed was to be given for 1,680 acres. That another payment of $32,400 for 2,160 acres of the land was to be made by April 17, 1927, which he did not intend to make and which he did not and could not make. The evidence shows without any conflict that the appellant made the false representation that he was actually drilling a well. The jury were justified from the evidence in concluding that the appellant never intended to drill the well. They were also justified in concluding from the evidence that the appellant did not intend to convey the land he agreed to sell. On this subject the evidence showed that the appellant merely had the option upon the land and that in order to perfect title to the acreage he sold it was essential that he make a payment by April 17, 1927, for which he had made no preparation and had no reasonable expectation of paying. It is true that the land he was to purchase at $15 an acre he was selling for $100 an acre by the false pretenses above mentioned, but the contracts were executed with a preliminary payment of 40 per cent. down and of this 62 1/2 per cent. was paid for commission, leaving no substantial part of the payments to be applied to the next installment upon the option contract which was so soon to be due. This, and other evidence which need not be stated, justified the finding of the jury as to...

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