United States v. McKay

• Decision Date: 18 July 1942
• Docket Number: No. 25947.,25947.
• Citation: 45 F. Supp. 1001
• Parties: UNITED STATES v. McKAY.
• Court: U.S. District Court — Western District of Michigan

45 F. Supp. 1001

UNITED STATES v. McKAY.

No. 25947.

District Court, E. D. Michigan, S. D.

July 18, 1942.

COPYRIGHT MATERIAL OMITTED

Nash Adams and Alfred Teton, both of Washington, D. C., for plaintiff.

Eugene L. Garey, of New York City (William R. Rawick, of New York City, of counsel), for defendant.

MILLER, District Judge.

This matter is before me on the defendant's demurrer to the indictment and his motion for a bill of particulars.

The indictment, consisting of two counts, charges the defendant with violations of Section 215 of the Criminal Code, 18 U.S.C. A. § 338, commonly referred to as the Mail Fraud Statute. It alleges in substance that on November 8, 1938, Frank D. Fitzgerald was elected Governer of the State of Michigan; that in both his primary and general election campaigns the major part of the advertising in his behalf was handled and directed by Bass-Luckoff, Inc., a Michigan corporation engaged in the advertising business in Detroit; that on and prior to November 8, 1938, Bass-Luckoff, Inc., had been fully paid for all services rendered and expenditures made by it with respect to both the primary and general election campaigns; that beginning in October, 1938, and continuously thereafter until February, 1939, the defendant Frank D. McKay and one Clarence E. Larson, since deceased, did feloniously devise and intend to devise a scheme and artifice to defraud and for obtaining money by means of false and fraudulent pretenses from Edsel B. Ford by the following means:

(a) By falsely representing that certain political organizations were then heavily indebted to Bass-Luckoff, Inc., for services rendered and amounts expended for campaign advertising in behalf of Fitzgerald, and that moneys obtained from contributors would be used to pay this outstanding indebtedness; where in truth and in fact as the defendant knew said representations were false and fraudulent in that there was at that time no such outstanding indebtedness and that any moneys so obtained from contributors were to be and were actually paid over surreptitiously to the defendant McKay for his own personal use;

(b) that after Bass-Luckoff, Inc., had been paid in full for all amounts owing to it for services rendered and sums expended in connection with said campaigns the defendant would and did cause to be placed on forms bearing the name Bass-Luckoff, Inc., certain invoices purporting to show sums of money then due and owing to Bass-Luckoff, Inc., for services rendered and expenditures made for campaign advertising in behalf of Fitzgerald, and did cause these invoices to be presented to contributors in the false and fraudulent guise of unpaid bills for the purpose of inducing the contributors to pay sums of money to Bass-Luckoff, Inc., in the belief that they were helping to pay off a political indebtedness owing to Bass-Luckoff, Inc.; that Bass-Luckoff, Inc., did not retain the money so paid by contributors but surreptitiously paid it over to defendant McKay for his own personal use:

(c) That the defendant McKay communicated with Harry H. Bennett and requested him to obtain from Edsel B. Ford a contribution towards the expenses of Fitzgerald's campaigns and for the payment of debts allegedly due to Bass-Luckoff, Inc., and presented to Bennett certain of the invoices marked to show indebtedness to Bass-Luckoff, Inc., and represented as being unpaid expenses of the gubernatorial campaigns, whereas in truth and in fact as the defendant knew the amounts represented items of expense previously paid and were false documents prepared for the use in the execution of the scheme described.

The first count then alleges that on or about November 26, 1938, the defendant did cause the United States mails to be used for the purpose of executing said scheme and artifice, specifically referring to and relying upon the mailing by the Union Bank of Michigan of Grand Rapids, Michigan, to the National Bank of Detroit, at Detroit, Michigan, of a cashier's check of the Detroit Bank of Detroit, Michigan, dated November 18, 1938, in the amount of $5,000 payable to the order of Frank McKay and endorsed by him. The second count charges the same scheme and artifice to defraud and then alleges that on or about the 1st of December, 1938, the defendant caused the United States mails to be used for the purpose of executing said scheme and artifice to defraud, specifically referring to and relying upon a mailing by the Union Bank of Michigan at Grand Rapids, Michigan, to the National Bank of Detroit, at Detroit, Michigan, of a check of Bass-Luckoff, Inc., drawn on the Detroit Bank of Detroit, Michigan, in the amount of $3,068 payable to the order of cash and endorsed by McKay. Photostatic copies of the two checks together with the endorsements on the reverse sides thereof are made parts of the respective counts of the indictments.

The motion for a bill of particulars consists of 15 separate requests, set out in separately numbered paragraphs. The purpose of a bill of particulars is largely to advise the defendant of what facts, more or less in detail, he will be required to meet. Thereafter in the trial of the case the Court will limit the Government in its evidence to those facts set forth in the bill of particulars. United States v. Adams Express Co., D.C., 119 F. 240; Kettenbach v. United States, 9 Cir., 202 F. 377, 383. Where the charges in the indictment are so general that they do not advise the defendant of the specific acts with which he is charged, it is proper for the Court upon motion by the defendant to order the filing of a bill of particulars, but it is not the purpose of such procedure to compel the Government to disclose in detail the evidence upon which it expects to rely. The application is one which is addressed to the discretion of the trial court, which should keep in mind and balance one against the other both the fact that the defendant is entitled to enough detail to enable him to meet the charges and prepare for trial and the fact that the Government should not be unduly limited in the scope and presentation of its evidence offered at the trial in support of the offense charged in the indictment. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. In the present case the allegations of the indictment are rather full and complete with references to the nature and scope of the alleged scheme to defraud and state specifically the use of the mails relied upon in each count. Most of the 15 requests call for details of evidence and in the opinion of the Court should be denied. The oral argument upon the demurrer showed, however, that as a practical matter it was advisable to have the Government state more definitely the details involved in the passage of the money from Edsel B. Ford through various channels until it came into the possession of the defendant McKay. These details are matters of documentary evidence and show facts which are apparently agreed upon by both counsel for the Government and for the defendant. Accordingly, the Government can not be prejudiced in any way by being required to state the facts in this particular phase of the case upon which it will rely, and such undisputed facts may as a practical matter materially aid in promptly disposing of this indictment. Accordingly, the Court overrules defendant's requests 1 through 9 inclusive and sustains his requests 10 through 15 inclusive, all as set out in his motion for a bill of particulars.

The Court indicated to counsel at the close of the oral argument its views as above set out and Government counsel has accordingly tendered its bill of particulars complying with this ruling. The Government contends, however, that the bill of particulars forms no part of the indictment and can not be considered by the Court in ruling upon the demurrer heretofore filed to the indictment itself. This position is technically sound. United States v. Comyns, 248 U.S. 349, 39 S.Ct. 98, 63 L. Ed. 287; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; United States v. Fawcett, 3 Cir., 115 F.2d 764, 766, 132 A.L.R. 404; United States v. Rintelen, D.C., 233 F. 793, 799; United States v. Reisley, D.C., 32 F.Supp. 432, 434. But as a practical matter such a rule under circumstances as they exist in this case serves no useful purpose. On the contrary, it impedes and delays the administration of justice. Because if the uncontroverted facts upon which the Government relies do not constitute the crime charged by the indictment there is no good purpose served in causing both the Government and defendant to make extensive and expensive...