Goldstein v. United States

• Decision Date: 15 February 1933
• Docket Number: No. 9559.,9559.
• Citation: 63 F.2d 609
• Parties: GOLDSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F.2d 609 (1933)

GOLDSTEIN v. UNITED STATES.^*

No. 9559.

Circuit Court of Appeals, Eighth Circuit.

February 15, 1933.

Patrick H. Cullen, of St. Louis, Mo. (Abbott, Fauntleroy, Cullen & Edwards and Verne Lacy, all of St. Louis, Mo., on the brief), for appellant.

Bryan Purteet, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., and Cornelius J. Stattler, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

SANBORN, Circuit Judge.

The appellant was the defendant in the court below, and will be so designated in this opinion. He was the president and in control of the Fulton Fur Company, which was for several years engaged in the business of buying and selling furs at St. Louis, Mo. In order to induce trappers and traders to send their furs to him, he mailed out price lists and literature throughout the St. Louis trade territory, and did a considerable business during the latter part of 1929 and the early part of 1930. Complaints were made that his treatment of shippers did not square with the representations and promises contained in his circulars and price lists, and he was indicted for using the mails in furtherance of a scheme to defraud, under section 215 of the Penal Code, U. S. C., title 18, § 338 (18 USCA § 338).

The indictment contained six counts, each count charging the same scheme, but a separate use of the mails. The scheme was described as one to obtain the money and property of persons engaged in raising, trapping, and hunting fur-bearing animals and shipping furs. The pretenses, representations, and promises which it was charged were false were in substance as follows: That the defendant, through the Fulton Fur Company, would remit checks for shipments within eight hours of the receipt of furs; that he would hold shipments separate until the shippers had received the company's offer therefor; that he would give better service and better values for furs than other fur dealers; that furs shipped to him would receive a better grading and a higher market value than if shipped to other dealers; that shippers would, in all instances, get the benefit of any doubt as to grades; that slightly unprime skins would be classed as prime; that year after year shippers to the defendant were satisfied; that the defendant employed expert graders who watched for large and extra fancy dark skins; that he would personally pledge fair and honest grading of furs; that the prices offered in his price lists sent to shippers were higher than the regular market prices and higher than those quoted by other reputable dealers; and that the defendant would give better grading and better prices than other reputable dealers.

The defendant entered a plea of not guilty to the indictment, and was tried. The government produced some thirty witnesses. Five of them were persons named in the various counts of the indictment (except the second count) as persons who had dealt with the defendant through the mails. Eleven of the government's witnesses testified as to having shipped furs to the defendant. Two post office inspectors testified as to admissions of the defendant and as to the interception and inspection of certain shipments mailed to the defendant. Three of the witnesses testified as to the character and value of the furs in the intercepted shipments, and nine testified as to the use of the mails.

The evidence of the government tended to show that the defendant did not always remit within eight hours for furs received; that he did not always hold shipments separate; that he did not grade prime furs as prime; that he did not pay the highest market value for furs or give the highest grades to which furs shipped to him were entitled; that he did not pay the prices contained in his price lists; and that, in conducting his business, he used the mails as charged in the indictment.

The evidence of the defendant tended to show that there was no wilful delay in the remittance of money; that at least ninety-five per cent. of the remittances were made the same day the furs were received; that he held shipments separate when requested to do so; that if there was any failure to hold separate, it was due to failure on the part of the clerk who attended to such matters; that he employed a trained expert fur grader who, as furs were received, announced the grades, and the prices according to the defendant's price lists, and that the defendant listed them as announced by the grader and remitted accordingly; and that the prices paid were all that the furs were reasonably worth.

The government dismissed the second count of the indictment.

A motion for a directed verdict in favor of the defendant was made at the close of the government's testimony and at the close of all the testimony. These motions were denied. At the close of the government's case, a motion was made to treat certain portions of the indictment as surplusage, and that motion was denied. The jury found the defendant guilty upon all the counts of the indictment (except the second), and he was sentenced to five years in the penitentiary. From this judgment and sentence he has appealed.

The defendant specifies a number of errors, which may be classed under four heads: (1) Those which relate to the indictment; (2) those which relate to the conduct of the court; (3) those which relate to rulings upon evidence; (4) the sufficiency of the evidence. The errors specified will be discussed in that order.

1. With reference to the indictment, the defendant contends that "the Court erred in overruling the defendant's motion praying that certain parts of the indictment be treated as surplusage and withdrawn from consideration by the jury."

As has been stated, this motion was made at the close of the government's case. The defendant asked that the court treat as surplusage the following allegations of the indictment: (1) that the defendant did not remit for furs within eight hours; (2) that the shipments were not held separate; (3) that the defendant did not give better service and better values than were offered by other reputable dealers; (4) that the defendant did not maintain a fixed standard of grading furs, and would not and did not pay the highest market value for furs shipped; (5) that the defendant did not maintain expert fur graders. Upon the argument of the motion, the court expressed the opinion that some of these matters standing alone would constitute mere puffing, but that he would deal with them in his charge to the jury. In making the motion, the defendant evidently relied upon certain language of this court, which appears in the case of Beck v. United States, 33 F.(2d) 107, 110, with reference to surplusage in the indictment. In that case, we said: "This situation can be remedied by the court, upon proper motion sufficiently in advance of the trial, determining what misrepresentations the defendant will be required to meet on the trial."

The proper motion would be a demand for a bill of particulars. Where a defendant desires to be informed, before entering upon the trial, what particular parts of an indictment will be relied upon as bringing the case within the statute, he may apply for a bill of particulars, which the court, in the exercise of a sound legal discretion, may grant or deny as the ends of justice require. Rosen v. United States, 161 U.S. 29, 35, 16 S.Ct. 434, 480, 40 L.Ed. 606; Cochran v. United States (C.C.A. 8) 41 F.(2d) 193, 198; Chew v. United States (C.C.A. 8) 9 F.(2d) 348, 353; Rimmerman v. United States (C.C.A. 8) 186 F. 307, 310; Rinker v. United States (C.C.A. 8) 151 F. 755, 759; Salerno v. United States (C.C.A. 8) 61 F. (2d) 419, 421.

So far as we are aware, there is no method of compelling the court, in the midst of a criminal trial, to advise counsel what portions of the indictment he regards as surplusage, and the refusal of the court to grant such a motion as was made in this case is not reversible error.

Surplusage in an indictment consists of allegations of matter wholly foreign and impertinent to the cause, unnecessary averments, or allegations without which the pleading would yet be adequate. Mathews v. United States (C.C.A. 8) 15 F.(2d) 139, 142. See United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904.

Mere surplusage in an indictment may be disregarded, and in a case such as this, where a number of false representations are alleged tending to establish the existence of the scheme, it is not necessary for the government to prove all of the false representations charged if proof of a lesser number lays a sufficient foundation for a finding by the jury that the scheme was in fact devised. Mathews v. United States, supra. See, also, Hall v. United States, 168 U.S. 632, 639, 18 S.Ct. 237, 42 L.Ed. 607; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; United States v. Noveck, supra; Silkworth v. United States (C.C.A. 2) 10 F.(2d) 711, 715. What the defendant will be called upon to meet will depend upon the state of the evidence when the government rests.

It is apparent that, if a defendant does not see fit to apply for a bill of particulars in advance of a trial, he can save for review the question as to whether certain allegations in the indictment are surplusage, in several ways: He may object to all evidence tending to prove the allegations at the time the evidence is offered; he may move to strike out all such evidence if received; at the close of all the evidence he may ask the court to instruct the jury to disregard the surplus allegations and except to the denial of his request; and he may except to the charge of the court submitting to the jury for their consideration such allegations. It is apparent that the rights of the defendant can be fully protected without requiring the court to rule upon such a motion as was made in this case.

2. The record indicates that the trial lasted for about...