Aiken v. United States, 4498.

• Decision Date: 14 December 1939
• Docket Number: No. 4498.,4498.
• Citation: 108 F.2d 182
• Parties: AIKEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

108 F.2d 182 (1939)

AIKEN v. UNITED STATES.

No. 4498.

Circuit Court of Appeals, Fourth Circuit.

December 14, 1939.

C. Granville Wyche, of Greenville, S. C., and C. Erskine Daniel, of Spartanburg, S. C. (Alfred F. Burgess, of Greenville, S.C., on the brief), for appellant.

Oscar H. Doyle, U. S. Atty., of Anderson, S. C. (Edward P. Riley and Thomas A. Wofford, Asst. U. S. Attys., both of Greenville, S. C., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and DOBIE, District Judge.

DOBIE, District Judge.

Defendant (appellant) was convicted in the United States District Court for the Western District of South Carolina for using the mails to defraud. 18 U.S.C.A. § 338. The indictment was in seven counts. The first and seventh counts, charging offenses under the Securities Act of 1933, 15 U.S.C.A. § 77 (q), were quashed by the trial judge; so defendant was tried and convicted under the Mail Fraud Statute on counts two to six, inclusive.

As a ground for reversal, defendant insists that the indictment is uncertain, indefinite and duplicitous. The chief basis for this attack appears to be in the fact that the alleged fraudulent scheme (an essential element in the crime for which he was convicted) was set out in the first count of the indictment (which count charged an offense under the Securities Act), and this alleged fraudulent scheme was incorporated by reference into all the succeeding counts of the indictment. In as much as the trial court quashed the only two counts dealing with the Securities Act (counts one and seven), leaving only those counts (two to six, inclusive) that charged offenses under the Mail Fraud Statute, and since defendant was tried and convicted only on these latter counts, we are not impressed by this contention. This alleged fraudulent scheme, we think, was set out in the first count of the indictment with sufficient precision and certainty to apprise defendant fully of the crime for which he was tried. And, with the counts dealing with the Securities Act eliminated, we think the incorporation by reference of the alleged scheme set out in the first count of the indictment into counts two to six thereof was so clear and so specific as not to fall within the condemnation of Asgill v. United States, 4 Cir. 1932, 60 F.2d 780.

Error, too, is predicated on the entry into the juryroom of the duly qualified deputy federal marshal, charged with the care of the jury (though not specially sworn as bailiff in charge of the jury), while the jurors were deliberating over their verdict. This entry was without the consent or permission of either the Court or counsel for defendant. According to the record, the deputy marshal entered the juryroom with two pitchers of water. He did nothing to influence any member of the jury as to a verdict, he remained there less than a minute, and the only conversation between the deputy marshal and any juror was a request by a juror for cigars, a request with which the deputy marshal did not comply. Though this entry of the deputy marshal into the juryroom was under the circumstances "thoughtless and inadvertent" (as the trial judge said), we cannot, in the absence of any showing that this unfortunate episode was prejudicial to defendant, be so technical as to hold that this constituted error justifying a reversal.

The most difficult question in the case, one that gives us real concern, is raised by appellant's contention that there was not sufficient evidence of any fraudulent scheme to justify even the submission of this issue to the jury. On behalf of the United States it was urged that the formation of the Industrial Finance Company was without any idea of conducting any business on a scale that might have yielded real profits, but rather it was, in its inception, a scheme by which the defendant intended to defraud the public largely through subscriptions to the corporate stock. While for defendant, with equal earnestness, it is insisted that defendant organized this corporation to expand a legitimate business he had already conducted, and that the evidence shows no more than mere corporate irregularities due to the commercial ineptitude and economic ignorance of the defendant. In this connection it might be remembered that defendant was educated in the law and had held for a time a minor judicial office.

Fraudulent intent, as a mental element of crime, (it has been observed) is too often difficult to prove by direct and convincing evidence. In many cases it must be inferred from a series of seemingly isolated acts and instances which have been rather aptly designated as badges of fraud. When these are sufficiently numerous they may in their totality properly justify an inference of a fraudulent intent; and this is true even though each act or instance, standing by itself, may seem rather unimportant. Analogies are always dangerous but sometimes rather helpful. So the old analogy of the rope seems in order: any single strand may easily be pulled apart, but many weak strands combined into a single rope may have such tensile strength as to resist the efforts even of a giant to tear it asunder. On this principle then, we believe that the judgment below should be affirmed. So we proceed to consider seriatim these badges of fraud in the case before us.

The circumstances surrounding the birth of the Industrial...