Alexander v. United States

• Decision Date: 02 May 1938
• Docket Number: 10956,10957.,No. 10945,10946,10945
• Citation: 95 F.2d 873
• Parties: ALEXANDER v. UNITED STATES and three other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

95 F.2d 873 (1938)

ALEXANDER v. UNITED STATES and three other cases.

Nos. 10945, 10946, 10956, 10957.

Circuit Court of Appeals, Eighth Circuit.

April 12, 1938.

Rehearing Denied May 2, 1938.

COPYRIGHT MATERIAL OMITTED

George C. Dyer, of St. Louis, Mo. (Lee A. Hall, of St. Louis, Mo., on the brief), for appellants Date R. Alexander, George M. Lindsay, and George M. Lindsay, Jr.

P. H. Cullen, of St. Louis, Mo. (Clem F. Storckman and Cullen Coil, both of St. Louis, Mo., on the brief), for appellant Ali Y. Debeh.

David M. Robinson, Asst. U. S. Atty., and Harry C. Blanton, U. S. Atty., both of St. Louis, Mo., for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellants Date R. Alexander, George M. Lindsay, George M. Lindsay, Jr., and Ali Y. Debeh were convicted on each count of an indictment, consisting of eight counts, which charged the use of the mails for the purpose of executing a scheme to defraud, in violation of section 215 of the Criminal Code, 18 U.S.C.A. § 338. Although indicted and tried jointly, they have taken separate appeals, with but one bill of exceptions. The indictment charges that the appellants, and others named as defendants, devised a scheme and artifice to defraud numerous persons, including the public generally, and particularly those persons who would in the future desire the services of legally licensed and professionally competent doctors, surgeons, and chiropractors. All of the persons to be defrauded are referred to in the indictment as the victims of the fraud intended to be perpetrated.

The scheme charged in the indictment was in substance that the defendants named therein would obtain, prepare, and issue to numerous persons fraudulent and fictitious medical and chiropractic diplomas and certificates and fictitious licenses to practice medicine, surgery, and chiropractic in various states.

That the persons to whom such false and fictitious diplomas, certificates, and licenses were issued would open offices in the states of Arkansas, Iowa, and elsewhere and would enter upon the practice of medicine, surgery, and chiropractic; that such persons would display upon the walls of their offices and in prominent places therein the false and fictitious diplomas, certificates, and licenses within view of the victims; and that the victims would observe, read, and rely upon the false and fraudulent statements and representations in such diplomas, licenses, and certificates.

That by and through the statements in the false diplomas, licenses, and certificates they would falsely represent to the victims that the persons named therein had complied with all the requirements of accredited medical colleges and that they were qualified and authorized to practice medicine, surgery, and chiropractic; whereas appellants knew that all such statements were false and untrue.

And that the false and fraudulent statements and representations were to be made to effect the scheme and artifice to defraud by inducing the victims to submit themselves to the treatment of unlearned and incompetent practitioners not qualified nor authorized to practice medicine, surgery, or chiropractic, and to pay to such practitioners large sums of money for what the victims thought to be competent and legally licensed treatment.

Each count charges that for the purpose of executing the scheme the defendants caused a letter to be sent and delivered through the United States Mails.

There were five other defendants named in the indictment. They were William T. Gallagher, John M. Hamilton, A. E. Krebs, Claude E. Lewis, and Myrtle E. Long.

The case was tried to a jury and all of the appellants were found guilty upon each count. After motions for a new trial were overruled, the appellants George M. Lindsay and Date R. Alexander were sentenced to serve four years in the penitentiary on each count; the appellant George M. Lindsay, Jr., three years; and Ali Y. Debeh, two years. The sentences imposed on each appellant upon the several counts were to run and terminate concurrently.

In brief, the testimony introduced by the government on the trial shows that appellant Alexander was secretary of the Eclectic Medical University at Kansas City, Mo., from 1910 to 1915. That school went out of existence in 1916 and was succeeded by the Kansas City College of Medicine and Surgery. The latter college went out of existence in 1926 and was in turn succeeded by the American Medical University. Alexander was custodian of and had in his possession the records of these institutions. Numerous fictitious medical diplomas introduced in evidence came from these schools and were issued by Alexander. The diplomas, dated back many years, were issued after the schools had gone out of existence to applicants who never attended the schools.

The defendant Laws was secretary of the Eclectic State Medical Board of Arkansas from 1924 to 1933. He issued many fictitious licenses to practice medicine in that state to applicants, most of whom did not pass any examination.

The defendant Myrtle E. Long was secretary of the Iowa State Board of Chiropractic Examinations from 1924 to 1934; and, at the request of appellant George M. Lindsay, she issued a fictitious chiropractic medical license to appellant George M. Lindsay, Jr., for the sum of $250.

Through appellant George M. Lindsay appellant Debeh secured a fictitious high school diploma, a fictitious medical diploma from American Medical University, a fictitious certificate of the Arkansas Eclectic Medical Society, and a fictitious medical license from Eclectic State Medical Board of Arkansas, all for the sum of $2,500. Large sums of money were paid in most instances for the spurious diplomas, certificates, and licenses.

Two of the holders of these counterfeit diplomas, certificates, and licenses, Dews and Garner, testified that they hung them on the walls of their offices. A witness named Krebs testified that he saw them hanging on the walls of Dews' office in Arkansas.

Holders of some of the false diplomas and licenses testified that after receiving them they practiced medicine or chiropractic in various towns in several states earning from $2,000 to $3,000. Debeh practiced in Arkansas, Pennsylvania, Ohio, and West Virginia, collecting for his services $6,000 in all. Without any medical education, some of them practiced medicine, surgery, and obstetrics.

Many letters which passed through the mails were introduced in evidence, in addition to the eight set forth in the indictment.

In their original briefs the appellants argued that the indictment is defective; but in their reply briefs they say, "The appellants believe that said indictment is defective, but the defect in the indictment may not appear so clearly from a consideration of the indictment alone as to justify the sustaining of a demurrer * * * the indictment is attacked, not only because the indictment is defective, but because the testimony, regard being had for the allegations of the indictment, is wholly insufficient to make a case. * * * it is proper to construe the indictment in view of the testimony and the conceded facts which are undertaken to be stated in the indictment." Appellants' view of the case, as thus expressed, throws light upon and aids in understanding the alleged grounds for reversal.

The assignments of error will be rendered clearer by examining more closely the scheme to defraud in the light of the evidence. It will be observed that three classes of persons and a group of instrumentalities are involved. First, there are the persons who were the originators of the scheme. Their part in its performance was to obtain, prepare, and issue the bogus diplomas, certificates, and licenses. Second, there are the persons to be defrauded, the victims. They were the persons (the public generally) who would desire the services of doctors, surgeons, and chiropractors. Between the originators and the victims was a third class. They were the incompetent and unqualified persons who would pose as competent and qualified doctors; and by use of the fictitious credentials furnished by the original schemers, they would deceive the victims and effectuate the fraud. The instrumentalities to be used in the execution of the scheme consisted of the fake diplomas, certificates, and licenses falsely certifying to the qualifications of the persons whose names they bore.

For the purpose of attacking the judgments of conviction, the appellants divide themselves into two groups; each group is represented by different counsel; they have made different assignments of error; and have filed separate briefs.

The first group includes the appellants Date R. Alexander, George M. Lindsay, and George M. Lindsay, Jr. They admittedly belong to the class indicted as originators of the fraud. They are charged with planning the fraudulent artifice and with attempting to carry it into execution.

Appellant Ali Y. Debeh attacks alone and refuses to associate with his codefendants in this appeal. He admittedly belongs to the class to whom the false diplomas, certificates, and licenses were issued and who fraudulently imposed upon the innocent victims.

Following the plan of presentation in this court, we shall first consider together the errors assigned by Alexander and the two Lindsays. Their contentions may be thus summarized: (1) The indictment, in the light of the evidence, does not charge a criminal offense under the statute; or, stated more simply, the evidence is not sufficient to sustain the verdict of guilty; (2) the court erred in overruling the motions of these appellants for a directed verdict; and (3) the court erred in the admission of evidence.

Because of the close relation of the subject matter, the first two alleged grounds for reversal will be considered together. The first contention is that the burden was upon the government to prove all the material elements of the offense charged and that it failed...