Andrews v. United States

• Decision Date: 28 December 1939
• Docket Number: No. 4544.,4544.
• Citation: 108 F.2d 511
• Parties: ANDREWS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

108 F.2d 511 (1939)

ANDREWS et al. v. UNITED STATES.

No. 4544.

Circuit Court of Appeals, Fourth Circuit.

December 28, 1939.

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Louis H. Solomon, of New York City, and Frank E. Parrack, of Kingwood, W. Va. (Donald K. Crawford, of Elkins, W. Va., on the brief), for appellants.

Jacob S. Hyer, Asst. U. S. Atty., of Elkins, W. Va. (Joe V. Gibson, U. S. Atty., of Kingwood, W. Va., Bantz W. Craddock, of Glenville, W. Va., and Wayne T. Brooks, of Clarksburg, W. Va., Asst. U. S. Attys., on the brief), for appellee.

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

PARKER, Circuit Judge.

The appellants Lewis H. Andrews, Homer Vincent Hart, Jr., and Albert A. Scher were indicted in the court below with one Harry W. Sencindiver under 18 U.S.C. § 88, 18 U.S.C.A. § 88, for conspiracy to transport stolen merchandise of the value of $5,000 or more in interstate commerce and to receive, conceal, store, barter, sell and dispose of same after it had been stolen and with knowledge thereof in violation of 18 U.S.C. §§ 415 and 416, 18 U.S.C.A. §§ 415, 416. Sencindiver pleaded guilty to the charge contained in the indictment and the other defendants were convicted by a jury and from sentence of imprisonment have appealed. Their principal contention is that there was a fatal variance between the conspiracy charge in the indictment and the proofs, in that the indictment charges a single conspiracy whereas the proofs show independent conspiracies between Sencindiver and each of the other defendants.

A careful review of the evidence in the case convinces us that with respect to appellants Andrews and Scher a conspiracy with Sencindiver of the sort charged in the indictment is clearly shown; that Hart was not shown to be a party to this conspiracy but to a separate conspiracy with Sencindiver; that no prejudice resulted to Andrews and Scher from the fact that they were tried with Hart and that their conviction under the indictment should be affirmed; but that, since the conspiracy of Hart and Sencindiver related to merchandise of a value of less than $5,000, and since he was not shown to have been connected with the principal conspiracy which involved merchandise in excess of that value, his conviction must be reversed.

The facts, briefly stated, are as follows: Sencindiver was a shipping clerk of the Dunn Mfg. Co. at Martinsburg, W. Va. That company was engaged in the manufacture of high grade upholstery cloth having a value of $1.75 to $2.25 per yard. During the year 1937 he stole from the company 246 rolls of this cloth of a value of $27,508.50, and, during the succeeding year, 49 rolls of a value of $5,038.17, which he disposed of to his co-defendants Andrews, Scher and Hart for about one-third of its value. The portion of the cloth received by Hart, however, was of a value less than $1,000. The cloth was transported in interstate commerce, partly by motor carrier and partly by private automobiles, to Hagerstown, Md., whence the greater part of it was shipped by motor carrier to points in other states.

Andrews was employed at first as manager of an automobile garage owned by the H. V. Hart Company, in which the defendant H. V. Hart, Jr., was employed as a salesman of second hand automobiles. Cloth of the same sort as that stolen by Sencindiver had been purchased from him by Hart's father on two or three occasions at a low price and used in the garage; but there is no evidence of any criminality in connection with these purchases or that the defendant Hart had anything to do with them. Early in 1937 Andrews began purchasing cloth from Sencindiver and selling it to Scher who was a traveling salesman employed by a company in New York. In June 1937, he severed his connection with the Hart company and handled the transactions in the cloth from a garage which he established at another location. In January 1938, Scher began buying the cloth directly from Sencindiver and making payments directly to him. Hart had no dealings in the cloth until June 1938 and his dealings then were directly with Sencindiver. He is not shown to have had anything whatever to do with the dealings had by Andrews or Scher, and the evidence is clear that Scher protested to Sencindiver when he found that sales were being made to him.

The evidence clearly establishes as against Andrews, Scher and Sencindiver the conspiracy charged. Sencindiver admits stealing the cloth and the circumstances of his dealings with Andrews and Scher clearly support if they do not compel the inference that they knew he was stealing it. They were purchasing valuable merchandise from a mere shipping clerk at one-third of its value, or less. They were paying him for it in cash instead of in accordance with invoices presented by the owner. They were sending him money by telegraph addressed to him, not at his place of business, but in care of a lodge of which he was a member. The cloth was being taken from the plant after business hours and frequently at night; and Scher, as well as Andrews, knew of this fact, for the evidence shows that he made an automobile trip with Andrews to Martinsburg at night in October 1937 to obtain cloth. When Scher began purchasing direct from Sencindiver, he followed the same practice that had been followed by Andrews of sending money by telegraph in care of the lodge. Not only was the transportation in interstate commerce shown, but it is clear from the evidence that such transportation was contemplated from the beginning and that without the use of interstate commerce the fraud on the company could not have been perpetrated. Sencindiver was doing the stealing. Scher was furnishing a market for the stolen goods. Andrews, who seems to have devised the scheme, was acting as go-between, getting the goods from Sencindiver and shipping them on to Scher, until the latter began to purchase directly from Sencindiver.

It is argued that no violation of the federal statute was committed or could have been the object of the conspiracy because the value of no one of the shipments was of a value of as much as $5,000. It is clear, however, that the various shipments made in 1937, which were of a total value in excess of $27,000, were not separate and independent transactions, but were made pursuant to the conspiracy between Sencindiver, Andrews and Scher; and that this conspiracy gave them unity for the purpose of the statute. While, of course, transactions which are entirely separate and distinct cannot be grouped for the purpose of establishing a value within the statute, they may be considered together where they are not separate and distinct but are the carrying out of a single plan or conspiracy. The statute makes it a criminal offense to transport stolen goods of the value of $5,000 or more in interstate commerce; and it can make no difference that the transportation is accomplished by a number of different shipments, provided all are made pursuant to a single plan or agreement. It is argued, also, that the conspiracy charge cannot be sustained because the transportation of goods of the value of $5,000 was not shown to have been agreed upon even though the total of the goods actually transported exceeded that value. A...