Bauman v. United States, 11631.

• Decision Date: 06 August 1946
• Docket Number: No. 11631.,11631.
• Citation: 156 F.2d 534
• Parties: BAUMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

156 F.2d 534 (1946)

BAUMAN v. UNITED STATES.

No. 11631.

Circuit Court of Appeals, Fifth Circuit.

June 27, 1946.

Rehearing Denied August 6, 1946.

Howard F. McCue, of Topeka, Kan., for appellant.

Malcolm E. Lafargue, U. S. Atty., of Shreveport, La., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

Appellant pleaded guilty in May, 1943, to an indictment of four counts returned in February, 1939, in the Western District of Louisiana, which charged the fraudulent use of the mails in furtherance of a scheme to defraud, in violation of Section 338, Title 18 U.S.C.A. He received a sentence of five years in the penitentiary on the first count and was placed on probation on the remaining counts. After serving over two years of his sentence, Appellant filed, in the Court that sentenced him, a motion to vacate the judgment and sentence and to dismiss the indictment.

He grounded his motion on the decisions in Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88, 157 A.L.R. 406, and Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286, and similar cases, wherein it was held that the Federal Court had no jurisdiction of offenses in which there was no use of the mails until after the fruition of the fraudulent scheme.

The indictment alleges: that the defendant fraudulently and feloniously devised a scheme to defraud the Enochs-Kinney Refrigeration Company, Amarillo, Texas, the Amarillo National Bank, Amarillo, Texas, the Washington-Youree Hotel, Shreveport, Louisiana, Don Freeman, Shreveport, Louisiana, the Bentley Hotel, Alexandria, Louisiana, and sundry other corporations and persons to the grand jurors unknown; that the defendant, alias Dowling, alias Hunt, alias Van Dyke, represented that he was in the employ of the Enochs-Kinney Refrigeration Company of Amarillo, Texas, as an airconditioning engineer; that he had checks purportedly issued to him by said Enochs-Kinney Refrigeration Company, drawn on the Amarillo National Bank, and that defendant, using fictitious names, wrote checks for various amounts to which he signed and forged the name of the Enochs-Kinney Refrigeration Company and its President, which forged checks were payable to the defendant under one of his false or fictitious names; that the defendant would and did present such checks for payment to the Washington-Youree Hotel in Shreveport, the Bentley Hotel in Alexandria, and to other persons, and did prevail upon them to cash said checks for various amounts of money; that at the time of drawing and cashing the checks the payee whose name the defendant wrote therein had no money due from Enochs-Kinney Refrigeration Company; that the defendant well knew that said checks were for the sole purpose of defrauding the persons to be defrauded; that on the 8th day of October, 1938, having so devised the said scheme to defraud the said Enochs-Kinney Refrigeration Company of Amarillo and other named and un-named victims, the defendant, "in and for executing the scheme and artifice, and in and for attempting so to do, and in and for defrauding, by and through said scheme and artifice, the said Washington-Youree Hotel of Shreveport, Louisiana; the said Enochs-Kinney Refrigeration Company of Amarillo, Texas; * * * willfully, unlawfully, knowingly, feloniously, and fraudulently did cause to be placed in the Post Office * * * at Shreveport * * * to be sent and delivered * * * to the said Amarillo National Bank * * * a certain letter * * * which said letter contained a check drawn on the Amarillo National Bank * * * in the sum of $55.00, dated October 6, 1938, and signed by Enochs-Kinney Refrigeration Company, by Ed Enochs * * *" which check defendant knew was fictitious and falsely forged and would not be paid or honored. (Quotation from Count 1 of the indictment.)

The other counts are similar except they have reference to other checks and other mailings on other dates.

We agree that an indictment under the mail fraud statute which shows on its face that the mailing was after the perpetration or accomplishment of the fraud would confer no jurisdiction upon the Federal Court to try such an offense, and that a judgment or sentence based thereon would be void and subject to be set aside on motion at any time. In order to confer jurisdiction upon the Federal Court the devising of a scheme to defraud must be alleged as well as the use of the mails in the execution or attempted execution of such fraudulent scheme.

The question now before us is whether or not the indictment shows that the fraudulent scheme had come to fruition before the mailing of the forged and false checks to the drawee bank. The facts here are quite different from those in Dyhre v. Hudspeth, supra, in which case the fraud had been perpetrated and fully consummated before the check was mailed. There the defendant had drawn a check in favor of himself on a bank in Colorado, which check was signed by a fictitious person named Lewis when he well knew that he had no funds in said bank to the credit of the said G. L. Lewis. The only person alleged to have been defrauded by Dyhre was the Pan-American Service station to whom the said check was negotiated. The other transactions in the other counts of that case were of the same type. The fraud was completed when the defendant got the victim to cash the check.

In Kann v. United States, supra, the checks were genuine. The defendants cashed them at a bank which became the owner of the checks and entitled to have them paid by the bank on which they were drawn. There was no question of forgery nor absence or inadequacy of funds. The fraud lay in the fact that the payees, in those checks, did not own the property for which the checks were given in purchase. The transmission through the mail was by the bank, the lawful owner of the checks, and was not a part of, nor in furtherance of, the scheme to defraud. The mailing was merely an act by the bank to secure reimbursement to itself for monies which it had paid out on those checks to payees who had no defense against their payment to it. The checks in question were drawn by Elk Mills on its own account in the Peoples Bank of Elkton.

In the present case the checks were drawn by the defendant on Enochs-Kinney Refrigeration Company with the name of the President of that company forged thereto. The indictment alleges that the defendant devised a scheme to defraud — not merely the hotel which cashed the check, but the Enochs-Kinney Refrigeration Company, the Amarillo National Bank, as well as the hotels and others who cashed the checks. It is definitely alleged that the scheme intended to defraud the concern against whose account the checks were drawn, and it is definitely alleged that in the execution of that scheme and in the defrauding by said scheme of the Enochs-Kinney...