Beckwith v. United States

• Decision Date: 19 October 1966
• Docket Number: 8526.,No. 8525,8525
• Citation: 367 F.2d 458
• Parties: Marvin BECKWITH, Appellant, v. UNITED STATES of America, Appellee. Ronald HAYDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

367 F.2d 458 (1966)

Marvin BECKWITH, Appellant, v. UNITED STATES of America, Appellee.

Ronald HAYDEN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 8525, 8526.

United States Court of Appeals Tenth Circuit.

October 19, 1966.

F. Nelson Pabst, Denver, Colo. (F. Nelson Pabst, Bruce G. McLellan, Denver, Colo., on the brief), for appellants.

Donald Cordova, Denver, Colo. (Lawrence M. Henry, U. S. Atty., Donald Cordova, Asst. U. S. Atty., Denver, Colo., on the brief), for appellee.

Before PHILLIPS, JONES^*, and SETH, Circuit Judges.

JONES, Circuit Judge.

The appellants, Marvin Beckwith and Ronald Hayden, along with Albert G. Jones, were charged in an eight count indictment with criminal offenses against the United States. Jones entered a plea of guilty. Beckwith and Hayden were tried on all counts of the indictment. At the trial Counts IV, V and VI were dismissed on motion of the Government, Counts VII and VIII were dismissed on motion of the appellants. The appellants were acquitted on Count I and convicted by a verdict of the jury on Counts II and III. Count II charged the fraudulent offering and sale of stock of Lamartine Mines, Inc., by the use of the mails, to Verner M. Ham, in violation of Section 17(a) of the Securities Act of 1933, 15 U.S.C.A. § 77q(a). Count III charged a like offense in the fraudulent offering and sale of stock of Lamartine Mines, Inc., to E. L. Merriman. Beckwith and Hayden have appealed from the conviction and sentence.

It was shown that Albert G. Jones, who was indicted with the appellants, had been the primary planner and organizer of the Lamartine Mine stock selling promotion. In the words of the district judge, "Jones, of course, is the one who concocted the scheme." Jones had entered a plea of guilty and was awaiting sentence at the time of the trial of Beckwith and Hayden. Evidence was admitted that Jones had made and attempted to make sales, by false and misleading representations, of stock of Trabella Uranium Mines, Inc., which by change of name became Lamartine Mines, Inc. The sales and efforts to sell Trabella stock, were made by Jones prior to the earliest date when Beckwith and Hayden were shown to be involved in the enterprise. Evidence was admitted of other statements and transactions of Jones which were made before Beckwith and Hayden were shown to have been in the Lamartine picture. The admission of such evidence is assigned as error. The rule is well settled that when two or more persons have conspired or confederated together to commit a criminal offense, everything said or done by one of them, during the existence of the conspiracy or confederation, and in furtherance of the common design, may be admitted in evidence against the others. Glover v. United States, 10th Cir. 1962, 306 F.2d 594; Beck v. United States, 10th Cir. 1962, 305 F.2d 595, cert. den. 371 U.S. 890, 895, 83 S.Ct. 186, 195, 9 L.Ed.2d 123, 128; Dennis v. United States, 10th Cir. 1962, 302 F.2d 5; Briggs v. United States, 10th Cir. 1949, 176 F.2d 317, cert. den. 338 U.S. 861, 70 S.Ct. 102, 103, 94 L.Ed. 528, reh. den. 338 U.S. 882, 70 S.Ct. 158, 94 L.Ed. 541; Bartlett v. United States, 10th Cir. 1948, 166 F.2d 920; Minner v. United States, 10th Cir. 1932, 57 F.2d 506.

Much of the testimony as to the doings and sayings of Jones was admitted before any evidence was brought in which linked Beckwith and Hayden with the scheme. In admitting such testimony over objection, the trial court instructed the jury that it could be considered only if the Government was successful in showing, by the production of proof, that Beckwith and Hayden entered into a scheme or plan with Jones to defraud others, and that the court would give further instructions. While testimony as to things done or said by one of the co-actors is admissible if there is evidence that the defendants were active participants in the fraudulent scheme, the court may, in its discretion, permit the proof of participation to follow evidence as to things said and done by the confederate, as was done in the case here. Briggs v. United States, supra; Bartlett v. United States, supra.

Some of the testimony which Beckwith and Hayden assert should have been excluded related to acts of Jones prior to the earliest date on which Beckwith and Hayden were identified with the fraudulent scheme. Testimony as to the acts or words of another on a date prior to the time when the defendants are shown to be in the scheme should not be admitted, or if already admitted should be disregarded by the jury. Where, as here, testimony as to the conduct of a co-actor is admitted before the participation of the defendants is shown, an instruction should be given directing the jury to disregard the testimony. United States v. Elgisser, 2nd Cir. 1964, 334 F. 2d 103, cert. den. 379 U.S. 879, 881, 85 S.Ct. 148, 151, 13 L.Ed.2d 86, 87. In sending the case to the jury, the court charged that persons who join themselves together and participate in an unlawful scheme become responsible for the acts and declarations of the others; and that before consideration may be given to statements and transactions made out of the defendants' presence as evidence against them, the jury must find that the defendants had knowingly and intentionally participated in the scheme, and that such statements or transactions were made or had in pursuance of the scheme to defraud. The appellants tendered a number of instructions, none of which related to the...