Bergera v. United States

• Decision Date: 28 February 1924
• Docket Number: 6291,6301.
• Citation: 297 F. 102
• Parties: BERGERA v. UNITED STATES. THOMSON v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

297 F. 102

BERGERA v. UNITED STATES.

THOMSON v. SAME.

Nos. 6291, 6301.

United States Court of Appeals, Eighth Circuit.

February 28, 1924

Rehear Denied May 12, 1924. [Copyrighted Material Omitted]

A. L Hoppaugh, of Salt Lake City, Utah (Frank A. Johnson, Charles C. Dey, and Robert E. Mark, all of Salt Lake City, Utah, on the brief), for plaintiff in error Bergera.

D. N Straup, of Salt Lake City, Utah (Joel Nibley, of Salt Lake City, Utah, on the brief), for plaintiff in error Thomson.

John Jensen, Sp. Asst. U.S. Atty., of Salt Lake City, Utah (Charles M. Morris, U.S. Atty., and David H. Cannon, Asst. U.S. Atty., both of Salt Lake City, Utah, on the brief), for the United States.

Before KENYON, Circuit Judge, and TRIEBER and MUNGER, District Judges.

KENYON Circuit Judge.

On the 23d day of April, 1921, the grand jury of the District Court of the United States for the District of Utah, sitting in the Central Division thereof, returned an indictment in ten counts against Matthew McBlain Thomson, Thomas Perrot, Dominic Bergera, and Robert Jamieson, herein designated as defendants. Count 1 charges a conspiracy to commit an offense against the United States, to wit, to violate section 215 of the federal Penal Code (Comp. St. Sec. 10385), relating to the use of the United States mails to promote fraud. The other nine counts are not based upon a conspiracy, but allege the use of the mails to defraud. The alleged scheme to defraud is identical in all counts, and briefly is that defendants, without authority or right, acting through the instrumentality of the American Masonic Federation, a corporation of the state of Idaho, and the Confederated Supreme Councils of the American Masonic Federation, a corporation of the state of Utah, were conferring spurious Masonic degrees upon various and sundry individuals and receiving money therefor; that they represented to the public generally throughout the United States, for the purpose of inducing parties to join their organization, that they had authority to confer craft degrees in Masonry by virtue of a charter from the Supreme Council, A.A.S.R. of Free Masonry for the Sovereign and Independent State of Louisiana, the right being given by said Supreme Council of Louisiana, a corporation of that state, to defendant Thomson, and thereafter surrendered and transferred by him to the American Masonic Federation; that said Supreme Council of Louisiana traced its Masonic authority and power to Mother Kilwinning Lodge No. O of Scotland, which they represented to be the oldest known source from which Masonic power flowed; that the power to confer the high degrees in Masonry to consistories, councils, and conclaves was by virtue of a patent granted defendant Thomson by the Grand Council of Rites of Scotland in the year 1898; Thomson transferring said patent to the Confederated Supreme Councils of the American Masonic Federation. The indictment also alleges that fraudulent and deceptive representations were made, not only as to the chain of title, but as to the authority and power and history of these two corporations, and that defendants falsely and fraudulently represented that said American Masonic Federation, and said the Confederated Supreme Councils of the American Masonic Federation were the only regular, legitimate and true Scottish Rite Free Mason bodies in America, and that they traced their history through regular and true charters to legitimate Scottish Rite bodies in Scotland, which Scottish Rite bodies were of unimpeachable authority, reputation, and responsibility, reckoning their existence from time immemorial; that such representations were false, and that, in carrying out said scheme to defraud, papers, magazines, and letters were mailed by defendants.

The case was tried to a jury, and defendants Thomson, Perrot, and Bergera were found guilty on all counts. Jamieson was never within the jurisdiction of the court. May 16, 1922, the three defendants were each sentenced on each count to two years in the United States penitentiary at Leavenworth, said terms to run concurrently, and each to pay a fine of $5,000 on the first count. Thomson and Bergera bring writ of error to this court. Perrot is serving his sentence. The cases of both defendants were presented and heard together, and we deal with both in one opinion, referring for convenience to the cases by their numbers, viz. Bergera case, No. 6291; Thomson case, No. 6301.

It is without question in the evidence that the American Masonic Federation was incorporated under the laws of Idaho in 1907, and that the Confederated Supreme Councils of the American Masonic Federation was incorporated under the laws of the state of Utah, January 3, 1911. The Confederated Supreme Councils dealt only with the higher degrees of the alleged Masonry. Defendant Thomson, from the time of the organization of the American Masonic Federation, up to the time of the return of the indictment, organized lodges throughout the United States and in some foreign countries, and a membership running into the thousands was secured. Offices of both corporations were maintained at Salt Lake City. It was also without dispute that Thomson did receive from the Grand Commander of the Grand Council of Rites of Scotland, April 20, 1898, a charter or patent, as follows:

'Unto All Free and Accepted Masons of Whatever Degree-- Greeting: Know ye that we, the M.E. and R. Sovereign Grand Master and High Priest of the Scottish Grand Council of Rites, do authorize and empower our trusted and well-beloved frater cousin and brother in the bond, Matthew McBlain Thomson, XLVII degree 33 degree 33 degree 90 degree 96 degree to confer upon any worthy Mason any degree recognized and wrought under our Grand Council and to establish councils, conclaves or tabernacles for working the same in any country where there is not already a Grand body working such degrees, and this shall be his warrant for so doing.

'As witness our hand and the seal of Grand Council.

'At Airdrie, Scotland, this twentieth day of April, A.D. 1898.

'Peter Spence, M.E. & R.S., G.M. & H.P.'

That he brought this patent with him to America. Later he secured from Joseph N. Cheri, Grand Commander of the Supreme Council of Louisiana, an indorsement on the patent as follows:

'We, Jos, N. Cheri, M.O.S.G.C. of the Supreme Council of the State of Louisiana, do heartily indorse the purposes on the reverse hereof.

'J. N. Cheri, M.P.S.G., C. of the S.C. of La., 'Honorary Member of the G.C. of Rites of Scotland.'

There appears also the following indorsement on the patent:

'Recognized by me October 23, 1906. E. V. Harry Goode 33 (degree) Supreme Council Spain.' Thomson had been a Mason in Scotland. In 1881 he came to America and in due time became an American citizen. In 1886 or 1887 he returned to Scotland, where he remained until 1898. He was a student of Masonry, learned in its history, traditions, and customs. Before leaving Scotland he took a demit from the Scottish Lodge. Taking up his residence in Idaho upon his return from Scotland, he became a member of the King Solomon Lodge, No. 17 of the Grand Lodge of Idaho. In 1906 he took a demit from that lodge. Thomson was the head of the Confederated Supreme Councils and of the American Masonic Federation, and had charge of the work of these two corporations. He was the guiding genius and master mind in the operation of these institutions.

Defendant Bergera had nothing to do with the organization of the American Masonic Federation, but was one of the organizers of the Confederated Supreme Councils of American Masonic Federation, and occupied the exalted position of Grand Almoner (whatever that may be). He had been in business at Diamondville, Wyo., and there became a member of the local lodge of the American Masonic Federation, taking the first three degrees, and afterwards the fourth to the thirty-second. He had correspondence with Thomson regarding the establishment of a lodge at Helper, Utah. Receiving a circular sent out by the Grand Lodge of Utah, branding the Diamondville Lodge as spurious, he took the matter up with the Grand Lodge of Utah, and tried to make some investigation. Afterwards, in 1913, he went to Europe, and claims to have visited the Grand Council of Rites in Scotland. Bergera came back and was active in the work of the organizations. He held the office of Grand Treasurer General. There is little serious dispute as to the facts.

Many assignments of error are urged. Both defendants raise the question that the evidence was not sufficient to warrant the submission of the case to the jury or to sustain the finding of the jury. This requires a review of the evidence. The case is not limited merely as to alleged false representations as to rights to confer degrees acquired from the Grand Council of Rites of Scotland, either directly through Thomson or through the Supreme Council of Louisiana by way of the Polar Star Lodge, back by way of France to the Mother Kilwinning Lodge of Scotland, but likewise whether there were false representations as to what could be done under these alleged grants of power, and as to what the parties who received such degrees had a right from the representations to believe they were securing along Masonic lines.

The evidence is full of instances where Thomson particularly, and at times the other defendants, represented that they had a charter of authority from the Supreme Council of Louisiana to confer the craft degrees. The defendants were engaged in publishing pamphlets known as 'The Universal Free Mason,' and also one entitled 'Who is Who in Masonry and Why I am a Scottish Rite Mason. ' The latter publication has the fac simile signatures of the convicted defendants on the title page. Exhibit No. 14...