Buhler v. United States

• Decision Date: 01 July 1929
• Docket Number: No. 5783.,5783.
• Citation: 33 F.2d 382
• Parties: BUHLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.2d 382 (1929)

BUHLER v. UNITED STATES.

No. 5783.

Circuit Court of Appeals, Ninth Circuit.

July 1, 1929.

Bronson, Bronson & Slaven and Harold R. McKinnon, all of San Francisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

With others, appellant was adjudged guilty upon an indictment charging him, in the first 14 counts, with use of the mails in furtherance of a scheme to defraud, under section 215 of the Penal Code (18 USCA § 338), and in the fifteenth count with a conspiracy covering the same general transactions, under section 37 (18 USCA § 88). He and four of his co-defendants were convicted on all counts, and there was a single judgment imposing a punishment less than what might have been inflicted under any one of the first 14 counts, but in excess of the maximum for conspiracy.

As has been observed, where two or more persons use the postal facilities in the execution of a scheme to defraud, set on foot by them, charges based thereon under these two sections generally involve substantially the same essential elements, and what is competent evidence to support one would be equally competent to support the other. Our decision in Robinson et al. v. United States (No. 5665) 33 F.(2d) 238, filed June 17, 1929. The scheme or enterprise covered by the charges had to do with the prospecting, exploration, and location of public lands supposed to contain deposits of potash in the Great Salt Lake desert, under the provisions of the Act of October 2, 1917 (40 Stat. 297 (30 USCA §§ 141-152), and regulations promulgated thereunder. It seems that in order of time three different groups were organized, each with the purpose of securing permits, prospecting, and ultimately locating claims and securing patents therefor. In the record the first is referred to as the Potter group, the second as the chloride products or doctors' group, and the third, the group (without particular designation in the record) to which the charges more directly relate. As alleged, the plan was, by false representations touching conditions, values, and prospective profits, to induce members of the public, referred to as "victims," to join in the enterprise and advance funds to make locations and otherwise carry on the work of developing claims and procuring title thereto.

But two contentions are urged upon our consideration: (1) That the court erred in receiving testimony touching appellant's connection with the so-called doctors' group; and (2) that as to him the prosecution was barred by the statute of limitations.

In the indictment it is charged that, for the purpose of defrauding "victims," defendants planned falsely to represent to them that the doctors' group was making large profits from operations in the same general territory and was paying large dividends. By the government, Dr. Cloud, the secretary and treasurer of this group, was called as a witness, and after he stated that it was through appellant he had become interested, and that he had paid him $400, this incident occurred: "Q. Did he give you an agreement of some kind? A. Yes. Mr. Christensen (attorney for appellant): We object. It is not within the indictment." Without comment, the objection was overruled and exception was taken. The direct examination continued at some length, the agreement referred to was thereupon offered and received in evidence, and there was considerable cross-examination. At no time was any further objection of any kind offered, nor was any motion to strike out made or any other exception taken.

Under the indictment clearly evidence within a certain range relating to the doctors' group transactions was directly relevant to the charges. It may be that the field actually covered was too extensive, but the court was not advised by the objection interposed, which was to a question of a purely preliminary character, where to draw the line. Specific objections should have been made as the examination proceeded, to enable the court to rule intelligently. Neither side now contends that the agreement referred to had any substantial probative value, nor could it be contended that its admission could have in anywise influenced the jury. The testimony which is now urged as prejudicial was elicited later, when defendant interposed no objection, made no motion to strike, and took no exception. Clearly we think the assignment is without substantial merit.

The period of limitations for the prosecution of such offenses is three years. Rev. St. U. S. § 1044, 18 USCA § 582. The indictment was filed March 26, 1928. The rule of continuing responsibility on the part of one who has joined in a criminal scheme is with some particularity explained in Hyde v. United States, 225 U. S. 347, 368, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. After referring to the contention of the defendants in that case that the statute begins to run from the last "conscious participation" of a conspirator, and the contention of the government that a distinction is to be drawn between a specific, accomplished conspiracy and one having continuity of purpose, contemplating the performance of acts through a series of years, the court said:

"The conspiracy accomplished or having a distinct period of accomplishment is different from one that is to be continuous. If it may continue it would seem necessarily to follow the relation of the conspirators to it must continue, being to it during its life as it was to it the moment it was brought into life. If each conspirator was the agent of the others at the latter time he remains an agent during all of the former time. This view does not, as it is contended, take the defense of the statute of limitations from conspiracies. It allows it to all, but makes its application different. Nor does it take from a conspirator...