Corbett v. United States

• Decision Date: 08 April 1937
• Docket Number: No. 10783.,10783.
• Parties: CORBETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

89 F.2d 124 (1937)

CORBETT v. UNITED STATES.

No. 10783.

Circuit Court of Appeals, Eighth Circuit.

April 8, 1937.

Ira B. Burns, of Kansas City, Mo. (Paul T. White, of Kansas City, Mo., on the brief), for appellant.

Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before SANBORN and THOMAS, Circuit Judges, and MUNGER, District Judge.

THOMAS, Circuit Judge.

The appellant was convicted of a scheme to defraud in the execution of which the United States mails were used in violation of section 215 of the Criminal Code (18 U.S.C.A. § 338), and he appeals.

The transaction charged in the indictment and described in the testimony was executed in 1935. The appellant had in his possession six forged $1,000 bonds of the city of Omaha, Neb., each bearing interest at the rate of 4¼ per cent. payable semiannually on May 1st and November 1st. The bonds were dated November 1, 1925, and matured November 1, 1945. The interest coupons maturing prior to May 1, 1935, had been clipped.

On January 25, 1935, appellant persuaded Mrs. Myrtle S. Wilson of Kansas City, Mo., to negotiate for him a loan of $5,000 at the City National Bank & Trust Company of Kansas City, using the forged bonds as collateral. At his request she executed the loan upon her own note for 90 days and delivered to him the proceeds.

When the note matured about April 25, 1935, appellant gave Mrs. Wilson $75 with which to pay the interest and requested her to renew the note, leaving the bonds as collateral. At the same time he asked her to clip the coupons and send them in for payment and turn the money over to him. In accordance with his request, Mrs. Wilson renewed the note; and an officer of the bank clipped the coupons, placed them in an envelope, and mailed them to the Federal Reserve Bank in Omaha with a collection letter to the county treasurer of Douglas county. Upon receipt of the coupons in Omaha they were presented to the county treasurer for payment, marked "forged," and returned. Upon the discovery of the forgery, Mrs. Wilson paid the note at the bank and endeavored without success to recover from appellant.

Reversal is urged on four grounds, based upon appropriate assignments of error. Appellant's propositions may be summarized as follows: (1) The transaction in which the fraud was perpetrated was complete before the mails were used, and the letter, therefore, did not contribute to carrying out the scheme; (2) there was a variance between the charge in the indictment and the proof; (3) the proof failed to show that the letter referred to in the indictment was ever placed in the United States mails; and (4) the court erred in refusing a requested instruction.

The first contention of appellant is that the mail was not used until the last days of April, and that the scheme to defraud ended on January 25th when the money, $5,000, was obtained; and that the attempt to cash the coupons and the use of the mails for that purpose was no part of the execution of and not in furtherance of the scheme to defraud. He relies upon McNear v. United States (C.C.A.10) 60 F. (2d) 861, 863; Barnes v. United States (C.C.A.8) 25 F.(2d) 61. It is true, as held in the cited cases, that a letter mailed in connection with an entirely different transaction cannot be said to be for the purpose of executing a scheme to defraud. But the cashing of the coupons in this instance was a part of the scheme charged in the indictment. It was contemplated as an element of the scheme that a loan of $5,000 would be secured at a bank upon a 90-day note secured by the forged bonds as collateral. The indictment alleges that the defendant represented to Mrs. Wilson "that said loan would only be needed for a period of ninety (90) days from the date of the making thereof, but that if the said note had to be renewed at the expiration of the ninety (90) days that he would send and cause to be sent in the coupons attached thereto (the bonds) payable as aforesaid on the 1st day of May 1935 for the purpose of paying the interest upon said loan."

On the 25th day of January appellant told Mrs. Wilson that the "interest on the bonds would be almost enough to pay the interest on the loan"; and on April 25th he told her "to have the coupons clipped and sent to Omaha * * * so that the money would be available as soon as possible. * * *" He advanced the $75 necessary to pay the interest and directed Mrs. Wilson to turn the proceeds from the coupons, about $129, over to him when it arrived. Evidently he assumed that the forgery would not be detected if the coupons were sent in for collection through the bank.

The scheme alleged in the indictment was a continuing one. It was not limited to a scheme to defraud Mrs. Wilson and the Kansas City bank only. It is charged that the scheme contemplated defrauding "that class of persons, buying, selling, transferring, negotiating, investing in or making loans on municipal bonds and securities." This charge is supported by the fact that about May 1st, after the note was renewed at the bank and before the forgery was discovered, appellant took to Mrs. Wilson seven other bonds of the same kind and asked her to get a loan on them. The scheme was at that time, after the letter had been sent to Omaha, still in the course of execution. That the specific use of the mails alleged and proved, therefore, tended to contribute both to the immediate and to the subsequent execution of the scheme cannot be doubted. Brady v. United States (C. C.A.9) 26 F.(2d) 400, 401. It is obvious that to secure the renewal of the note at the bank and to keep the way clear for disposing of other forged bonds it was necessary to keep the bank and Mrs. Wilson satisfied and unsuspicious. Farmer v. United States (C.C.A.2) 223 F. 903, 910; Stewart v. United States (C.C.A.8) 300 F. 769, 774. As said in the McNear Case, supra, relied upon by appellant, "A letter is violative of the statute, if its tendency is to lull the recipient into a false sense of security, as a means of inducing or encouraging him to make further payments as contributions to a fraudulent scheme." It is equally violative of the statute to cause a banker to mail a letter when its tendency would be to encourage him to make further loans upon forged bonds and thus contribute to the furtherance of a fraudulent scheme.

The second proposition urged by the appellant is that there is a variance between the charge in the indictment and the proof in respect of the use of the mails. It is said the appellant was charged with causing a letter to be mailed to the county treasurer of Douglas county, Neb., whereas the evidence referred to a letter to the branch of the Federal Reserve Bank at Omaha.

The indictment charged that the appellant "did * * * place and cause to be placed in an authorized depositary for mail, to-wit, in the Post Office * * * in Kansas City * * * to be sent and delivered by the mail of the United States according to the direction thereon a certain letter addressed to the county treasurer of Douglas County, Omaha, Nebraska. * * *"

The evidence is to the effect that the coupons after they had been clipped from the bonds at the Kansas City bank were placed in an envelope with a collection letter addressed to the treasurer of Douglas county, Neb., and mailed by registered mail to the Omaha branch of the Federal Reserve Bank of Kansas City. When the letter arrived at the Bank in Omaha, it was sent by a messenger to the office of the county treasurer.

Upon this point it will be observed that it is not claimed that the letter in question was not carried from Kansas City to Omaha in the mails, nor that the proof operated to prejudice appellant's case nor that it came as a surprise. The claim is that since the proof shows that the letter was sent to the addressee through the Federal Reserve Bank and a messenger instead of directly, the appellant "may" be exposed "to the injury of being put twice in jeopardy...