Davenport v. United States

• Decision Date: 05 December 1958
• Docket Number: No. 15689.,15689.
• Citation: 260 F.2d 591
• Parties: Helen A. DAVENPORT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F.2d 591 (1958)

Helen A. DAVENPORT, Appellant, v. UNITED STATES of America, Appellee.

No. 15689.

United States Court of Appeals Ninth Circuit.

October 22, 1958.

Rehearing Denied December 5, 1958.

David M. Spiegel, Portland, Or., for appellant.

C. E. Luckey, U. S. Atty., Robert R. Carney, Asst. U. S. Atty., Portland, Or., for appellee.

Before HEALY, FEE, and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

Appellant, Helen A. Davenport, appeals from her conviction of the crime of conspiracy (Title 18 U.S.C. § 371) as set out in Count XIII of an indictment which was tried in the United States District Court for the District of Oregon. In this count of the indictment appellant was charged, with eight other persons, with the crime of conspiracy to violate Section 1341 Title 18 United States Code (using the mails to defraud) and Section 77q(a) Title 15 U.S.C.A. (using the mails in a scheme to defraud in the sale of securities in interstate commerce).

All of these nine defendants, except the appellant and one other, named Williams (who was later dismissed because of illness), were charged in the preceding twelve counts of the indictment with various substantive offenses which were alleged to be violations of § 1341 Title 18 and § 77q(a) Title 15 U.S.C.A. Count XIII, charging conspiracy, realleged and incorporated therein the first twelve counts of the indictment and designated them as overt acts done in pursuance of and to effect the objects of the conspiracy, and alleged in addition 28 other overt acts. In four of said overt acts, appellant was named.¹ In Count I of the indictment, seven defendants (excluding appellant and Williams) were charged in great detail with having devised a scheme to defraud and to obtain money and property by selling to purchasers for $1000 each memberships in Mt. Hood Hardboard and Plywood Cooperative, herein called Mt. Hood, by representing among other things that purchasers of said memberships would obtain continuous employment and job security in a large modern sawmill, plywood, and hardboard plant to be erected and owned and operated by the members thereof on a cooperative plan. Proper allegations were contained therein, alleging the falsity of the various representations, that they were made with the knowledge of the falsity and with intent to defraud. Finally, in said count, it was alleged that said seven defendants, for the purpose of executing the aforesaid scheme and device, "caused to be delivered by United States mails a certificate of membership in Mt. Hood" to a named individual.

Counts II to VII of the indictment, inclusive, after incorporating therein the detailed allegations of Count I, charged the similar delivery of certificates of membership to other named individuals. Counts VIII to XII of the indictment, after incorporating therein the detailed allegations of Count I, charged violations of § 77q(a) Title 15 U.S.C.A. (fraud in the sale of securities) by delivering checks and membership certificates through the United States mails to other named individuals.

Appellant relies upon six specifications of error. We shall consider them generally in the order set out in appellant's brief.

Assignments of Error No. 1 and No. 1 (a) make the contention that the indictment fails to state facts sufficient to charge the appellant with a crime, and that the evidence that could be produced under the indictment was necessarily irrelevant to any question of appellant's guilt or innocence of any crime, because of the limitations of proof imposed by its allegations.

The allegations of Count XIII, which charges the appellant and the eight other defendants with the crime of conspiracy, § 371 Title 18 U.S.C., appears to be in the usual form.

It alleges that the nine defendants did "conspire, combine, confederate and agree with each other to commit * * violations of § 1341 Title 18 U.S.C. by using * * * the mails of the United States for the purpose of executing the scheme and artifice to defraud and to obtain money and property from purchasers of memberships in Mt. Hood Hardboard and Plywood Cooperative as described in the first count of this indictment, which is here and now realleged and incorporated by reference;" and to commit "Violations of § 77q(a) Title 15 U.S.C. by employing said scheme and artifice to defraud * * * in the sale of memberships in Mt. Hood * * by the use of the United States mails, all as described in the preceding counts of this indictment and hereby incorporated by reference; * * *." It is then alleged that all of the acts of the defendants as described in Counts I to XII are overt acts done by said defendants in pursuance of and to effect the objects of said conspiracy; and it then proceeds to allege 28 additional overt acts, in four of which the appellant, Helen A. Davenport, is involved and named, as we have seen (Footnote 1). Similar forms of indictment have been frequently upheld. Nemec v. United States, 9 Cir., 1949, 178 F.2d 656; Allen v. United States, 9 Cir., 1951, 186 F.2d 439, certiorari denied 341 U.S. 948, 71 S.Ct. 1015, 95 L. Ed. 1372; Donaldson v. United States, 9 Cir., 1957, 248 F.2d 364.

Appellant, it should be pointed out, filed no motion as provided for under Rule 12(b) (2) and (3), Federal Rules of Criminal Procedure, 18 U.S.C., attacking the indictment prior to trial, nor did she protest that the indictment was not sufficiently clear at that time.

Appellant seems to argue that because she was not charged with any offenses in the first twelve counts of the indictment that she was therefore acquitted of those charges and that proof of the facts alleged therein can not be used as establishing overt acts of the conspirators. This is not true. We hold that the indictment sufficiently charged the defendant with a crime. Alexander v. United States, 8 Cir., 1938, 95 F.2d 873, certiorari denied 305 U.S. 637, 59 S.Ct. 99, 83 L.Ed. 409; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, certiorari denied 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637; Allen v. United States, supra; Shayne v. United States, 9 Cir., 1958, 255 F.2d 739.

In Assignment of Error No. 2, appellant contends that she was prejudiced by not having a separate trial. A motion for severance was filed by the defendant prior to trial "upon the ground and for the reason that she would be prejudiced by remaining joined as a co-defendant". This motion was denied by the trial Court.

This motion, of course, is addressed to the discretion of the District Judge. Such a motion is rarely granted. It was stated in Dowdy v. United States, 4 Cir., 1931, 46 F.2d 417, at page 421, "Where two or more defendants are indicted for a joint transaction, it is inadvisable to split up the case into many parts for separate trials, in the absence of very strong and cogent reason therefor. This is especially true in conspiracy charges, from the very nature of the case." Shockley v. United States, 9 Cir., 1948, 166 F.2d 704, certiorari denied 334 U.S. 850, 68 S.Ct. 1502, 92 L.Ed. 1773; United States v. Lebron, 2 Cir., 1955, 222 F.2d 531.

As Judge Augustus Hand aptly said in United States v. Fradkin, 2 Cir., 1935, 81 F.2d 56, 59 (conspiracy to use the mails to defraud):

"A man takes some risk in choosing his associates and, if he is hailed into court with them, must ordinarily rely on the fairness and ability of the jury to separate the sheep from the goats."

An examination of the record indicates that the District Court carefully explained to the jury the position of the appellant and the fact that she was only charged in Count XIII of the indictment and not charged with any other crime set forth in the first twelve counts of the indictment. We see no reason to interfere with the trial Court's discretion in this matter, as we find that no prejudice was suffered by the appellant. That the jury carefully distinguished between the charges against the various defendants is indicated by the fact that one of the defendants — Martin — was acquitted, while the other defendants who had not pleaded guilty were convicted.

In Assignment of Error No. 3, appellant complains of the giving of an instruction by the Court, which is set out below.²

No specific exception was taken to this instruction by appellant as required by Rule 30 of the Federal Rules of Criminal Procedure. Therefore appellant can not complain of it. However, we have examined the instructions given by the Court and find no error therein.

Assignment of Error No. 4 will be discussed in detail below.

Assignment of Error No. 5 was that the Court erred in informing the jury that the defendant Errion had pleaded guilty. It was apparently the contention of all of the defendants on trial that Mr. Errion was the culprit who was responsible for all of the criminal activities. The record shows that attempts were made during the trial by the defendants to place the blame upon Mr. Errion while attempting to show that they themselves were not guilty of the charges against them.

During the third day of the trial when some reference to Mr. Errion had been made, the Court stated, "We are not going to try Mr. Errion here any longer. He has pleaded guilty. He is safely in jail. I think we have all we can do to try the other six defendants that are here without discussing Mr. Errion any further." A few moments later the Court made another statement involving the fact that Mr. Errion and Mr. Montgomery had pleaded guilty. This statement is set forth below.³

Later, during the Court's instructions, the Court instructed the jury properly upon that subject.⁴

No objection was made by anyone concerning the Court's reference to the pleas of guilty by Errion and Montgomery, nor was any exception taken of the Court's instruction, or any instruction requested by the appellant to be given by the Court upon this subject.

It was inevitable that during the testimony references would be made by the witnesses to the activities of Mr. Errion and Mr. Montgomery, and we see...