Erber v. United States

• Citation: 234 F. 221
• Decision Date: 02 June 1916
• Docket Number: 262.
• Parties: ERBER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

234 F. 221

ERBER v. UNITED STATES.

No. 262.

United States Court of Appeals, Second Circuit.

June 2, 1916

C. H Griffiths, of New York City, for plaintiff in error.

H Snowden Marshall, U.S. Atty., and F. M. Roosa, Asst. U.S Atty., both of New York City.

Before COXE, Circuit Judge, and HOUGH and MAYER, District Judges.

MAYER District Judge.

Defendant was tried on an indictment containing five counts; four of which charged a violation of section 215, and one of section 37 of the Criminal Code of the United States. Defendant was indicted jointly with seven other persons, viz., Zipper, Stavsky, Starr, Mandelbaum, Nadelman (alias Nadel), Shapiro, and Wetstein. Starr and Shapiro were never apprehended. Mandelbaum, Nadelman, and Wetstein pleaded guilty the day the trial began, and were witnesses for the United States, and as to them sentence was suspended. Erber, Zipper, and Stavsky were tried. The first count was taken from the jury, and on the remaining four counts the jury found Zipper and Stavsky not guilty, and Erber guilty, and thereafter the court sentenced Erber to serve a term of imprisonment.

The first four counts of the indictment are the same, except that a different letter is alleged to have been mailed or received in each of the separate counts. These counts charge, in brief, that the defendants formed a scheme to defraud and for obtaining merchandise, by means of false and fraudulent pretenses, representations, and promises, from various concerns by organizing a business to be known as the Manhattan Merchandise Company, and in the name of that company to secure merchandise on credit. It is alleged as part of this plan that various persons and companies were given as references who would give satisfactory references regarding their prior transactions with the Manhattan Merchandise Company, even though they had no such transactions; and it is further alleged that the defendants did not intend to pay for the goods received, but intended to sell them and convert the moneys received therefor to their own use and benefit. The fifth count of the indictment charges that each of the defendants entered into a conspiracy to devise the scheme described in the other counts of the indictment.

The testimony offered by the United States showed that the idea of starting a company was first talked over between Starr, Shapiro, Nadelman, and Wetstein. Starr, Shapiro, and Nadelman previously had been associated together in a scheme to start and carry on a business known as the Pan-American Supply Company. Nadelman had filed the certificate required under the New York statute to conduct a business under the designation of a 'company.' A false financial statement was to be made to the commercial agencies to procure credit and such a statement was made by Nadelman, but the scheme was not successful, and Wetstein, a friend of Nadelman's went into this business, and Nadelman, as he says, 'got out.' Wetstein took the name of Excelsior Manufacturing Company.

Nadelman testified that, a few days before he met Erber, he had a talk with Starr and Shapiro about starting another business, and Wetstein also testified to a conversation at the Excelsior Company office with Starr and Nadelman, at which Shapiro was present. From this conversation it appeared that Nadelman was to open a store and pay the first month's rent, that one Kohler, who knew 'how to run such a business,' and 'a party up in Forty-Second street' were to pay further expenses, that fifty per cent. of the profits were to go to Nadelman, Starr, Shapiro, and Wetstein, and 50 per cent. to 'Forty-Second Street.' Kohler, who, according to the evidence, was the deviser of the scheme, or, in any event, an important participator, was not indicted, and was not called as a witness, although during the trial he was presumably in the jurisdiction, and, as the prosecuting attorney swore on cross-examination 'available at any time,' and at large on a suspended sentence after conviction of some previous offense in the District Court for the Southern District of New York.

Erber was conducting a business of his own at the Long Acre Building on Broadway near Forty-Second street, known as the Photo Play Coupon Corporation and the United Coupon Corporation. This business consisted in selling trading stamps and coupons to merchants who gave these tokens to their customers to induce the public to trade at certain stores. So far as the record discloses this business of Erber was a lawful enterprise and some months before the transactions here referred to, Erber had sued Kohler in the State Court (presumably the New York Supreme Court), and had obtained an injunction against Kohler or his company, which was conducting a rival business. What the controversy was does not clearly appear, and in any event is here immaterial.

In this way (according to Erber), and later through a broker, who brought Kohler to Erber on a proposition to take over Kohler's coupon business, Erber became acquainted with Kohler, with the result that Kohler ultimately took desk room in Erber's office. After Erber became acquainted with Kohler, Mandelbaum, who was Kohler's nephew, worked for Erber getting orders for the Photo Play Company. He had known Starr for several years. There is no testimony that Erber ever saw Zipper or Stavsky.

Without setting forth at length the details of their testimony and its indefinite character in some respects, the three accomplices, Nadelman, Wetstein, and Mandelbaum, testified in effect that Kohler, Wetstein, Nadelman, Starr, Shapiro, and Erber, at Erber's office, devised the scheme whereby Nadelman, under the name of Nadel, was to file a certificate in the New York county clerk's office under the name of Manhattan Merchandise Company, and order goods for which they would not pay, giving as credit references Wetstein's Excelsior Manufacturing Company, Zipper Bros. of which concern defendant Zipper was a member, and New York Credit House, of which Stavsky was proprietor. Wetstein, Zipper, and Stavsky were to answer these references favorably, to the effect that they had dealt with Manhattan Merchandise Company and that the company had good credit up to certain amounts. The profits were to be divided half and half, as stated supra, the 'Forty-Second street' group being Kohler, Mandelbaum, and Erber.

Nadelman filed the certificate, opened a store, goods were ordered, and references given and answered as per scheme. The goods were not paid for, but were sold at sacrifice prices and the proceeds appropriated. Nadelman testified that he signed letters which were drawn up by Erber at night, and the two other accomplices testified, though unable to give specific instances, that Erber had answered references and written letters. The nearest approach to any proof that Erber mailed any letters was Mandelbaum's statement referring to letters generally, 'They were mailed out. I also mailed some. Two or three times a week I guess they were mailed. ' There was no evidence that Erber ever received any money and Mandelbaum said:

'I never gave Mr. Erber any money. I never saw any one give Mr. Erber any money.'

Nowhere in the record is there a scintilla of evidence corroborating the testimony of the three accomplices against Erber, except, possibly, in regard to the Pocket Umbrella Company, hereinafter mentioned. Such corroboration is not necessary in the United States courts, although frequently required by state statutes; but the absence of corroboration gives emphasis to the errors which we think compel a reversal of the judgment of conviction in a case where the attitude of the accomplices is vividly portrayed by Nadelman's answer on cross-examination, 'I am trying now to save myself from further imprisonment.'

Erber took the stand, and denied every essential element of the testimony adduced by the government, admitting, however, that some 17 years prior to his trial, when a youth of 17 or 18, he had pleaded guilty to some charge of embezzlement in connection with his employment as a post office clerk and consequently had served a sentence in a reformatory.

With this sharp conflict as to the facts and this uncorroborated testimony, the case-- and properly so-- went to the jury. After retiring, 'the jury,' as the record states, 'returned into court and stated that they were unable to agree; that they stood six to six. They asked for further instructions. ' We are not enlightened as to what the request of the jury was, but from the additional instructions of the trial court, it is apparent that further light was sought as to the weight to be accorded to the testimony of accomplices.

As no exception was taken to the additional instructions, they cannot be reviewed, but the incident is mentioned because affirmance is urged by the government on the ground that the error infra largely relied on by defendant was 'merely a fact to be considered with the other evidence in the case,' and that 'it is not believed that there can be a question of a doubt as to Erber's guilt.'

Of the numerous amended assignments of error, we think that consideration of the group relating to the Photo Play Company and of the admission of the letters referred to in assignment No. 16 will be sufficient.

1. One of the firms from which Manhattan Merchandise Company had ordered and not paid for goods was the Pocket Umbrella Company of Findley, Ohio. After the witness Hyan, manager of the Pocket Umbrella Company factory, had testified as to transactions with the Manhattan Merchandise Company, the following occurred:

'Q. I show you Government's Exhibits 37, 38, 39, and 40. Can you tell me what those exhibits are?

'Mr. Jordan: I object. They state for themselves, if your honor please.

'The Court: He may answer, if he

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