Goldman v. United States

• Decision Date: 02 February 1915
• Docket Number: 2498.
• Citation: 220 F. 57
• Parties: GOLDMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F. 57

GOLDMAN v. UNITED STATES.

No. 2498.

United States Court of Appeals, Sixth Circuit.

February 2, 1915

For opinion below on demurrer to the indictment and motion to quash, see United States v. Goldman, 207 F. 1002.

This writ is prosecuted to reverse sentence entered upon conviction for misuse of the mails. The indictment contains two counts, and they in effect are the same, except that one of the two letters involved appears in the first count and the other in the second. The indictment enters greatly into details and is very long. We think the following fairly states the substance of its allegations:

Goldman unlawfully devised a scheme to defraud divers men of 'reputed high financial standing and position in and about said city of Cleveland,' but whose names were unknown to the grand jury. He planned to effect the scheme by inducing women to enter into correspondence with him through letters to be mailed by them in the post office establishment in that city, and to this end to advertise in the Cleveland Tribune as follows:

It is charged that in execution of the scheme Goldman caused the advertisement before quoted to be inserted in the issue of the Cleveland Tribune for January 4, 1913; that on the 9th of that month he knowingly took and received from the post office box before described a certain letter contained in a sealed envelope which bore an uncanceled two-cent stamp and this address, 'P.O. Box 14, Station D, Cleveland,' and which had theretofore been deposited in answer to such advertisement in the post office establishment for mailing and delivery. The letter as set out in the first count bears the signature and address of the writer, and reads:

'Dear Sir: In answer to your ad. in the 'Tribune' of January 4th, I should like to have an interview with you. You ask for a well-educated and well-groomed lady to help you on a big financial proposition. The ad. interests me and I should like to talk to you about it.'

The letter described in the second count was also inclosed in an envelope bearing a two-cent uncanceled stamp and an address the same as the other letter. The letter bears the signature and address of the writer, a woman other than the first writer, and reads:

'Box 14, Station D, Cleveland, O. I have read your advertisement in 'The Tribune' of the 4th, in which you desire assistance and co-operation of a lady, on a big financial proposition. I think I can fill the position satisfactorily. Please write me when and where I can see you.'

Goldman also took this letter from the box at the same time he received the other. Goldman was thereupon arrested, the letters were found upon his person, and nothing further was done toward executing the scheme.

A demurrer and a motion to quash were filed and overruled, and thereupon the accused entered a plea of not guilty. At the close of the evidence for the prosecution the accused moved the court to direct a verdict in his favor, which was overruled; but no such motion was made at the close of all the evidence.

F. J. Wing and F. W. Walther, both of Cleveland, Ohio, for plaintiff in error.

C. R. Alburn, Asst. U.S. Atty., of Cleveland, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

1. The ground alleged in the demurrer is insufficiency in law of either count of the indictment; and this is explained in argument to mean that the scheme to defraud as it is alleged was 'but a preparation to devise a scheme,' and so did not fall within the language of section 215 of the Federal Criminal Code. Reliance is placed, for example, on this portion of the indictment:

'Goldman had planned, devised, and intended that, when he should find a person * * * of the description indicated' in his advertisement, 'he would agree and arrange with her in this: That she should devise ways and means through pretended business engagements, and through ways to the grand jurors unknown, to meet and become acquainted with certain and divers persons, men, of reputed high financial and social standing and position, but whose names are to the grand jurors unknown. * * * '

Counsel fail to discriminate between language employed to set forth Goldman's scheme and that used to describe the means he selected for its execution. Goldman's scheme, as it is alleged, consisted of a methodical course of procedure down to the very point of extorting money from his intended victims; and the woman was but an instrumentality designed to be used in ways pointed out in material part in the scheme itself, as well as through ways and means the woman herself should devise, to entice men to her room and into 'compromising' positions for the purposes appearing in the statement. The scheme in part required the woman to become acquainted with men of 'reputed high financial and social standing and position'; and to say it was essential to the completeness of the scheme that an agreement should first be made as to the names of men and the ways and means to be adopted to influence them as desired is to overlook the main features and ultimate purpose of the scheme, and to subordinate it to incidental conditions which plainly could arise only in the course of its execution.

The motion to quash presents a kindred question. It is addressed to both counts of the indictment and in the main for the same reasons. The complaint is that neither count states that the use made of the postal establishment in taking the letters from the post office was for the purpose of executing the scheme, but that the letters themselves show that the acts of receiving them were steps taken in devising the scheme. This is but another effort to show that there was not a completed scheme, though for a reason different from that urged under the demurrer. The complete answer to this is to be found in the indictment. It is there distinctly alleged that for the purpose of executing the scheme, Goldman, on January 9, 1913, did unlawfully take and receive the two letters from Box 14 of Station D of the post office establishment at Cleveland.

We may here allude to a criticism of the indictment which counsel made in support of both the demurrer and the motion to quash. They contend:

'The vice of an indictment of this character arises from the attempt of the pleader to broaden the scope of the statute by broadening his description of the scheme, so as to include therein uses of the mails which in their nature could not be acts done for the purpose of executing the scheme to defraud, contemplated by the statute, although within the scheme as described by the pleading.'

This is either an assumption that the scheme alleged could not in the nature of things have been devised in advance of advertising for and receiving the letters, or it is a challenge of the right, as also of the duty, of a pleader to employ...