Goodman v. United States

• Decision Date: 20 January 1960
• Docket Number: and 16233.,16232,No. 16227,16227
• Parties: Berthold GOODMAN, Appellant, v. UNITED STATES of America. Melvin CROWN, Appellant, v. UNITED STATES of America. E. F. SMITH, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Eighth Circuit

273 F.2d 853 (1960)

Berthold GOODMAN, Appellant, v. UNITED STATES of America.

Melvin CROWN, Appellant, v. UNITED STATES of America.

E. F. SMITH, Appellant, v. UNITED STATES of America.

Nos. 16227, 16232, and 16233.

United States Court of Appeals Eighth Circuit.

January 20, 1960.

Patrick A. Conmy, Bismarck, N. D., for appellant Goodman.

John M. Bowlus, Chicago, Ill., for appellant Crown.

Philip Neville, Minneapolis, Minn., for appellant Smith.

Robert Vogel, U. S. Atty., Fargo, N. D., for appellee.

Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Berthold Goodman, Melvin Crown and E. F. Smith, appellants, together with David Schiff, William R. Carroll and Louis Levine, were charged in a 42-count indictment with violations of 18 U.S.C.A. § 1341, commonly referred to as the Mail Fraud Statute, and with violations of 18 U.S.C.A. § 1343, known as the Fraud by Wire Statute. Each count of the indictment charged a like scheme or artifice to defraud with each count alleging in the execution of the scheme a separate and different mailing or receipt of a letter or postcard in North Dakota and/or the use in that state of interstate wire. The case against William R. Carroll was dismissed on motion of the government. Defendants Schiff and Levine entered pleas of guilty prior to trial and were placed on probation. The case against appellants Goodman, Crown and Smith went to trial before a jury on April 14, 1959, and resulted, on May 1, 1959, in a verdict of guilty against each of them on each count of the indictment.

On appeal this court must take that view of the evidence most favorable to sustaining the jury verdict. So viewed, the record indicates the following: The government alleged and substantial evidence fairly tended to show that appellants Goodman and Crown were co-partners in the operation of a business known as the Interstate Exchange Company, hereafter referred to as Interstate. Goodman was in charge of the company's office in Chicago, Illinois, and at times worked also as a salesman. The other defendants were solely salesmen for Interstate. The gravamen of the indictment was that the defendants engaged in a scheme to defraud persons in the State of North Dakota and elsewhere of money and other property. The execution of the scheme consisted of mailing to owners of small businesses circular letters representing that Interstate could find purchasers for the selected enterprises and urging the recipients to return an enclosed card as an indication that they would be willing to sell under favorable terms. The letters also claimed that representatives of Interstate called upon owners only after definite purchasers had been found for their particular businesses. After receiving a solicited reply, one of the defendants would call upon an owner and, sometimes after long distance calls to Goodman in Chicago made from the business premises supposedly to verify the fact that Interstate had a specific purchaser for the enterprise who had seen the property and had deposited a sum of money with it as evidence of good faith which sum would be forfeited if the purchaser failed to complete the deal, induce him to enter into a contract with Interstate for the sale of the business and to make an advance payment to it, which payment was allegedly only for the purpose of insuring the availability of the property at the time the sale was to be consummated and which was to be returned to the owner if the transaction were not closed within a specified period. The evidence, however, established that Interstate was not engaged in the business of securing purchasers for small enterprises; that its representatives did not have prospective buyers for the properties when they called upon the owners; that the calls to Chicago were made solely for the purpose of inducing the owners to enter into the contracts with Interstate and thereafter make a down-payment for its services; and that the defendants did not intend to effect the sale or return the down-payment, nor in fact did they do so in any of the charged instances.

Appellants Goodman, Crown and Smith have prosecuted their appeals to this court separately, each alleging multiple errors. They were, however, indicted jointly and were tried and convicted before the same jury. Their appeals, consequently, will be considered in this single opinion with separate reference being made to each appellant where necessary or expedient.

All three of the appellants urge as error:

"Failure of the court to instruct on the necessary elements of proof required to establish a `scheme to defraud\' and failure of the court to define what constitutes a `scheme to defraud\'."

The record, however, reveals that none of the appellants made any specific request for such an instruction. That being the case, they may not now question the court's failure to so instruct. Louisville & Nashville R. Co. v. Rochelle, 6 Cir., 1958, 252 F.2d 730, 738; Comins v. Scrivener, 10 Cir., 1954, 214 F.2d 810, 815, 46 A.L.R.2d 1; Witt v. Merrill, 4 Cir., 1954, 210 F.2d 132, 134; Metropolitan Life Ins. Co. v. Talbot, 5 Cir., 1953, 205 F.2d 529, 533; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir., 1952, 198 F.2d 264, 265. We have, however, considered in detail the instructions given and find them to have been understandable, adequate and correct.

Appellants Goodman and Crown next claim error in the trial court's refusal to give their Requested Instruction No. 11. The record discloses that representatives of the Federal Trade Commission made demand upon Interstate for its business records, which request was complied with despite the fact that no subpoena therefor was ever issued. Subsequently, proceedings were instituted by the Commission which led to a cease and desist order and the consequent ultimate cessation of business by Interstate. It does not appear, however, that the Federal Trade Commission had any part in the prosecution of this case nor that any of the books or records furnished to them were used as evidence herein, although, undoubtedly, the exhibits used in the instant case were duplicates of the material given the Commission but obtained from different sources.

15 U.S.C.A. § 49 provides:

"No person shall be excused from attending and testifying or from producing documentary evidence before the commission or in obedience to the subpoena of the commission on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to (in)criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it: Provided, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying." (Emphasis supplied.)

Appellants' Requested Instruction No. 11 was as follows:

"You are instructed that if you believe from the evidence that the defendant furnished evidentiary material concerning the same matters involved in the indictment in this case, to the Federal Trade Commission, and that such evidentiary material was furnished under compulsion and under any element of fear of prosecution or threat of litigation then and in that event you are instructed that the defendants are immune from prosecution concerning such matters and they are entitled to an acquittal, and in that event it is your sworn duty to return a verdict of `not guilty\'. See United States v. Pardue, D.C. 294 F. 543; United States v. Frontier Asthma, D.C. 69 F.Supp. 994; also Section 49 of Title 15, U.S.C.A."

The argument in support of the seemingly untenable requested instruction was that, while appellants gave no testimony nor produced any records for the Federal Trade Commission in response to a subpoena:

"* * * it is a matter of common knowledge that people being investigated by a Government agency feel compelled to turn over their books and records and to furnish information orally through fear of the power of the Government and in seeking to avoid any color of or attempt at deception. * * *

"* * * that the element of compulsion should be the guiding factor under the law as to whether or not immunity should be recognized and granted."

The question raised by this claim of error was settled by the Supreme Court of the United States in Sherwin v. United States, 1925, 268 U.S. 369, 373, 45 S. Ct. 517, 519, 69 L.Ed. 1001, where, dealing with an identical situation, the court said:

"The immediate question here is whether, under this particular immunity provision, the mere furnishing of information of whatever character creates an immunity which bars the prosecution. Compare Tucker v. United States, 151 U.S. 164, 167, 169, 14 S.Ct. 299, 38 L.Ed. 112.

"The question is said to be one of statutory construction. But, upon the facts stated, it is clear that there was no basis for the plea of immunity. The act grants immunity only when the person testifies or produces evidence `before the commission in obedience to a subpoena issued by it.\' Sherwin and Schwartz did nothing in obedience to a subpoena. None was issued."

See also, this court's opinion in Pandolfo v. Biddle, 8 Cir., 1925, 8 F.2d 142. No error was therefore committed in the refusal to give appellants' Requested Instruction.

It is the further contention of appellants Goodman and Smith that error existed in the receipt of evidence as to other offenses. The record indicates that the prosecution introduced proof of similar fraudulent acts and schemes occurring in North Dakota and other states which were not specifically covered in the indictment. Appellants admit that there are exceptions to the general rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of...