Graham v. United States
| Decision Date | 23 June 1941 |
| Docket Number | No. 2214.,2214. |
| Citation | 120 F.2d 543 |
| Parties | GRAHAM v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anthony J. Albert, of Santa Fe, N. M. (Romeo Cunningham, of Santa Fe, N. M., on the brief), for appellant.
Everett M. Grantham, U. S. Atty., of Santa Fe, N. M. (Gilberto Espinosa and Donald B. Moses, Asst. U. S. Attys., both of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
Graham was charged by indictment with the violation of 18 U.S.C.A. § 338. From a judgment on a verdict of guilty, he has appealed.
The indictment charged that Graham, having devised and intending to devise a scheme to obtain money and property, by false and fraudulent pretenses, representations, and promises, from one J. A. McKendry, would as part of such scheme falsely represent and pretend that he was a representative of interests engaged in forming a drilling pool by acquiring leases on a large area of state-owned land in the state of New Mexico; that when the pool was completed, the leases would be sold to a large oil company which, within six months thereafter, would drill on such leases; that McKendry could purchase a part of the leases and realize large returns therefrom in a very short period of time; that such pretenses, promises, and representations were false and fraudulent; that Graham did not represent a group which was forming a drilling pool to be sold to a large oil company and had no agreement with any oil company or other group to drill a well on such leases; that he was engaged as the agent of Dorothy Heard in the sale of oil leases located in unproven territory and belonging to Dorothy Heard which she had purchased from the state of New Mexico at prices not to exceed five cents per acre; and that Graham, having so devised such scheme for the purpose of obtaining money and property by false and fraudulent pretenses, representations, and promises, for the purpose of executing the scheme, caused to be deposited in the United States Post Office at Santa Fe, New Mexico, for transmittal through the United States mails, according to the direction thereon, a certain envelope, with postage prepaid, addressed to McKendry at 602 West Sixth Street, Pueblo, Colorado, in which envelope there was enclosed a letter from Frank Worden, Commissioner of the State Land Office, and an assignment of an oil and gas lease covering 160 acres situate in Chaves County, New Mexico.
Graham challenged the sufficiency of the indictment by demurrer below and here urges that the indictment is defective in that it fails to allege that Graham, in fact, made the false representations alleged as a part of the scheme. The elements of the offense defined in § 338, supra, are (1) a scheme devised or intended to be devised to defraud, or for obtaining money or property by false or fraudulent pretenses, representations, or promises, and (2) the use of the United States mails for the purpose of executing the scheme or attempting so to do.1 It is not the making of the false pretenses, representations, or promises that constitutes the first element of the offense. It is the devising or intending to devise the scheme. It is neither necessary to allege nor prove that the false pretenses, representations, or promises were actually made.2 But proof that the false pretenses, representations, or promises were made is usually adduced to establish the scheme charged in the indictment.
Counsel for Graham further contend that the indictment did not sufficiently charge the use of the mails. The indictment is predicated on that part of § 338, supra, reading "shall, for the purpose of executing such scheme or artifice or attempting so to do, * * * cause to be placed, any letter, * * * writing, * * * in any post office, * * * to be sent or delivered by the post office establishment of the United States." Here, the indictment charged that Graham, for the purpose of executing the scheme, caused an envelope, in which was enclosed a letter and assignment, particularly described in the indictment, to be deposited in the United States Post Office at Santa Fe, New Mexico, for transmittal through the United States mails according to the direction on the envelope. Thus, it will be seen that the ultimate facts constituting the second element of the offense are pleaded substantially in the language of the statute. It was not necessary to set out the means employed by Graham to cause the envelope, letter, and assignment to be mailed. Those are evidentiary facts which need not be pleaded.3
The test of the sufficiency of an indictment is whether it contains the elements of the offense intended to be charged and is sufficiently definite to apprise the defendant of what he must be prepared to meet and to support a plea of former acquittal or conviction against another charge for the same offense.4
We hold the indictment meets the test above set out.
The evidence established these facts: Dorothy Heard who resided at Taos, New Mexico, had acquired oil and gas leases on state lands from the state of New Mexico. Each lease embraced 2000 acres. For each lease she paid five cents per acre, plus a $5 recording fee, or a total of $105. Graham and others were engaged in selling portions of these leases in Colorado and elsewhere. When they effected a sale, they advised Mrs. Heard and she executed an assignment covering the acreage sold, and the State Land Office issued a duplicate assignment to the purchaser. Graham and others engaged in effecting the sales paid her for the assignments at the rate of either $6 or $7.50 for each 40 acres embraced in the assignment.
Graham and one Standefer, who was also engaged in selling leases, agreed that they would effect the sales by representing to prospective purchasers that they were attempting to block 2000 acres of leases, and that when the leases were sold and the block completed, it would be turned over to a major oil company for drilling. Thereafter, and on March 14, 1938, Graham called on J. A. McKendry, of Pueblo, Colorado, for the purpose of selling him an assignment of a portion of one of the Heard leases. Graham represented to McKendry that he was selling oil leases controlled by Dorothy Heard; that she had leases embracing approximately 5000 acres which was more than she could handle; that she was selling assignments so as to form a...
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