Hass v. United States

• Decision Date: 18 January 1938
• Docket Number: No. 10796.,10796.
• Parties: HASS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F.2d 427 (1937)

HASS et al. v. UNITED STATES.

No. 10796.

Circuit Court of Appeals, Eighth Circuit.

December 29, 1937.

Rehearing Denied January 18, 1938.

Frederick F. Faville, of Sioux City, Iowa (R. B. Cook, of Davenport, Iowa, Kindig, Faville & Mathews, of Sioux City, Iowa, and Cook & Balluff, of Davenport, Iowa, on the brief), for appellants Albert Hass, et al.

John C. Mullen, of Falls City, Neb. (Arthur F. Mullen, of Omaha, Neb., on the brief), for appellant Clarence R. Parks.

William W. Barron, Sp. Asst. to Atty. Gen., and E. G. Dunn, U. S. Atty., of Mason City, Iowa (Welly K. Hopkins, Sp. Asst. to Atty. Gen., and John T. M. Reddan, of Washington, D. C., on the brief), for appellee.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

SANBORN, Circuit Judge.

In the first five counts of an indictment, Albert Hass, W. Pingree Curtis, Frank C. Parnell, Willard A. Knight, Sam Sparrow, and Clarence R. Parks were charged with having sent five separate notices through the United States mails in furtherance of a scheme to defraud which it is alleged they had devised, section 215, Crim.Code, 18 U.S.C. § 338, 18 U.S.C.A. § 338; and, in a sixth count, they were charged with having conspired to commit the offenses charged in the first five counts, section 37, Crim.Code, 18 U.S.C. § 88, 18 U.S.C.A. § 88. Demurrers to the indictment were overruled. A demand for a bill of particulars was refused. The defendants then entered pleas of not guilty, and (with the exception of Sam Sparrow, who was granted a severance and who had since died) went to trial. At the close of the evidence, they made a motion for a directed verdict, which was denied. The jury returned a verdict of guilty as to each of them on all counts, and from the judgments and sentences entered upon this verdict, they have appealed.

The assignments of error challenge: (1) The validity of the indictment; (2) the refusal of the demand for a bill of particulars; (3) the sufficiency of the evidence to establish the offenses charged in the indictment; (4) the admission of certain evidence; (5) certain instructions given by the court in the charge, and the court's refusal of certain requested instructions.

1. The Indictment.

It is contended that the indictment: (1) Is vague and indefinite; (2) charges a scheme to defraud by certain false pretenses, but with "no conformable negation of the pretenses alleged"; (3) contains no allegations that the false pretenses were made with intent that they should be acted upon to the damage of the persons to whom they were made; (4) contains no allegation that the persons to whom it is alleged the pretenses were made believed them to be true or relied upon them; (5) charges that the scheme to defraud was consummated by the false pretenses, but contains no allegation that the persons to whom they were made parted with anything of value or were damaged in any way.

Section 215 of the Criminal Code, 18 U.S.C. § 338, 18 U.S.C.A. § 338, provides:

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or advertisement, * * * in any post office * * * to be sent or delivered by the post office establishment of the United States, * * * or shall knowingly cause to be delivered by mail according to the direction thereon, * * * any such letter, postal card, package, writing, circular, pamphlet, or advertisement, shall be fined not more than $1,000, or imprisoned not more than five years, or both."

The offense defined by this statute consists of two essential elements: (1) The existence of a scheme to defraud; and (2) the placing or causing to be placed in the post office of a letter, postal card, or other mailable matter for the purpose of executing or attempting to execute the scheme. Fournier v. United States, 7 Cir., 58 F.2d 3, 5; Wolpa v. United States, 8 Cir., 86 F.2d 35, 40; United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L. Ed. 548; Robins v. United States, 8 Cir., 262 F. 126.

The purpose of this indictment was to apprise the defendants of the crimes charged against them with such reasonable certainty as to enable them to make their defenses; to prevent their being taken by surprise by the evidence of the government; and to protect them, after judgment, from another prosecution for the same offenses. Wolpa v. United States, 8 Cir., 86 F.2d 35, 40; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314; Claiborne v. United States, 8 Cir., 77 F.2d 682, 689; Cowl v. United States, 8 Cir., 35 F.2d 794, 797.

In such an indictment, "while particulars of the scheme are matters of substance and must be described with certainty sufficient to show its existence and character and to fairly acquaint the accused with the particular fraudulent scheme charged against them, the scheme itself need not be pleaded with all the certainty as to time, place and circumstance requisite in charging the gist of the offense, the mailing of the letter or other article in execution or attempted execution of the same." Gardner v. United States, 8 Cir., 230 F. 575, 578; McClendon v. United States, 8 Cir., 229 F. 523, 525; Cowl v. United States, 8 Cir., 35 F.2d 794, 797, 798; Colburn v. United States, 8 Cir., 223 F. 590, 593; Wolpa v. United States, 8 Cir., 86 F.2d 35, 40.

The indictment here under consideration charges that prior to December 10, 1931, there were in existence two fraternal benefit societies, the Modern Brotherhood of America (hereinafter called "Modern Brotherhood") organized under the laws of Iowa, and the Independent Order of Foresters (hereinafter called "Foresters") organized under the laws of Canada; that each of these societies had a large number of members or benefit certificate holders, and that the assets of each of the societies belonged to its members; that on December 10, 1931, the two societies merged, the Foresters taking over the business, assets, and members of the Modern Brotherhood and assuming its liabilities; that the defendants had devised a "scheme and artifice to defraud" the Foresters "as it should and did exist after the said merger and consolidation and a large number of persons belonging to that class of persons who were members and benefit certificate holders of the said Modern Brotherhood of America who should be and did become, by virtue of said merger and consolidation, members of the said The Independent Order of Foresters as the said The Independent Order of Foresters should and did exist after the said merger and consolidation * * *, and to obtain money and property from the said persons to be defrauded by means of false and fraudulent pretenses and representations, statements and promises hereafter set forth"; that "it was part of said scheme and artifice" that the defendants, some of whom were directors of the Modern Brotherhood, should and they did dominate and control its activities pending the merger and consolidation with the Foresters, and that they should and they did cause the merger, and that they should and they did wrongfully obtain from the persons to be defrauded $300,000 "for the merging and consolidating, and the causing to be merged and consolidated" of the Modern Brotherhood and the Foresters, "without the knowledge or consent of the persons to be defrauded"; that it was further a part of said scheme and artifice that the defendants should and they did convert the $300,000 received from the persons to be defrauded, without the knowledge and consent of such persons; that "it was further a part of said scheme and artifice" that the defendants, while in control of the Modern Brotherhood and while some of them were acting as directors and officers thereof, should and they did, on or about November 7, 1931, at Mason City, Iowa, execute and cause to be executed a written contract to merge the Modern Brotherhood with the Foresters; that "it was further a part of said scheme and artifice" that the defendants should and they did, on or about November 7, 1931, deliver the contract of merger to the commissioner of insurance of the state of Iowa for approval; that "it was further a part of said scheme and artifice" that the defendants should and they did cause to be held in the city of Chicago, Ill., on or about December 9, 1931, a convention of duly elected and qualified delegates of the Modern Brotherhood to vote approval of the merger agreement and to authorize the merger; that "it was further a part of said scheme and artifice that the said defendants at the said convention and meeting to be held and held at the time and place aforesaid, should and they did, by means of false and fraudulent pretenses, representations and promises then and there to be made, and made and caused to be made by the said defendants to the said delegates, then and there cause the said delegates to vote in behalf of and for the said Modern Brotherhood of America and its members, their approval of the said contract and agreement to merge and consolidate and vote their approval of and authorization for the said merger and consolidation of the said Modern Brotherhood of America with the said The Independent Order of Foresters"; and "that the said false and fraudulent pretenses, representations and promises intended to be made and made and caused to be made by the said defendants, as aforesaid, at the time and place aforesaid, were to the effect that the board of directors of the said Modern Brotherhood of America deemed it to the best interests of the said Modern Brotherhood of America and its members that the said society merge and consolidate its business with the business of the said The Independent Order of Foresters and to the effect that if the said merger and...