Jarvis v. United States

• Citation: 90 F.2d 243
• Decision Date: 24 May 1937
• Docket Number: No. 3121.,3121.
• Parties: JARVIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

90 F.2d 243 (1937)

JARVIS et al. v. UNITED STATES.

No. 3121.

Circuit Court of Appeals, First Circuit.

May 24, 1937.

F. J. Carney, of Boston, Mass. (William H. Lewis, James H. Vahey, Charles F. Smith, Daniel A. Lynch, William J. Killion, and Kevin P. Hern, all of Boston, Mass., on the brief), for appellants.

Charles W. Bartlett, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

MORTON, Circuit Judge.

This is an appeal by the defendants from convictions and sentences on two separate indictments. The first charged use of the mails in a scheme to defraud. It contained ten counts each alleging a separate substantive offense, and an eleventh count alleging a conspiracy to commit the same offense. The appellants, Jarvis and Gaines, were convicted on all counts and were sentenced to five years' imprisonment on each of the substantive counts, and to two years' imprisonment on the conspiracy count, the sentences to run concurrently. Other appellants were convicted only on part of the counts, and concurrent sentences were imposed on such counts. The second indictment was for a conspiracy to violate section 17 of the Securities Act of 1933. (15 U.S. C.A. § 77q). The appellants were also convicted under this indictment and each was sentenced to imprisonment for two years, the sentences to run concurrently with those imposed under the first indictment. There are 100 assignments of error, 48 in the first case and 52 in the second. This is clearly an unreasonable number and would justify a dismissal of the appeal. Patterson v. Mobile Gas Co., 271 U.S. 131, 132, 46 S.Ct. 445, 70 L.Ed. 870; Albert Pick-Barth Co. v. Mitchell Woodbury Corporation (C.C. A.) 57 F.(2d) 96, 100. However, as for reasons hereafter stated, we find it unnecessary to consider the assignments of error in the second case, and, as substantial sentences are involved, we think a dismissal of the appeal on this ground would be too drastic.

As to the first indictment: About a dozen errors are assigned on matters of pleading, viz., overruling demurrers and motions to quash, denying specifications or particulars, refusing to hold the indictments were bad for variance and duplicity, and refusing motions for election on the ground that the government's evidence showed two conspiracies. Since the act of 1919 (Jud. Code § 269, as amended, 28 U.S.C.A. § 391) requiring that on any appeal the court shall give judgment without regard to technical errors which do not affect the substantial rights of the parties, it is only under exceptional circumstances that rulings of this character will give rise to reversible error. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. We think the demurrers and motions to quash were properly overruled, and that the indictments were formally sufficient. It was within the discretion of the District Judge whether to grant the motions for specifications. It does not appear that in refusing them he abused his discretionary power. The other motions going to the pleadings were, we think, properly dealt with.

The trial judge under objection and exception by the defendants ordered that the two indictments should be tried together. This order was made after the government had nol prossed against three defendants in the first indictment who were not defendants in the second indictment, thereby making the defendants in each indictment the same persons. To a very large extent the facts involved in each indictment were the same. There was clearly no abuse of discretion in directing that the two be tried together. Such orders are explicitly authorized by R.S. § 921 (28 U.S.C.A. § 734). See Brown v. United States, 143 F. 60 (C.C.A.8); Morris v. United States, 12 F.(2d) 727 (C.C.A.9).

The defendants complain that the government was not directed to state in regard to each piece of evidence which was presented, on which indictment it was offered. When separate cases are tried together it is because of great similarity in the evidence applicable to them. The trial judge followed the customary method of admitting any evidence which bore on either indictment, leaving to the defendants to ask to have any particular piece of evidence limited if they thought it should be. There was no error in so doing. Kansas City Ry. Co. v. Jones, Adm'x, 241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943; Farnsworth v. Nevada Co., 102 F. 578 (C.C.A.8).

Many exceptions were taken on questions of evidence. None of these is of basic character. The most doubtful was the admissibility of certain telephone conversations. In a typical instance, the witness said that he had been receiving, for some little time before this talk, daily and weekly market letters from Gibbs & Co., and a day or two before, a special letter; that he received one morning a telephone call from Springfield; that the speaker said he was A. E. Gibbs and asked if he had received their literature, letters, etc.; that he then went on to talk about the Polymet stock, urging him to buy it, saying that the company was shortly to be taken over by the Westinghouse Company and its stock would greatly enhance in value, etc. The witness did not recognize the voice, but said he afterwards received other calls of the same sort. So far as appeared no other person or concern was at that time selling Polymet stock.

The law is now well settled with respect to telephone calls, that, if the person testifying does not recognize the voice, the surrounding circumstances may show sufficient probability that the person talking at the other end was one whose statements would be admissible to warrant admitting the conversation. Andrews v. United States, 78 F.(2d) 274, 105 A.L.R. 322 (C.C. A.10); American & British Corporation v. New Idria Co. (C.C.A.) 293 F. 509; General Hospital Soc. v. New Haven Rendering Co., 79 Conn. 581, 65 A. 1065, 118 Am. St.Rep. 173, 9 Ann.Cas. 168; Van Riper v. United States, 13 F.(2d) 961, 968 (C.C.A. 2). The circumstances surrounding the incident made it altogether probable that the person talking to the witness over the telephone was connected with Gibbs & Co. as he said he was, and justified the admission of the testimony. The same is true mutatis mutandis as to the other telephone conversations.

Without undertaking to discuss in detail the testimony of the witnesses Caroll, Newton, Flackman, and Badger to which exception was taken, we are of opinion that there was nothing in the rulings of the trial judge in this connection which amounted to reversible error. The telephone records would not have been admissible at common law on the proof offered. But the common law rule has of necessity been modified in recent years. United States v. Cotter, 60 F.(2d) 689 (C.C.A.2); E. I. Du Pont, etc., Co. v. Tomlinson, 296 F. 634 (C.C.A.4); North Western Refrigerator Line Co. v. Ervin, 78 F.(2d) 186 (C.C.A.5); Jennings v. United States, 73 F.(2d) 470 (C. C.A.5).

At the close of the evidence the defendants moved for directed verdicts on the conspiracy count on the ground that the government's evidence showed, not a single conspiracy as alleged, but two successive independent conspiracies; they also moved that the government be required to elect on which of the two alleged conspiracies it would go to the jury on this count. These motions were denied. The defendants also moved that the government be required to elect between counts 1 to 4, inclusive, which relate to dealings at Financial Profits in Boston in June and July, 1933, and counts 5 to 10 inclusive, which relate to dealings at A. E. Gibbs & Co., in Springfield, in August and September, 1934. The motion was denied. The questions involved in these motions may conveniently be considered together.

The indictment alleged the use of the mails in a scheme to defraud which was formed about October 1, 1932, and lasted up to the date of the...