Lonergan v. United States, 8218.

• Decision Date: 29 April 1938
• Docket Number: No. 8218.,8218.
• Citation: 95 F.2d 642
• Parties: LONERGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 642 (1938)

LONERGAN v. UNITED STATES.

No. 8218.

Circuit Court of Appeals, Ninth Circuit.

March 21, 1938.

Rehearing Denied April 29, 1938.

Donald A. McDonald and Carl B. Luckerath, both of Seattle, Wash., and Oscar L. Willett and Pierce Lonergan, both of Los Angeles, Cal., for appellant.

J. Charles Dennis, U. S. Atty., and F. A. Pellegrini and Gerald Shucklin, Asst. U. S. Attys., all of Seattle, Wash.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant was indicted, tried, convicted, and sentenced for violating section 215 of the Criminal Code, 18 U.S.C.A. § 338. He appealed. We affirmed the judgment of conviction. 9 Cir., 88 F.2d 591. The Supreme Court granted certiorari, 58 S.Ct. 18, reversed our judgment, and remanded the case for further proceedings. 58 S.Ct. 430, 82 L.Ed. ___.

We held that 28 of appellant's assignments of error (numbered 5, 9 to 25, inclusive, and 31 to 40, inclusive) did not conform to our rule 11 and, therefore, should not be considered. The Supreme Court held that "some, if not all," of these assignments were "sufficiently definite and formal to demand consideration."

Four of them (assignments 5, 20, 34, and 36) were specified in appellant's brief, but were not discussed or argued, in his brief or orally. We have nevertheless considered these assignments, and find no merit in them.

Assignments 9 to 15, inclusive, are to the admission of and refusal to strike out the seven letters which appellant was found guilty of having mailed or caused to be mailed for the purpose of executing the fraudulent scheme described in the indictment. Objections thereto were as follows:

To the letter set out in assignment 9: "Objected to on the ground no sufficient foundation laid in connection with the defendant Lonergan to show that it was authorized or that he acknowledged mailing this letter."

To the letter set out in assignment 10: "There is no sufficient identification, the mere fact that a man gets a letter, there is no proof sufficient to connect this defendant with it."

To the letter set out in assignment 11: "I object, your Honor, on the ground there is nothing to show that Lonergan ever appears on this letter, or anything ever brought to his attention or in any way binding on him, no proper foundation has been laid for the introduction of this against defendant Lonergan."

To the letter set out in assignment 12: "I object on behalf of the defense, if your Honor please, not adequately identified as having been introduced into the mails."

To the letter set out in assignment 13: "Objected to, no foundation connecting defendant."

To the letter set out in assignment 14: "Objected to as not having been sufficiently identified, and hearsay. * * * If your Honor please, there is no sufficient identification yet as to who sent it, no foundation laid, and I insist there still isn't sufficient evidence to identify this."

To the letter set out in assignment 15, no objection was made.

The objections made were properly overruled. The letters were sufficiently identified, and a sufficient foundation was laid for their introduction. There was evidence that they were composed, written, prepared for mailing, and mailed by persons acting under appellant's supervision and direction; that appellant, in this way, caused the letters to be mailed; and that he did so for the purpose of executing the fraudulent scheme described in the indictment.

Assignments 16, 17, and 18 are to the admission of and refusal to strike out Exhibits 75, 76-A and 76-B. The government first introduced Exhibit 76-A, then Exhibit 76-B, and, finally, Exhibit 75. Exhibit 76-A was a letter dated August 20, 1934, addressed to "Battle, Hulbert & Helsell * * * Attention: Mr. Joseph E. Gandy," and signed "Louis Martin Co. by J. R. Walsh — (M.L.H.)." Messrs. Battle, Hulbert, Helsell & Bettens were attorneys representing A. M. Atwood, one of the "investors" who, according to the government's evidence, were defrauded by the scheme described in the indictment. Joseph E. Gandy was a member of the firm of Battle, Hulbert, Helsell & Bettens. Louis Martin Company was a corporation which, according to the government's evidence, was dominated, controlled, and used by appellant as one of several agencies or instrumentalities through which he executed the fraudulent scheme. J. R. Walsh was the nominal "head" of Louis Martin Company, but, according to the government's evidence, took orders from appellant and acted under appellant's supervision and direction. Mary L. Herman (M.L.H.) was Walsh's stenographer. The letter (Exhibit 76-A) reads as follows:

"Following is the information requested by you regarding the transactions for the account of Mr. A. M. Atwood on August 9, 1934.¹

                  "Option    Price   Amount        Sold To
                  6 Sept.     44¢    $1,320.00   Jordan Co.2
                  4 March     44¢       880.00   Jordan Co
                

"These transactions took place at Seattle, Washington. Any further information you may wish, please advise us."

Exhibit 76-B was a letter dated August 21, 1934, addressed to A. M. Atwood, signed "Louis Martin Co. by J. R. Walsh — (M.L. H.)," reading as follows:

"Your communication of the 19th³ day of August, making certain statements through your attorneys regarding the manner in which your silver contract account with Louis Martin Co. had been handled, has been received.

"This is to advise you that upon your depositing with us the sum of two thousand two hundred and thirty eight dollars & seventy five cents ($2,238.75) representing ninety per cent (90%) of the contract price of the silver contracted by you, your account will be reinstated for the amount of silver and at the price contracted by you, provided, however, that you comply with the terms, conditions and provisions upon which you originally contracted the silver and particularly the terms of your contract as evidenced by your signature card.

"The deposit of $2,238.75 with us must be made by you on or before noon, Thursday, August 23, 1934."

Appellant objected to Exhibit 76-A on the ground "that it is not part of the res gestæ in this case, that it is referring to a past transaction and has no connection with the defendant Lonergan as shown thus far, and so far it has been insufficiently identified." He objected to Exhibit 76-B on the ground "that it has not been properly identified and no foundation laid, doesn't connect the defendant with any transaction, nothing to show he had any knowledge of it, and it relates to past events." These objections were not well founded. The exhibits were not hearsay, they were sufficiently identified, they were sufficiently connected with appellant, a sufficient foundation was laid for their introduction, and they were properly admitted.

From these letters and from other evidence in the record it was and is apparent that they (Exhibits 76-A and 76-B) were in response to a communication from Atwood's attorneys, and that, to get a proper understanding of them, it was necessary to know what had been said in that communication. Accordingly, after Exhibits 76-A and 76-B had been admitted, the government offered, and the court admitted, as Exhibit 75, a carbon copy of the communication referred to. This was dated August 17, 1934, was addressed to appellant, and was signed "Battle, Hulbert, Helsell & Bettens, by Joseph E. Gandy." Gandy testified that the original had been sent, by registered mail, to appellant and a copy thereof, by registered mail, to Louis Martin Company. Registry return receipts⁴ were attached to and made part of Exhibit 75. This exhibit reads as follows:

"We are attorneys for Mr. A. M. Atwood who for approximately the last year and a half had been buying and selling silver on the Seattle Metal Exchange through Louis Martin Company, silver brokers.

"During the middle of July last, Mr. Atwood had on hand silver futures, as follows:

1,000 ounces — September 2,000 " — " 2,000 " — March, 1935.

with a total credit margin of $324.93, in cash.

"By reason of an alleged dumping of several hundred thousand ounces of silver on the Seattle market at approximately that time, the market was driven down each day to the maximum permitted under the law, with the result that on July 28th, Louis Martin Co., advised Mr. Atwood that an extra margin requirement was necessary to maintain his silver options and that it must be put up not later than Monday, July 30th, and failing to do so, would necessitate the selling of his silver options at the market.

"After conferences with Mr. Pierce Lonergan and Mr. J. R. Walsh, Mr. Atwood deposited $400.00 in the Trust Department of the First National Bank, as an extra margin, conditioned upon the performance of your contract and by the delivery by you of 3,000 ounces of September option bullion .999 and 2,000 ounces of March option bullion .999 fine.

"Mr. Atwood thus had covered the required margins. On Monday, August 6th, Mr. Atwood had a conference with Mr. Pierce Lonergan, wherein Mr. Lonergan informed Mr. Atwood that the Seattle Metal Exchange was broke; that Louis Martin Co. was broke, and that there was an impending law suit involving about $150,000, which suit would tie up all the funds in Louis Martin Co., and the Seattle Metal Exchange, and that Mr. Atwood had better hurry and get his $400 deposit back before these litigants tied it up and attached it, Mr. Lonergan at that time informing Mr. Atwood that the attorneys for such litigants were in conference, and that the suit would be started immediately. Accordingly, Mr. Atwood attempted to reach Mr. Walsh in order to secure a release of his deposit at the First National Bank and was unable to do so on that day.

"On August 9th, however, Mr. Atwood reached Mr. Walsh, who made arrangements for Mr. Atwood to take back his $400.00, deposit in the First National Bank. Mr. Atwood took Mr. Walsh's letter authorizing the withdrawal of the $400.00 deposit and obtained such deposit.

"Within an hour after...