Lonergan v. United States, 8218.

• Decision Date: 05 March 1937
• Docket Number: No. 8218.,8218.
• Citation: Lonergan v. United States, 88 F.2d 591 (9th Cir. 1937)
• Parties: LONERGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 591 (1937)

LONERGAN v.UNITED STATES.^*

No. 8218.

Circuit Court of Appeals, Ninth Circuit.

March 5, 1937.

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., for appellee.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant was convicted and sentenced on seven counts of an indictment charging violations of section 215 of the Criminal Code(18 U.S.C.A. § 338), which 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, whether addressed to any person residing within or outside the United States, in any post office, or station thereof, or street or other letter box of the United States, or authorized depository for mail matter, to be sent or delivered by the post office establishment of the United States ...... shall be fined not more than $1,000, or imprisoned not more than five years, or both."

There are 40 assignments of error.Three of the assigned errors (assignments 2, 3, and 30) are not specified in appellant's brief, as required by our rule 24, and are therefore disregarded.

Assignment 1 is that the trial court erred in overruling appellant's demurrer to the indictment and to each count thereof.The grounds of appellant's demurrer are (1) that the indictment does not in any count thereof state facts sufficient to constitute an offense against the laws of the United States, and (2) that the allegations of each count are so vague, indefinite, and uncertain as not to apprise appellant of the true nature of the accusation against him.

The allegations of count 1, so far as material, are copied in the margin.¹Except as to form and contents of letters, names, and addresses of persons to whom they were mailed, and dates of mailing, the other counts are similar to count 1.Each count alleges that, having devised a scheme to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises, defendants, for the purpose of executing said scheme, placed in the Seattle post office a letter addressed to a person within the United States, to be sent and delivered by the post office establishment of the United States.

It is contended by appellant that the indictment is insufficient, in that it fails to allege that the representations which the scheme contemplated would be made were actually made, or that the other acts which the scheme contemplated would be done were actually done.No such allegation was necessary.The gist of the offense was not the making of representations or the doing of other acts which the scheme contemplated, but the use of the mails for the purpose of executing the scheme.Redmond v. United States(C.C.A.1)8 F.(2d) 24, 28;United States v. Quimby(C.C.A.2)51 F. (2d) 167, 170;Whitehead v. United States(C.C.A.5)245 F. 385, 388;Cochran v. United States(C.C.A.8)41 F.(2d) 193, 197;Rude v. United States(C.C.A.10)74 F.(2d) 673, 675.Each count of the indictment sufficiently charges a violation of section 215 of the Criminal Code(18 U.S.C.A. § 338).

There is no merit in appellant's contention that the indictment is too indefinite and uncertain.It charges the offense with sufficient particularity (1) to apprise appellant of what he must be prepared to meet and (2) to make the judgment a bar to a second prosecution for the same offense.Nothing more was required.Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861;Greenbaum v. United States(C.C.A.9)80 F.(2d) 113, 116;Wheeler v. United States(C.C.A.9)77 F.(2d) 216, 218;Johnson v. United States(C.C.A.9)59 F.(2d) 42, 44;Crane v. United States(C.C.A.9)259 F. 480, 482.Appellant's demurrer was properly overruled. ruled.

Assignment 4 is that "the court erred in denying appellant's motion for an order requiring the Government to elect upon which one of the two schemes, charged in the indictment, appellant was to be tried."The motion was as follows (appellant's counsel speaking): "One other motion.It has been my conviction since the first time I saw this indictment that it charges two schemes.The first charge was that theydefendants were just going to get this money and steal it.The other scheme was that they were going to rig the market.At this time I move ...... that the Government be required to elect on which of the two schemes appellant is to be tried."

The motion was not well founded.The indictment does not charge any scheme to steal money nor any scheme to rig the market.It charges "a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations and promises."Appellant now contends that this constituted two schemes — (1) a scheme to defraud and (2) a scheme to obtain money by false and fraudulent pretenses, representations, and promises — and that the government should have been required to elect upon which of these schemes it would rely.The two last-mentioned schemes were not mentioned or referred to in appellant's motion.Whether they were two schemes or one, and whether, if two, the government could or should have been required to elect between them, are questions which, not having been raised in the trial court, are not before us and will not be considered.

Twenty-eight assignments (numbered 5, 9 to 25, inclusive, and 31 to 40, inclusive) are to the admission of and refusal to strike out evidence.The assignments do not indicate that any of this evidence was objected to in the trial court.They do not state what objections, if any, were made, nor the grounds thereof, nor the grounds, if any, on which appellant moved to strike out the evidence.Such assignments do not conform to our rule 11 and will not be considered.Cody v. United States(C.C.A. 9)73 F.(2d) 180, 184;Goldstein v. United States(C.C.A.9)73 F.(2d) 804, 806.

Assignment 6 is that the trial court erred in denying appellant's motion for a directed verdict.The denial was proper.The scheme described in the indictment was proved, substantially as alleged.²There was substantial evidence that appellant devised the scheme and, for the purpose of executing it, mailed the letters set forth in the indictment, or caused them to be mailed.A detailed statement of the evidence would serve no useful purpose.We have examined it all and find that it amply warranted submission of the case to the jury.

Assignment 7 is that the trial court erred in denying appellant's motion for a new trial.This is not a valid assignment.The denial of a motion for a new trial is not reviewable on appeal.Goldstein v. United States, supra(C.C.A.)73 F.(2d) 804, at page 807.

Assignment 8 is that the court erred in pronouncing judgment and sentence upon appellant.This assignment is too general to merit consideration.Oras v. United States(C.C.A.9)67 F.(2d) 463, 465.

Assignment 26 is that "the court erred in giving that portion of instruction No. 44,³ referring to dummy and street accounts, to which exceptions were taken and allowed. ......"There was only one exception to this instruction.It was as follows: "I want to except to the instruction in which your Honor commented about the money being solicited on a three per cent a month basis, dummy accounts, and I cannot remember all the instruction, but stating that as a one-sided and unfair comment on the evidence.I know your Honor has a right to comment, but I think your Honor should state the converse as well."There was no merit in this exception.InstructionNo. 44 did not mistake or unfairly comment on the evidence.If appellant wished the court to "state the converse,"he should have proposed an instruction embodying the desired statement.Not having done so, he cannot complain of the court's failure to give such an instruction.

Assignment 27 is that "the court erred in refusing to instruct the jury, as requested by appellant, in addition to instruction No. 38 given by the court, that as a matter of law, the effect of the President's proclamation of August 9, 1934, was to close private silver exchanges in the United States."The record shows no such request.It shows an exception to the trial court's failure to give the additional instruction here referred to, but no request that such additional instruction be given.Error cannot be predicated upon refusal of a request not shown to have been made.Levine v. United States(C.C.A.9)79 F. (2d) 364, 371.

Assignments 28 and 29 are to the refusal of...