Martin v. United States

• Decision Date: 19 August 1964
• Docket Number: No. 18356.,18356.
• Parties: John W. MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

335 F.2d 945 (1964)

John W. MARTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 18356.

United States Court of Appeals Ninth Circuit.

August 19, 1964.

Thomas J. O'Donnell, Las Vegas, Nev., for appellant.

John W. Bonner, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before JERTBERG and DUNIWAY, Circuit Judges, and JAMESON, District Judge.

JERTBERG, Circuit Judge.

This is the second appearance of this case in this court. Earlier, following trial to a jury, the defendant was convicted of the charge set forth in the indictment. Appellant appealed from the judgment of conviction imposed upon him, and while the appeal was pending the government, joined in by appellant, moved for summary reversal of the judgment and remand for new trial on grounds that the Assistant United States Attorney who prosecuted the case had at one time, prior to the filing of the indictment, appeared as attorney for one of the co-conspirators. This court reversed the judgment of conviction and remanded the case to the district court for a new trial. The present appeal is from the judgment of conviction imposed following the guilty verdict returned by the jury in the new trial.

The indictment is in one count and charges a conspiracy to violate the Mail Fraud Statute, 18 U.S.C. Sec. 1341,¹ in violation of 18 U.S.C. § 371, which in pertinent part provides:

"If two or more persons conspire either to commit an offense against the United States, * * * and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. * * *"

In substance the indictment charges the appellant and other co-conspirators conspired to use the United States mail for the purpose of executing a scheme to defraud and to obtain money and property from investors in securities, to wit: investment contracts with F & M Land Development Company, a Nevada partnership, and investment contracts with Silver State Farms, Inc., a Nevada corporation; that said investment contracts provided that the conspirators in exchange for money and property of the investors, would undertake to locate and make application for entry on parcels of government owned real estate pursuant to the Desert Land Act 43 U.S.C. §§ 321-339,² and to secure for the investors a lease agreement on such property whereby the lessee, at no cost to the investor, would place the investors in Desert Land Entry under cultivation and would perform all requirements of the Desert Land Act so as to enable the investor to perfect title to and obtain a government patent on the said Desert Land Entry;

That as a part of and in furtherance of such conspiracy, the conspirators would organize the F & M Land Development Company, a partnership above mentioned, and to cause such partnership to be dissolved and thereafter organize and control the Silver State Farms, Inc.; that the conspirators would offer and sell to investors the investment contracts of said partnership and said corporation;

That in furtherance of said conspiracy, conspirators would prepare and disseminate to investors, brochures and other literature, and by such means and oral statements would make false representations, knowing the same to be false;

That such false representations were in substance: that an abundance of water was available on the offered tracts of land; that said lands had been proven for growing crops; that after a five year period said tracts of land would have a value from thirty to fifty times the acquisition cost; that the partnership was an established business, owned and operated by respected businessmen of Nevada; that if the applications for desert land were denied the money of the investors would be refunded; that the government had found sufficient water on the tracts of land for agricultural purposes; that the conspirators had already subscribed for investors on 60,000 acres in the "Lake Valley Tract" and that farms were already successfully operating on said tracts; that the offered tracts of land in "Spring Valley" had sufficient water for irrigation purposes and with such irrigation, high yields of crops had been grown;

That in furtherance of said conspiracy the conspirators concealed from and omitted to inform the investors that the conspirators had no proof that ample water for agriculture was available on any of the tracts of land; that most applications for Desert Land Entry in the "Lake Valley Tract" had been denied by the government because said tracts were untested areas for agriculture with insufficient available water; and that the conspirators possessed neither sufficient capital or equipment to carry out the terms of said investment contracts.

As overt acts in addition to the foregoing, the indictment alleges: Appellant and a co-conspirator organized the partnership above mentioned; that appellant and other co-conspirators organized the corporation above mentioned; that one of the conspirators caused a letter to be deposited in the United States mails, addressed to named persons in San Francisco, California; that one of the co-conspirators executed a power of attorney to appellant; that one of the conspirators and appellant had a conversation with designated other persons named in the indictment.

The case comes before us on a large record. The trial consumed 21 trial days; over 132 documents were received in evidence, 27 witnesses testified on behalf of the government, and the reporter's transcript of testimony exceeds 2740 pages.

Following conviction, the appellant was sentenced to the custody of the Attorney General for imprisonment for a period of two years on condition that he be confined to a jail type institution for a period of five months with the remainder of the sentence suspended under normal probationary conditions.

Before discussing appellant's assignment of errors, we wish to call attention to certain provisions contained in Rule 18, subd. 2 of the Rules of this Court. Rule 18 provides:

"2. This brief shall contain, in order here stated —

"(a) * * *

"(b) * * *

"(c) A concise statement of the case, presenting the questions involved and the manner in which they are raised, with record references supporting each statement of fact or mention of trial proceedings.

"(d) In all cases a specification of errors relied upon which shall be numbered and shall set out separately and particularly each error intended to be urged. When the error alleged is to the admission or rejection of evidence the specification shall quote the grounds urged at the trial for the objection and the full substance of the evidence admitted or rejected, and refer to the page number in the printed or typewritten transcript where the same may be found. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused, together with the grounds of the objections urged at the trial. * * *

"(e) A concise argument of the case (preferably preceded by a summary), exhibiting a clear statement of the points of law or facts to be discussed, with a reference to the pages of record and the authorities relied upon in support of each point. * * *

"(f) Where exhibits are a part of the record, counsel for appellant in an appendix to his opening brief shall set forth in table form in adjoining columns page references to the record where the exhibits were identified, offered and received or rejected as evidence.

"(g) * * *"

While appellant specifies in his assignment of errors sixteen errors of the District Court many are repetitive. Furthermore, there is almost a complete failure to conform to the quoted provisions of Rule 18, subd. 2(d). The burden of showing error is on the appellant and we are not required to search the lengthy record in this case for possible error. To the extent that we omit from this opinion discussion of some of the errors specified by appellant, such omission results either from deficiencies of appellant's brief or because we find that such specifications lack merit.

We reduce the specifications of error to the following categories, which we will discuss ad seriatim:

1. Failure of the District Court to dismiss or quash the indictment because no evidence of the offense set forth in the indictment was presented to the Grand Jury, or, in the alternative to order production in court of the minutes of the Grand Jury.

2. That the new trial was prejudicially tainted by the fact the Assistant United States Attorney who prosecuted the case on the first trial had appeared as attorney for one of the co-conspirators.

3. Failure to read the indictment to the jury.

4. Errors in the admission of exhibits.

5. Insufficiency of the evidence to support the jury verdict.

During the course of the government's case, appellant's counsel inquired of each of nineteen government witnesses whether such witness had appeared and testified before the Grand Jury which returned the indictment, or furnished documents to that body. All of them answered in the negative. No such inquiry was made of five other government witnesses. The record does not disclose whether any of the five appeared before the Grand Jury. Counsel for appellant asserted to the District Court that none of the witnesses to be called on behalf of the appellant had appeared before the Grand Jury.

Upon such state of the record, appellant moved the court to dismiss the indictment on the ground that no evidence of the offense set forth in the indictment was presented to the Grand Jury. Alternately, appellant moved the court for an order requiring the production of the minutes of the Grand Jury.

The District Court denied both motions.

Appellant did not contend that the indictment was irregular on its face, or was not returned by a legally constituted Grand Jury, or that there were other irregularities in the...