McClintock v. United States

• Decision Date: 13 August 1932
• Docket Number: No. 565.,565.
• Parties: McCLINTOCK v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

60 F.2d 839 (1932)

McCLINTOCK v. UNITED STATES.

No. 565.

Circuit Court of Appeals, Tenth Circuit.

August 13, 1932.

Clyde Taylor, of Kansas City, Mo. (James A. Reed and James E. Taylor, both of Kansas City, Mo., on the brief), for appellant.

L. E. Wyman, Asst. U. S. Atty., of Topeka, Kan. (S. M. Brewster, U. S. Atty., and Donald Little, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for the United States.

Before LEWIS, and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.

PHILLIPS, Circuit Judge.

An indictment containing 19 counts was returned against McClintock, James E. Brady, and Arthur J. Baxter. The first eighteen counts charged violations of section 215 and the nineteenth count charged a violation of section 37, of the Penal Code (title 18, USCA §§ 338 and 88).

Brady filed an affidavit of bias and prejudice for the purpose of disqualifying the United States District Judge for the District of Kansas. On April 5, 1926, the senior Circuit Judge of the Eighth Circuit assigned Judge Merrill E. Otis of the Western District of Missouri to sit in the trial of the case. McClintock secured an order granting him a separate trial. Thereafter Richard J. Hopkins was appointed as United States District Judge for the District of Kansas, and McClintock was tried before Judge Hopkins subsequently to the effective date of the act of Congress creating the Tenth Judicial Circuit (28 USCA § 211).

Counts 8, 16, 17, and 19 were dismissed. A motion for a directed verdict was overruled. McClintock was convicted on counts 1, 2, 3, 4, 5, 6, 7, 9, 13, 14, and 15.

Count 1 charged that the defendants devised a scheme and artifice to defraud Leo A. Mergen and the Union National Bank of Beloit, Kansas (hereinafter referred to as the National Bank); that such scheme was that, in order to induce the National Bank to purchase from them certain notes and certificates of deposit, defendants would falsely represent to Mergen, cashier of the National Bank, that such notes and certificates were valid obligations, were worth their face value and would be paid when due, would deposit with said notes and certificates certain collateral to guarantee payment thereof, would falsely represent that such collateral had a value in excess of the amount of money advanced to them on such notes and certificates, would give the bank certain guaranties executed by Brady and R. N. Stout, would falsely represent that Brady and Stout were financially responsible for the amounts of such guaranties, and would furnish to the National Bank false financial statements covering the financial worth of the makers of such notes. Count 1 further charged that defendants, for the purpose of executing such scheme, caused a letter dated February 8, 1923, addressed to Mergen and signed by McClintock, to be delivered through the United States mails to Mergen at Beloit on February 10, 1923. Such letter purported to transmit to Mergen a certificate for $5,000 issued by the Vernon State Bank (hereinafter referred to as the State Bank) payable to and endorsed by C. Davis.

Counts 2 to 18, inclusive, are substantially the same as count 1, except that they set up different letters.

Count 19 charged that on February 15, 1923, defendants entered into a conspiracy to commit the substantive offenses charged in counts 1 to 18, inclusive. The scheme set out in count 1 was incorporated into this count by reference.

Counsel for McClintock contend that the order of the senior Circuit Judge of the Eighth Circuit, appointing Judge Otis to try the cause, gave him exclusive jurisdiction, and that, since such order had not been revoked, Judge Hopkins was without jurisdiction. When such order was made, Kansas was a part of the original Eighth Judicial Circuit. Thereafter Congress passed an act creating the Tenth Judicial Circuit (45 Stat. 1346, title 28, USCA § 211), and Kansas became a part of the new circuit. The act contained no provision saving the jurisdiction of the judges previously assigned out of their own districts. The senior Circuit Judge of the Eighth Circuit had no authority to assign a judge in his circuit to sit in another circuit. Such an assignment could be made only by the Chief Justice of the United States. Section 17, title 28, USCA. After the creation of the Tenth Judicial Circuit, the effect of such an order was to assign Judge Otis to another circuit. It follows, we think, that the order appointing Judge Otis was ipso facto revoked by the act creating the Tenth Judicial Circuit. Under the provisions of sections 25 and 27, title 28, USCA, Judge Hopkins had jurisdiction to try the cause.

Counsel for McClintock assert that the judgment on counts 1 and 2 must be reversed for the reason that the use of the mails, therein alleged, preceded the formation of the scheme. They predicate this on the allegations of counts 1, 2, and 19. The letter set out in count 1 is dated February 8, 1923, and is alleged to have been delivered February 10, 1923. The letter quoted in count 2 is dated February 13, 1923, and is alleged to have been delivered February 14, 1923. On the other hand, count 19 alleged that defendants entered into the conspiracy, which was also the scheme to defraud (see Brady v. United States (C. C. A. 8) 24 F.(2d) 399, 404), on February 15, 1923.

Each count of an indictment is regarded as if it were a separate indictment and must be sufficient in itself. Dunn v. United States, 284 U. S. 390, 52 S. Ct. 189, 76 L. Ed. 356; Joyce on Indictments (2d Ed.) par. 555. One count may be bad without affecting the other counts. DeJianne v. United States (C. C. A.) 282 F. 737. However, one count may incorporate the allegations of another count by reference. Joyce, supra, par. 555; Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097; Blitz v. United States, 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725; Doe v. United States (C. C. A.) 253 F. 903. Count 1 alleges the scheme, sets out the letter, and charges it was delivered through the mails in execution thereof. The offense is sufficiently charged in that count standing alone. The same is true of count 2, except that it incorporates by reference the allegations of the scheme charged in count 1. Count 19 alleges a conspiracy entered into on February 15, 1923, and by reference incorporates the scheme as alleged in count 1; it is to that extent controlled by the allegations of count 1. But counts 1 and 2 do not incorporate nor depend on any allegation of count 19, and are in no wise affected by the allegations of that count. We are of the opinion that the indictment is sufficient. It was so held in Brady v. United States (C. C. A. 8) 24 F.(2d) 399.

The National Bank closed in November, 1923. Mergen had been its cashier for ten years immediately prior thereto. In 1921 McClintock became attorney for the National Bank. The National Bank being in need of funds, Mergen informed McClintock that he desired to obtain time deposits. Early in 1923 McClintock introduced Brady to Mergen. Nothing was said at the time with respect to any business transactions. Later Mergen asked Brady if he knew anyone who might put money in the National Bank on time deposit; Brady replied that he did, and it was agreed between them that the National Bank would handle paper for Brady up to one-fourth of the amount he caused to be deposited in the bank, and that the transactions would be closed through McClintock's office.

On February 7, 1923, Mergen sent McClintock a draft for $5,000 payable to C. Davis accompanied by written instructions to deliver the draft to Davis upon receipt of a certificate of deposit on the State Bank for $5,000. On February 8, 1923, McClintock forwarded to Mergen the certificate with the name C. Davis endorsed thereon. Stout, a witness for the government, testified that he, Brady, and McClintock were in the latter's office when the certificate was delivered to McClintock and the draft to Brady; that Brady endorsed the name C. Davis on the certificate and Stout endorsed the same name on the draft in McClintock's presence. Brady, a witness for the government, testified that he was engaged in business in Vernon, Kansas, at the time of the transactions in question, and carried on different enterprises under the...