McKelvey v. United States

• Decision Date: 07 May 1917
• Docket Number: 2807.
• Citation: 241 F. 801
• Parties: McKELVEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F. 801

McKELVEY et al. v. UNITED STATES.

No. 2807.

United States Court of Appeals, Ninth Circuit.

May 7, 1917

Indictment under Act March 4, 1909, c. 321, Sec. 37, charging plaintiffs in error with a conspiracy to commit acts made an offense by section 215 of the same act; the offense being a conspiracy to cheat, wrong, and defraud certain persons named in the indictment, and to use the United States mail in furtherance thereof. Verdict of guilty, upon which the court entered judgment, imposing a fine of $2,500 upon each of the plaintiffs in error, and sentencing plaintiff in error Stevens to imprisonment in the county jail for six months.

Plaintiffs in error at the time of the indictment were attorneys at law in Los Angeles, Cal., having adjoining offices, both using a common reception room, and employing a stenographer who was required to do the work of each. Plaintiff in error Stevens had been appointed by the superior court of California to represent as guardian ad litem and defend the minor, Irene Marie Brown-Levy (now Mrs. Van Houten) in a divorce proceeding brought by her then husband. While consulting with Stevens concerning her defense to the divorce proceeding Mrs. Levy disclosed to him certain illicit relations that existed between herself and certain other young women, on the one part, and certain men who resorted to a place known as the Jonquil Apartments, in Los Angeles, for such purposes. It appears that at the time of this communication the grand jury was investigating the actions of the inmates of the Jonquil Apartments and those who resorted there. Thereafter Mrs. Levy and other young women who were inmates of the Jonquil Apartments called upon plaintiff in error Stevens at his office and conferred with him as to bringing actions to recover damages for the injury to their health because of the practices of the men who had visited them.

It is charged in the indictment that plaintiffs in error conspired to devise a scheme to defraud W. H. Evans and Kyle MacBratney and others out of their money and property, by representing and pretending to such persons that the plaintiffs in error had within their knowledge certain lewd, lascivious indecent, scandalous, and disgraceful conduct, acts, and crimes theretofore committed by such persons, which would tend to disgrace and degrade them, and which the plaintiffs in error would threaten to make public and divulge to the world in complaints by Mrs. Levy to be filed in court, unless such persons would pay to the plaintiffs in error such sums as plaintiffs in error might or could secure by means of such threats; that it was a part of the conspiracy to accomplish and effect the scheme to defraud by means of the post office establishment of the United States by depositing in the United States post office at Los Angeles and in the stations thereof letters addressed to the persons intended to be defrauded, to be sent and delivered to those persons by the post office establishment of the United States; and that in pursuance of the conspiracy and scheme to defraud, and for the purpose of effecting and executing the same, the plaintiffs in error, on the 17th day of June, 1913, mailed, in the United States post office at Los Angeles, the two letters set out in the indictment.

The assignments of error relate to the action of the court in overruling defendants' demurrers to the indictment, in overruling defendants' objections to the admission of certain evidence, and in refusing to give an instruction requested by the defendant McKelvey.

Charles J. Kelly, of Los Angeles, Cal., for plaintiffs in error.

Albert Schoonover, U.S. Atty., and J. robert O'Connor, Asst U.S. Atty., both of Los Angeles, Cal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

1. It is contended by the plaintiffs in error that the indictment fails to charge a conspiracy under the statute. Section 37 of the Act of March 4, 1909 (35 Stat. 1088, 1096, c. 321), entitled 'An act to codify, revise, and amend the penal laws of the United States,' provides:

'If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined,' etc.

Section 215 of the same act (page 1130)-- so far as material to this case--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 * * * in any post office, or station thereof, * * * to be sent or delivered by the post office establishment of the United States, * * * shall be fined,' etc.

The indictment charges that the defendants, on June 1, 1913, in the city of Los Angeles, conspired, combined, confederated, and agreed together to commit an offense against the United States; that is, to commit acts made an offense and crime by section 215 of the Act of March 4, 1909 (chapter 321), entitled 'An act to codify, revise, and amend the penal laws of the United States. ' The indictment then proceeds to charge the defendants with acts constituting a scheme to defraud certain persons, charging acts made an offense against both sections 37 and 215 of the Criminal Code, namely:

' * * * And it was a part of said conspiracy of said conspirators, for the purpose of executing and effecting said scheme and artifice to defraud, and attempting so to do, to accomplish and effect, and attempt to accomplish and effect, the same by means of the post office establishment of the United States, and to place and cause to be placed in the United States post office in said city of Los Angeles, and in the stations thereof, letters addressed to said persons so intended to be defrauded, to be sent and delivered to said persons by the post office establishment of the United States.'

The indictment then proceeds to set forth two letters mailed by the defendants in pursuance of said conspiracy-- one dated June 17, 1913, and the other August 8, 1913.

The objection is that the charging part of the indictment makes no charge that the conspirators, at the time of forming said conspiracy, or at any other time, conspired to use the mails or post office establishment of the United States for the purpose of effecting or carrying out such conspiracy. But the first clause of the indictment makes the direct charge that the conspirators, to accomplish and effect the conspiracy, conspired to commit acts made an offense by section 215 of the Criminal Code. The indictment then proceeds to charge a scheme to defraud certain persons, and alleges that it was a part of said conspiracy to use the mails and the post office establishment of the United States for the purpose of effecting and carrying out that conspiracy. This last charge is not the allegation of an isolated act, or a mere recital or conclusion of the pleader, but a direct and positive charge that the use of the mails and post office establishment formed a part of, and was the essential act of, the conspiracy to commit an offense against the United States.

2. The further objection is made to the indictment that the charges against the defendants that they deposited the letters in the post office department are the charges of overt acts, and are the only charges that the post office was used in executing and effecting the scheme to defraud, and it is contended that these charges cannot be used to strengthen the charge of conspiracy, citing the case of United States v. Britton, 108 U.S. 199, 204, 2 Sup.Ct. 531, 534 (27 L.Ed. 698) where the Supreme Court said:

'This offense (conspiracy) does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. * * * It follows as a rule of criminal pleading that, in an indictment for conspiracy under section 5440 (Comp. St. 1916, Sec. 10201), the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.'

This decision was cited in Hyde v. United States, 225 U.S. 347, 358, 32 Sup.Ct. 793, 799 (56 L.Ed. 1114, Ann. Cas 1914A, 614), in support of a similar...