Norman v. United States

Decision Date12 January 1939
Docket NumberNo. 7953.,7953.
Citation100 F.2d 905
CourtU.S. Court of Appeals — Sixth Circuit

L. E. Gwinn and Edgar Webster, both of Memphis, Tenn., for appellant.

R. G. Draper, of Memphis, Tenn. (William McClanahan and R. G. Draper, both of Memphis, Tenn., on the brief), for the United States.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The appellant having been convicted and sentenced under seven counts of an indictment charging violation of § 215 of the Criminal Code, T. 18, U.S.C., § 338, 18 U. S.C.A. § 338, the Mail Fraud Statute, and under three counts charging violation of § 1725, sub-section (g), T. 12, U.S.C.A., the National Housing Act, complains of the fairness of the trial and asserts an abuse of discretion in the denial below of her motion for new trial.

The alleged scheme or artifice to defraud set up in the indictment was in substance the organization of the Superior Building & Loan Association under the laws of Tennessee, the sale of shares and the receipt of deposits therein upon representations that deposits were guaranteed by the Government, that the Association was protected from bankruptcy, that depositors were guaranteed an 8% return on their investments, and that deposits would be invested in first mortgages on real estate, all with purpose and intent that funds and properties acquired by the Association would be converted to the use of the appellant and her husband, and with knowledge that there was no possibility of the Association yielding the guaranteed return and that the representations were false.

Although the errors assigned and those which, though unassigned, are now urged upon us in support of the view that we consider broadly the state of the record, are numerous, chief emphasis is laid upon two, one growing out of the fact that counsel who represented the defendant at the trial gave her erroneous legal advice and the other grounded upon the failure of the court to instruct the jury upon the necessity of a finding of fraudulent intent by the appellant in her alleged representations.

The appellant did not testify at the trial. In affidavits supporting her motion for new trial it is averred that she desired to testify, but was dissuaded by her counsel, who advised her that if she took the stand the Government would present proof of an indictment then pending against her for arson. It was also set forth that she had called witnesses who were present at the trial ready to testify to her reputation for truth and veracity and as a law abiding person. They were not sworn because she was advised by her counsel that their evidence would not be received unless she herself testified and that if received it would put her reputation in issue and proof might be introduced as to her pending indictment. Deprived of her own testimony and that of her reputation witnesses, it is now urged, as it was in hearing upon the motion, that the appellant was divested of her right to a fair and impartial trial upon the facts in issue, that while this was not error committed at the trial, yet the court being apprised of the circumstances by the motion, abused its discretion in denying it.

The jury trial consumed six full days. The defendant was represented by an able and experienced attorney of her own choosing. He had been an Assistant United States Attorney and had had wide experience both in the prosecution and in the defense of those charged with crime. Of the numerous reasons that induced him to dissuade the appellant from giving evidence, the court considered many founded upon good judgment. Appellant's present counsel concede that he made an able presentation of her defense, and the court and adversary counsel agree. We find no abuse of discretion in the denial of the motion for new trial. There are state decisions which hold that a new trial in a criminal case should be granted where the negligence of counsel is great or his mistake of law so serious as to deprive the defendant of the benefit of important and material evidence which might reasonably cause the jury to return a different verdict. People v. Schulman, 299...

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18 cases
  • Brown v. Cassens Transport Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 10, 2007
    ...had held even earlier that prosecutions under the federal fraud statutes do not require a showing of reliance. Norman v. United States, 100 F.2d 905, 907 (6th Cir.1939) (a mail-fraud offense "is complete when the scheme has been devised and when in pursuance of it, the mails have been used"......
  • Beasley v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 1, 1974
    ..."farce and mockery" standard, although we have found an equal number of decisions resting on more objective tests.10 In Norman v. United States, 100 F.2d 905 (6th Cir.), cert. denied, 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057 (1939), the first case in which this Circuit treated a claim of i......
  • U.S. v. Svete
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 2, 2009
    ...subjective unreasonableness of a statement is persuasive evidence that the statement was criminally fraudulent. See Norman v. United States, 100 F.2d 905, 907 (6th Cir.1939); Rudd v. United States, 173 F. 912, 913 (8th Cir.1909). One circuit, in the several years before we decided Brown, ha......
  • Mitchell v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 12, 1958
    ...v. Robertson, 145 F.2d 101 (5 Cir., 1944), certiorari denied 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427 (1945); Norman v. United States, 100 F.2d 905 (6 Cir., 1939), certiorari denied 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057 (1939); Pelley v. United States, 214 F.2d 597 (7 Cir., 1954), cer......
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