Packer v. United States

• Decision Date: 08 January 1901
• Docket Number: 39.
• Citation: 106 F. 906
• Parties: PACKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

106 F. 906

PACKER v. UNITED STATES.

No. 39.

United States Court of Appeals, Second Circuit.

January 8, 1901

Frederick B. House, for plaintiff in error.

Ernest E. Baldwin, for the United States.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The plaintiff in error was convicted upon three counts of an indictment charging him with the offenses defined by section 5480, Rev. St. U.S. The indictment contained seven counts, and on the trial the government elected to proceed upon the first, second, and seventh. The counts charged him, in substance, with having devised a scheme to defraud, to be effected by the use of the post-office establishment of the United States, which consisted in inducing other persons to intrust him with money for investment in stock speculations, pursuant to which he deposited in the post office a certain circular signed by the fictitious name 'James S. Robinson,' depicting his success as an operator in such speculations, and promising the return of the moneys intrusted to him, together with large profits. The first count alleged that, pursuant to the scheme to defraud, he deposited one of these circulars in the post office at the city of New York January 28, 1899 addressed to one Moody at Portland, Me. The second count charged him with receiving, pursuant to the scheme to defraud, from the post office at New York City, on the 3d day of February, 1899, a letter containing a check from Moody for $300. The seventh count charged him with receiving, pursuant to the scheme to defraud, from the post office at New York City, on the 1st day of March, 1899, a letter from one Kriebel inclosing $50 in currency.

Upon the trial the government produced several witnesses, each of whom testified that he had received through the mail one of the circulars; that subsequently he made a remittance to Robinson, addressed to him at No. 32 Broadway, New York City and that subsequently he received a letter from Robinson informing him that the investment had proved disastrous, and the amount remitted had been lost. The government also proved that registered letters addressed to James S. Robinson were receipted for by the plaintiff in error; that mail matter generally so addressed was delivered to him at the office No 32 Broadway, New York City; and that the business office was conducted by him under the name of Robinson. The government also proved that one of the circulars signed by Robinson was addressed to Moody, and was mailed at New York City on or about January 28, 1899; that on or about February 3, 1899, Moody sent through the mail, addressed to Robinson at No. 32 Broadway, New York City, the letter and remittance described in the second count of the indictment; and that Kriebel received through the mail one of the circulars signed by Robinson, and thereafter, and shortly before the 1st day of March, 1899, sent through mail, addressed to Robinson at No. 32 Broadway, New York City, a letter inclosing the remittance described in the seventh count of the indictment.

The correspondence which ensued between Robinson and the persons who sent remittances to him was introduced in evidence. In this correspondence Robinson acknowledge receipt of the remittances, referred vaguely to the speculations in which he was using them, in the earlier stages held out assurances of large profits, and finally explained how disaster had befallen the speculations. In the correspondence with Moody, Robinson's last letter was written March 18, 1899, and announced the total loss of the funds intrusted to him for use in speculation. After the introduction of this letter the government introduced a letter in reply from Moody to Robinson, written March 20, 1899. This letter rehearsed in part the substance of the previous correspondence, referred to a 'Burlington deal,' out of which Robinson should have made a large profit for Moody, and set forth generally a narrative and inferences tending to show that Robinson was a fraud, and had been deceiving Moody from the start. Witnesses were also examined by the government who gave testimony about dealings with the accused in December, 1897, and January and February, 1898, tending to show that he was then doing business under the name of the Hughes Investment Company, and called himself Hughes; that the business he was then conducting was similar in its nature and methods to that which he solicited in the circulars, and subsequently carried on.

Exceptions were taken upon the trial to the ruling of the trial judge refusing to direct a verdict of acquittal, as requested by the accused at the close of the evidence; to his ruling in receiving the testimony in regard to the transactions of the accused in December, 1897, and January and February, 1898, against the objections to its competency; and to the ruling admitting the Moody letter of March 20, 1899, against the objection to its competency. The assignments of error which have been argued at the bar are founded upon these exceptions.

To justify a conviction under the statute it was incumbent upon the government to prove that the accused had devised a scheme to defraud; that he intended to effect the scheme by opening correspondence with some other person or persons through the post-office establishment of the United States; and that in carrying out such scheme he either placed in or received from some post office of the United States a letter or packet. The statute permits the indictment to severally charge offenses to the number of three when committed within the same six calendar months. Each letter thus placed in or received from the post office pursuant to the scheme...