Pietch v. United States

• Decision Date: 03 June 1940
• Docket Number: No. 1903.,1903.
• Citation: 129 ALR 563,110 F.2d 817
• Parties: PIETCH v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

129 ALR 563, 110 F.2d 817 (1940)

PIETCH v. UNITED STATES.

No. 1903.

Circuit Court of Appeals, Tenth Circuit.

March 18, 1940.

Rehearing Denied April 8, 1940.

Writ of Certiorari Denied June 3, 1940.

Paul Pinson, of Tulsa, Okl. (Roy St. Lewis and John J. Sirica, both of Washington, D. C., on the brief), for appellant.

John Brett, Asst. U. S. Atty., of Oklahoma City, Okl. (Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl., and James J. Waters, Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before BRATTON and HUXMAN, Circuit Judges.

Writ of Certiorari Denied June 3, 1940. See 60 S.Ct. 1100, 84 L.Ed. ___.

BRATTON, Circuit Judge.

Earl R. Ernsberger, George R. Pietch, P. A. Janeway, C. Paul Laubenheim, and fifteen others were jointly indicted in sixteen counts. Counts one to fifteen, inclusive, being substantive counts drawn under section 215 of the Criminal Code, 18 U.S.C. A. 338, each charged a scheme to defraud through the sale of stock in Western Service Corporation, and the specific use of the mails in furtherance thereof; and count sixteen, drawn under section 37 of the Criminal Code, 18 U.S.C.A. 88, charged a conspiracy to use the mails for such purpose. The case was dismissed as against all defendants except the four named. On account of serious illness Ernsberger was not brought to trial. Pietch, Janeway and Laubenheim were tried together. Pietch was convicted on five counts including the sixteenth and acquitted on six, and Janeway and Laubenheim were each convicted on eight including the sixteenth and acquitted on three. Pietch was sentenced on the first count to pay a fine of one thousand dollars and costs, and he was placed on probation for a period of two years on the other counts on which he was found guilty on condition that the fine and costs be paid within one year. The record fails to disclose the action of the court in respect to the imposition of sentence upon Janeway and Laubenheim. Pietch appealed.

The contention is made that it was prejudicial to the rights of appellant to be tried more than seven years after the termination of the transactions on which the indictment was predicated. The indictment was returned before limitation had run. The United States Attorney stated in person and by letter to counsel for some of the accused that he did not intend to try the case, and that it was his purpose to dismiss it. But appellant never made demand for trial. He did not object or protest to the court respecting the delay. He filed a motion to dismiss the indictment on account of the delay, but the motion was filed more than three years after the return of the indictment, and it was a motion to dismiss — not a demand for trial. A person charged with a crime cannot assert with success that his right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States has been invaded unless he asked for a trial. In the absence of an affirmative request or demand for trial made to the court it must be presumed that appellant acquiesced in the delay and therefore cannot complain. Phillips v. United States, 8 Cir., 201 F. 259; Worthington v. United States, 7 Cir., 1 F. 2d 154, certiorari denied 266 U.S. 626, 45 S.Ct. 125, 69 L.Ed. 475; Frankel v. Woodrough, 8 Cir., 7 F.2d 796; Daniels v. United States, 9 Cir., 17 F.2d 339, certiorari denied, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325; Poffenbarger v. United States, 8 Cir., 20 F.2d 42, certiorari denied, Poffenbarger v. Aderhold, 290 U.S. 703, 54 S.Ct. 375, 78 L.Ed. 604; Collins v. United States, 8 Cir., 20 F.2d 574; O'Brien v. United States, 7 Cir., 25 F.2d 90; State v. Callahan, 119 Wash. 535, 206 P. 13; State v. Bohn, 67 Utah 362, 248 P. 119; State v. McTague, 173 Minn. 153, 216 N.W. 787; People v. Foster, 261 Mich. 247, 246 N.W. 60; Raine v. State, 143 Tenn. 168, 226 S. W. 189.

The further contention is that the evidence was insufficient to support the verdict and judgment. In connection with such contention appellant seeks to invoke the familiar rule that where all of the substantial evidence is just as consistent with innocence as with guilt, a conviction cannot be sustained. Substantial evidence was submitted which warranted the jury in finding these facts: Ernsberger had purchased and developed a public utility in Oklahoma, and then lost control of it. Janeway had been in the banking business in that state for many years. Appellant had been engaged for a long time in the securities and investment business in Binghamton, New York, and he had been associated with Ernsberger, J. M. Henry, Dean M. Stacy, and D. W. Ohern in the ownership of Income Shares Corporation, a company engaged in the oil and gas royalty business in Oklahoma. In March, 1930, these five persons met in Oklahoma City and conferred in respect to the organization of a new company to engage primarily in the business of dealing in oil and gas royalties. As the result of the conference, Western Service Corporation, hereinafter called the company, was organized. Each of the five individuals paid in one thousand dollars and that was the capital with which the company was incorporated. Appellant subsequently purchased 1,000 shares of preferred and 100,000 shares of common stock for which he paid $29,000. Ernsberger also purchased 100,000 shares of common stock. Both appellant and Ernsberger paid one cent per share for the common stock and Pietch later sold some of his for one dollar per share. Although the company was organized for the primary purpose of dealing in oil and gas royalties it was decided to enter the radio business. A subsidiary corporation was formed for that purpose and money of the parent in excess of $25,000 was lost in that venture. Appellant was appointed fiscal agent of the company to dispose of 50,000 shares of its preferred stock on a commission of fifteen per cent. The agreement was amended to provide that he should pay all expenses in connection with the sale of such stock for which he was to receive an additional fifteen per cent. The agreement was later terminated by mutual agreement, and Earl R. Ernsberger & Company was thereafter appointed fiscal agent for the sale of all preferred stock on a commission of ten per cent of the sale price. The offices of the two companies were in the same building and there was partial identity of management and employees. Appellant brought some stock salesmen from the East, and he and Ernsberger sought and induced Laubenheim to become associated with the company as sales manager. Ernsberger and appellant dominated the company. It was determined to enter in the utility business. All of the outstanding stock of Commercial Gas Pipe Line was purchased for $200,000, and that was a fair value for the properties of that corporation. But they were immediately set up on the books of the purchasing company at the fictitious value of $454,816.92. A gas franchise was obtained from the City of Guthrie and a distribution system was constructed and operated for a short time. A like franchise was obtained from the City of Shawnee but no distribution system was constructed to completion or operated. Henry, Stacy and Ohern retired from the company when it thus entered a different business from that contemplated at the outset. Newspaper publicity used in securing the franchise at Guthrie, prospectuses, pamphlets, folders, and communications addressed to stockholders contained false statements and representations, and untrue statements and representations were made to prospective purchasers of stock. Reference was made in newspaper publicity to the capitalization of the company being $19,000,000, but it never had assets remotely approaching such figure. A photograph of J. E. Braniff, was displayed and he was listed under the heading "Management" with the statement that he was a state civic and business leader, owner of the Braniff Building in Oklahoma City, and a widely known insurance executive. He was never connected with the company in any manner. Sales meetings were held about once a month for the purpose of stimulating enthusiasm. Talks were made concerning the progress of the company and its condition. Appellant attended some of these meetings. Written circulars were furnished salesmen for use in making sales of stock. One contained the statement that the earnings for the ensuing year were conservatively estimated at more than twice the dividend requirements of that offering of preferred stock. Some of the salesmen had in and about the offices copies of the publicity containing the picture of Braniff and the statement that he was connected with the management of the company. Some purchasers of stock were told that Braniff was connected with the company, and one was shown his picture. One was shown a photographic copy of a check for $50,000 signed by Ernsberger and was told that it was for stock. Others were told that there was a long waiting list for stock and that stock could be cashed at any time. One was told that the company had money in the East; another that the stock was backed by bankers in New York; and a third that the resident Bishop of the Catholic Church had the money of the church invested in the company. One was told that the...