Reuben v. United States

• Decision Date: 16 December 1936
• Docket Number: No. 5746-5748.,5746-5748.
• Citation: 86 F.2d 464
• Parties: REUBEN v. UNITED STATES. LAVEN v. SAME. ROLLNICK v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

86 F.2d 464 (1936)

REUBEN v. UNITED STATES.^*

LAVEN v. SAME.

ROLLNICK v. SAME.

Nos. 5746-5748.

Circuit Court of Appeals, Seventh Circuit.

October 23, 1936.

Rehearing Denied December 16, 1936.

Myer H. Gladstone, of Chicago, Ill., for appellant Reuben.

Sidney G. Kusworm, of Dayton, Ohio, for appellant Laven.

I. Harvey Levinson, of Chicago, Ill., for appellant Rollnick.

Michael L. Igoe, U. S. Atty., and Warren Canaday and Edmond Sullivan, Asst. U. S. Attys., all of Chicago, Ill., for the United States.

Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.

BRIGGLE, District Judge.

The indictment in this case charged the defendants in seven counts with a scheme to defraud and the use of the United States mails in the furtherance of the same, in violation of section 215 of the Criminal Code, 18 U.S.C.A. ß 338.

The first count, among other things, charged that defendants "had devised and intended to devise a certain scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations and promises from a certain class of persons who were desirous of making paying and profitable investments in stocks of corporations, which stocks of corporations were listed and traded in on stock exchanges in the United States. * * *

"That the said defendants, so having devised and intending to devise the said scheme and artifice, did adopt and use the name of Paul A. Leschuck & Co., and did represent to said persons intended to be defrauded that the said Paul A. Leschuck & Co. were dealers in investment securities, and that said Paul A. Leschuck & Co. had and maintained an office in the City of Chicago, in the State of Illinois, and that said Paul A. Leschuck & Co. would furnish and send to the said persons intended to be defrauded information in regard to stocks of corporations listed and dealt in on stock exchanges throughout the United States without any charge to the said persons intended to be defrauded in selling and disposing of stocks, bonds, and other securities held and owned by the said persons intended to be defrauded in regard to making paying and profitable investments of the money of the said persons intended to be defrauded, which said representations and promises were and would be sent and transmitted to the said persons intended to be defrauded by and through the United States mails, * * * and that persons desirous of making paying and profitable investments in stocks so dealt and traded in on stock exchanges throughout the United States should send and transmit to the said defendants under the said name of Paul A. Leschuck & Co., stocks, bonds and other securities held and owned by the said persons intended to be defrauded, and that the said persons intended to be defrauded should send and transmit to the said defendants under the said name of Paul A. Leschuck & Co., money to be invested by the said Paul A. Leschuck & Co. for the purchase of stocks which, it had been and was represented by the said defendants, would enhance and increase in price, and that they, the said defendants, so operating under the said name of Paul A. Leschuck & Co., would hold the stocks and bonds and other securities sent to the said Paul A. Leschuck & Co. as security for the purchase of the stocks which it had been stated would enhance and increase in price and that all moneys transmitted and sent to the said defendants under the said name of Paul A. Leschuck & Co. would be applied on the purchase of stocks from the said Paul A. Leschuck & Co. by the said persons intended to be defrauded * * *; when in truth and in fact the said defendants intended at all times to sell and dispose of all stocks, bonds, and other securities sent and transmitted by the said persons intended to be defrauded to the said Paul A. Leschuck & Co., and would keep and retain for the use and benefit of the said defendants all moneys obtained by the said defendants from the sale and disposal of the said stocks, bonds and other securities, and would also keep and retain for the use and benefit of the said defendants all moneys transmitted to the said defendants under the said name of Paul A. Leschuck & Co., and neither the said Paul A. Leschuck & Co. nor the said defendants would, or intended to, deliver to the said persons intended to be defrauded any stocks whatever upon payment of the full purchase price of the said stocks by the said persons intended to be defrauded, all of which the said defendants, and each of them, well knew and intended.

"* * * the said persons intended to be defrauded would lose all stocks, bonds, other securities, and money transmitted and sent to the said Paul A. Leschuck & Co.; additional calls and requests for money and/or securities would be made by the said Paul A. Leschuck & Co., and at no time would the said persons intended to be defrauded make or receive any profit on the purchase of stocks offered for sale to the said persons intended to be defrauded by the said Paul A. Leschuck & Co., but would lose all stocks, bonds, securities and moneys transmitted and sent to the said Paul A. Leschuck & Co., all of which the said defendants, and each of them, well knew and intended."

The count then charged the transmission of certain mail matter on December 18, 1931, to a certain named individual in furtherance of such alleged scheme.

All succeeding counts adopted the allegations of the first count as descriptive of the scheme, but charged defendants with the mailing of a separate document in each instance, setting the same out in hÊc verba The date of mailing alleged in the second count was January 12, 1932, in the third count, February 23, 1932, in the fourth count, June 6, 1932, in the fifth count, June 30, 1932, in the sixth count, July 27, 1932, and in the seventh count, August 3, 1932.

Eight persons were named as defendants in the indictment, but the appellants Leonard J. Rollnick, Ben Reuben and Barney Laven were the only ones tried in this proceeding. All were convicted on all counts, and the District Court imposed a fine of $1,000 against each and sentenced each to a penitentiary — Rollnick for 3O years, Reuben for 3 years, and Laven for 2 years. The sentence imposed was general and not allocated to any specific count.

Each defendant has prosecuted a separate appeal (here consolidated), and by the several assignments of error many questions are raised. Rollnick has discovered 83 mistakes of the District Court, Reuben only finds 32, and Laven, while only finding 29 originally, has by diligence increased his assignments to 46.

An analysis of such assignments of error discloses that a very large number of them deal with alleged errors in the reception and exclusion of evidence. No good purpose would be served by a detailed discussion of these various rulings. In such an extended and tedious trial as this, it was inevitable that error should appear, but our examination of the record convinces us that the trial was as free of error in this respect as it was humanly possible for it to be, and we find none that substantially affected defendants' rights.

Other assignments challenge the sufficiency of the evidence to establish the guilt of defendants. The evidence produced by the government was in large measure the testimony of alleged accomplices, some of whom had entered pleas of guilty and others of whom it was asserted were to receive leniency at the hands of the government, in consideration of their testifying. A very large part of the defendants' argument deals with the weight to be given such testimony. The testimony of an accomplice is of course to be viewed with caution, but when submitted to a jury under proper instructions may not be disregarded solely on the ground that such witnesses are accomplices or that defendants, by their testimony, assert a different version of the controverted facts.

Furthermore, the record furnishes corroboration in the testimony of witnesses other than the alleged accomplices. We cannot here detail all such proof, but typical of it is the testimony of Tate B. Collins, retired Major in the United States Army, which is, as follows: "I saw an ad in a financial paper and requested Paul A. Leschuck and Co. to send me circulars, which I received. They called me on phone in West Point, N. Y. and asked me to buy Standard Oil, which I did. Received confirmation. Asked by phone to buy more Standard Oil. Bought 200 shares and sent 200 shares of Chrysler as collateral. Later bought more Standard Oil by telephone. By this time I had advanced $1800.00 in cash and the 200 shares of Chrysler as collateral. Received call that Standard Oil had advanced as far as possible and agreed to sell. Immediately after this I wrote to withdraw $1500.00 from my account. I was then urged by telephone not to withdraw the $1500.00 but to invest it in Mercantile Finance which the voice assured me was a large financial corporation in Chicago, in good financial condition, paying dividends regularly, and would increase my profit to $5000.00. On inquiry, I was told that the stock was not listed on the big board, but was on the curb. I assumed New York curb and authorized the salesman to buy 1000 shares. I could not find the stock listed in the newspaper but found by calling the Chicago salesman that the stock was on the Chicago curb. I informed him that I did not wish to trade on the Chicago curb and asked him to sell. He advised me to wait. I again called Chicago a few days later and ordered the stock sold. He again advised waiting, but I ordered a sale regardless of loss. I did not get a confirmation of sale the next morning and came to Chicago. * * * (The stock had not been sold). Up to and including May 16, 1933, I received nothing for the money and stock which I turned over to Paul A. Leschuck and Co. in full for the stock I purchased. I would judge the debit balance owed them on the day I requested them to sell the Mercantile Finance was...