Richards v. United States, 2734.

• Decision Date: 31 January 1933
• Docket Number: No. 2734.,2734.
• Citation: 63 F.2d 338
• Parties: RICHARDS v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

63 F.2d 338 (1933)

RICHARDS v. UNITED STATES.

No. 2734.

Circuit Court of Appeals, First Circuit.

January 31, 1933.

Asa S. Allen, of Boston, Mass. (Willard Allen & Mulkern, of Boston, Mass., on the brief), for appellant.

Haven Parker, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, AND MORTON, Circuit Judges.

MORTON, Circuit Judge.

The defendant Richards was indicted with two other persons for using the mails in a scheme to defraud. Criminal Code § 215 (18 USCA § 338). After a trial lasting ten days, the jury returned a verdict of guilty against him and his codefendant Seager. The assignments of error present certain rulings of evidence made during the trial, and certain comments on facts by the presiding judge which, it is contended, were unfairly prejudicial.

The government's evidence warranted a belief that Richards took a leading part in organizing and carrying on, under the names United Investment Assurance Trust, and Founders' Securities Trust, a carefully devised scheme to obtain money fraudulently by the pretended purpose of investing it safely; and that he used the mails in furtherance of said scheme. The defense was that the enterprises were legitimate and were carried down in the collapse of security values which began in the autumn of 1929. On a question of this sort, it is obvious that the evidence must take a wide range, and that much must be left to the discretion of the trial judge. It is but seldom that a single piece of evidence in a long and complicated case can be said to be of such outstanding and influential character as to warrant setting aside the verdict, even if as a matter of strict law the evidence appears to have been improperly admitted — especially in view of the statutory provision requiring courts to give judgment "without regard to technical errors * * * which do not affect the substantial rights of the parties." 28 USCA § 391. See Myers v. U. S. (C. C. A.) 223 F. 919, 925.

The first assignment of error needs no extended comment. The written notice admitted over the defendant's objection came from the papers of the concerns with which the defendant had been associated. If it had evidential value we think it was admissible (Livezey v. United States, 279 F. 496, 499, C. C. A. 5th); if not, the defendants were not harmed — as their counsel in effect concede. As to the second assignment we think the mortgage on the furniture was properly admitted. It constituted part of the general picture of the concerns under scrutiny at their formative stage with which the defendant Richards was concerned.

As to the third assignment, this relates to the admission against the defendant of a check for $600 drawn by one Bohlman and payable to the Founders' Securities Trust. An accountant, who examined the books of this trust after the failure, was called by the government and testified to book entries which warranted the inference that the sum represented by this check was paid out by the Founders' Trust to the defendant Richards. Bohlman testified that he gave the check in payment for shares, that he could not say whether he bought the shares from the trust or from Richards personally. The check standing alone is without significance. Its probative value comes from the transaction of which it was part. In view of the vagueness with which this transaction was described, we do not think it furnished any evidence of fraud, and we think that the check was improvidently admitted. The check per se did not injure the defendant's case; there was nothing sinister about it. It was open to the defendant to point out that the transaction to which it appeared to relate was not shown to have been dishonest. It would be going much too far to hold that the improvident admission of a paper harmless per se requires the granting of a new trial.

As to the fourth assignment, the remarks by the court which were objected to were made at a conference between court and counsel at the bench. It was not intended that the remarks should be heard by the jury; and it does not appear that they were heard by them.

The fifth assignment relates to a substantial transaction whereby the Founders' Trust paid Richards $35,705 for warrants for "founders shares" so called in the other trust. Richards was connected with the management of the purchasing trust from its inception; he was elected president of it in 1927. A transaction whereby he sold property to it would certainly call for explanation by him. The facts surrounding this transaction do not clearly appear in the record before us; it is not stated who represented the Founders' Trust in making the purchase, nor in what way, if at all, its interests were properly protected. The District Judge may have taken the view that the purchase was, in effect, the use of trust funds by a trustee to purchase from himself, and as such was prima facie fraudulent. If the transaction was in fact proper, it was open to Richards to introduce evidence to that effect. But no such evidence appears in the record. In connection with the other evidence we think this might well be considered as throwing light on the manner in which Richards dealt with the two trusts, in the management of which he was so influential.

The sixth assignment of error relates to a comment by the court during the trial: "In other words the thing was in a mess. I think we agree to that." This remark referred to the books of account, as to which testimony was then being given. The presiding judge afterwards became convinced that the books had been properly kept and that his remark was erroneous. He withdrew it in the charge in the most complete and unqualified manner. "I said in the course of the trial that the books were in a mess. In that I was mistaken. The books were not in a mess." Certainly the defendant was not harmed by such a comment so unequivocally withdrawn.

The seventh assignment of error relates to the refusal to let a witness called by the government testify as to what his "theory" was about a certain discrepancy which appeared to exist in the books. The presiding judge said that he did not want theories, he wanted facts; and he excluded the inquiry. The defendant did not pursue the matter with the witness, nor attempt to elicit facts in explanation of the discrepancy. Plainly the question as put was inadmissible because it opened the door for the witness' guess as to the explanation of the apparent discrepancy. In refusing to consider the question in a broader aspect we cannot say that the presiding judge was wrong.

Assignments eight and nine relate to the admission of the...