Robinson v. United States

Decision Date17 June 1929
Docket NumberNo. 5665.,5665.
Citation33 F.2d 238
PartiesROBINSON et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Robert B. McMillan, of San Francisco, Cal., and Mark Herron and Davis A. L'Esperance, both of Los Angeles, Cal., for appellant Robinson.

Harold C. Faulkner and James B. O'Connor, both of San Francisco, Cal., for appellant Randolph.

George J. Hatfield, U. S. Atty., and George M. Naus and Joseph L. Sweeney, Asst. U. S. Attys., all of San Francisco, Cal.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

RUDKIN, Circuit Judge.

Early in 1925, Cromwell Simon and Harry M. Kassmir, under the firm name of Cromwell Simon & Co., formulated a plan or method for the acquisition of high-grade securities listed on the New York stock exchange by the payment of one-fifth down and the balance in ten equal quarterly installments. A more detailed statement of the plan is not deemed necessary for present purposes, because the fraud charged in the indictment was not in the plan itself, but in its underlying purpose. The indictment returned against Simon, Kassmir, Samuel H. Robinson, Orton E. Goodwin, and J. W. Randolph charged, among other things, that it was a part of the plan, called in the indictment a scheme and artifice to defraud, that the defendants would, whenever possible, require the purchasers, called victims, to deliver over to them valuable securities as alleged collateral to secure deferred payments on the stock subscribed for, and that the defendants would take and embezzle such collateral securities to their own use and benefit without accounting to the victims therefor, and thus defraud the victims of their money and property. It is then charged in different counts that the defendants, for the purpose of executing the scheme and artifice to defraud, placed, and caused to be placed, in the United States post office, or caused to be delivered by the post office establishment of the United States, a large number of letters and circulars, copies of which were attached to the indictment as exhibits. The indictment contained 38 counts in all, but the scheme and artifice to defraud was set forth in the first count, and was made a part of the remaining counts by reference only. A demurrer to the first count was sustained, for the reason that it failed to charge the use of the post office establishment of the United States in and for the purpose of executing the scheme and artifice, but was overruled as to the remaining counts. Upon the trial, the jury returned a verdict of guilty against the defendant Randolph as to all counts and against the defendant Robinson as to counts 25 to 38, inclusive, except counts 33 and 34. A general judgment or sentence was pronounced on each count, the judgment or sentence on the different counts to run concurrently. From the judgment thus rendered, the defendants have appealed.

The first assignment of error is based on the ruling of the court overruling the demurrer to all counts of the indictment, except the first. The fact that a demurrer to the first count was sustained, for reasons already stated, did not impair or destroy the effect of that count for reference purposes. Barnard v. United States (C. C. A.) 16 F.(2d) 451. It cannot be seriously contended that the first count of the indictment failed to charge a scheme and artifice to defraud, but it is earnestly insisted in behalf of the appellants that the indictment failed to charge that the indictment letters, circulars, and documents, or any statements therein contained, were false or fraudulent. But there is no such legal requirement. "Whether the contents of the circular were true or false was immaterial. The letters or circulars that are mailed need only be `in and for executing' the scheme to defraud." Grey v. United States (C. C. A.) 172 F. 101. See, also, Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709; Rumble v. United States (C. C. A.) 143 F. 772; Walker v. United States (C. C. A.) 152 F. 111; Lemon v. United States (C. C. A.) 164 F. 953.

It is further contended that the indictment contained no adequate assignment of the falsity of the representations made by the parties charged. But, if we should concede this to be true, the fact remains that there was enough left in the indictment to constitute a crime, as will sufficiently appear from the statement already made concerning the purpose and intent of the parties to embezzle the collaterals deposited with them as security.

Again, it is contended that the charge as to the use of the mails was defective as to some of the counts, but there is no contention that such defect existed as to all counts upon which the judgment was entered, and the rule is well settled that, "where conviction is had upon more than one count, the...

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  • Himmelfarb v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 1, 1949
    ...application will not be disturbed on appeal. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; Robinson v. United States, 9 Cir., 33 F.2d 238, 240. The rule has been applied in income tax evasion cases. Cf. Paschen v. United States, 7 Cir., 70 F.2d 491; United States v......
  • Hewitt v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 27, 1940
    ...F.2d 348, 353; Rimmerman v. United States, 8 Cir., 186 F. 307, 310; Rinker v. United States, 8 Cir., 151 F. 755, 759; Robinson v. United States, 9 Cir., 33 F.2d 238, 240; Salerno v. United States, 8 Cir., 61 F.2d 419, 421; Goldstein v. United States, 8 Cir., 63 F.2d 609, 612; Mulloney v. Un......
  • U.S. v. Jackson
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 8, 1980
    ...1 Bishop on Criminal Law (9th Ed.) §§ 629, 630; 2 Bishop's Criminal Procedure (2d Ed.) §§ 1248, 1249.12 F.2d at 257. Robinson v. U. S., 33 F.2d 238, 240 (9th Cir. 1929): "(A) scheme to defraud, when shared in by several, becomes a conspiracy, and, if a conspiracy exists in fact, the rules o......
  • Isaacs v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 20, 1962
    ...shared in by two or more, it becomes a conspiracy; the rules of evidence are the same as where a conspiracy is charged (Robinson v. United States, 9 Cir., 33 F.2d 238); and the act of each party in furthering the common scheme is the act of Each participant in a scheme to defraud is respons......
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