Rosenberg v. United States, 2213
| Decision Date | 29 May 1941 |
| Docket Number | 2219.,No. 2213,2213 |
| Parties | ROSENBERG v. UNITED STATES. UPHOFF v. SAME. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anthony J. Albert, of Santa Fe, N. M. (Romeo Cunningham, of Santa Fe, N. M., on the brief), for appellants.
Everett M. Grantham, U.S. Atty., of Santa Fe, N. M. (Gilberto Espinosa, Asst. U. S. Atty., and Donald B. Moses, Asst. U. S. Atty., both of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
The defendants below, Joel E. Rosenberg and William C. Uphoff, were convicted of using the mails in furtherance of a scheme to defraud, in violation of section 215 of the Criminal Code, 18 U.S.C.A. § 338. The indictment charged that Uphoff sold to C. W. Harber a one-half interest in an oil and gas lease covering 120 acres of land in New Mexico for $60; that thereafter Rosenberg pretended to offer Harber $7.50 per acre and later $25 per acre for his interest in the lease; that both defendants represented to Harber that more money could be had by drilling a well on a 2,000 acre tract which would include the acreage owned by Uphoff and Harber, and suggested that the two advance jointly the sum of $1,800 as their share of the drilling fund; that drilling would start in the near future, and if results were satisfactory they would sell part of their acreage for $100 per acre; and that Harber would be paid interest on the money which he advanced. It was further charged that all of such pretenses, representations, and promises were false and fraudulent, and that for the purpose of executing such scheme the defendants caused to be delivered through the post office at Santa Fe, New Mexico, the following letter which had been deposited in the post office at Moline, Illinois:
The facts material to a decision are not in dispute. Harber resided at Streator, Illinois, and owned a farm near there. He first met Uphoff in November, 1938. Uphoff called on him and began negotiations to sell him an interest in a mineral lease covering 120 acres of land in New Mexico. On January 13, 1939, after several intervening calls, Harber purchased a one-half interest in the lease for $60, of which $10 was paid at the time and the balance later. Harber received through the mails a letter dated January 14th, purporting to be signed by Uphoff, and reading:
A copy of the letter described in the indictment accompanied the letter just referred to. Rosenberg went to the home of Harber sometime after the half interest in the lease had been purchased. Uphoff was there. Rosenberg was going under the name of Mason. Rosenberg and Uphoff pretended to be strangers. After some discussion in which Rosenberg pretended a keen desire to purchase Harber's interest in the lease, it was suggested that Uphoff and Harber advance $1,800 to be placed in a fund for use in drilling a well on a 2,000 acre tract which would include the lease owned by Uphoff and Harber. Harber was induced to advance $1,800 in cash for the pretended purpose; but no well was contemplated or drilled, and he lost the amount contributed. The letter described in the indictment, and an assignment of an oil and gas lease reached the office of the Commissioner of Public Lands of New Mexico, at Santa Fe. The file mark placed on them recited that they were filed February 3, 1939, at 12:15 o'clock. It was the uniform custom in the office to place the same stamp or mark on all incoming instruments and papers to indicate the time of arrival. No distinction was made between instruments and papers coming through the mails and those handed over the counter. A representative of the land office detailed the method of placing the stamp on all incoming instruments and papers, and testified without qualification that he did not know whether the letter and assignment came through the mails or were handed over the counter; Harber testified that he received the assignment through the mails from the Commissioner, but that he did not know how it or the letter set forth in the indictment reached the Commissioner; and no other evidence was offered relating to that essential issue of fact.
The crime charged in the indictment has its genesis in the scheme to defraud, but the very gist and crux of the offense is the use of the...
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...there any errors which demand reversal. He complains of the admission against him of the opinion of the Tenth Circuit in Rosenberg v. United States, 120 F.2d 935, in which it reversed a conviction against him in another case, this reversal resulting in the dismissal of the indictment. He co......
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