Ross v. United States, 8856.

• Citation: 103 F.2d 600
• Decision Date: 14 April 1939
• Docket Number: No. 8856.,8856.
• Parties: ROSS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

103 F.2d 600 (1939)

ROSS v. UNITED STATES.

No. 8856.

Circuit Court of Appeals, Ninth Circuit.

April 14, 1939.

R. M. Crookshank, of Santa Ana, Cal., and Russell Graham, of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Norman W. Neukom, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Appellant was convicted by a jury in the United States District Court of the Southern District of California, Central Division, upon the first four counts, and was found not guilty upon the last two counts of a grand jury indictment dated March 23, 1939, charging him in seven separate counts (Case No. 1346-RJ) with having violated 18 U.S.C.A. § 334. Count six of this indictment was abandoned by the Government during the trial and was dismissed by the Court. Prior to the taking of testimony at the trial appellant entered a plea of former acquittal, which was denied and exception was reserved. Upon the conclusion of taking testimony on behalf of the Government at the trial the defendant, Ross, appellant here, made a motion, which was denied, that the jury be directed to find him not guilty on the ground of insufficient evidence to warrant conviction (not assigned as error) and upon the ground that the defendant had been put in former jeopardy. Judgment was entered in accordance with the verdict, sentence was pronounced, and this is an appeal from the judgment. Appellant relies upon five assignments of error.

Prior to the filing of the indictment in the instant case an indictment had been returned against appellant in the same jurisdiction. Trial had been had thereon and appellant had been acquitted. It is because of trial upon the third count of this first indictment that appellant claims double jeopardy.¹

Stripped of formalities, count three of the first indictment is as follows: "That * * * the defendant * * * on or about the 30th day of December, 1937 * * * did knowingly, wilfully, unlawfully and feloniously take and receive from a post office of the United States * * * a certain letter addressed to a fictitious, false and assumed name, and a name other than his own proper name, that is to say, the name Lucille Ross, which said name the defendant had theretofore, for the purpose of conducting, promoting and carrying on by means of the Post Office establishment of the United States an unlawful business, to-wit, the distribution by mailing of obscene, indecent filthy and lascivious writings and pictures, assumed and requested to be addressed by."

This count is laid under 18 U.S.C.A. § 339, which is as follows: "§ 339. Whoever, for the purpose of conducting, promoting, or carrying on, in any manner, by means of the post office establishment of the United States, any scheme or device mentioned in the section last preceding or any other unlawful business whatsoever, shall use or assume, or request to be addressed by, any fictitious, false, or assumed title, name, or address, or name other than his own proper name, or shall take or receive from any post office of the United States, or station thereof, or any other authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be punished as provided in section 338 of this title."

Each count of the indictment in the case here upon appeal charges a specific act of mailing an obscene picture, sketch or writing, and each is laid under the provisions of 18 U.S.C.A. § 334. Each alleged mailing was fixed in the indictment as having occurred prior in time to the trial upon the former indictment. We quote the essential parts of the statute last cited: "§ 334. Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character * * * and every letter, packet or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance * * * is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000, or imprisoned not more than five years, or both. * * *".

This statute in short denounces as nonmailable "every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character"; while section 339 denounces every use of the mails for assisting in any unlawful business by the use of any false fictitious or assumed name, title or address.

It is the theory of appellant that count three of the first indictment charges a continuing offense, to-wit, the conducting of an unlawful business and that conducting a business is by its nature a continuing act. From this premise he argues that the acts charged in the second indictment were necessarily essential parts of the charges upon which he was acquitted in the first trial, and that double jeopardy therefore resulted by trying him under the second indictment. Appellant relies largely upon the cases of Cain v. United States, 8 Cir., 19 F. 2d 472; In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658.

It is our opinion that appellant has incorrectly read the quoted count of the first indictment, and that his error has led him to wrong conclusions. The only allegation in count three of the first indictment as to any act done by him is that he took and received from the Post Office a certain letter. This taking and receiving is not alleged to have been unlawful because the letter was obscene, lewd or lascivious — indeed it is not alleged to have been such. The unlawfulness arises from the alleged facts that the letter was received from the mail and was addressed to a fictitious name assumed by the defendant, and that its purpose was the furtherance of the unlawful business named in the indictment.

It seems perfectly obvious that the mere fact that appellant had been acquitted of taking or receiving from the mails the one alleged letter referred to in the first indictment does not at all negative the allegations that he had used the mails as charged in the second indictment. It does not even negative all of the essentials of the first indictment, although appellant apparently assumes as much, including the allegation that he was conducting the unlawful business.

There is no conflict between or overlapping of Sections 334 and 339. They complement each other in the Government's effort to stop the use of mails in connection with a depraved practice of those who immerse their mentalities in slimy pools of obscenity. The first prohibits the use of the mails in connection with the indecent thing itself. The second excludes from the mails any use of fictitious names and addresses by one conducting the unlawful business or one dealing with him in connection with the unlawful business.

Appellant has not only incorrectly read the third count of the first indictment but has misread the statute used as the basis thereof, and he has misconceived the law applicable to double jeopardy. Of course it is not always true, as is so unconditionally asserted by him, that if any one essential element of an offense upon which a defendant is put to trial is also an essential element of another alleged offense, that the jeopardy rule applies to prevent a trial upon the latter one. The rule is almost if not quite the converse. The Supreme Court said in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 715, 59 L.Ed. 1153, "As to the contention of double jeopardy upon which the petition of habeas corpus is rested in this case, this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes."

Bishop's statement (Bishop's Criminal Law, Vol. 1 § 1051) to the effect that jeopardy is not the same when the two indictments are so diverse as to preclude the same evidence from sustaining both, has been approved in principle in Brady v. United States, 8 Cir., 1928, 24 F.2d 399, 404; Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; and Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489; and by this court in King v. United States, 9 Cir., 31 F.2d 17, affirmed in 280 U.S. 521, 50 S.Ct. 65, 74 L.Ed. 590. Our opinion in the King case cites the controlling authorities and they need not be repeated here. It may be well to add, however, that we specifically declined to follow Cain v. United States, supra. In view of the later expressions of the Supreme Court cases cited by us in the King Case, we do not deem it of any service to discuss earlier cases relied on by appellant. The plea of double jeopardy in this case is not good.

In the consideration of the other assignments it will be necessary to recite much of the evidence.

There is evidence in the case to the effect that Ross was an official Court Reporter of the California Superior Court for the period of several years and served as such up to the time of the trial, or nearly so. He appears to have rented a post office box, No. 542, at Santa Ana, Orange County, California, and retained it from February, 1934, to within a month of the trial.

The evidence shows without contradiction that on December 30, 1937, L. E. Miller and H. W. Tavener, Post Office...