Rumely v. United States

• Decision Date: 27 July 1923
• Docket Number: 135.
• Parties: RUMELY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

293 F. 532

RUMELY et al. v. UNITED STATES.

No. 135.

United States Court of Appeals, Second Circuit.

July 27, 1923

Henry J. Johnson, for plaintiff in error Rumely.

Walter C. Noyes, William L. Wemple, Herbert R. Limburg, and Arthur G. Hays, all of New York City, for plaintiffs in error Kaufmann and Lindheim.

William Hayward, U.S. Atty., of New York City (Harold Harper, Sp Asst. Atty. Gen., of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The plaintiffs in error have been convicted under an indictment which charged them with having conspired to defraud the United States by obstructing and preventing the United States from seizing and administering a certain indebtedness of the defendant Rumely to the Imperial German government. It was alleged as part of the conspiracy that the defendants should conceal the fact of such indebtedness to the German government, and should make false and misleading reports to the Alien Property Custodian of the United States, and so obstruct and prevent the transfer and payment of that indebtedness to such Custodian. The defendants were acquitted on the first three counts, but convicted on the fourth and fifth. The jury accompanied their verdict with a strong recommendation for mercy.

Counsel for the defendants moved to set aside the verdict and for an arrest of judgment, which motions the court denied. In doing so Judge Grubb said:

'I listened to the evidence with patience for five or six weeks as it was being introduced. I listened to the summing up of counsel, and I am not disposed to say that the jury did wrong in bringing in the verdict which it did.'

And in imposing sentence the court said:

'Gentlemen, of course, the question of your guilt or innocence is complete, as far as I am concerned, by the verdict of the jury. I do not have any disposition to criticize the jury's verdict. Now, if I were privileged in passing sentence to consider only the punishment for you individually, I could make the sentence very nominal, in view of the fact that you have already been severely punished. I am sure that you have shown the good reputation which you have borne from exceptional men, and the recommendation of the jury has been for mercy. However, my duty is not confined alone with fixing the sentence, but the court is bound also to consider the duty of enforcement of the law, and in my humble judgment there is no more-- no duty that is so outstanding nowadays on the part of a judge than to adequately enforce the law. In this case the jury have found that an important law has been violated by you gentlemen. The law was passed to aid this country in the war, and was vital somewhat to the proper conduct of the war. I think the court would be derelict in its duty if it imposed a nominal sentence for such an infraction of the law as the jury has found in this case. I think the judgment of the court should be substantial. If there are mitigating circumstances, as I am sure there are, I think the proper place for them to be considered is in the plea for executive clemency, and not before the court. In view of that fact, I sentence each of you gentlemen, and all three of you gentlemen, to a term of imprisonment in the Atlanta Penitentiary at Atlanta, Georgia, for a year and a day. I will make it on each count to run concurrently.'

We have incorporated these remarks of the court into this opinion because we find ourselves so fully in accord with all that was said. There is no duty which the courts of this country owe to all the people which is more important than to see that law is adequately enforced. It is, of course, the primary duty of the court to see that no man is convicted of crime, except under and in accordance with the law. But if he has been so convicted the punishment to be imposed must be such as to make law respected and to safeguard society and government.

The defendants at the time of their indictment were engaged in business in the city of New York. Each is a citizen of the United States, and each was born in this country. The defendant Rumely was educated at Notre Dame University, in Indiana. He then studied in England, at Oxford University, for something over a year. From there he went to Germany, and spent a year at the University of Heidelberg, and then three years and a half at that of Freiburg. During his sojourn in Germany he appears to have lived on terms of intimacy with some of its leading men. He has been a man of affairs. In 1915 he began negotiations for the purchase of the Evening Mail, an old and well-established newspaper in New York. At the time he purchased the Mail there was a feeling on the part of many German-Americans that the news from Europe was put over in a one-sided way. As he expressed it:

'There was a great deal of resentment against the biased reports that were coming, and that bias I had recognized was due to the absence of a news flow from the Central Powers.'

And he says he saw in that 'a very great public opportunity.' He thought he could get strong financial support for his proposed purchase of the Mail, as he 'intended in that paper to fight the British blockade' which he regarded as unwarranted and illegal.

The defendant Kaufmann is a member of the New York bar, and has been for some years associated with the defendant Lindheim in law practice. He entered Harvard College, but was compelled by serious illness to withdraw from it. As a result of his illness he lost his eyesight. He nevertheless on the restoration of his health, and notwithstanding the loss of his sight, entered Columbia Law School from which he was graduated. He immediately thereafter took the bar examinations and was admitted to practice.

The defendant Lindheim is a graduate of Johns Hopkins University and of the Columbia Law School. He has been a member of the bar of New York for a number of years, and previous to the formation of his own firm served in the offices of several prominent law firms in New York City.

There is much evidence in the record given by leading members of the bar of New York and others as to the excellent character of these defendants. This, as the jury were properly instructed, the law permits to be done, upon the theory that defendants, who have borne good reputations in the community in which they live for right living and honorable conduct, would be less liable to do dishonest or criminal acts than those who are unable to show that they have borne such good reputations. The jury in this case was properly charged:

'If you believe a defendant is guilty, in spite of his previous good character, he should be convicted; but if you believe, after considering all the testimony, that there is a reasonable doubt of his guilt, by reason of his good character, then it would be proper to acquit him because of his good character.'

The trial began on November 3, 1920, and occupied 30 court days. During the trial 166 witnesses were examined, 670 exhibits were received in evidence, and the record fills 4 volumes, of 2,139 printed pages. There are 249 assignments of error, which occupy 116 printed pages. Of these assignments of error, 206 relate to the admission or exclusion of evidence, 24 to the charge to the jury, 7 to the denial of motions to set aside the verdict, 8 to the denial of motions to dismiss the indictment, and 3 to the denial of motions requiring the government to elect on which counts it would go to trial. We have on several occasions condemned the practice of taking so numerous assignments of error. The practice is not conducive to the administration of justice in appellate courts. Many such assignments of error are inconsequential, and of so little importance that the court should not be asked to review them.

All three defendants have been convicted of having conspired to defraud the United States. The fourth count charged that the defendants unlawfully, willfully, knowingly, feloniously, and corruptly conspired and agreed with each other to defraud the United States; while the fifth count charged them with having in the same manner conspired to commit an offense against the United States. The gravamen of the crime charged in the two counts is in fact the same. It grows out of the willful failure to report to the Alien Property Custodian, under the provisions of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 1/2a-3115 1/2ff, 3115 1/2g-3115 1/2j), an indebtedness which the defendant Rumely had the with the Imperial German government. The Trading with the Enemy Act, approved October 6, 1917, required by the provisions of section 7(a), 40 Stat.c. 106, p. 416, that any person 'who is or shall be indebted in any way to an enemy or ally of an enemy' shall report the fact to the Alien Property Custodian by written statement under oath containing such particulars as the Custodian shall require. The fourth count charged that defendant Rumely was indebted to the Imperial German government in the sum of $1,301,700. The fifth count charged him with being indebted to that government in the sum of $1,451,700. It was a part of the conspiracy alleged that the defendants should conceal the fact of the indebtedness to the German government by making false and misleading reports to the Alien Property Custodian, from whom the true facts were to be concealed.

It appears that on March 18, 1915, defendant Rumely and Samuel S. McClure obtained an option to purchase the New York Evening Mail, a paper published in the city of New York. The option was for the purchase of the property subject to an existing mortgage of $400,000, by the payment of $650,000 in cash, and the issuance to the vendor f $125,000 in second mortgage 6 per cent. notes of the company....