Shayne v. United States
| Decision Date | 09 June 1958 |
| Docket Number | No. 15406.,15406. |
| Parties | Max SHAYNE and Irving Shayne, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Morris Lavine, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Robert John Jensen, Lloyd F. Dunn, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before FEE and CHAMBERS, Circuit Judges, and CHASE A. CLARK, District Judge.
Notice of appeal in this matter was filed on behalf of two defendants, Max Shayne and Irving Shayne. During the pendency of the appeal Max Shayne died, so in disposing of the appeal we will discuss the questions raised only as they may concern the appellant Irving Shayne. The indictment returned by the Grand Jury on January 4, 1956 contained nine counts charging the appellants essentially as follows:
Count I, from June 1952 to April 1953 appellants Max Shayne and Irving Shayne conspired together and with other persons (a) to defraud the United States by causing the Federal Housing Administration to insure and guarantee loans for home improvements by reasons of false and fraudulent written statements which would be made pursuant to said conspiracy and which loans would not otherwise be so insured and guaranteed; (b) to commit certain offenses against the United States in violation of Sections 1010 and 2 of Title 18 United States Code, by causing to be passed, uttered and published certain false statements to lending institutions, for the purpose of obtaining for certain applicants loans and advances of credit from said lending institutions, with the intent that such loans and advances of credit would be offered to and accepted by, the Federal Housing Administration for insurance;
It was a part of said conspiracy and an object thereof that defendants Max Shayne and Irving Shayne, singly and together, would meet with certain persons who were home owners and who, as the defendants well knew, desired money, which said home owners intended to use for various and sundry purposes not relating to the improvement of their homes; by promising to assist said home owners to secure a loan of money, defendants Max Shayne and Irving Shayne were to induce and persuade said home owners to affix their signatures to contracts whereby said home owners would agree that a construction and improvement company would furnish materials and services to improve their homes; the defendants, in addition, agreed that they would induce and persuade said home owners to sign certain other documents including FHA Title I Credit Applications which, in addition to the contract aforementioned, the defendants thereafter would cause to be passed, uttered and published to lending institutions for the purpose of obtaining for said home owners loans or advances of credit from said lending institutions, which loans or advances of credit, it was intended, would be offered to, and accepted by, the Federal Housing Administration for insurance; it was known and agreed by the defendants that the documents to be signed by the home owners and to be utilized by said defendants as described hereinbefore would include, among others, FHA Title I Credit Applications which would state that the proceeds of the loans applied for by said home owners (hereinafter referred to as "applicant-borrowers") would be used to improve the property of said applicant-borrowers in a manner and in an amount to be described by said credit applications; these credit applications and the statements contained therein would be false, as said defendants well knew, for, in truth and in fact and to the knowledge of said defendants, the applicant-borrowers would not intend to use, nor would they use the proceeds of the loans applied for to improve their property in the manner and in the amount as described by said credit applications, but rather said applicant-borrowers, at all times would intend to use, and would use, the proceeds of the loans for various and sundry purposes not relating to the improvement of their homes and not within the authorized purposes for such insured loans as set forth by the National Housing Act, as amended, 12 U.S.C.A. § 1701 et seq., and the regulations thereunder;
It was further a part of said conspiracy and an object thereof that said defendants, in their capacity as employees and salesmen for certain home improvement and construction companies, would arrange for such work as was ordered to be done by said applicant-borrower to be performed by persons herein called "subcontractors"; the defendants would conspire together and agree to submit invoices from said subcontractors to the home improvement and construction companies, for which the defendants acted as employees and salesmen, which invoices would purport to show that said subcontractors had completed the work requested of them upon the home of said applicant-borrowers, the defendants agreed that said invoices would be false for, in truth and in fact, the above mentioned work would not have been performed by said subcontractors; by this device defendants would acquire for their own personal gain the money which was intended for said subcontractors by reason of the invoices submitted by them; and
To effect the objects of said conspiracy the defendants Max Shayne and Irving Shayne committed divers overt acts in the Central Division of the Southern District of California, among which are the following: * * *
Count II, On April 24, 1953 both appellants Max and Irving Shayne caused to be passed, uttered and published certain false statements pertaining to applicant-borrowers Archie L. Thompson and Viola Thompson in violation of Sections 1010 and 2 of Title 18, United States Code.
Count III, same type of offense as Count II except it occurred on June 10, 1952 in respect to applicant-borrowers Henry E. Green and Martha Green.
Count IV, similar to Count II, except it occurred October 15, 1952 pertaining to applicant-borrowers Mandell Drakes and Moshell Drakes.
Count V, similar to Count II, except Max Shayne alone is charged and it occurred October 3, 1952 pertaining to applicant-borrowers Eligh S. Moore and Vivian Moore.
Count VI, similar to Count II except Max Shayne alone is charged and it occurred September 5, 1952 pertaining to applicant-borrower David L. Hamilton.
Count VII, similar to Count II, except Max Shayne alone is charged and it occurred July 15, 1952 pertaining to John Olsen and Leona Olsen.
Count VIII, similar to Count II, except Max Shayne alone is charged and it occurred June 16, 1952 pertaining to applicant-borrower H. C. Cooper. (This count was dismissed by the Government.)
Count IX, similar to Count II, except Max Shayne alone is charged and it occurred on June 17, 1952 pertaining to applicant-borrowers Earnest C. Johnson and Flordie Mae Johnson.
Thereafter certain preliminary motions were presented and disposed of by the Court and on May 1, 1956 appellants entered pleas of not guilty as to eight counts (Count VIII having been dismissed on Motion of the Government as noted above).
The trial was commenced on August 27, 1956 and at the conclusion of a lengthy trial the jury returned a verdict of guilty as to Max Shayne on Counts 1, 2, 3, 5, 6, 7 and 9, and also returned a verdict of guilty against Irving Shayne as to Count 1. On September 2, 1956 Motion for new trial was filed which motion was denied on October 8, 1956. However, as stated, we are here concerned only with the judgment of conviction which was entered on October 8, 1956, as it affects Irving Shayne.
Specifications of error numbered one to twelve are assigned here and we will take them up in order.
Specification I.
We disagree with the contention of appellant. It is apparent that count one charges a single continuing conspiracy. True, there were involved a number of loans to be made to a number of home owners but this charge concerns Max and Irving Shayne, only. It was a...
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