Shea v. United States

• Citation: 251 F. 440
• Decision Date: 03 August 1918
• Docket Number: 3079.
• Parties: SHEA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

251 F. 440

SHEA et al. v. UNITED STATES.

No. 3079.

United States Court of Appeals, Sixth Circuit.

August 3, 1918

Ralph Emery, George P. Hahn, and Cornell Schreiber, all of Toledo Ohio, for plaintiffs in error.

E. S Wertz, U.S. Atty., and J. C. Breitenstein, Asst. U.S. Atty both of Cleveland, Ohio.

Before KNAPPEN and DENISON, Circuit Judges, and WESTENHAVER District judge.

KNAPPEN Circuit Judge.

Plaintiffs in error were convicted upon an indictment under section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (Comp. St. 1916, Sec. 10385)), for using the mails in furtherance of a scheme to defraud. The indictment named several defendants, in addition to plaintiffs in error, including one Collins and one Brown. The alleged fraudulent scheme is best understood from a brief statement of the government's claim, which the record tends to sustain, and which is sufficiently covered by the indictment. The substance of the government's case is this:

Defendants operated in the Nasby Building, in Toledo, Ohio, a purely fictitious 'turf exchange,' equipped with paraphernalia apparently adapted thereto, including blackboard, charts, telephone and telegraph instruments, fictitious packages of money, betting tickets, etc. Hoblitzel, who resided in Marion, Ohio, while at Toledo on business, was met by Brown, who pretended to be acting for a syndicate of gamblers in betting on the turf exchange, and who won Hoblitzel's confidence, introducing him to Collins; the two bringing him to the 'turf exchange' rooms referred to, where Hoblitzel was induced to bet his check for $5,000 on a pretended horse race, in the belief and on the false representation that Collins had advance information by wire from New York on the result of the races, whereby he always won the bets. It was announced that Hoblitzel had won $10,000, but that the money could not be paid until $5,000 cash was substituted for his check-- which several days later was done. It was then announced that Hoblitzel's bet turned out to have been lost, through an alleged misunderstanding of betting instructions, whereby the wager was laid on the wrong result. Hoblitzel was thus swindled out of his $5,000. The transaction extended from August 15 to August 25, 1914. The use of the mails will be referred to later.

The instant case is a companion to No. 3078, 251 F. 433, . . . C.C.A. . . ., this day decided, in which Shea alone is plaintiff in error, and which involved another alleged case of swindling through fake horse race betting by means generally similar to those charged to have been employed here. A former trial of that case was reviewed by us. Shea v. United States, 236 F. 97, 149 C.C.A. 307. On the former trial proof of the Hoblitzel transaction (the subject-matter of the indictment in the instant case) was received as evidence of intent and motive in the other case. In our opinion referred to, the substance of the evidence relating to each of the alleged frauds is stated. The alleged errors argued relate to the admission of evidence, the charge of the court as given, and refusals to charge. So far as seems practicable, we consider the questions in that order.

1. Proof of similar offenses. On August 14, 15, and 16, 1914 (which was about the time the Hoblitzel transaction started), there was published in a Detroit newspaper this notice:

'Gentleman will invest from $30,000 to $50,000 in modern fertile farm. Must be unincumbered. State size and acreage and full particulars in first letter. Owners only. Agents need not answer. Address Box R-20, News.'

The evidence tended to show that Rundel, a farmer living in Oakland county, Mich., read and replied to the advertisement. Later he was called upon by one Collier, who claimed to be representing the 'Guggenheims' in the prospective purchase of a farm. Rundel met Collier by appointment at Toledo, September 21, and was thereafter inveigled into a fictitious 'turf exchange' in the Denison Building, where he was induced to bet $3,000 on a fake horse race, under representations similar to those made to Hoblitzel, and by which he was induced to make his bet. Rundel's money was lost by the claim that the bet had been mistakenly laid on the wrong horse. The evidence tended also to show that one Millard, a farmer living near Rundel, also saw the advertisement in August, and answered it by mail. He was later called upon by Collier on September 5 and 17, who told a 'Guggenheim' farm purchase story in substance as related by Collier to Rundel. The Millard transaction went no further than an agreement upon the purchase price, because of his refusal to add Collier's commission to the price of the farm and to bring the commission with him to Toledo.

The evidence of these transactions was properly admitted. There was testimony sufficiently connecting both plaintiffs in error with the Rundel transaction. True, neither plaintiff in error is directly shown to have been connected with the Millard incident; but the Rundel and Millard transactions were apparently the result of the Detroit advertisement with which there was testimony directly connecting Shea. Both these transactions were in progress at substantially the same time, and the same man (Collier) opened the fraudulent negotiations in both cases and by similar representations. The two alleged frauds-- the one accomplished; the other attempted-- were inferably the outgrowth of the same general fraudulent scheme charged, with which the evidence tended to connect both plaintiffs in error and in whose execution the testimony indicated fictitious 'turf exchanges' were at different times maintained in the Nasby Building (where Hoblitzel was swindled), in the Denison Building (where Rundel lost his money), and in the Chamber of Commerce Building.

As to the admissibility generally of this class of testimony, we content ourselves with a reference to what was said on the subject in Shea v. United States, supra, 236 F. 102, 103, 149 C.C.A. 312, 313. The charge (an extract from which we print in the margin ^[1]) so limited the use of the Millard testimony as to remove any danger of undue prejudice.

The telegram from Collins to Rundel was also properly admitted. It was sent September 25, 1914, the day after Rundel lost his money; but it is not for this reason subject to the objection of being an act done after the fraudulent scheme was at an end. The general fraudulent scheme is not shown to have been at that time abandoned; the telegram was part of the res gestae. McDonald v. United States, 241 F. 793, 800, 154 C.C.A. 495, is not in point.

2. It was not error to admit, as against Taylor, evidence of the finding in Shea's office in the Spitzer Building, on the day of the arrest (October 5, 1914), of the large amount of paraphernalia apparently of the kind used in the fictitious 'turf exchanges' and adapted to the fake betting schemes charged. The fact that Taylor was not present when the paraphernalia were found is not material. There was evidence tending to show his connection with the general scheme to defraud by fake betting, in which scheme the paraphernalia are claimed to have been used.

3. One Blaine had testified to participation by both plaintiffs in error in renting rooms in the Chamber of Commerce Building. On cross-examination he stated that a post office inspector had shown him certain pictures, and in answer to a question whether he saw in the courtroom the inspectors who showed him the pictures said he saw one, whom he named, whereupon the inspector stood up. Plaintiffs in error moved to strike Blaine's testimony from the record and to instruct the jury to disregard it, on the ground that by the inspector's action they had lost the benefit of cross-examination. The motion was rightly denied. The meritorious question was one of identification of plaintiffs in error. The cross-examination related to a collateral matter, going merely to the credibility of the witness. The jury was presumably competent to give to the criticized incident whatever weight it deserved.

4. The charge as to alleged alibis. There was testimony that both Shea and Taylor were at the 'turf exchange' in the Nasby Building on the occasion of certain important steps in the consummation of the alleged fraud, the dates thereof being expressly given-- Taylor being alleged to have acted as manager of the pretended exchange; Shea, as its cashier. Both Shea and Taylor offered evidence, by way of depositions of others, relating to alibis covering the entire period of time involved. The charge of the court on the subject is criticized as instructing, in substance, that plaintiffs in error 'could be convicted, although their alibis were fully established. ' We think the charge not subject to this criticism. On the contrary, the jury was instructed that, if the proof of alibis was sufficient to create a reasonable doubt of the defendants' guilt, they should be acquitted. It was said that, even if the government's witnesses, including Hoblitzel, were mistaken as to the presence of the defendants at the various times and places testified to, the jury might yet find them guilty on other evidence in the case. In this there was no error. The important question of their presence related, not to the precise date, but to the occasion, unless (as we cannot say) their presence on the precise date testified to was indispensable to guilt. Young v. United States, 249 F. 935, . . . C.C.A. . . . (decided April 2, 1918). The instruction that Hoblitzel's alleged mistake as to the presence of plaintiffs in error 'would be merely to discredit him as a witness' was coupled with the express limitation-- 'if other evidence in the case convinces you beyond a reasonable doubt that Taylor was a member of the band whose fraudulent...