Spivey v. United States

• Decision Date: 13 March 1940
• Docket Number: No. 9038.,9038.
• Citation: 109 F.2d 181
• Parties: SPIVEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F.2d 181 (1940)

SPIVEY v. UNITED STATES.

No. 9038.

Circuit Court of Appeals, Fifth Circuit.

January 15, 1940.

Rehearing Denied March 13, 1940.

COPYRIGHT MATERIAL OMITTED

Roderick Beddow and G. Ernest Jones, both of Birmingham, Ala., for appellant.

Jim C. Smith, U. S. Atty., of Birmingham, Ala., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, with two others, was charged upon an indictment in twenty-seven counts, with violating Sections 80,¹ 83² and 338, Title 18 U.S.C.A. Seven counts, 1, 2, 3, 23, 24, 25 and 26, charged violation of Section 338, the use of the mails to defraud. Eighteen, being all of the remaining counts, except the twentieth, charged the making of false and fictitious statements in violation of Section 80. One, the twentieth, charged a violation of Section 83, a conspiracy to defraud the Government by obtaining payment or allowance of false or fraudulent claims. Briefly stated, this was the scheme the mail fraud counts charged. Defendants, owners of a cotton gin and warehouse, in pursuance of a scheme, by false pretenses and practices to obtain moneys from and through the Commodity Credit Corporation, in which the United States of America was a stockholder and which was an agency of the United States, would induce farmers bringing their cotton to be ginned, to sign in blank, notes and loan agreements, commonly known as Commodity Credit Corporation cotton producer's notes. The notes and agreements so signed would be padded, that is, filled out for sums in excess of the amounts actually obtained by the farmers thereon, and with bales of cotton, which the signers thereof had not raised or claimed; in some instances the names of makers of the notes would be forged. Thereupon defendant would take the notes to divers and sundry banks and secure credit thereon, and the banks, believing the notes were genuine, would assign them to the Commodity Credit Corporation.

The charge in the eighteen counts under Section 80, was that the notes and cotton agreements aforesaid, would be fraudulently and fictitiously prepared and altered, so as to show thereon, sums of money and bales of cotton in excess of the amounts obtained and bales owned by the purported signers of the notes. Count twenty, charged that the things done by the defendants were and amounted to, an agreement or conspiracy to defraud the Government by obtaining or aiding to obtain, the payment or allowance of false or fraudulent claims. Convicted on them all, he was sentenced to thirty years in the penitentiary as follows; five years on each of mail fraud counts 1, 2, 25 and 26, the sentences to be not concurrent but cumulative; ten years on counts 16 and 20 to commence at the expiration of the twenty years imposed on counts 1, 2, 25 and 26; and ten years on the remaining counts, to run concurrently with the sentences imposed on the other counts. Feeling himself aggrieved, both by the conviction and by the calculated rigor and severity of the sentence, he appeals, assigning numerous errors.

Appellee moves to strike the assignments of error as filed too late, and attacks the assignments themselves as too general and lacking in definiteness of specification, and the brief as in complete violation of the rules. We agree with appellee that the assignments should have been earlier filed and that many of them are too general and wanting in definiteness of specification. We agree too, that the multitude of assignments, particularly those relating to rulings on evidence, have been illy and meagerly briefed, almost wholly without adequate statement in the brief and adequate reference to the record, and in violation of every rule and practice of proper briefing. But, notwithstanding that this is so, and that this almost complete disregard of the rules in briefing a typewritten record of over 1200 pages, has entailed upon us almost insuperable difficulties and labors, we have, because of the unusual, and we think, excessive rigor and severity of the sentence imposed, overruled the motion to strike, and endeavored as to the mass of assignments so meagerly referred to in the brief, to piece out its presentation, and by a close examination of the record, to determine for ourselves, whether any of defendant's substantial rights have been denied him.

Almost legion in number, and purporting each to raise a separate and distinct point, the claimed errors may be appropriately gathered for treatment into four groups. Group one, relates to the insufficiency of the indictment and the proof; group 2 to rulings on evidence; group 3 to the argument; while group 4 relates to miscellaneous attacks upon the conduct of the trial, (a) that defendant was denied timely inspection of the jury lists, (b) that he was subjected both before and in the course of the trial, to a violation of his constitutional immunity against self-incrimination, and (c) that there was an abuse of discretion in overruling his motion for a new trial.

Under the first group, appellant makes three major points; as to the conviction on the mail fraud counts, that the indictment as to these counts does not sufficiently allege and the proof does not at all show, that the mail matter dealt with in them was placed or caused to be placed, in the mails by appellant; as to the conviction on the Sections, 80 and 83 counts, (a) that the United States was not a stockholder in the Commodity Credit Corporation, (b) that the section has to do with claims against the Government and not with mere negotiations with a Government agency, and (c) that the instrument set out in Count five and other counts named, is not "a bill" as charged therein.

We cannot agree with appellant on any of these points. As to the mail fraud counts, the evidence overwhelmingly establishes; that from the beginning, it was intended that the financing operations undertaken through the use of the Cotton Commodity Credit notes and agreements, would be accomplished through loans from the Commodity Credit Corporation; and that it was within the contemplation of the parties, that the mails would be used to effect such financing. The evidence overwhelmingly establishes too, that there was a fraudulent scheme in operation to falsely obtain money on forged and altered paper, and there was certainly sufficient evidence to connect the appellant with the scheme and plan. This being so, it was not necessary to more definitely allege or show Spivey's connection with the mailing of the letters used in connection with, and in the course of, the carrying out of the scheme. It was sufficient to show, as was done, that the mails were used and that the scheme was one which reasonably contemplated the use of the mails. Bogy v. United States, 6 Cir., 96 F.2d 734; United States v. Weisman, 2 Cir., 83 F.2d 470, 107 A.L.R. 293; Smith v. United States, 5 Cir., 61 F.2d 681; Spillers v. United States, 5 Cir., 47 F.2d 893; Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; Wolpa v. United States, 8 Cir., 86 F.2d 35.

The points made as to the convictions under Section 80 are no better taken. The language of the section is plain and completely comprehensive, and that it was intended to, and does apply to situations of the kind in question here, is equally plain. For, it stands admitted, not only that the Commodity Credit Corporation is an agency of the United States, and that the matters in question were the lending of money on farmer's notes, which come within the scope of its agency, but that the United States, though the stock is nominally held by officials of the Government, is the owner and beneficial holder of all of its stock. This being so, the fact that the stock is not in the name of the United States is immaterial. The force and effect of statutes of this kind, designed to prevent frauds upon the Government may not be frittered away by a mere literal construction. Read as a whole, it...