Stubbs v. United States

• Citation: 249 F. 571
• Decision Date: 07 March 1918
• Docket Number: 3054.
• Parties: STUBBS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

249 F. 571

STUBBS v. UNITED STATES.

No. 3054.

United States Court of Appeals, Ninth Circuit.

March 7, 1918

Rehearing Denied June 3, 1918.

Albert H. Elliott, of San Francisco, Cal., for plaintiff in error.

Robert O'Connor, U.S. Atty., and Clyde R. Moody, Asst. U.S Atty., both of Los Angeles, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge.

The important questions presented are: (1) Was a conspiracy proved? or (2) was it established that there was a scheme to defraud, in the execution of which the mails were used? The first count of the indictment charges that Stubbs, Jones Margaret Turner, and E. Brown, about August 1, 1915, at Los Angeles, Cal., conspired to use the mails in a scheme and artifice to defraud such persons as would enter into negotiations with the defendants for the purchase, sale, or exchange of real estate pursuant to an advertisement put in the Los Angeles Examiner, a newspaper at Los Angeles. The scheme charged was substantially as follows:

Defendants advertised that Stubbs had for sale or exchange a bungalow and certain lots, and intended that any person who should inquire about the property should be told that the original owner was a railroad man, who had left Los Angeles, and left the matter of selling exchanging, or transferring to his wife; that his wife was the defendant Margaret Turner, and that she would sell or exchange the property to any inquirer so as to realize out of it about $2,000; that it was agreed by the defendants that Stubbs would so state to any person inquiring about the bungalow described in their advertisement, and as agent for Margaret Turner would offer to sell and procure title to the bungalow and lots to be conveyed, subject only to a mortgage of $1,450, whereas Margaret Turner was not the owner of the bungalow or lots, and not the wife of a railroad man, or any other man, but was a pretender, to be used by defendants in obtaining conveyance of any title that the proposed purchasers of the bungalow should convey in exchange for the bungalow and lots. It is charged that the intention of the defendants was that by fraud and misrepresentation any inquirer should be led to believe that Margaret Turner was the owner and could convey title, and was to procure the inquirer to pay money offered for the bungalow, and to convey any property offered in exchange therefor to Margaret Turner, and not to convey to any such purchaser of the bungalow and lots any title in exchange for the money or property thus procured to be paid or conveyed to Margaret Turner; that Margaret Turner was thereafter to transfer the property to be conveyed to defendant Jones, and Jones would convey it to defendant Brown.

An overt act charged is that Stubbs, about August 15th, caused an advertisement to be placed in the Los Angeles Examiner, stating that he had for sale or exchange a five-room bungalow, and that the equity for sale or exchange was worth about $2,100. Another overt act charged is that in the office of Stubbs, in Los Angeles, in September, 1915, Stubbs and Jones and Turner had a conference with Mary Abercrombie, and agreed to exchange and transfer the bungalow and lots to her for certain lots at Culver City, Cal., then owned by Mary Abercrombie, and which she agreed to convey to Margaret Turner in consideration of the bungalow and lots and $300 to be paid by Margaret Turner to Mary Abercrombie. Another overt act charged is that Stubbs and other defendants fraudulently obtained possession of a deed executed by Mary Abercrombie preparatory to making the exchange of property, and caused the deed executed by Mary Abercrombie to be put on record in the county recorder's office in Los Angeles county, Cal.

The second count charges that defendants devised a scheme and artifice to defraud Mary Abercrombie and any other persons who might by them be defrauded pursuant to such scheme. It is alleged that they put an advertisement in the Los Angeles Examiner, a newspaper transmitted through the post office, that Stubbs had for sale or exchange the bungalow and lots referred to in count 1. It is not necessary to set forth in detail the substance of this count, inasmuch as it is predicated upon the same facts alleged in the first count. The overt act charged is that on September 11, 1915, the defendants mailed a letter at Los Angeles, addressed to Mrs. Abercrombie, in Pomona, Cal., wherein defendant Stubbs, as the writer of the letter, among other things, told Mrs. Abercrombie that the parties who owned the $1,200 mortgage are out of the city, and that the 'deal' cannot be closed until a later date, when all will be ready.

The evidence of Mrs. Abercrombie is substantially as follows:

About September 1, 1915, in answer to the advertisement concerning the sale or exchange of a bungalow and lots, she saw Stubbs, who told her that the bungalow would rent for about $35 a month and was a very good buy; that the equity was $2,100, with two outstanding mortgages, one for $1,200 and the other for $250. Mrs. Abercrombie told Stubbs that she valued her property at Culver City at from $2,300 to $2,500; that she might exchange for the bungalow, but wanted some cash. Stubbs told her that the parties were in a hurry; that the lady who was there, Mrs. Turner, had come to Los Angeles and bought the cottage after her husband had lost his position in Seattle, but that he had been reinstated and left the property in his wife's hands to dispose of. Mrs. Abercrombie saw the property, but declined to consider the matter unless the house was rented for a year. A few days thereafter it was agreed between Stubbs and Mrs. Abercrombie that she was to give her Culver City lot clear for the equity in the bungalow and $300 cash. A few days later Stubbs telephoned Mrs. Abercrombie that he had leased the property, and asked her to come and sign the contract and 'close the deal.' She helped to make the contract of exchange which she signed. Stubbs took it, telling her that, when Margaret Turner signed it, he would give her a copy; but he never did. The contract, as recalled by Mrs. Abercrombie, was that Margaret Turner was to give her a deed for the bungalow property clear of all incumbrances, except $1,450, and $300 in cash, in exchange for the Culver City property. Stubbs wanted her to sign a deed that day, but she declined. Stubbs said that Mrs. Turner had not raised the $300, but that he would lend it to her if she did not get it very soon. A few days later Stubbs showed her a check for $300, but said Margaret Turner had not closed the deal; the check was not indorsed. Negotiations not being carried through, Mrs. Abercrombie returned, and later received a letter, dated September 11th, telling her to come in to 'close the deal.' Mrs. Abercrombie went to Stubbs' office on the 16th and found Margaret Turner there. Stubbs told her that he was not ready to close the deal, but had $25 to advance to her on the deal, and if it was not closed by the 20th that sum would be a forfeit. He asked her to sign the deed for the Culver City property to Mrs. Turner, which was ready and dated September 3d. Mrs. Abercrombie signed it and acknowledged it, was paid $25, but kept the deed, with the understanding that they were to 'go into escrow' the next day at the Title Insurance offices.

On September 17th she saw Stubbs in the Title Insurance & Trust Building in Los Angeles, and also met defendant Jones and a Mr. Ogden. Mrs. Abercrombie told Stubbs in that interview that the matter was not being carried out as she understood it, inasmuch as Stubbs had told her that, if she would bring a certificate of title and leave it with him, he would look up the title without cost, and that his client would do the same with the property he was going to show her, and that, if he could satisfy himself, there need be no money spent for continuing title certificates. Stubbs was to show her a certificate of title held by the man who held the mortgage upon the bungalow, and the certificate was not to be brought down to date by the title company. Stubbs then told Merrill that the $250 incumbrance was past due. Jones said he was 'in on this deal, and I am buying your lot, Mrs. Abercrombie, from Mrs. Stubbs, so we can go on and talk it over. ' Merrill did not like the form of deed, and Jones got a grant form which Merrill liked better. Jones said it made no difference to him, and then said to Merrill, 'Why not let Mrs. Abercrombie make this delivery direct to Brown, and not use the bargain and sale form of deed? ' Mrs. Abercrombie said she was indifferent as to the grantee, Turner or Brown, provided she got what was due her. Thereupon, at Stubbs' office, Stubbs gave back to Mrs. Abercrombie the deed she had first made, and she put it in her pocketbook, and then made a new deed and went back to the Title Insurance office and 'entered into escrow.' She then gave both the original deed and the deed to Brown to Merrill. Later she met defendant Jones and told him she did not think she would go on with the deal. Jones told her that he, not Stubbs, was the cause of the delay, and that he thought it was all right for her to go on without a certificate of title; but Mrs. Abercrombie declined to go on unless Margaret Turner signed a statement that there was nothing against the property except the $1,450. Stubbs then telephoned to Margaret Turner and left. Thereafter, at Stubbs' office, Margaret Turner signed a statement that there was nothing against the property but the $1,450, and Mrs. Abercrombie then signed and duly acknowledged a new deed, conveying her property to Brown, and put it in her pocketbook. She then went back to the Title Insurance Company's office and tore the name off the deed which was there.

The witness...