Tenenbaum v. United States

• Decision Date: 10 February 1926
• Docket Number: No. 4528.,4528.
• Citation: 11 F.2d 927
• Parties: TENENBAUM v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 927 (1926)

TENENBAUM v. UNITED STATES.

No. 4528.

Circuit Court of Appeals, Fifth Circuit.

February 10, 1926.

Thomas F. Walsh, of Savannah, Ga., for plaintiff in error.

F. G. Boatright, U. S. Atty., and Chas. L. Redding, Asst. U. S. Atty., both of Savannah, Ga..

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

An indictment in seven counts was returned against plaintiff in error, Michael Tenenbaum, hereafter called defendant, and one S. Biyden, charging them with fraudulent use of the mail in violation of section 215, Criminal Code (Comp. St. ß 10385). The indictment is prolix and redundant, but, briefly stated, the scheme charged, with slight variations in the different counts, is this:

Biyden and Tenenbaum were to open up a wholesale and retail shoe store in Savannah, Ga., under the name of the Southern Shoe Company, and to establish a reputation for honesty and financial worth by ordering shoes from various persons named in the indictment, and by paying for same promptly for a time, and then to order large quantities of shoes, and sell them quickly for cash, regardless of cost, and convert the money to their own use, without paying their creditors, in contemplation that they would be forced into bankruptcy, and there would be no assets with which to meet their liabilities. As a a part of the means for carrying out the scheme, the indictment alleges that it was the intent of defendants, after establishing a reputation for honesty and fair dealing, to secure a favorable rating from the commercial agencies of Bradstreet and Dun and the Shoe and Leather Mercantile Agency, knowing that persons contemplating extending credit to them would ask for credit reports from said agencies, and to that end to send statements showing their financial condition to said agencies.

A demurrer was sustained as to three counts, and defendant was convicted on only the fourth count, which, in addition to the general scheme above outlined, charged that it was the intent and purpose of defendants to furnish prospective creditors with financial statements as a basis of credit, which would be substantially truthful, and containing the names of a few concerns with whom defendants had done business in the past, which names were to be furnished for the purpose of having the prospective creditors consult said firms, in expectation that a favorable report would be returned.

The indictment charges in this count that the scheme was to defraud Hamburger Bros. Shoe Company, of Boston, Mass., and other persons unknown, and charges the mailing of a statement to said firm, which statement purports to be set out in substance, and on the back of which was the following: "Buy goods from the following firms: Progress Shoe Company, New York, N. Y.," and four other names unnecessary to mention. Then followed the allegation that "said statement was false and fraudulent, in that it represented defendant's liabilities to be only $7,000 indebtedness to a bank or banks, whereas in truth and in fact said defendants were indebted to a bank or banks in the sum of $11,000, and had notes receivable and discounts at a bank or banks in the sum of $5,212.67." The allegation of falsity went further in other particulars, but it is unnecessary to set it out.

The demurrer to this particular count of the indictment was divided into seven paragraphs; the first that the indictment set forth no offense against the laws of the United States, and the fifth a criticism of the charge of falsity of the statement regarding the item as to notes receivable and discounted at a bank or banks in...