Ulmer v. United States

• Decision Date: 12 May 1920
• Docket Number: 208.
• Citation: 266 F. 176
• Parties: ULMER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

266 F. 176

ULMER et al. v. UNITED STATES.

No. 208.

United States Court of Appeals, Second Circuit.

May 12, 1920

The plaintiffs in error were defendants below and will be hereinafter referred to as defendants, and the defendant in error, the plaintiff below, will be in like manner referred to as the plaintiff. The defendants were tried and convicted under an indictment charging the use of the mails to defraud. The indictment contained three counts. The first and second counts charged violations of section 215 of the Criminal Code. The third charged conspiracy, in violation of sections 37 and 215 of that Code. The third count was quashed during the course of the instructions to the jury.

Section 37 relates to conspiring to commit an offense against the United States. 10 U.S.Comp.Stat. 1916, p. 12552. Section 215 relates to the use of the mails to promote frauds. 10 U.S.Comp.Stat. 1916, p. 12796. The first and second counts are alike, except in the description of the letters sent through the mails. Each letter was alleged to have been from the company to a customer, and acknowledged a receipt of an order for whisky.

The indictment charges a scheme to defraud, and alleged that the defendants falsely and fraudulently represented and pretended to the persons intended to be entrapped and deceived that they were members and acting under the authority of the company, which they falsely and fraudulently represented to be a distiller and distributor of whisky; that it was part of the scheme to induce the victims to open correspondence with them concerning the sale of whiskies represented to be of high grade of the name of 'Seminole Club' and 'Overbrook Rye'; that the defendants intended to sell the victims certain cheap whiskies, which they would obtain from distillers, and to convert to their own use the proceeds, without profit to the victims.

It was further charged, as part of the fraudulent scheme, that the defendants represented to the victims that the company would deliver to them the original warehouse receipt for the whisky purchased; that the whisky could not be released from the bonded warehouse, except upon presentation of the warehouse receipt; that the victims could obtain the whiskies by making small cash payments and giving notes for the balance due that the victims would be sole agents in the territory in which they resided; that the warehouse receipts to be delivered were issued in deference to the laws of the United States; and other similar misleading things. It was also alleged that each of the aforesaid representations, as well as others, made to the victims, as the defendants well knew was false and fraudulent, intended to mislead and defraud the victims, the purpose being to induce the victims to part with their money and property in the purchase of the whiskies, and that the defendants knew that the certificates were of no value and were not issued in deference to any law of the United States. It was then alleged that, for the purpose of executing the scheme, the defendants placed and caused to be placed in the United States mails certain letters to which reference is made above.

The defendants were salesmen employed by the Seminole Distilling & Distributing Company, a New York corporation, whose business consisted in purchasing from distillers large quantities of whisky, which was stored in United States bonded warehouses. The company also distilled its own whisky. The company sold the whisky by means of contracts or certificates through the defendants and other salesmen.

The trial began on March 11, 1918, and was concluded on March 28 1918. The jury returned a verdict of guilty on all the counts. Sentence was deferred until April 3d, when counsel for the defendants were heard at length. Judge Mack denied various motions made and said: 'I haven't any doubt, or reasonable doubt, or any doubt at all, as to the correctness of the verdict under the law the jury has reached. I haven't any doubt as to the guilt of each one of these men.'

Richard Kobsa and Joseph Ulmer were thereupon sentenced to imprisonment to 2 years in the penitentiary at Atlanta. Henry Kobsa was sentenced to 60 days in jail and to pay a fine of $500. Rudolph Szathmary was sentenced to 6 months in jail. There are 43 assignments of error. Most of these assignments appear to have been abandoned, not being mentioned in the printed brief or referred to in the oral argument.

Alfred M. Simon, of New York City (A. M. Simon and Charles Fredericks, of New York City, of counsel), for plaintiffs in error.

Francis C. Caffey, U.S. Atty., and E. Paul Yaselli, Asst. Dist. Atty., both of New York City, for the United States.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This court on March 29, 1919, directed an order to be entered giving to the defendants the privilege of dispensing with the printing of the record and to argue 'the writ of error upon a typewritten record. ' The court has been furnished with the stenographer's minutes in three typewritten volumes. An examination of these volumes shows that they have not been certified. They do not pretend to be a bill of exceptions, and there is nothing about them which entitled this court to examine them.

The court has also been furnished with the following set of papers: A copy of the indictment; an amended bill of exceptions (so called), which is not signed by the judge who tried the case, and who came from outside the district, but by one of the resident judges; an amended assignment of error; a writ of error; a petition for a writ of error; an order allowing a writ of error; a stipulation, and certificate. The certificate is to the effect that the foregoing is a correct transcript of the record 'in the above-entitled matter as agreed on by the parties. ' We took occasion to point out in Buessel v. United States, 258 F. 811, 817, 170 C.C.A. 105, that a stipulation does not make the matter stipulated a part of the record; and we now take this opportunity to add to what we there said by stating that matters stipulated by counsel cannot be made a part of the record by the certificate of the judge that the stipulated matter is a correct transcript of the record 'as agreed on by the parties.'

The trial was concluded on March 28, 1918. The amended bill of exceptions was signed on March 4, 1919. There is nothing in the record to show that the regular time within which a bill of exceptions could be signed had been extended. Under rule 5 of the District Court for the Southern District of New York, in which court the trial of this case took place, the bill might have been signed within 90 days from the date of the judgment. In Blisse v. United States, 263 F. 961, decided by this court at this term, we considered at length the time within which a bill of exceptions can be settled. The bill must be signed within the term at which the judgment is entered, unless during the term the time is extended, or unless it is signed thereafter by consent of the parties previously given. We also declared in that case that after a writ of error has been filed and perfected the cause comes within the authority of the appellate court alone.

It is true that we have in this case an amended bill of exceptions. But the power to amend a bill of exceptions, like the power to allow the bill in the first instance, cannot be exercised after the court below has lost its power over the case, as when the term has expired without control of the case having been reserved. Michigan Insurance Bank v. Eldred, 143 U.S. 293, 298, 12 Sup.Ct. 450, 36 L.Ed. 162.

And the court below loses its power over the case and its right to settle the bill of exceptions after the writ of error is filed in this court. In this case the return was not made until January 21, 1920. That, however, does not help the appellants; it not appearing that there were any extensions of time, properly made in the court below, for the allowance and signing of the bill.

It does not appear in this case that there was consent of the parties to the signing of the bill after the term expired. Consent of the parties, given during the term, may be sufficient authority for the signing of the bill after the term expired. Waldron v. Waldron, 156 U.S. 361, 378, 15 Sup.Ct. 383, 39 L.Ed. 453. But in Blisse v. United States, supra, we stated our opinion to be that consent of the parties, even if expressly given, would be ineffective, if given after the writ of error had removed the case into this court.

There is another matter which needs consideration. We have heretofore stated in this opinion that the amended bill of exceptions was not signed by the judge who tried the case, and who came from outside the district, but by one of the judges resident within the district. The question to be considered is whether such resident judge is authorized to settle a bill of exceptions in a case he did not try. The Act of Congress of June 1, 1872, c. 255, Sec. 4, 17 Stat. 197 (Comp. St. Sec. 1590), provided as follows:

'A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat at the trial of the cause, without any seal of court or judge annexed thereto.'

This provision was passed on by the Supreme Court in 1899 in Malony v. Adsit, 175 U.S. 281, 20 Sup.Ct. 115, 44 L.Ed. 163. The court held the provision meant that no bill of exceptions could be deemed sufficiently authenticated, unless signed by the judge who sat at the trial, or by the presiding judge, if more than one sat. In that case the bill of...