United States v. Baker, 421.

• Decision Date: 01 June 1931
• Docket Number: No. 421.,421.
• Parties: UNITED STATES v. BAKER et al.
• Court: U.S. Court of Appeals — Second Circuit

50 F.2d 122 (1931)

UNITED STATES v. BAKER et al.

No. 421.

Circuit Court of Appeals, Second Circuit.

June 1, 1931.

Emanuel Sustick, of Brooklyn, N. Y. (Joseph G. M. Browne, of Brooklyn, N. Y., of counsel), for appellants.

George Z. Medalie, U. S. Atty. and Bernard Tompkins, Asst. U. S. Atty., both of New York City, for the United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The indictment contained six counts. As to counts I and VI, the jury disagreed. The defendants were found guilty on counts II, III, IV, and V. The individual defendants were officers of the corporate defendant. The indictment charged, in the counts on which the defendants were convicted, and the government introduced evidence to show, that they planned and attempted to defraud three fire insurance companies by falsely representing the cost and value of goods, insured by those companies and destroyed by fire in the premises of the corporate defendant, to be greatly in excess of their actual cost and value.

To carry out this scheme, it was charged in count II that a letter signed by Murray E. Baker in behalf of the Economy Steel & Tool Company, addressed to St. Lawrence Trading Company, 100 Fifth avenue, New York, N. Y. was mailed November 5, 1926. In count III, the letter charged to have been mailed was written by attorneys for two of the defendants and addressed to Importers' & Exporters' Insurance Company, 47 Beaver street, New York, N. Y. It had to do with the attempt to collect the insurance after the fire. The letter of count IV was written by the same attorneys addressed to British American Assurance Company, Darby Pollock Corporation, 2 Liberty street, New York, N. Y., was of like import, and was charged to have been mailed. That of count V, written by the same attorneys, addressed to Hartford Fire Insurance Company, Hartford, Conn., and charged to have been mailed, was like the other two. The indictment was the last of three indictments found against these defendants on account of this same business. It was filed March 14, 1930.

The only thing which gives a federal court jurisdiction of such offenses as are here alleged is the use of the mails. Olsen v. United States (C. C. A.) 287 F. 85; Freeman v. United States (C. C. A.) 20 F.(2d) 748, 750. The mailing of the letter of count II was alleged to have been on a date more than three years and four months before this indictment was found. The statute of limitations is three years. 18 USCA § 582. It had run unless, as has been argued, the former indictments found within the three-year period served to suspend the bar of the statute. There appears to be no good reason why a former unconnected indictment found by some other grand jury should have any such effect as has been suggested, and that it does not has already been decided. United States v. Ballard, 24 Fed. Cas. 972, No. 14,507. See also, Armstrong v. United States (C. C. A.) 16 F.(2d) 62.

The evidence of the mailing of the letter of count III was very meager. The lawyer who wrote it testified that he did not know whether it was mailed or not, and that a great many letters delivered by his office were not mailed. It bore the so-called mailing stamp of the addressee, but no witness could tell whether it had been received by mail or not, and the testimony indicated that letters which had been received by messenger would have been so stamped. The evidence as to the mailing of the count IV letter was similar. It simply bore the stamp of the addressee, and it was shown that all correspondence it received was so stamped, whether coming by mail or not. The count V letter was shown to have been received by the addressee at Hartford, Conn., and to have been stamped with its in-coming mail stamp. Nothing else was shown about it except that a former clerk in the addressee's office, who did not testify from any knowledge about...