United States v. Beadon

• Decision Date: 20 April 1931
• Docket Number: No. 256.,256.
• Parties: UNITED STATES v. BEADON et al.
• Court: U.S. Court of Appeals — Second Circuit

49 F.2d 164 (1931)

UNITED STATES v. BEADON et al.

No. 256.

Circuit Court of Appeals, Second Circuit.

April 20, 1931.

James W. Osborne, of New York City, for appellants Charles Beadon, Trend of the Market, Inc., and Stock Market Reporter, Inc.

Abraham Rosenthal, of New York City, for appellant Harry H. Phillips.

Michael Barnett, of Philadelphia, Pa., for appellant Utah Lead Co. of Delaware.

Robert E. Manley, Acting U. S. Atty., of New York City (Irving Spieler, Asst. U. S. Atty., of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This appeal is from a judgment of conviction under an indictment for unlawfully using the United States mails in a scheme to defraud, in violation of section 215 of the United States Criminal Code (18 USCA § 338), and for a conspiracy so to do, in violation of section 37 (18 USCA § 88). The indictment contained nine counts. The first eight counts charged unlawful use of the mails and the ninth count conspiracy. The court dismissed counts 1 and 8, and submitted to the jury for its consideration counts 2, 3, 4, 5, 6, 7, and 9.

The appellants Charles Beadon, Trend of the Market, Inc., and Stock Market Reporter, Inc., were convicted upon counts 2, 3, 4, 5, 6, 7, and 9; appellants Harry H. Phillips and Utah Lead Company of Delaware were convicted upon the ninth count.

It is sought to reverse the judgment because:

(1) The motion for a change of venue should have been granted.

(2) The court erred in holding that the defendants Utah Lead Company of Delaware, Trend of the Market, Inc., and Stock Market Reporter, Inc., were in court and were bound to plead to the indictment, and in ordering a plea of not guilty thereto to be entered for them.

(3) The court erred in recording the verdict and imposing the sentences on the report of the jury.

A motion for change of venue was made by the appellant Charles Beadon and denied by the trial judge.

There had been a prior trial which had resulted in the confession of a juror that he had been bribed by attorneys for the defendant in the case, and as a result three attorneys who were connected with that trial were indicted, tried, and convicted of bribery in the United States District Court for the Southern district of New York. Publicity had been given to these events by the newspapers, and there were many sensational articles dealing with the foregoing matters. The United States attorney, when summing up in the trial for bribery, had denounced the defendants in the case at bar. It is argued that it was impossible under such circumstances for the defendants herein to obtain a fair trial in New York, and that the denial of the motion for a change of venue was an abuse of discretion.

The only statutory provision regulating change of venue in criminal cases is section 53 of the Judicial Code (28 USCA § 114), and it affects only "districts containing more than one division," and provides that "all prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district."

It is evident from the foregoing that a judge of the Southern district of New York, which contains no subsections or divisions, had no power to transfer the cause to another district. But, even if the power had existed, the motion for change of venue was addressed to the discretion of the judge and that should not be disturbed except in the event of clear prejudice. Stroud v. United States, 251 U. S. 15, 40 S. Ct. 50, 64 L. Ed. 103. The trial judge in this case conducted an examination of the jurors on the voir dire with great circumspection. Of the jurors selected upon the second trial, ten stated that they had no knowledge of the newspaper reports about the prior litigation, and the remaining two showed upon their examination that they were entirely fit persons to serve. One of them, Van Vergler, said that he had read something about the case, but had formed no opinion, and that what he had read had made no impression which would interfere with his judgment after hearing the evidence. The other, a juror named Bondy, said that he had read some of the articles, but they had made no impression upon his mind as to the guilt or innocence of the defendants, and that he could render a verdict fair both to them and to the government. No objection was made or exception taken to the inclusion of these particular jurors in the panel.

The newspaper articles criticized and the remarks of the United States attorney were apparently all prior to the date of the second trial. We can find no error in proceeding with the trial before a jury such as was selected in the case at bar, and hold that, not only because of the limitations of section 53 of the Judicial Code (28 USCA § 114), but upon the merits, the objections to denying a motion for change of venue were properly overruled.

There seems to be no merit in the contention of the corporate defendants that they were not in court and that no valid verdict could be rendered against them for that reason. Judge Knox, who presided at the second trial, overruled their objections on the ground that the record showed that they had appeared by attorneys at the first trial before Judge Woolsey.

But it is argued that Judge Woolsey had held that defendants were in court upon the erroneous theory that the presence of their officers Beadon and Barnett had subjected them to the jurisdiction. This, of course, would not be so, but the record shows that the corporate defendants were in court from the beginning because they had appeared generally by counsel. When the cause came on for trial before him on January 6, 1930, the record shows that there were the following appearances among others:

"Arthur N. Sager, Esq., Joseph Shalleck, Esq., and Edward H. Reynolds, Esq., for defendants Beadon, Morris, Rankin, Trend of the Market Inc., and Stock Market Reporter, Inc."

"Samuel A. Maginnis, Esq., for defendants Barnett and Utah Lead Company of Delaware."

When the trial proceeded on the next day, the following colloquy took place:

"Mr. Maginnis: In order to have the record straight, your Honor, nobody appears for the corporations of record.

"The Court: I thought Mr. Sager appeared for them yesterday, or Mr. Shalleck.

"Mr. Sager: No.

"Mr. Shalleck: No, not the Utah Lead Company. Mr. Maginnis.

"The Court: Do you appear for the Utah Lead Company?

"Mr. Maginnis: There has been no service on the Utah Lead Company and therefore as far as we know the Utah Lead Company is not in court. If the Utah Lead Company were in court, we would appear, and under the circumstances we do not feel we should make appearance.

"Mr. Spieler: There is no service necessary. Mr. Barnett is the president of that corporation and he is brought in here and that is all that was necessary.

"The Court: I do not think there should be a service on the corporation. You appear for them yourself, you are already in the case, Mr. Maginnis.

"Mr. Maginnis: I will then in that case.

"The Court: You appear for them do you?

"Mr. Maginnis: We put on the record an exception to the ruling.

"The Court: You appear for them?

"Mr. Maginnis: Yes.

"Mr. Spieler: Is he authorized, your Honor?

"The Court: Who appears for the other corporations?

"Mr. Spieler: Charles Beadon is president of the Stock Market Reporter.

"The Court: I rule both of them in the case.

"Mr. Sager: We appear for them and we take an exception to the ruling."

The foregoing extracts from the record before Judge Woolsey show that the attorneys were not seeking to raise the point that there had been no appearances for the corporate defendants on the prior day, but rather that those defendants had not been served with process. It is quite plain from the text that Sager and Shalleck substantially conceded their prior appearance for Trend of the Market, Inc., and Stock Market Reporter, Inc. Maginnis did not in terms deny that he had appeared for Utah Lead Company on the day before, but said: "There has been no service of the Utah Lead Company and therefore as far as we know the Utah Lead Company is not in court." Nor did Maginnis deny authority to appear. Indeed he said: "If the Utah Lead Company were in court, we would appear. * * *"

If the attorneys desired to correct the record or to withdraw their appearances, they should have done so. United States v. Curry, 6 How. at page 111, 12 L. Ed. 363; Rio Grande Irr., etc., Co. v. Gildersleeve, 174 U. S. 603, 19 S. Ct. 761, 43 L. Ed. 1103; Tilden v. Johnson, 6 Cush. (Mass.) 354; Daley v. Iselin, 212 Pa. 279, 61 A. 919. We have before us entries showing general appearances and no motion to strike out or withdraw them. Under these circumstances, Judge Knox properly held that the corporate defendants were in court and ordered pleas of not guilty entered when they stood mute. R. S. § 1032 (18 USCA § 564). The second group of objections must therefore fail.

The last error assigned is that the court erred in recording the verdict. The basis of this complaint is that the judge asked certain direct questions of the jurors when they came in to announce their verdict. The foreman stated that the jury had found the defendants Charles Beadon, Trend of the Market, and Stock Market Reporter guilty of conspiracy and of using the mails to defraud; the defendant Harry H. Phillips guilty of conspiracy; the defendant "Michael Barnett, president of the Utah Lead Company, guilty of conspiracy," and the defendant Joseph Morris not guilty. Inasmuch as the foreman made no pronouncement as to the defendant Utah Lead Company, the court asked what disposition the jury made as to it. The foreman asked whether he should explain that matter, but the court shut him off and said: "I want a verdict one way or the other,...