United States v. Browne, 11284.

• Decision Date: 17 August 1955
• Docket Number: No. 11284.,11284.
• Citation: 225 F.2d 751
• Parties: UNITED STATES of America v. Abraham A. BROWNE.
• Court: U.S. Court of Appeals — Seventh Circuit

225 F.2d 751 (1955)

UNITED STATES of America v. Abraham A. BROWNE.

No. 11284.

United States Court of Appeals Seventh Circuit.

August 17, 1955.

Frank W. Oliver, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Alexander O. Walter, Anna R. Lavin, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

MAJOR, Circuit Judge.

Defendant, Abraham A. Browne, was jointly charged with Maxwell Riffkind (the latter under numerous aliases) in an indictment containing six counts, with the fraudulent use of the United States mails, in violation of Title 18 U.S.C.A. § 1341. The indictment alleged that defendants, pursuant to a scheme, defrauded or attempted to defraud certain enumerated insurance companies by making claims for losses which were fictitious. Such claims were presented by Riffkind, and in some instances the defendant Browne, a licensed and practicing attorney in the State of Illinois, was employed by Riffkind to conduct negotiations with the insurers with knowledge, so it was alleged, of their fraudulent nature.

In pursuance of the scheme, each of the six counts of the indictment alleged a separate and distinct use of the mails in the Northern District of Illinois. Riffkind entered a plea of guilty, Browne a plea of not guilty. The latter was tried by a jury and Riffkind was a witness for the government. The jury found Browne guilty on counts 2, 4, 5 and 6, and not guilty on count 1. The government at the conclusion of its case dismissed count 3. Counsel for Browne appropriately moved for a directed verdict on the basis that the government's proof on all counts was insufficient to take the case to the jury. This motion, as well as the usual post-trial motions, was denied by the court and judgment was entered upon the verdict. Browne was sentenced to prison for terms of eighteen months on each of the four counts and fined $1,000. The judgment provided that the separate sentences were to be served concurrently.

From this judgment Browne (hereinafter sometimes referred to as the defendant) appeals. The confusing situation attending the presentment of the case here is shown by the contested issues as stated by the opposing parties. The defendant states the contested issues as follows:

"The trial court erred in denying defendant\'s motions for dismissal and for judgment of acquittal at the close of the government\'s case and at the close of all the evidence, because:

"a. There was no proof of venue as to Counts II and VI of the indictment.

"b. There was no proof of use of the mails as to Counts II and VI of the indictment.

"c. The government\'s evidence demonstrated that the defendant was not implicated in an unlawful transaction in Count IV of the indictment.

"d. The government\'s evidence demonstrated that no offense was committed or attempted as alleged in Count V of the indictment."

(Other issues are stated which need not be mentioned at this point.) The government states the contested issues as follows:

"1. Is there sufficient evidence in the record to support a charge of aiding and abetting under 18 U.S.C. 2 as against the defendant on appeal?

"2. As against the defendant on appeal, if he aided and abetted, then is it necessary to prove as to him all of the elements of venue and of the substantive offenses after confession of guilt by the principal defendant?"

Thus, the government does not take issue with defendant's contention that the proof was insufficient to take the case to the jury but attempts to excuse its failure to make proof, particularly as it relates to venue and use of the mails, on a theory that because defendant was an aider and abettor such proof was unnecessary, in view of the fact that Riffkind had entered a plea of guilty and testified as a government witness.

We shall first consider the situation as it relates to counts 2 and 6. Count 2 charged that the defendants caused to be delivered by mail at 175 West Jackson Boulevard, Chicago, Illinois, a letter addressed to the New York Casualty Company, 175 West Jackson Boulevard, Chicago 4, Illinois, Attn.: Mr. Gadwell, which had previously been placed in the mails for such delivery. A letter corresponding with that alleged in count 2, signed by A. A. Browne, was introduced by the government. Count 6 charged that the defendants caused to be delivered by mail at 170 West Jackson Boulevard, Chicago, Illinois, a letter addressed to the United States Fidelity and Guarantee Company, 170 West Jackson Boulevard, Chicago, Illinois, which letter had previously been placed in the mails for such delivery. The government in support of this count relies upon exhibit 5-A, which is not a letter, as alleged, but an accident report signed by Philip Goldberg, in or on which defendant's name does not appear. No stamped addressed envelope was introduced in support of the allegation that the exhibits relied upon in counts 2 or 6 were transmitted by mail.

The government, consistent with its statement of contested issues, after referring to Riffkind's plea of guilty states, "All that is left is to tie up the defendant Browne into Riffkind's scheme," and "If the principal pleads guilty to the substantive offense, then all that need be proved against the aider and abettor, even though he be charged as a principal, is that the defendant consciously and knowingly aided and abetted." Three cases are cited in support of this argument: United States v. Klass, 3 Cir., 166 F.2d 373, 380; United States v. Carengella, 198 F.2d 3, 7-8, and United States v. Alexander, 219 F. 2d 225, 226-227. (The last two named decisions are by this court.) We think there is not in these or in any other case of which we are aware the slightest support for the government's theory. In fact, in the Klass case the court, in referring to the accessory statute, made the following statement, 166 F.2d at page 380:

"It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted. We think the court might also have added that it is immaterial that the principal has been convicted or entered a plea of guilty. The aider and abettor may be charged with the substantive offense, and each participant must stand on his own two feet. Citing cases."

We think the government's theory on this point is unsound. To countenance it would mean that one defendant by his admission of guilt, by plea of guilty or otherwise, could deprive any and all codefendants of fundamental rights and privileges. To illustrate, the government claims that the letter set forth in count 2, purportedly signed by Browne (the same is true as to the exhibits described in some of the other counts), was mailed by Browne. Under the government's novel theory, it would appear that because of Riffkind's plea of guilty Browne was precluded from denying the authenticity of his signature to the letter (there is no proof that it was genuine), or that he wrote or mailed or caused to be mailed the letter as claimed. Nothing would have been left to him by way of defense other than to deny that he was a party to the scheme alleged. His plea of not guilty would have raised no other issue.

However, if we indulge in the violent presumption that there is merit in the government's contention, it would be of no benefit on the instant record because it is not ascertainable that Browne was convicted as an aider and abettor. The government claims that he was because the court gave an instruction on that point which was not objected to by the defendant. We think that if Riffkind had been tried, the same instruction might appropriately have been given as to him. Both parties were charged as principals and Browne was convicted as such, and we think it is a non sequitur to assert that because the court gave such an instruction, Browne was convicted as an aider and abettor. Certainly there is nothing in the verdict of the jury by which that question can be resolved. More than that, it is quite doubtful whether Browne acted merely as an aider and abettor. It seems more reasonable to believe from the proof that his part in the scheme, if any, was that of a principal rather than an aider and abettor.

The government, notwithstanding its statement of contested issues, attempts on other grounds to justify its failure to meet the issue, that is, that it failed to prove venue and use of the mails. It argues that defendant waived venue "by going to trial on the merits" and by taking the stand in his own behalf. A number of cases are cited in support of this argument, including Hagner v. United States, 60 App.D.C. 335, 54 F.2d 446; Ladner v. United States, 5 Cir., 168 F.2d 771, 773; Rodd v. United States, 9 Cir., 165 F.2d 54, 56; United States v. Gallagher, 3 Cir., 183 F.2d 342, 346; United States v. Karavias, 170 F.2d 968; United States v. Jones, 174 F.2d 746, and United States v. Chiarelli, 192 F.2d 528 (the last three named decisions are by this court). None of these cases support the contention. In Hagner, the indictment showed on its face that the court where the trial took place was without venue and it was held that the defendant waived venue by pleading and going to trial. In Ladner, the prosecution was for conspiracy and it was held that venue might be laid in any jurisdiction where an act of a co-conspirator took place. In Rodd, as in Hagner, the indictment did not allege venue in the jurisdiction where the trial took place and it was held that the defendant by going to trial on the merits without raising any question as to venue waived such defect. In Gallagher, the defendant entered a plea of guilty in a jurisdiction other than that alleged in the indictment. It was held that under Rule 20 of the Rules of Criminal Procedure, 18 U.S. C.A., this was permissible and that there was a waiver on the part of the defendant. In Karavias and Chiarelli, there was...