United States v. Farmer
| Decision Date | 31 January 1914 |
| Citation | 218 F. 929 |
| Parties | UNITED STATES v. FARMER et al. |
| Court | U.S. District Court — Southern District of New York |
Frank Morse Roosa and John Neville Boyle, Asst. U.S. Attys., both of New York City.
Max J Kohler, of New York City, for defendants.
The court has before it the demurrer of several of the defendants to each of the six counts of the indictment herein. Three of these counts, 1, 2, and 5, deal with alleged violation of sections 37 and 215 of the Criminal Code, while 3, 4, and 6 are drawn to meet the provisions of section 215 alone. In the opening paragraph of the principal brief for demurring defendants, it is alleged that these two categories of counts are, first, 'for conspiracy to devise a scheme to defraud;' and, second, 'for perpetrating such a scheme.' In this attempt to describe the nature of the indictment is found an index to the confusion of mind which seems to have inspired the demurrer itself. Counts 1, 2, and 5 are not for conspiracy to devise a scheme to defraud, but they are for a conspiracy to commit an offense against the United States, the offense being to use the mails to further a scheme to defraud, while the third, fourth, and sixth counts, so far from being attempts to plead a perpetration of a scheme to defraud (which would not be cognizable in the federal court at all), are each an attempt to plead the use of the mails in an effort to further a scheme to defraud. The distinction we are making in each case is vital to the interpretation of the conspiracy of this indictment in each count.
Going now to the points made in the principal brief against the indictment, we notice, first, that the indictment is charged as 'bad and insufficient for failure adequately to describe the books relied upon as the subject-matter of the scheme to defraud. ' The indictment charges that the defendants devised a scheme to defraud divers and unknown persons, by inducing said persons 'to purchase from the said defendants books, among others, in editions de luxe, the exact character of said books being to the grand jurors unknown; and said defendants, for the purpose of inducing said persons so intended to be defrauded to purchase said books, intended falsely and fraudulently to represent to said persons, and to each of them, that said books were of rare valuable, and limited editions, and were of a value at and far in excess of the price at which they, the said persons so intended to be defrauded, should be induced to purchase them whereas, in truth and in fact, the said books, as the defendants, and each of them, well knew, were not rare, nor of valuable and limited editions, but were books bound in a showy and pretentious manner, and of little intrinsic value and worth, and had a market value far below the price at which the said persons so intended to be defrauded should be induced to purchase them.'
It is the opinion of counsel for demurrants, touching this phase of the indictment, that the case will turn, upon this branch of it, wholly upon the identity of the books 'whose value, rarity, and limited edition character is in question. ' That doubtless is true, but we conceive a case to be possible, and that this, so far as the terms of the indictment are concerned, may be such, where the conspirators have simply agreed upon a scheme to defraud of this character, without having determined, as part of the formalities of their scheme, the exact, particular books which they shall use in its execution, but agree, in formulating the scheme, tacitly or directly, to leave the identity of the publications to the exigencies of the future, as the scheme is attempted to be executed; in other words, that the government cannot be held, in the trial of this case, to prove that a book of any particular description was within the contemplation of the parties when the devising of the alleged scheme was in process, much less, therefore, should the indictment fail because no such particular allegation was made.
It follows, therefore, that the allegation of ignorance by the grand jury of the exact character of the books contemplated by the defendants was fair and proper, and that the subsequent language of this portion of the indictment, in the averment that the books were not rare, nor valuable, nor of limited editions, but were otherwise, is not inconsistent; for it is a fair construction of all the language of the indictment germane to this particular question that here the pleader was attempting to describe in a general way, in the nature of a negative, the character of books in the minds of the defendants at the time the scheme was being devised.
We are unable to find any support for this branch of the attack upon the indictment in the cases cited. In Stewart v. United States, 119 F. 89, 55 C.C.A. 641, the indictment was so manifestly...
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Hyney v. United States
...129 F. 551, 554 (C. C. A. 6); Finnegan v. U. S., 231 F. 561, 564 (C. C. A. 6); McBryde v. U. S. (C. C. A. 6) 7 F.(2d) 466; U. S. v. Farmer (D. C.) 218 F. 929, 932. The objection that the first count of the indictment avers eight different schemes and artifices is without controlling merit. ......
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