United States v. Leathers, 188.

• Decision Date: 05 May 1943
• Docket Number: No. 188.,188.
• Citation: 135 F.2d 507
• Parties: UNITED STATES v. LEATHERS et al.
• Court: U.S. Court of Appeals — Second Circuit

135 F.2d 507 (1943)

UNITED STATES v. LEATHERS et al.

No. 188.

Circuit Court of Appeals, Second Circuit.

May 5, 1943.

Sydney L. Bleicher, of New York City (Harold L. Fisher, of New York City, of counsel), for appellant Alfred C. Leathers.

Jac M. Wolff, of New York City, and B. D. Oliensis, of Philadelphia, Pa. (B. D. Oliensis, of Philadelphia, Pa., of counsel), for appellant Willard J. Thomas.

Mathias F. Correa, U.S. Atty., of New York City (Saul S. Sharison and Peter J. Donoghue, Asst. U.S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendants Leathers and Thomas were convicted of devising a scheme to defraud a seventy-two year old woman, Johanna A. Bayer, and her nephew, Wilhelm Bayer, through false representations and of executing the scheme through the use of the United States mails. They were also convicted of conspiring to commit the substantive offenses. The defendants Leathers and Thomas have appealed from the judgment of conviction, which, in our opinion, should be affirmed.

Two other defendants, Samuel J. Mustain and David Stewart, were joined with the appellants. Mustain pleaded guilty and testified as a government witness, and Stewart, though convicted, abandoned an appeal which he had taken and commenced the service of his sentence.

The indictment contained four counts; the first three related to the substantive offenses, and the fourth to the conspiracy.

The three substantive counts alleged that on the first day of January, 1939, and continuously thereafter, the appellants and others named in the indictment devised a scheme to defraud Johanna A. Bayer, Wilhelm Bayer, and divers other persons "by inducing and attempting to induce said victims by false representations, pretenses and promises, and fraudulent artifices and devices to part with their money and property in the purchase of" certain oil and gas leases and certain shares of stock. Count 1 set forth the false representations and charged that "for the purpose of executing said scheme" and on the 7th day of January, 1939, the defendants, at the Southern District of New York, "caused to be delivered by the Post Office Establishment of the United States, according to the directions contained thereon, a certain writing, to wit, a cash letter from the Illinois National Bank, Springfield, Illinois, dated January 5, 1939", enclosing among others, "in a postpaid envelope," a check drawn on the Chemical Bank and Trust Company in the sum of $2,000, dated January 3, 1939, payable to Johanna A. Bayer, and drawn by the Central Savings Bank in the City of New York; a check drawn on the Chase National Bank in the sum of $2,000, dated January 3, 1939, payable to Johanna A. Bayer, drawn by the Seamen's Bank for Savings; a check drawn on the Chase National Bank in the sum of $1,920, dated January 3, 1939, payable to Johanna A. Bayer, and drawn by the Union Dime Savings Bank; and a check drawn on the Irving Trust Company in the amount of $1,000, dated January 3, 1939, payable to Johanna A. Bayer, and drawn by the East River Savings Bank. It was alleged that the cash letter was addressed to "First National Bank of New York, 2 Wall Street, New York City."

Count 2 realleged the scheme to defraud and charged that for the purpose of executing the same and on July 17, 1939, the defendants caused to be delivered at the Southern District of New York by the Post Office Establishment "a cash letter" enclosing certain checks in a postpaid envelope, addressed to Guaranty Trust Company, New York City, N. Y., among others a check drawn to the Guaranty Trust Company of New York in the sum of $625, dated July 13, 1939, payable to self, signed by Johanna A. Bayer.

The third count was identical with the second count except that it alleged that July 24, 1939, was the date upon which the count letter was caused to be delivered by the Post Office to the addressee, Guaranty Trust Company.

The fourth count charged that the defendants conspired to commit the frauds set forth in the first count through the use of the mails.

The appellant Leathers raises no question as to the sufficiency of the proof that he was engaged in a scheme to defraud Miss Bayer and her nephew, or was engaged in the alleged conspiracy, and rests his appeal only upon a supposed lack of proof that the mails were used in the execution of the scheme, and upon errors in the charge of the judge. It is, therefore, unnecessary to outline the details of the fraudulent representations proved at the trial.

The cash letter mentioned in Count 1 was a collection letter sent by the Illinois National Bank of Springfield to the First National Bank of New York, containing many checks for collection, including the five checks set forth in Count 1 aggregating $6,920 which were obtained from Miss Bayer by fraudulent misrepresentations and given by her to the defendant White, who transmitted them to Leathers at Springfield, Illinois. The letters mentioned in Counts 2 and 3 were collection letters sent by the First National Bank of Springfield, Illinois, to the Guaranty Trust Company of New York on two different dates, each containing a check for $625 drawn by Miss Bayer and given by her to one Rockwood, a drilling operator, at the instance of Leathers, to forward the defendants' fraudulent schemes. Payment was stopped by Miss Bayer on the check for $625 delivered on July 17, 1939, but the same check was returned to the Guaranty Trust Company on July 24, 1939, and paid in due course.

Pfeffer, the bank cashier of the Warren-Boynton Bank at New Berlin, Illinois, who had been given the five checks described in Count 1 by Leathers for collection, deposited them in the Illinois Bank of Springfield. McGuar, the auditor of the latter bank, testified that the cash letter enclosing the five checks was prepared at his bank for transmittal to its correspondent, First National Bank of New York. He was asked:

"Q. How did you send these records to the First National Bank in New York City? A. They are sent by mail.

"Q. I show you Government's Exhibits 8A, B, C, D and E, Mr. McGuar, and ask you whether or not you can tell us if those are checks which were sent in this other exhibit for identification which you have in your hand? A. Yes, sir, they are."

No objection was made to the foregoing testimony of McGuar.

Hubbel, auditor of the First National Bank of New York, testified that the cash letter (Exh. 45) and the enclosed checks were received by his bank and that in the ordinary course of business cash letters from the Illinois National Bank were received by mail. Exhibit 45, first marked for identification, was thereafter offered in evidence by the government and received without objection by any of the defendants. The envelope contained the five checks listed in the first count of the indictment and also a sixth check (Exh. 8E) in the sum of $1,000, drawn on the Irving Trust Company by the Bowery Savings Bank, dated January 3, 1939, and payable to Johanna A. Bayer. This check, like the five listed in the first count, was received and collected through the First National Bank of New York. These six checks and the envelope which contained them bore the receipt stamp of the First National Bank of New York which Mr. Hubbel said was affixed in the ordinary course of business upon their receipt by his bank.

Rhatigan, a clerk of the Guaranty Trust Company, testified that the cash letters set forth in the second and third counts of the indictment were received by his bank and given office stamps in the ordinary course of business which in the present instance showed that they were received by air mail July 17, 1939, and July 24, 1939, respectively. He also testified that the cash letters and checks were received by air mail. The offer of these exhibits was objected to on behalf of the defendants but only on the ground that they were immaterial and not connected with the defendants.

Rhatigan...