United States v. Lemons

• Citation: 67 F. Supp. 985
• Decision Date: 12 October 1946
• Docket Number: No. 15749.,15749.
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES v. LEMONS.

67 F. Supp. 985

UNITED STATES v. LEMONS.

No. 15749.

District Court, W. D. Missouri, W. D.

October 12, 1946.

Sam M. Wear, U. S. Atty., of Kansas City, Mo., for plaintiff.

Elmo B. Hunter, of Kansas City, Mo., for defendant.

RIDGE, District Judge.

An indictment was returned in this Court on October 1, 1943, charging defendant, in 7 counts, with having violated the "National Stolen Property Act." Specifically, defendant was charged, under Sec. 415 of T. 18 U.S.C.A., in each count of said indictment, with having knowingly, wilfully, feloniously and unlawfully transported or caused to be transported in interstate commerce, from Kansas City, Missouri, to Topeka, Kansas, a certain falsely-made, forged and counterfeit security, to-wit, a certain check drawn upon the Fidelity Savings Bank of Topeka, Kansas, which defendant well knew to be falsely-made, forged and counterfeited. A copy of the check so alleged to have been transported, or caused to be transported, is set out in each count of the indictment. At arraignment under said indictment defendant entered a general plea of guilty and was sentenced to 6 years on each count of the indictment, to run concurrently. Under said sentence and judgment defendant was committed to the United States Penitentiary, Leavenworth, Kansas, where he is now confined.

Defendant has filed motion to set aside and quash the judgment and sentence so entered against him on his plea of guilty. In said motion defendant alleges that the judgment, sentence and commitment issued by this Court are illegal and void because the Court was without jurisdiction to render the judgment and sentence so assessed and entered against defendant. It is defendant's contention that all of the acts charged against him, in the indictment in question, did not, in any manner, violate the National Stolen Property Act, 18 U.S.C.A. § 413 et seq., in that the acts charged against the defendant did not involve any act of transporting, or causing to be transported, in interstate commerce any falsely-made, forged or counterfeited securities. Stated in other words, it is defendant's contention that all of the checks, which he is charged to have transported or caused to have been transported in interstate commerce, were forged and presented by him for payment to certain individuals, firms and corporations in Kansas City, Missouri, and that the money he received from such forged instruments was paid to him by said parties in said city; that having so presented said checks and received the money thereon in Kansas City, Missouri, the crime committed by him, if any, was then complete and he cannot be charged or held for any act of the person who cashed such checks, or the act of any bank which thereafter became the holder thereof, and transported, or caused said checks to be transported, in interstate commerce for payment by the bank on which they were drawn. In support of said contention defendant relies upon the decision of the 6th Circuit Court of Appeals in Sheridan v. United States, 152 F.2d 57, and the decision of the Supreme Court of the United States in Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88, 157 A.L.R. 406.

In Sheridan v. United States, supra, the 6th Circuit Court of Appeals held that a defendant who obtained money, or other value, by negotiating, in Jackson, Michigan, three falsely-made checks drawn on banks located outside of Michigan, was not guilty of having violated the National Stolen Property Act, and particularly Sec. 415 of T. 18 U.S.C.A. The decision in the Sheridan case is that a person who executes and issues a spurious, forged and fraudulent instrument in one state, and negotiates said instrument in such state and receives money or other things of value therefor, cannot be charged with the act of the person to whom such instrument was transferred, when it is transported, or caused to be transported, in interstate commerce to a bank in another state on which said check is drawn. Under such circumstances, the 6th Circuit Court of Appeals holds that the fraudulent scheme, by which a person receives money, or thing of value on a forged instrument, is fully consummated before any interstate transportation of such instrument occurs if, after cashing a check, the person who cashes the same, or any bank which becomes the holder thereof, thereafter transports, of causes said check to be transported in interstate commerce to the bank on which it was drawn, located in some other state for payment. The 6th Circuit Court of Appeals, relying on the decision of the United States Supreme Court in the Kann case, supra, says: "It is no more logical to say that Sheridan caused the checks to be transported in interstate commerce than it would have been to say that the conspiring defendants in the Kann case caused the checks to be mailed for the purpose of executing their fraudulent scheme; inasmuch as the victims cashed the checks falsely made by Sheridan and became holders in due course, just as did the banks which cashed or credited the checks in the Kann case." 152 F.2d 59. (Underscoring supplied.)

In Kann v. United States, supra, the United States Supreme Court held that under Sec. 215 of the Criminal Code, 18 U.S.C.A. § 338, an essential element of the offense denounced by said statute as a crime is that the use of the mails be for the purpose of executing the fraudulent scheme. In said case the petitioner and 6 others were indicted for using the mail in execution of a scheme to defraud. At the trial the evidence established that the petitioner and his codefendants devised a plan and scheme whereby they falsely and fraudulently induced certain checks to be issued by a contractor who had a contract with the Triumph Explosives, Inc., for the building of a factory on land conveyed to Triumph by several of the defendants in said case. After said land was conveyed to Triumph said defendants falsely represented to the contractor that they were the owners of timber located on the land in question, and fraudulently induced such contractor to pay them the sum of $12,000 for such timber. In making such payment the contractor issued his check, payable to their order, drawn on the Industrial Trust Company of Wilmington, Delaware. The specific charge alleged to have been in violation of Sec. 215 of the Criminal Code was that defendants caused to be placed in the Post Office at Elkton, Maryland, the check so given to them by said contractor, drawn on the Trust Company at Wilmington, Delaware, for payment. The check executed by the contractor was a valid, lawful, negotiable instrument. The use of the mails, proved to have been used as a part of said fraudulent scheme, was that the check was endorsed by defendants and cashed at the Peoples Bank of Elkton, Maryland, which said bank deposited said check in the mail to be delivered to the bank in Wilmington, Delaware, on which it was drawn. In reversing the judgment of conviction of petitioner in the Kann case, the Supreme Court of the United States held that...