United States v. Prussian, 398.

• Citation: 42 F.2d 854
• Decision Date: 30 June 1930
• Docket Number: No. 398.,398.
• Parties: UNITED STATES v. PRUSSIAN.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

42 F.2d 854 (1930)

UNITED STATES v. PRUSSIAN.

No. 398.

Circuit Court of Appeals, Second Circuit.

June 30, 1930.

Harold L. Turk, of Brooklyn, N. Y. (S. Rosenwein, of Brooklyn, N. Y., of counsel), for appellant.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and Emanuel Bublick, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.

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

MANTON, Circuit Judge.

Appellant, an attorney at law, was convicted below for falsely forging by endorsement, the payee's name on a draft of the United States, giving a refund of income taxes. Title 18, U. S. Code, § 262 (18 USCA § 262) U. S. Criminal Code § 148. He was employed to obtain a refund of taxes for the estate of Jennie E. Mackay. His power of attorney dated February 27, 1925, authorized him to represent his client and act for him, "in connection with all matters in any way relating to the Federal Income Tax return filed by me on behalf of said Estate, covering the 1919 income tax liability of said Estate, and in particular, to represent me and act for me in prosecuting a claim for refund of a portion or all of said income taxes; giving and granting unto my said attorney, full power and authority to do and perform all and everything requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as I might or could do if personally present, also empowering him to receive all official communications, and granting him full power of substitution and revocation. * * *"

The government granted a refund for $9,044.37, but, before delivering the check to the appellant, the government required another power of attorney. It was dated April 6, 1926, and authorized him "to represent me and act for me in connection with all matters in any way relating or pertaining to the income tax return of the estate of Jennie E. Mackay for the year 1918 and in particular in the prosecution of a claim for refund of income taxes paid on account of 1918 income tax liability, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing requisite and necessary to be done in and about the premises and fully to all intents and purposes and (sic) I might or could do if personally present.

"Also empowering him to receive and sign all official communications.

"Also empowering him and giving him full authority to receive but not to endorse checks in payment of refund in connection with the aforesaid matter. * * *" (Italics ours.)

The appellant concedes that he received the draft and indorsed on the back thereof: "Malcolm S. Mackay (written in fine close hand) Admr. Est. of Jessie E. Mackay (typewritten) Aaron Prussian, Attorney (flowing large hand) Aaron Prussian (flowing large hand)." There was also written: "Pay to the Order of Bank of Coney Island, J. L. Buckman." Buckman cashed the check for appellant, retaining sufficient to pay a mortgage on appellant's home; and gave the balance to Prussian, a sum stated to be between five and six thousand dollars. It was agreed that the appellant had a 15 per cent. contingent retainer to be collected out of the sum refunded.

The defense claimed was that the appellant acted in good faith, believing he had authority to indorse the check and retain his fees and then intended to remit the difference to the estate. But there was evidence given by the attorney for the estate that he first found out that appellant had indorsed the check about six months after it had been cashed, and during that time he had no communication from appellant and learned of the cashing of the check by chance only. When the appellant was apprehended and questioned by a secret service agent of the government, he offered to make restitution to the government of the amount due, but failed to do so; whereupon, after a delay of upwards of two weeks, the prosecution was instituted. He never did make restitution to his client.

The statute (U. S. Code, tit. 18, § 261 18 USCA § 261, U. S. Criminal Code § 147) provides that an obligation or other security of the United States shall be held to mean a check or draft for money drawn by or upon authorized officers of the United States which have been or may be issued under any act of Congress. U. S. Code, tit. 18, § 262 (18 USCA § 262). U. S. Criminal Code § 148, makes it a criminal offense for one with intent to defraud to falsely forge, counterfeit, or alter an obligation or other security of the United States. The...