United States v. Riedel, 7879.

• Decision Date: 24 March 1942
• Docket Number: No. 7879.,7879.
• Citation: 126 F.2d 81
• Parties: UNITED STATES v. RIEDEL.
• Court: U.S. Court of Appeals — Seventh Circuit

126 F.2d 81 (1942)

UNITED STATES v. RIEDEL.

No. 7879.

Circuit Court of Appeals, Seventh Circuit.

February 17, 1942.

Rehearing Denied March 24, 1942.

Samuel G. Harrod, Jr., of Eureka, Ill., and Julian B. Venezky, of Peoria, Ill., for appellant.

Howard L. Doyle and Geo. R. Kennedy, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., all of Springfield, Ill., and J. O. Brown, Asst. U. S. Atty., of Peoria, Ill., for appellee.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

Defendant was convicted and sentenced for violations of Section 338, Title 18 U. S.C.A., and of Sec. 17 of the Securities Act of 1933, as amended. Sec. 77q Title 15, U.S.C.A. Three of the counts on which defendant was convicted, charged illegal use of the mails in furtherance of a scheme to defraud. The other six counts upon which he was also convicted, were for unlawful schemes to defraud in the sale of securities, by use of the U. S. mails in violation of the Securities Act. Sec. 77q, 77x, Title 15, U.S.C.A. The statute on each offense provides a maximum penalty of five years. The sentence was within said maximum.

Defendant's assignments of error raise the following alleged errors:

(1) The evidence fails to show any violation of the use of the mails to defraud statute. To support this point, appellant argues that the letters and cards which were mailed, were not in furtherance of the scheme to defraud, which, if it existed at all, was completed before said letters and cards were mailed.

(2) The evidence fails to support conviction on six of the counts charging violations of Section 77b of the Securities and Exchange Act, 15 U.S.C.A. section 201. The basis for this attack is that the certificate upon which it is claimed the fraud occurred, was not a "security" within the definition of said Act.

(3) Error is also assigned because the various counts of the indictment are duplicitous and the court erred in overruling defendant's motion to quash them.

(4) Defendant also argues that he was convicted on the uncorroborated evidence of an accomplice. This testimony was condemned as unworthy of belief and given by the witness to secure probation and it was disputed by other facts and circumstances.

(5) Defendant also argues that the seizure of defendant's books and records, under color of subpoena duces tecum, was unauthorized and void.

EVANS, Circuit Judge.

Seizure of Books and Records. The bill of exceptions does not contain the evidence received on this issue. It does show that the Securities and Exchange Commission obtained possession of the books and apparently on a subpoena duces tecum. That subpoena is not in the bill of exceptions. Whether it was addressed to a corporation or to an individual does not appear. It also appears that a motion was made by defendant to suppress this evidence, and a hearing was had at the conclusion of which the court denied the motion.

The testimony received at this hearing is not in the bill of exceptions, and defendant is, therefore, in no position to raise the question he seeks to present.

We need not therefore consider the Government's contention that the evidence was, in fact, obtained pursuant to a subpoena duces tecum directed to a corporation and served upon one having possession of the books of said corporation, and therefore legal. Essgee Company of China v. United States, 262 U.S. 151, 158, 43 S. Ct. 514, 67 L.Ed. 917.

Accomplice. We may dismiss without elaboration, the contention that the evidence in this case came largely from the lips of an accomplice. Such evidence, under innumerable decisions of the Federal Court, is sufficient, even standing alone, to support a conviction. Heitler v. United States, 7 Cir., 244 F. 140.

Duplicitous Indictment. The charge that each of the three counts in the indictment is duplicitous because the two defendants charged therein acted in concert to effectuate their scheme to defraud, through the use of the mails, must be rejected. Preeman v. United States, 7 Cir., 244 F. 1, 9. The fact that out of the allegations which were necessary to sustain an indictment under Sec. 338, Title 18, U.S. C.A., there may have been facts showing an unlawful conspiracy to violate Sec. 77q, Title 15 U.S.C.A. (which is denied) does not make it duplicitous.

Sufficiency of the Evidence. More serious is the question raised by defendant that the scheme to defraud was completed when the second necessary step, to-wit, the use of the mails in furtherance of...