Weiss v. United States

• Decision Date: 24 November 1941
• Docket Number: No. 9735.,9735.
• Citation: 122 F.2d 675
• Parties: WEISS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

122 F.2d 675 (1941)

WEISS v. UNITED STATES.

No. 9735.

Circuit Court of Appeals, Fifth Circuit.

September 11, 1941.

Writ of Certiorari Denied November 24, 1941.

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Hugh M. Wilkinson and John D. Lambert, both of New Orleans, La., for appellant.

Malcolm E. Lafargue, U. S. Atty., of Shreveport, La., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

Writ of Certiorari Denied November 24, 1941. See ___ U.S. ___, 62 S.Ct. 300, 86 L.Ed. ___.

HOLMES, Circuit Judge.

The attorneys for appellant say that this court, in defiance of the evidence, adopted the conclusion that Weiss and Hart started out with a general conspiracy to defraud; that the authorities cited by the court really favor appellant if more carefully analyzed; and that the majority opinion is thought to "result from a lack of complete familiarity with the facts of the case."

Having read the record and briefs, we think we understood this case and covered it in our original opinion; but, in response to the petition for a rehearing, we shall review the salient points at issue and state at length the reasons for the decision of which counsel complain.

First, we have a question of duplicity which goes to all three counts on which appellant was convicted. The use of the mails is the gist of the offense, but there is no claim of duplicity in the mailing part of the charges. The contention is that two schemes are alleged, one to raise the contract price, the other, twelve months later, to make fictitious claims for extra work. At this time we need to consider only the first three counts, but later, when we come to rulings upon the admissibility of evidence, we must remember that appellant was tried upon an indictment in nine counts, the last of which was for conspiracy to commit the substantive offenses charged in the first eight counts.

The scheme was to obtain money fraudulently from the State of Louisiana in the sum of approximately $56,914.42. The defendants named in the indictment were appellant, senior member of a firm of architects, and Monte E. Hart, an active member of the firm of contractors which was the lowest bidder for certain construction work on the campus of the Louisiana Polytechnic Institute. The architects were employed upon a percentage basis to draw the plans, superintend the bidding, prepare the contract in accordance with the accepted bid, and superintend the construction.

The indictment alleges that it was a part of the scheme that appellant, acting as architect, would fictitiously and fraudulently add to the accepted bid upon one of the buildings the sum of $27,000; that Hart, the contractor, would then approve and sign the contract for the increased amount, after which appellant would present the same to the President of the State Board of Education for his signature, at the same time concealing from the latter the fact of said increase. As a further part of the scheme, it is alleged that the defendant Weiss was to prepare and present fraudulent architects' certificates covering extra work and material furnished by the contractor.

A third part of the scheme was to conceal copies of said contract from Weiss' associate architectural firm and others, and to conceal the facts from the persons to be defrauded by failure to list the extras covered by the architects' final certificates upon which payment was authorized, demanded, and collected. It is then alleged that many false pretenses and fraudulent representations were made by the defendants for the purpose of inducing the payment of said fictitious amount of approximately $56,914.42. Some of these fraudulent representations are specifically alleged, but the indictment does not undertake to set forth all of them. Numerous other details of the scheme are set forth in the indictment at great length, the increase in the contract price and the overcharges for extras being only parts of the same plan to obtain money from the state through its agencies and institutions. The gist of the scheme was to increase the total cost of the building by raising the bid and by fictitious extra charges. The alleged scheme and its execution cover a period of more than a year, beginning in the early part of 1936. It is expressly alleged that the artifice to make false charges for extra work was a part of the scheme to obtain the approximate amount of money mentioned in the indictment.

Having stated positively that this court, in defiance of the evidence, followed the attitude of the district attorney and the trial judge in adopting the conclusion that Weiss and Hart started out with a general conspiracy to defraud, which embraced cheating at both ends of the job, and made any letter written in the middle of the job a use of the mails in execution of both the raise in the contract price in 1936 and the padding of the extra bill in 1937, counsel repeat: "We say that this conclusion is reached in defiance of the evidence, because the record was absolutely bare of anything on which to rest the assumption that when Weiss is said to have cheated on the contract price in 1936 he then had any idea that either he or Hart was going to cheat on the final extra bill in 1937. The assumption accepted by the court denies the possibility of any progression from one scheme to another in the alleged fraudulent careers of Weiss and Hart in connection with this Louisiana Polytechnic job."

With deference to counsel, their statement is incorrect in several material particulars. In the first place this court did not follow the attitude of the trial judge and the district attorney, if they ever had such attitude, of adopting the conclusion that Weiss and Hart were guilty of any conspiracy. Where a conspiracy to commit the offense is charged, there is a third element, not involved in the commission of the substantive offense: An intent to use the mails in execution or attempted execution of the fraudulent scheme.¹ The appellant was found not guilty on the only conspiracy count in the indictment, and the charge of conspiracy is not before us. In the next place there is no issue before us on this appeal which requires or required us to adopt such conclusion; the issue which counsel had in mind probably was whether or not there was evidence before the jury to warrant a finding that appellant schemed to defraud for extras prior to the fraudulent use of the mails set forth in the first count.

We take it that the attorneys who wrote the brief believed the statement, or they would not have made it, and that they meant what they said, or they would not have repeated it. We further presume that there was in their minds some basis for the statement; and, there being no basis in fact, it is evident that the statement was based upon an erroneous opinion of the law, their idea being that the conviction of appellant could not stand unless the evidence proved that Weiss and Hart started out in 1936 with a complete scheme to defraud "which embraced, then and there, the alleged cheating at both ends of the job." We do not subscribe to this view of the law. The period of more than a year that elapsed between the surreptitious upward revision of the contract and the fabrication of the final bill for extras was merely the time required to erect the building and obtain the money under the architects' final certificate. The completion of the building was necessary to the complete execution of the scheme to defraud, but not to a use of the mails in furtherance of the scheme.

The intention to devise a scheme to defraud necessarily precedes the formation of any such scheme, but the completion of the entire scheme is not necessary to a violation of the statute. An intention to devise a scheme to defraud or for obtaining money by false pretenses is sufficient if enough of the scheme is formed to constitute an offense and the mails are used for the purpose of executing or attempting to execute the part which is completed. Such completed portion of the scheme must be actually devised, but if one's mental processes have definitely reached that stage, the use of the mails is prohibited for the purpose of executing it or attempting to execute it.

A single scheme to defraud may involve a multiplicity of ways and means of action and procedure. It may be such that the complete execution of it would involve the commission of more than one criminal offense. Mere details may be changed and the scheme remain the same. As the execution of the scheme (or the intention to devise the scheme) proceeds, new ways may be adopted or invented to effectuate the original design. The important thing is that the scheme, or the intention to devise it, shall remain the same. The variety of means which may be employed in the execution thereof is limited only by the ingenuity of the schemer. The statute is violated if, having devised or intending to devise a scheme to defraud, the mails are used for the purpose of executing such scheme or attempting to do so.² It is not necessary that when the artifice was devised the schemers shall have worked out all the details of its execution.³ The law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity.

As was said by this court in McLendon v. United States, 5 Cir., 14 F.2d 12, on page 14: "The language of section 215 of the Criminal Code does not indicate that the lawmakers intended to enable one who uses the mails in furtherance of a scheme to defraud to obtain immunity for so doing by making the commission of a plurality of crimes a part or feature of his scheme."⁴

In Sasser v. United States, 5 Cir., 29 F. 2d 76, the indictment was in twenty counts. The scheme was set out in detail in the first count, and adopted by reference in all the other counts, the only material difference between the counts being that a different letter was set out in each, and alleged to have been mailed...