Wheeler v. United States

• Decision Date: 29 April 1935
• Docket Number: No. 7689.,7689.
• Citation: 77 F.2d 216
• Parties: WHEELER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

77 F.2d 216 (1935)

WHEELER v. UNITED STATES.

No. 7689.

Circuit Court of Appeals, Ninth Circuit.

April 29, 1935.

Wm. G. Condron, of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., and Jack L. Powell, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and GARRECHT, Circuit Judges, and CAVANAH, District Judge.

GARRECHT, Circuit Judge.

Appellant and three others were indicted for the crime of using the mails to defraud (18 USCA §§ 88, 338). The indictment contained twenty-three counts, including a conspiracy count, and the jury returned a verdict of not guilty as to all defendants on all counts, except as to the eighteenth count, under which appellant alone was convicted. From the judgment of the court based upon that verdict, defendant Wheeler brings this appeal.

Asserting that possession of certain vast areas of land in Southern California was held under invalid title, the defects dating back to Spanish and Mexican days in the state, and that such land was still government land and open to homestead, defendants held themselves out, either singly or in groups, as being in a position to assist citizens in placing homestead claims upon various portions of these lands. A cash retainer fee was usually collected by defendants for their services in placing the homestead applications on file in the land office and, as well, they caused the prospective homesteader to execute a retainer contract by which defendants secured an interest in the property expected to be realized when patent was issued. In some instances the entire retainer was paid in cash. Also some of the homesteaders made cash donations to assist in carrying the expenses of defendants. The retainer contracts were sometimes sold by the defendants to private parties. As much of the land, pointed out by defendants as being open for homesteading, was improved and very valuable, they collected large sums of money for their services. Meetings were held for these homesteaders, at which defendant Wheeler or others presided and spoke and pamphlets and letters were sent through the mails.

In each instance the claim filed in the Land Office was rejected and deposit refunded. The defendants prosecuted appeals to the Commissioner of the General Land Office in Washington for many of the homesteaders, but not one was successful.

Some witnesses for the government testified that they had filed upon land on which others had previously filed, and that they had relinquished these duplicate filings and accepted in their stead retainer contracts assigned to them by defendants.

The indictment prefaced the first count with an outline of the alleged scheme and the representations alleged to have been made by defendants to their clients and charges in it and the subsequent counts, specific acts of mailing. The last count charges a conspiracy. The eighteenth count, under which Wheeler was convicted, charged the sending through the mail of a pamphlet, bearing upon the cover the words: "The Betrayers of the United States. The Vigilantes will elect the next President of the U. S. A. Selling `Mexican Grants' or `Looting the Public Domain.'" It recited on the last page that it was "Published by H. N. Wheeler," and was addressed to Miss Lurinda Webb, and by her received through the mails.

Each count of the indictment, following the first, recited that the grand jurors realleged and incorporated in it, "as if again set forth at length, all of the allegations of the first count," "except those allegations alleging the mailing and receipt referred to in said count and describing said receipt." The eighteenth count contained a similar paragraph, also alleging the mailing as above referred to. Appellant contends that, as the jury found Wheeler and the others not guilty under count 1, that count was expunged from the indictment, and therefore count 18 was insufficient; the essential elements of the scheme and artifice being missing. This contention cannot be upheld.

"One count may refer to matter in a previous count so as to avoid unnecessary repetition; and, if the previous count be defective or is rejected, that circumstance will not vitiate the remaining counts, if the reference be sufficiently full to incorporate the matter going before with that in the count in which the reference is made. Blitz v. United States, 153 U. S. 308, 317, 14 S. Ct. 924 38 L. Ed. 725." Crain v. United States, 162 U. S. 625, 633, 16 S. Ct. 952, 954, 40 L. Ed. 1097.

See Foster et al. v. U. S., 178 F. 165, 171 (C. C. A. 6); Glass v. U. S., 222 F. 773, 780 (C. C. A. 9); Linn v. U. S., 234 F. 543, 545 (C. C. A. 7); Fuller v. U. S., 53 App. D. C. 88, 288 F. 442, 444; Chew v. U. S., 9 F. (2d) 348, 353 (C. C. A. 8); Barnard et al. v. U. S., 16 F.(2d) 451, 453 (C. C. A. 9); Nichols et al. v. U. S., 48 F.(2d) 46 (C. C. A. 5); Asgill v. U. S., 60 F.(2d) 780, 783 (C. C. A. 4); and McClintock v. U. S., 60 F.(2d) 839 (C. C. A. 10).

Appellant's next point is that the court erred in overruling his demurrer to the indictment, made upon the ground of indefiniteness, both as to the facts set forth and the offense charged, so that the accused was not fully informed of the precise nature of the charge against him. Without setting forth the indictment at length (to do so would lengthen this opinion to...