Wilkes v. United States

• Decision Date: 04 December 1935
• Docket Number: No. 7466.,7466.
• Parties: WILKES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

80 F.2d 285 (1935)

WILKES et al. v. UNITED STATES.

No. 7466.

Circuit Court of Appeals, Ninth Circuit.

November 8, 1935.

Petition to Modify Denied December 4, 1935.

COPYRIGHT MATERIAL OMITTED

Matt I. Sullivan, Theo. J. Roche, and Sullivan, Roche & Johnson, all of San Francisco, Cal., for appellants McKeon.

J. E. Simpson, W. E. Simpson, and H. L. Carnahan, all of Los Angeles, Cal., for appellants Shingle and Brown.

Buel R. Wood, of Los Angeles, Cal., for appellants Wilkes and others.

J. W. Kearby, of Los Angeles, Cal., for appellant Myers.

Peirson M. Hall, U. S. Atty., of Los Angeles, Cal., and J. Albert Woll, Sp. Asst. to the Atty. Gen., for the United States.

Before WILBUR and MATHEWS, Circuit Judges, and ST. SURE, District Judge.

MATHEWS, Circuit Judge.

The indictment in this case was in fifteen counts, fourteen of which charged Alfred G. Wilkes, E. Byron Siens, John McKeon, Robert McKeon, Maurice C. Myers, William J. Cavanaugh, Fred Shingle, Horace J. Brown, and ten other defendants with using the mails in execution of a scheme to defraud (Criminal Code, § 215, 18 U.S.C.A. § 338). The fifteenth count charged them with conspiring to commit the offenses described in the other fourteen counts (Criminal Code, § 37, 18 U.S.C.A. § 88). Wilkes, Siens, and Cavanaugh were convicted and sentenced on counts 2, 6, and 15, Myers on count 8, Shingle and Brown on count 12, and the McKeons on count 15. All the named defendants have appealed.

The scheme charged in the indictment was, in substance, that the defendants would organize, dominate, and control the Italo Petroleum Corporation of America, would issue and sell the capital stock thereof, and would defraud said corporation and its stockholders by wrongfully receiving for themselves, as a bonus for making a loan to said corporation, 80,000 shares of its capital stock; by causing said corporation to purchase for an excessive consideration the assets of the Brownmoor Oil Company and to issue 1,200,000 shares of its stock in part payment therefor; by wrongfully and unlawfully receiving for themselves a part of said 1,200,000 shares of stock and the proceeds thereof; by forming a syndicate and causing said corporation to issue for the benefit of said syndicate 6,000,000 shares of its capital stock for a sum not exceeding $3,500,000; by wrongfully receiving for themselves secret profits from the sale of said 6,000,000 shares of stock; by causing said corporation to purchase for an excessive consideration certain assets of the McKeon Drilling Company, Inc., and to issue 4,500,000 shares of its stock in part payment therefor; and by secretly receiving for themselves 2,500,000 of said shares and the proceeds thereof. The scheme had other ramifications which we deem it unnecessary to state.

Appellant Myers demurred to count 8 of the indictment on the ground that it does not inform him in the English language of the nature and cause of the accusation against him. The overruling of his demurrer is assigned as error. The assignment is without merit. Count 8 charges, in the English language, that the defendants, having devised the scheme above referred to, did, for the purpose of executing the same, cause to be delivered by the post office establishment of the United States, at Pasadena, Cal., in a postpaid envelope addressed to La Vinna Hill Hopkins, an eleven-page pamphlet, which began with the words "Report of the directors of Italo Petroleum Corporation of America and subsidiary companies for the period October 31, 1928, to July 31, 1929," and ended with certain Italian words quoted but not translated in count 8, and was signed "Italo Petroleum Corporation of America, John B. De Maria, Presidente."

The sole objection to count 8 is that it contains no translation of the Italian words quoted therein. Such a translation was unnecessary. The words are used merely to identify the pamphlet alleged to have been mailed. They do not constitute the gist of the offense. It was not necessary to set out the contents of the pamphlet or any part thereof. Durland v. United States, 161 U.S. 306, 315, 16 S.Ct. 508, 40 L.Ed. 709; Scheib v. United States (C.C.A.) 14 F.(2d) 75, 77; Tenenbaum v. United States (C.C.A.) 11 F.(2d) 927, 928; Wilson v. United States (C.C.A.) 275 F. 307, 312; Hume v. United States (C.C.A.) 118 F. 689, 695. Much less was it necessary to furnish a translation. We think the pamphlet was sufficiently identified. If appellant desired further identification, he should have demanded a bill of particulars. Durland v. United States, supra.

Appellants Shingle and Brown demurred to count 12 of the indictment on the ground that the offense therein charged was charged to have been committed in the Northern district of California, not in the Southern district, where the indictment was found, and was, therefore, not within the jurisdiction of the trial court. The overruling of this demurrer is assigned as error. Count 12, after reiterating the allegations of the first count respecting the scheme devised by defendants, alleges: "That the defendants, having devised and intended to devise the aforesaid scheme and artifice, in and for the purpose of executing the same, did, on or about the 23rd day of January, 1929, knowingly, wilfully and unlawfully cause to be placed in the United States Post Office at San Francisco, California, and cause to be delivered by the Post Office Establishment of the United States at Los Angeles, California, in the Central Division of the Southern District of California, a certain letter in a postpaid envelope addressed to Mr. O. J. Rhode, at 727 West Seventh Street, Los Angeles, California. * * *"

Appellants argue that the offense charged in this count is that of causing the letter to be placed in the post office at San Francisco in the Northern district of California, to be sent and carried by the post office establishment of the United States. We do not think so. The charge, as we view it, is that of causing the letter to be delivered by mail at Los Angeles in the Southern district of California. Although count 12 does not, in so many words, allege that the letter was delivered "by mail," it does allege that it was delivered by the post office establishment of the United States. This is equivalent to saying that it was delivered by mail. McLendon v. United States (C.C.A.) 14 F. (2d) 12, 14. The statement that the defendants caused the letter to be placed in the post office at San Francisco is merely explanatory, showing how the letter came to be in the mail. Salinger v. Loisel, 265 U.S. 224, 233, 44 S.Ct. 519, 68 L.Ed. 989; Horner v. United States, 143 U.S. 207, 213, 12 S.Ct. 407, 36 L.Ed. 126.

It is further argued by these appellants that, if count 12 be regarded as attempting to charge the offense of causing delivery of the letter in question, it is defective in not alleging that the defendants "knowingly" caused such delivery. The point is not well taken. Count 12 alleges that the defendants "did * * * knowingly * * * cause to be placed in the United States Post Office * * * and cause to be delivered by the Post Office Establishment of the United States" the letter therein referred to. This means that both acts (causing the letter to be mailed and causing it to be delivered) were done knowingly. In so alleging, it was not necessary to use the word "knowingly" twice. Once was enough.

Appellants John McKeon and Robert McKeon demurred to count 15 of the indictment on the ground that the facts therein alleged are insufficient to constitute a violation of any law of the United States. The overruling of their demurrer is assigned as error. Count 15 charges a conspiracy to commit the offense charged in each of the other fourteen counts, namely, the offense of using the mails in execution of a scheme to defraud. Appellants argue that this scheme was itself a conspiracy, and that, therefore, count 15, in effect, charges a conspiracy to conspire. There is no merit in this argument. Using the mails in execution of a scheme to defraud is an offense separate and distinct from that of conspiring so to use the mails. Chew v. United States (C.C.A.) 9 F.(2d) 348, 353; Morris v. United States (C.C.A.) 7 F.(2d) 785, 791; Ader v. United States (C.C.A.) 284 F. 13, 25; Preeman v. United States (C.C.A.) 244 F. 1, 19.

Appellants assign as error the action of the District Judge, the Honorable George Cosgrave, in proceeding with the trial of this case, notwithstanding an affidavis of bias and prejudice made and filed by appellant Siens, pursuant to section 21 of the Judicial Code, 28 U.S.C.A. § 25, which provides: "Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein. * * * Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists."

To satisfy the requirements of section 21, the facts stated in the affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 23, 41 S.Ct. 230, 233, 65 L.Ed. 481. The affidavit must "assert facts from which a sane and reasonable mind may fairly infer bias or prejudice." Keown v. Hughes (C.C.A.) 265 F. 572, 577. These facts "should be set out with at least that particularity one would expect to find in a bill of particulars filed by a pleader in an action at law to supplement and explain the general statements of a formal pleading." Morse v. Lewis (C.C.A.) 54 F.(2d) 1027, 1032.

The affidavit in this case states that the affiant believes that Judge Cosgrave has a personal bias and prejudice against the defendants and in favor of the government, by reason of which the defendants cannot have a fair and impartial trial before...