Wolpa v. United States

• Decision Date: 05 November 1936
• Docket Number: No. 10526,10527.,10526
• Parties: WOLPA v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

86 F.2d 35 (1936)

WOLPA v. UNITED STATES (two cases).^*

Nos. 10526, 10527.

Circuit Court of Appeals, Eighth Circuit.

November 5, 1936.

William N. Jamieson, of Omaha, Neb. (Joel O'D. Cornish, of Omaha, Neb., on the brief), for appellants.

Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb. (Joseph T. Votava, U. S. Atty., and Fred G. Hawxby, Asst. U. S. Atty., both of Omaha, Neb., and Barlow Nye, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

SANBORN, Circuit Judge.

The appellants, Alex Wolpa and Julius J. Wolpa, were indicted, tried, convicted, and sentenced under section 215 of the Criminal Code (18 U.S.C. § 338 18 U.S. C.A. § 338) for using the mails to defraud. The convictions were under counts I, II, III, IV, VI, IX, XI, and XIV of the indictment, which charged that the appellants, with other defendants not parties to these appeals, "did devise and intend to devise a scheme to obtain money and property by means of false and fraudulent pretenses, representations and promises from numerous and sundry persons engaged in the mercantile business; who were and are residents of the different states of the United States; that is to say, those persons engaged in mercantile business who desired to sell their business and their stocks of merchandise and real estate, and who could be induced by the defendants to pay their money to the defendants."

The scheme to defraud is described in the indictment as follows: The appellants, together with the others named as defendants in the indictment, planned to represent to the persons to be defrauded that the Associated Brokerage Company (a trade-name adopted by the appellants), was a business firm engaged as brokers of business properties and business; and planned that they (the defendants) would solicit and enter into contracts with persons engaged in the mercantile business for authority to sell the property of such persons; that the defendants would personally contact the persons to be defrauded and represent that the Associated Brokerage Company had a large list of buyers and had a buyer who would soon purchase the property of the intended victim and that it was necessary for him to give his consent and to pay a sum of money designated as a service charge to the defendants as a token of good faith; and that the defendants would promise each person to be defrauded that the service charge would be refunded in the event that the defendants and the Associated Brokerage Company failed to find a purchaser for his property.

Following the description of the scheme, it is alleged in the indictment that the promises made by the defendants were, and were known by the defendants to be, false and fraudulent, in that the Associated Brokerage Company and the defendants were not brokers of business property and business, and would not have prospective purchasers, and did not intend to carry out any of their promises to the persons to be defrauded; also that "it is apparent and therefore here set forth as a face fact, that during the times herein alleged" the defendants were not operating in good faith toward the persons whose money they intended to receive and did not intend to give any adequate consideration therefor.

It is then charged in the first count of the indictment "that the said defendants, on or about the 16th day of December, 1932, at Omaha, in Douglas County, in the Omaha division of the District of Nebraska, and within the jurisdiction of this court, so having devised said scheme, for the purpose of executing the same, wilfully, unlawfully and feloniously did knowingly place and cause to be placed in the Post Office of the United States at Omaha aforesaid, to be sent and delivered to the addressee thereof by the post office establishment of the United States, a certain letter then and there addressed and intended by said defendants to be sent and delivered by said post office establishment to Mr. George Pointer, Box 113, Loup City, Nebraska, of the tenor following, to-wit: the letter, which invites negotiations for the sale of Mr. Pointer's business, is then set out in full." The other counts of the indictment are substantially the same, except that each involves a different letter or postal card addressed to a different person.

The appellants filed general and special demurrers to the indictment, which were overruled by the court. Upon the trial, the jury found the appellants guilty under counts I, II, III, IV, VI, IX, XI, and XIV, and both were sentenced to three years' imprisonment on each of those counts, the sentences to run concurrently. From the judgments these appeals are taken.

The one specification of error relied upon by the appellants challenges the sufficiency of each count of the indictment. The alleged defects relied upon for reversal are:

(1) The indictment alleges more than one violation of the laws of the United States in a single count.

(2) It fails to name the persons to be defrauded or to give a reason for such failure.

(3) It fails in certain counts to allege that the defendants placed or caused to be placed in the post office of the United States at Omaha, Neb., a certain envelope on which was placed the proper United States postage, having inclosed therein a certain letter.

(4) It fails in other counts to allege that the postal cards mailed by defendants were official government postal cards or that defendants placed the proper United States postage thereon.

(5) It fails to allege that the fraudulent scheme itself included the intended use of the United States mails in its execution.

(6) The scheme as set forth in count I and incorporated in counts II, III, IV, VI, IX, XI, and XIV is not sufficiently clear and certain to enable the defendants to properly prepare their defense, and the charges in those counts are too general, vague, and indefinite to be pleaded as former jeopardy.

In considering these alleged defects, it must be kept in mind that the purpose of an indictment is to apprise the accused of the crime charged against him with such reasonable certainty that he can make his defense and not be taken by surprise by the evidence offered at the trial and can be protected after judgment against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Claiborne v. United States (C.C.A.8) 77 F.(2d) 682; Laska v. United States (C.C.A.10) 82 F. (2d) 672, 678.

1. Section 338 of title 18, U.S.C. (18 U.S.C.A. § 338), so far as it is here pertinent, provides: "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or advertisement, whether addressed to any person residing within or outside the United States, in any post office, or station thereof, or street or other letter box of the United States, or authorized depository for mail matter, to be sent or delivered by the post office establishment of the United States, or shall take or receive any such therefrom, whether mailed within or without the United States, or shall knowingly cause to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such letter, postal card, package, writing, circular, pamphlet, or advertisement, shall be fined not more than $1,000, or imprisoned not more than five years, or both." (Italics supplied.)

It is charged in the indictment that the defendants did "devise and intend to devise a scheme" to defraud, and that, for the purpose of executing such scheme, they "placed and caused to be placed" a certain letter in the post office. The appellants contend that this substitution of the conjunctive "and" for the disjunctive "or" found in the statute is a fatal defect because the indictment with the use of the conjunctive charges two offenses in one count.

In Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 953, 40 L.Ed. 1097, the Supreme Court considered an indictment charging that one Crain did "make, execute, and forge, and cause to be made, executed, and forged," a certain affidavit for the purpose of defrauding the United States. The statute (R.S. § 5421 see 18 U.S.C.A. § 73) upon which that prosecution was based was also in the disjunctive and provided a penalty for "every person who falsely makes, alters, forges, or counterfeits; or causes or procures to be falsely made, altered, forged, or counterfeited" any writing for the purpose of defrauding the United States. The following paragraph from the opinion in that case is equally applicable to the case at bar (page 636 of 162 U.S., 16 S.Ct. 952, 955, 40 L.Ed. 1097): "The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment at hard labor for a period of not less than five years nor more than ten years, or by imprisonment for not more than five years and a fine of not more than one thousand dollars. We perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused who pleads not guilty to the charge contained in a single count, for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it."

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