Foster v. United States

¶78KNAPPEN, Circuit Judge

¶79(after stating the facts as above). The proposition which first claims attention is that the second and third counts should have been squashed as fatally defective. The specific criticism is that the language, “in and for executing the scheme and artifice to defraud set out in the first count [of the indictment], which statement is hereby made a part of this second count of this indictment,” is insufficient to incorporate into the subsequent counts the allegation that the defendants actually devised the scheme to defraud set out in the first count; the argument being that the wbrd “statement” relates only to the description of the scheme with the first count alleges was devised by. the defendants, and does not embrace the allegation contained in the first count, that defendants actually devised that scheme. In our opinion, the criticism is without substantial merit. It is true that the elements of the offense which must be charged in an indictment under the section in question and established in the proof are (1) that the defendants devised a scheme or artifice to defraud; (2) that they intended to effect this scheme through the use of the post office establishment of the United States; and (3) that in carrying *171out such scheme the defendants either deposited a letter or packet in the post office, or took or received one therefrom. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; Horman v. United States, 116 Fed. 350, 53 C. C. A. 570. And the rule is fundamental that no essential element of the crime, intended to he charged can be omitted without destroying the whole pleading. United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 57 1, 31 L. Ed. 516.

¶80It is not, however, urged, and could not be successfully contended, that it is necessary to set out in full in each count of the indictment matter contained in a previous count. One count in an indictment may properly refer to matter in a previous count, so as to' avoid unnecessary repetition; and if a 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. Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 921, 38 L. Ed. 725. We think the definition of the word “statement” contended for by defendants is too narrow'. The only scheme to defraud set out in the first count of the indictment is a scheme entered into by fie defendants; and that portion of the first count which defendants counsel seem to regard as the “statement” expressly alleges in its opening paragraph, and repeatedly thereafter, that the defendants intended to do the alleged fraudulent acts constituting the scheme in question. Moreover, one cannot he indicted under the statute in question for using the mails in furtherance of a scheme to defraud not devised or participated in by him. In view of these considerations, the defendants could not have failed to understand, from the reference contained in the second and third counts, that they were charged with having devised the scheme set out in the first count, and so could not have been misled. In our opinion the trial judge rightly overruled the motions to quash.

¶81It is urged that the second and third counts of the indictment should have been quashed because, even when taking into consideration the first count, which is incorporated by reference into the second and third counts, the indictment is lacking in sufficient particularity, and so uncertain in averment, and so involved in immaterial and redundant allegations, as to fail to reasonabty advise the defendants of the charges they are called upon to meet. It is the unquestioned rule that au indictment must describe the alleged scheme to defraud with such certainty as to clearly inform the defendants of the charge made against them, and thus of the nature of the evidence to be produced in proof of the execution of the scheme. Stewart v. United States, 119 Fed. 89, 94, 55 C. C. A. 641. But an indictment which states the essential elements of the offense with such reasonable particularity as will advise the defendants with reasonable certainty of the nature of the accusation, and tints enable them to prepare their defense, is sufficient. Brown v. United States, 143 Fed. 60, 74 C. C. A. 214. The object of criminal proceedings is to convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should he set up whereby the government may be entrapped into mak*172•ing allegations which it would be impossible to prove. Evans v. United States, 153 U. S. 584, 590, 14 Sup. Ct. 934, 38 L. Ed. 830; O’Hara v. United States, 129 Fed. 551, 554, 64 C. C. A. 81.

¶82Tested by these rules the indictment is not, in our opinion, subject to the criticisms we are considering. The argument that the allegations of fraud are shown to be based on inferences drawn from the trade letterheads of Foster & Co., appearing upon the “Review and Forecast,” and upon the “Daily Statement,” lacks sufficient foundation. While the publications referred to are made the basis of certain allegations and inferences, the indictment contains otherwise sufficiently direct allegations to apprise the defendants of the nature of the scheme, and that the defendants were charged in the indictment to have intended to falsely represent and induce the belief that the defendants were engaged in a legitimate brokerage business, actually buying and selling on exchange, and to procure money upon such representations and belief, and to appropriate the moneys so obtained not only bjr their employment in bucket shop transactions, as distinguished from a legitimate business of buying and selling, but also through actual fraud in the conducting of the bucket shop operations.

¶83Presumably in support of the proposition that a verdict of acquittal should have been directed, it is urged that there was no proof that defendánts had devised a fraudulent scheme, or that any one was in fact defrauded; that no one testified that he was solicited or induced by defendants’ advertisements to do business with defendants; that the conducting of a bucket shop, while forbidden by the Ohio statutes, is not of itself a fraudulent scheme within the federal statute; and that the letters deposited in the mail did not contain fraudulent representations. It is accordingly urged that defendants were convicted merely because they were engaged in a business condemned by the statutes of Ohio, and not because of proofs sufficient to convict them of the crime charged.

¶84It is true that the conducting of a bucket shop is not necessarily a fraudulent scheme within the federal statute in question; but the act under which the defendants are indicted is aimed at every scheme (to be effected by the use of the post office establishment) which is in fact designed to defraud, by representations as to the past or present, or suggestions and promises as to the future. It was enacted to protect the public against all intentional efforts to despoil through the medium of the post office establishment. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709. And the fact that the business conducted was an actual business does not prevent its being within the statute, provided it was the basis of a fraudulent scheme. McConkey v. United States, 171 Fed. 829, 96 C. C. A. 501. There was testimony tending to show, and from which the jury had the right to infer, especially in the absence of testimony to the contrary, that the scheme in question was fraudulent in inception and execution; that the advertising matter sent out was calculated to allure the ignorant, the credulous, and the unwary, and to induce a belief that the defendants were carrying on a legitimate brokerage business; that the business as organized was without net capital; that large sums of money were appropriated by the incorporators through the medium of a ficti-*173lions bank account; and that so-called orders were in some instances filled at improper quotations, and to the advantage of the proprietors of the business. It was not necessary to show that any one was in fact defrauded, nor was it necessarily conclusive against the fraudulent nature of the scheme that those named_ in the indictment as among those intended to be defrauded were not in fact so defrauded.

¶85In our opinion, the court was justified in submitting to the jury the questions of fact involved, except as to the defendant Gorman. As to him, while there was testimony warranting the conclusion that he had a substantial proprietary and beneficial interest in the O’Dell Brokerage Company, he is not shown to have participated in the active management of the business of that company; and a careful consideration of the record constrains us to the opinion that there was not presented such evidence that he participated in or had knowledge of the alleged fraudulent schemes and practices of those engaged in the management of the O’Dell Brokerage Company.and of Foster & Co. as to warrant submitting to the jury the question of his guilt. Upon the record presented, a verdict of acquittal should have been directed as to him.

¶86It is earnestly urged that prejudicial error was committed upon the trial with respect to and in connection with the admission of evidence of the contents of the books of the O’Dell Brokerage Company. At the time of the trial these books were, and for some time before had been, in the custody of a receiver appointed by the state court. It appeared upon the trial that a subpoena calling for the production of the books had been served upon the receiver, at the instance of the attorney for the government, and that the receiver declined to produce them without authority from the judge of the state court. Two of the attorneys present in court representing the defendants upon the trial, were claimed by counsel for the government to be counsel for the receiver. Thereupon the attorney-for the government stated, in the presence of the jury, that if “the gentlemen” (apparently meaning the receiver’s counsel) were not willing to produce the books, he wished to make application to the state court for them, later stating that he should ask “the gentlemen” to let some one bring them from tiie receiver’s office to the courtroom, and still later that he had served upon defendants notice of his proposed application to the state court. It appeared later, though not in the presence of the jury, that the judge of the state court did not feel justified in ordering the production of the books without the consent of the defendants, and that the latter objected to such production upon the hearing of the application to the state court. The books were accordingly not produced.

¶87An expert in the employ of the government was permitted to testify as to the contents of the books from knowledge obtained through an examination, made some time previous to the commencement of the trial. It is insisted, first, that defendants’ rights were invaded, in violation of the fifth amendment to the federal Constitution, which provides that no person shall be compelled, in any criminal case, to he a witness against himself; and, second, that secondary evidence of the contents of the books was given without the proper foundation being laid therefor. In McKnight v. United States, 115 Fed. 972, 54 C. C. *174A. 358, it was held by this court, speaking through Judge (now Mr. Justice) Day, that to permit a demand to be made on the defendant in a criminal case in the presence of the jury to produce a paper or document containing evidence against him is a violation of the immunity secured to him by the fifth amendment to the Constitution, even although no order for the production of the paper is made, and the demand is made simply because of its supposed necessity to authorize the introduction of secondary evidence; Judge Day saying that the accused, “by the demand made upon him before the jury, after'proof tending to show his possession of the document, was required either to produce it, deny or explain his want of possession of the writing, or by his very silence permit inferences to be drawn against him quite as prejudicial as positive testimony would be.” But in the case before us1 the defendants have not, in our opinion, reserved the right to complain, for no exception was taken to the action of counsel or of the court. The only record relied upon as an exception is the fact that, to the statement of the attorney for the government that he was going to ask “the gentlemen” to let a man go to the receiver’s office to bring the books to the courtroom, the defendants’ counsel retorted, “No, sir.” This cannot be construed as an exception. It is proper to add that it is by no means obvious that the demand in question was calculated to prejudice defendants, for the court, in the presence of the jury, treated the books as in the sole custody of the state court, and subject to its orders. There is thus apparently no room for assuming that the jury was given leave to infer that the defendants had, upon notice and demand, refused to produce the books. McKnight v. United States, 122 Fed. 926, 930, 61 C. C. A. 112.

¶88The competency of the testimony as to the contents of the books is attacked, first, because of alleged failure to identify them as the books of the defendants; second, that no foundation was laid for the introduction of secondary evidence of the contents of the books. As to the identity of the books: It is true that no one testified directly that the books were those of the O’Dell Brokerage Company. There was, however, in óur opinion, sufficient prima facie evidence to warrant the court in admitting proof of the contents, if otherwise made competent. The court did not thereby finally determine the question of fact of identity. It was still a question for the jury. There was testimony that Williams, the attorney for the receiver, and, as we understand it, a partner of the receiver Cogan, stated to the attorney for the government that, if the latter’s accountant would come to the office of the receiver’s attorney, the latter would furnish him a room in the office and with the books, and would give every accommodation for their examination; the witness adding, “and that he did.” The testimony indicated that the accountant was furnished, in the office of Cogan & Williams, with certain books purporting to be those of the O’Dell Brokerage Company j a list of the books examined being given by the witness, and in some cases the dates covered by the transactions contained. The books were so marked as to furnish prima facie evidence that they were the books of that company. Moreover, their contents, as testified to by the expert, in connection with other testimony as to *175the transactions appearing therein, furnished some inherent evidence of the identity of the books.

¶89Was a proper foundation laid for the introduction of secondary evidence of the contents of the hooks? It clearly appeared that it was impossible for the government to proeme the presence of the books upon the trial. A subpoena had been issued for their production, and served upon the receiver. That officer had failed to produce the hooks, and all efforts in that direction failed. In these circumstances. it was proper to give parol proof of the'contents of the books, provided the proof of such contents was not immaterial or otherwise incompetent. No claim could well be made that the testimony in question was immaterial.

¶90It is, however, earnestly insisted in this court that no proper foundation was laid for the introduction in evidence of the contents of the books, for the reason that before the books can be introduced, or evidence of their contents given, it must be made to appear that the hooks are those of original entry, made in the regular course of business, by one whose duty or custom it was so to do; that the entries themse1ves are accurate, and made contemporaneously with the facts recited, and if the bookkeeper or party who made the entries is living and competent to testify, that he be produced,, or in the event that he is dead, insane, or beyond the process of the court, that proof he made of his handwriting; and that none of these requirements was complied with.

¶91We may properly pass by this ground of objection, for the reason that such object ion does not appear to have been raised in the court below. The only grounds of objection presented against the introduction of evidence of the contents of the hooks were, first, that the books were not shown to be those of the brokerage company; and, second, that no proper foundation was laid for the introduction of secondary evidence of their contents. The only ground suggested as basis of the second objection is the alleged failure of proof that the books could not be produced. Neither in the objections made by counsel, in the remarks of the court in discussing and deciding the objections, nor in the assignments of error, are we able to find anything suggesting that the attention of the court was called to the failure to authenticate the entries in question in the respects above referred to. The books of a party are admissible on behalf of an adverse party, when in the nature of admissions by such party, and without the necessity of strict authentication beyond establishing the identity of the books. 2 Wigmore on Evidence, § 1557; Currier v. B. & M. Ry. Co., 31 N. H. 209); Globe Savings Bank v. National Bank, 64 Neb. 413, 89 N. W. 1030. The books in question were not, strictly speaking, the books of the defendants; but the entries in the books of a corporation, showing dealings between it and its managers, are competent evidence against the latter, upon proof of such connection and familiarity with the books as to justify an inference of actual acquaintance with their contents, on the basis of admissions or assertions of the facts stated therein. People v. Leonard, 106 Cal. 302, 39 Pac. 617; Olney v. Chadsey, 7 R. I. 224; Bacon v. United States, 97 Fed. 35, 38 C. C. A. 37. Charges in an account of an officer of a corporation, kept on *176the corporation’s books, and known'and not objected to by him, are competent as admissions. Bird v. Magowan (N. J. Ch.) 43 Atl. 278.

¶92Without deciding whether the evidence of the connection and acquaintance on the part of the defendants, other than Gorman, with the books of the brokerage company, was sufficient to sustain a presumption of such familiarity with them as to make them prima facie evidence'as admissions by the defendants, it is enough to say that had such objection been made, the government may have been able, for anything that appears upon this record, to supply the proof of the authentication whose absence is now urged as. defeating the competency of the proof. We say this for the reasons that there was testimony that a bookkeeping department was maintained in connection with the business of the brokerage company, and a force of bookkeepers in connection therewith; that the testimony showed that the five defendants other than Gorman were the sole incorporators and constituted the board of directors of the brokerage company, Foster being president, Heil vice president, and Campbell secretary and treasurer; that there was express testimony that the defendants other than Gorman actively participated in the management of the business of the brokerage company, all except Foster being about the office of that company, Foster, however, spending the most of his time at the office of Foster & Co.; the defendant Heil being shown to have worked upon one set of books, but whether upon the set here in question does not appear.

¶93We do not find it necessary to consider the suggestion, if such be intended to be raised, that the expert’s examination testified to was obtained in breach of the privilege of the defendants, as under order of the court in the receivership proceedings, rather than by the consent of the defendants through their counsel. The testimony does not seem to have been objected to on that ground. There is no assignment of error which we can identify as relating to that subject. It may be added that it is at least open to question whether the fact (if it be a fact) that the examination was made under an invalid exertion of authority on the part of the court in the receivership proceedings would constitute a valid objection to evidence procured by such examination. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. We find no error in the reception.of the testimony of the contents of the books.

¶94We think no error was committed in permitting testimony that neither Foster & Co. nor the brokerage company were members of the' New York Stock Exchange and the Chicago Board of Trade. 'The admissibility of this testimony is challenged in this court, first, as being hearsay; and, second, as not addressed to any allegation in the indictment. The objection that the testimony is hearsay was not made below, and may be disregarded here. Schlemmer v. Buffalo, etc., Ry. Co., 205 U. S. 1, 9, 27 Sup. Ct. 407, 51 L. Ed. 681. It is true the indictment does not charge that either Foster & Co. or the brokerage company were not members of either the Stock Exchange or Board of Trade' referred to; but we cannot say that the testimony was wholly immaterial upon the question of the fraudulent nature of the alleged scheme.

¶95*177Error is assigned upon the ad ion of the court in allowing the use of written statements to refresh the recollection of the witnesses Douglass and Brisbin. In each case the, statement used was one given by the witness to a post office inspector. In neither case was the statement read or its contents given to the jury. The recollection of the witness Brisbin was not refreshed by reference to the statement. In his case, therefore, no prejudice could have resulted. As to the witness Douglass, the ground of the objection urged here is that the statement was made several months alter the transaction involved in it, and therefore was incompetent, under the decision in Putnam v. United States, 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118, as not being a contemporaneous writing. This precise ground of objection was not presented upon the trial. The grounds of objection there presented do not impress us as weighty. 'Moreover, we construe the final statement of the witness as a disclaimer of any refreshing of his recollection by the statement in question. The error under consideration is therefore, in our judgment, not well assigned.

¶96Error is assigned upon the admission in evidence of the petition'of defendant Scott for the appointment of a receiver of the. O’Dell Brokerage Company and the order of such appointment. The court admitted the evidence only as against the defendant Scott. It is contended that, as to him, the admission is in violation of section 860 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 661), which forbids that any pleading of a party be given in evidence, in any court of the United States, in any criminal proceeding. A sufficient reply to this contention is found in the fact that defendants’ counsel not only did not object to the admission of this evidence as against the defendant Scott, but, on the contrary, expressly disclaimed any objection thereto. On behalf of the other defendants, it is urged that the ruling admitting the testimony as to the defendant Scott alone was made in the absence of the jury, and that when the papers were read to the jury no statement was made that they were to be considered as evidence only as against the defendant Scott. But the record shows that no objection was taken to the failure to instruct the jury that the evidence was admitted only as to the defendant Scott. Bolh court and counsel apparently overlooked the fact that the court’s previous direction was in the absence of the jury. If defendants’ counsel understood the evidence was being received as against all the .defendants, it was his duty to object thereto. The case should not be reversed on account of this apparent inadvertence on the part of counsel as well as the court. Indeed, the testimony could not have prejudiced the remaining defendants, as defendants’ counsel, in the course of cross-examination, had expressly assumed the fact that the brokerage company had gone into the hands of a receiver.

¶97Complaint is made of the refusal of the court to permit certain questions to he asked the witness Douglass on cross-éxamination, upon the ground that the questions had no relation to the subject of the direct examination. There was no error in this exclusion. It is the general rule in the federal courts that a party has no right to cross-examine a witness without leave of the court as to any facts or circumstances *178not connected with matters stated in his direct examination. McKnight v. United States, 122 Fed. 926, 928, 61 C. C. A. 112, and cases there cited. This rule applies to criminal as well as to civil cases. The attempted cross-examination was within this general rule.

¶98The court admitted in evidence the following notice:

“To All: Messrs. Gorman and Dudley retiring from the O'Dell Stock Co. have gratiously (sic) turned the entire business over to their employés with its entire paid-in capitalization of $250,000, and fortifying them with a surplus of $500,000 additional. ■ The style of the new firm will be the O’Dell Brokerage Company. Messrs. Gorman and Dudley extend their sincerest thanks for all past favors and trust that all correspondents will continue to do business on the same amiable terms with the new firm as with that of the old.

“The O’Dell Brokerage Company,

“Per L. W. Poster, Prest.”

¶99There was testimony tending to show that the signature was that of the defendant Foster, also that the notice was prepared for sending out; but there was no testimony that it was actually sent. Its admission was objected to, first, as not covered by any allegation in the indictment; and, second, for lack of proof that the paper or its contents actually left the office of the brokerage company. In our opinion, the paper was admissible. It is true that it is not referred .to in the indictment, but the rules of criminal pleading do not require the indictment to set forth the evidence. Evans v. United States, 153 U. S. 584, 590, 14 Sup. Ct. 934, 38 L. Ed. 830; Stokes v. United States, 157 U. S. 187, 191, 15 Sup. Ct. 617, 39 L. Ed. 667. _ The fact that it was prepared apparently with the purpose of sending it out is some evidence bearing upon the intention and alleged scheme of the defendants. In the case of an alleged fraudulent scheme, considerable latitude is permitted in the admission of proof of facts, both in support of and in denial of the charge. Wharton’s Criminal Evidence (9th Ed.) § 24. We think the testimony as to the relations of the defendants other than Gorman to the business of the brokerage company was such as to permit an inference, especially in the absence of testimony to the contrary, that the defendants knew of the preparation of the paper.

¶100We have thus considered all the assignments which have been urged, orally or in brief.

¶101In our opinion, no error has been committed to the prejudice of the defendants other than Gorman. As to him the judgment should be reversed, and he be given a new trial. As to the remaining defendants, the judgment of the District Court should be affirmed.