371 F2d 516 Asher v. United States

371 F.2d 516

Joseph G. ASHER, Appellant,
UNITED STATES of America, Appellee.

No. 20742.

United States Court of Appeals Ninth Circuit.

Dec. 27, 1966.

Paul Augustine, Jr., Santa Ana, Cal., for appellant.

Manuel L. Real, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., Donald C. Smaltz, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before WASHINGTON,* MERRILL and ELY, Circuit Judges.


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Appellant was convicted on various counts of securities and mail fraud under Title 15 U.S.C. 77e(a)(1) and (2), and 77q(a); Title 18 U.S.C. 1341 (1964). He has appealed conviction of eleven counts. On appeal the sole contention is that the evidence is insufficient to constitute proof of the crimes charged in that it establishes that appellant did not himself use the mails in connection with any fraudulent transactions and he was not charged in the indictment with aiding and abetting under Title 18, U.S.C. 2 (1964).1


That section does not purport to define a distinct crime of aiding or abetting. It provides who may be charged as principal.


In Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1953), it is stated with reference to Title 18 U.S.C. 1341 and 2314:


'To constitute a violation of these provisions, it is not necessary to show that petitioners actually mailed or transported anything themselves; it is sufficient if they caused it to be done.'


In United States v. Provenzano, 334 F.2d 678, 691 (3d Cir. 1964), cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964), it is stated:


'An individual may be indicted for commission of a substantive crime and convicted by proof showing him to be an aider and abettor * * *.'


See also Nye & Nissen v. United States, 336 U.S. 613, 618-619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Swanne Soon Young Pang v. United States, 209 F.2d 245, 246 (9th Cir. 1953).

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Judgment affirmed.


Appellant has moved to be admitted to bail pending appeal. The motion is denied.


George T. Washington, Senior U.S. Circuit

Judge, District of Columbia Circuit, sitting by designation.


18 U.S.C. 2:

'(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is a principal.

'(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'