Brief for the Respondents — Clarke v. United States

INDEX

Opinion below. " ;

Jurisdiction. — ~~. a d : we

Question presented - eo hee See oe

Statute involved_ 7

Statement. tat eats as

Argument. a) : ; -

Conclusion ee ; ‘

CITATIONS

Cases:

Alerander v. United States, 95 F. (2d) 873, certiorari denied,

395 U.S. 637 ee ee ee

Badders v. United States, 240 U.S. 391____

Brady v. United States, 24 F. (2d) 399.

Byron v. United States, 273 Fed. 769, certiorari denied, 257

U. S. 653 _ ak laa

Charibers v. United States, 237 Fed. 513___

Cockran v. United States, 41 F. (2d) 193

Colt v. United States, 190 Fed. 305, certiorari denied, 223

a). &. tae cue

Durland vy. United States, 161 U. S. 306__.

Grakam v. United States, 120 F. (2d) 543.

Haggerty v. United States, 5 F. (2d) 224.

Hart v. United States, 112 F. (2d) 128, certiorari denied, 311

U.S. 684 7

Horn v. United States, 182 Fed. 721, certiorari denied, 219

U. 8. 585

Lonergan vy. L ‘nited States, 88 F. (2d) 591, reversed on other

GOON, ee © 0 Wi OOenck a oe ec

Martin v. United States, 100 F. (2d) 490, certiorari de nied,

306 U.S. 649__

Mills v. United States, 164 U.S. 644_-

Stapp v. United States, 120 F. (2d) 898

‘nited States v. Herzig, 26 F. (2d) 487

‘nited States v. Kenofsky, 243 U.S. 440__-

‘nited States v. Schenck, 126 F. (2d) 702, certiorari denied,

sub nom. Moskowitz vy. United States, 316 U.S. 705_.

‘nited States v. Weisman, 83 F. (2d) 470, certiorari denied,

299 U. S. 560_.

‘nited States v. Young, 232 U.S. 155

_ ~~

~

Statute:

Criminal Code, § 215 (18 U. 8. C. 338)...

: (1)

od 32-—43

to

nthe Supreme Gaurtof the Wuited States

OcToBER TERM, 1942

No. 776

DwicuHt D. CLARKE, PETITIONER

Vv.

UnItTEp STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

—

OPINION BELOW

The opinion of the circuit court of appeals (R.

522-530) is reported at 132 F. (2d) 538.

JURISDICTION

The judgment of the circuit court. of appeals was

entered December 31, 1942 (R. 531), and a petition

for rehearing’ was denied February 6, 1943 (R.

532). The petition for a writ of certiorari was

filed March 2, 1943. The jurisdiction of this Court

is invoked under Section 240 (a) of the Judicial

Code, as amended by the Act of February 13, 1925.

See also Rule XI of the Rules of Practice and

(1)

2

Procedure in Criminal Cases, promulgated by this

Court May 7, 1934.

QUESTION PRESENTED

Whether, in view of the fact that the trial judge

had correctly instructed the jury that the mail- |

ings alleged in an indictment under the mail fraud

statute must have been for the purpose of exe-

cuting the scheme to defraud, the judge’s passing

reference at a later point in his charge to use of

the mails ‘‘in connection with” the scheme, mis-

led the jury so as to constitute prejudicial error.

STATUTE INVOLVED

The mail fraud statute (Section 215 of the

Criminal Code, 18 U. S. C. 338) provides in part:

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, * * * in

any post office, * * * or authorized de-

pository for mail matter, to be sent or de-

livered by the post-office establishment of

the United States, * * * or shall know-

ingly cause to be delivered by mail accord-

ing to the direction thereon, * * *

any such letter, postal card, package, writ-

3

ing, circular, pamphlet, or advertisement,

shall be fined not more than $1,000, or im-

prisoned not more than five years, or both.

STATEMENT

Petitioner and Tom Drummey were indicted on

December 12, 1940, in the district court for the

western district of Washington in four counts

charging them with using mails in the execution

of a scheme to defraud Mrs. Jean Hunter (R.

2-13). The indictment alleged that the defend-

ants, together with Lester Main, then deceased,

having learned that Mrs. Hunter owned a large

number of highly valuable shares of the stock of

the Coca-Cola Company and the Coca-Cola Inter-

national Corporation, planned and schemed to pro-

eure possession of, and authority to sell, the shares

for the pretended benefit of Mrs. Hunter and her

family, but in truth and in fact for the purpose of

gaining control of the proceeds of the shares and

converting them to their own use and benefit and

the benefit of certain business concerns in which

they were interested (R. 2-3). It was further

alleged that in order to induce Mrs. Hunter to

deliver the shares to them the defendants and

Main represented to her that the Coca-Cola Com-

pany was in a precarious business condition and

was likely to fail within two years, that, conse-

quently, it was unsafe for her to retain her shares

in that company and the Coca-Cola International

Corporation, that it would be more advisable for

4

her to deliver the shares to them for sale and allow |

them to invest the proceeds in safer and more de-

sirable securities, and that the defendant Drum-

mey was a man of large experience in such mat-

ters and a person in whom Mrs. Hunter could

safely repose confidence and who would manage

her affairs in the safest and most advantageous

way (R. 3-4). The indictment then alleged that

these representations were false, that by means

of them the defendants and Main induced Mrs.

Hunter to deliver to them all of her fortune in

Coca-Cola Company and Coca-Cola International

Corporation stock, and that they sold the stock

and converted almost all of the proceeds to their

own use and benefit and for the benefit of failing

and practically worthless business enterprises in

which they were interested (R. 4-5). Each count

alleged a separate mailing for the purpose of ex-

ecuting the scheme. The mailings upon which the

first and second counts were based were registered

air mail parcels addressed to E. A. Pierce & Co.,

New York City, and containing certificates for

shares of the stock of the Coca-Cola Company and

the Coca-Cola International Corporation (R. 5-6,

6-7). The mailing described in the third count was

a letter from Drummey, as president of the Seattle

Loan & Discount Company, to petitioner (R.

8-10), and that described in the fourth count was

a letter from Drummey to Mrs. Hunter (R. 10-13).

Petitioner and Drummey were convicted on all

four counts (R. 19), and petitioner was sentenced

!

5

to four years’ imprisonment on each, the sentences

to run concurrently (R. 22-33). On appeal by

petitioner alone, the circuit court of appeals af-

firmed his conviction (R. 531).

ARGUMENT

Petitioner’s sole contention (Pet. 4-5, 8-11) is

that the trial judge committed reversible error

when, in the course of his charge to the jury, he

stated that if they found that the defendants or

either of them had devised or joined in a scheme

to defraud Mrs. Hunter and ‘‘did use or cause the

mails to be used in connection therewith,”’ it would

be the duty of the jury to find such defendant or

defendants guilty (R. 488-489).’ Petitioner cor-

? Petitioner does not challenge the sufficiency of the evi-

dence to support the conviction and, therefore, we deem it

unnecessary to delineate the proof adduced at the trial. The

evidence is summarized in the opinion of the circuit court of

appeals (R. 524-527) and the court held that it was sufficient

to support the verdict both as to the scheme alleged in the

indictment and as to the causing of the indictment letters to

be mailed in the execution of the scheme (R. 528).

? The text of the portion of the instructions of which peti-

tioner complains is as follows (R. 488-489) :

“The jury is further instructed that if they are convinced

beyond a reasonable doubt from the evidence that the de-

fendants or either of them, did devise a scheme or artifice or

joined in a scheme or artifice to defraud Mrs. Hunter and did

use or cause the mails to be used in connection therewith, that

it is the duty of the jury in such event to find such defendant

or defendants, guilty of such count or counts, regardless of

whether the jury might believe that Mrs. Hunter agreed to

sell her Coca Cola stock to Mr. Drummey at 10% below the

market on the sale date or agreed to sell through him as a

broker, as in neither event would anyone have a right to

defraud Mrs. Hunter.”

6

rectly states (Pet. 9) that the gist of the offense

under Section 215 of the Criminal Code (supra,

pp. 2-3) is the use of the mails for the purpose of

executing a scheme to defraud or attempting so to

do,’ and his argument is that the instruction re-

ferred to was bad because it did not require the

jury to find that the mails were used for that pur-

pose, but allowed them to convict if they found

that the mailings were merely connected with the

scheme (Pet. 10). A reading of the charge as a

whole,* however, readily shows that there is no

merit in petitioner’s contention.

In an earlier part of the charge devoted specifi-

cally to expounding to the jury the nature and

elements of the crime denounced by the mail fraud

statute and alleged in each count of the indictment,

the trial judge carefully explained that the of-

* Badders v. United States, 240 U. S. 391, 393-394; United

States v. Young, 232 U.S. 155, 161; Durland v. United States,

161 U. S. 306, 315; Stapp v. United States, 120 F. (2d) 898,

899 (C. C. A. 5) ; Lonergan v. United States, 88 F. (2d) 591,

594 (C. C. A. 9), reversed on other grounds, 303 U. S. 33;

Brady v. United States, 24 F. (2d) 399, 402 (C. C. A. 8);

Byron v. United States, 273 Fed. 769, 771-772 (C. C. A. 9),

certiorari denied, 257 U. S. 653.

* It is settled that the trial court’s charge to the jury must

be considered in its entirety. Graham v. United States, 120

F. (2d) 543, 546 (C. C. A. 10) ; Martin v. United States, 100

F. (2d) 490, 497 (C. C. A. 10), certiorari denied, 306 U. S.

49; Haggerty v. United States, 5 F. (2d) 224, 226 (C. C. A.

1); Colt v. United States, 190 Fed. 305, 308 (C. C. A. 8), cer-

tiorari denied, 223 U. S. 729; Horn v. United States, 182 Fed.

721, 740 (C. C. A. 8), certiorari denied, 219 U. S. 585 ; see also

United States v. Schenck, 126 F. (2d) 702, 708 (C.C. A. 2),

certiorari denied sub nom. Moskowitz v. United States, 316

U.S. 705; cf. Mills v. United States, 164 U. S. 644.

7

fense consists ‘‘of two parts, (1) the devising the

scheme or artifice to defraud or for obtaining

money or property from another by means of

false or fraudulent pretenses and promises and

(2) the mailing or causing to be mailed within

the jurisdiction of the Court some article of mail

matter in furtherance of such scheme or plan’”’

(R. 473); that “It is the purpose inspiring the

sending of the matter through the mail that brings

the one causing the matter to be mailed within

the Mail Fraud Law” (R. 474) ; and, again, that

‘‘the mail matter must have some relation to and

be a step in the attempted execution of the scheme

and must be mailed or cause (sic) to be mailed

with the intent to aid its execution”’ (ibid.).° The

particular instruction of which petitioner com-

plains appears in a subsequent portion of the

charge in which the judge cautioned the jury that

certain inferences which they might draw would

not exculpate the defendants (R. 486-487, 487-

489), and, as appears from its context (n, 2, p. 5,

supra), the import of the instruction was that the

Jury could not acquit merely because they might

believe that Mrs. Hunter agreed to sell her stock

to the defendant Drummey at 10 percent below

the market value or to sell through him as agent,

“as in neither event would anyone have a right

to defraud Mrs, Hunter”’ (R. 489).

pinitaeentaitannig

*In addition, at other points in his charge, the judge

iterated that the use of the mails must be in furtherance of a

scheme to defraud (R. 468, 487-488; see also R. 465, 470-471,

479).

a

8

Although, as the court below observed, the in-

structions were ‘‘not a model of clarity with re-

spect to the point urged”’ (R. 530), it can scarcely

be said that by his passing use of the phrase ‘‘in

connection with’’® the trial judge purported to

modify his earlier correct instructions that the

mailings must have been for the purpose of exe-

cuting the scheme to defraud, or that this phrase

misled the jury as to the nexus required by the

statute between the scheme to defraud and the use

of the mails. Moreover, there is no contention by

petitioner that the mailings were not, in fact, in

execution of the scheme.’

* This phrase appears in two other passages in the charge

(R. 468, 473), but it is clear from the context that it was used

in the sense of “in furtherance of” the scheme to defraud.

* Although petitioner states (Pet. 4) that there was no

proof that he personally mailed or caused to be mailed any

of the indictment letters, he does not deny the sufficiency of

the evidence to support the jury’s finding that he was a party

to the scheme to defraud. The issue whether petitioner was

chargeable with the mailings was submitted to the jury under

instructions that “The defendants would be guilty if they

devised or helped devise the unlawful scheme and caused an

innocent party to place the package in the post-office in fur-

therance thereof,” and that they “would be responsible if the

matter were placed in the mail in the ordinary course of

business as a natural and probable consequence of the plan

or scheme that had been devised and for the purpose of for-

warding the same. If there is in operation such a s“heme,

any defendant consciously and knowingly cooperating

therein is responsible for the mailings although he may not

have known of the particular act of mailing at all” (R. 473-

474). In addition, the court instructed the jury to the effect

that if the defendants joined in the scheme to defraud there

was, in the contemplation of the law, a conspiracy, and each

9

CONCLUSION

The decision below is correct, and there is in-

volved no conflict of decisions or question of gen-

eral importance. We respectfully submit, there-

fore, that the petition for a writ of certiorari

should be denied.

CHARLES FaBy,

Solicitor General.

WENDELL BERGE,

Assistant Attorney General.

Rosert 8. ERDAHL,

J. Benson Saks,

; Attorneys.

Apri 1943.

of them became responsible for the acts of the other in

furtherance of the common plan (R. 474-475). These in-

structions were correct. United States v. Kenofsky, 243

U.S. 440, 443; Stapp v. United States, 120 F. (2d) 898, 899

(C. C. A. 5); Hart v. United States, 112 F. (2d) 128, 131

(C. C. A. 5), certiorari denied, 311 U. S. 684, 722; United

States v. Weisman, 83 F. (2d) 470, 472-473 (C. C. A. 2),

certiorari denied, 299 U.S. 560; Alexander v. United States,

95 I. (2d) 873, 880 (C. C. A. 8), certiorari denied, 305 U. S.

637; Cochran v. United States, 41 F. (2d) 193, 199-200 (C. C.

A. 8); United States v. Herzig, 26 F. (2d) 487, 489 (S. D.

N. Y.); Chambers v. United States, 237 Fed. 513, 524

(C. C. A. 8).

U.S. GOVERNMENT PRINTING OFFICE: 1943