Opposition Brief — Bowers v. United States

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CITATIONS

Cases:

Allen v. United States, 164 U. S. 492.................. 8

ie ©. Wasted Goatees, 166 U. G. 117... |... . oo ns 12

Horning v. District of Columbia, 254 U. 8. 135........ 10

King v. United Sta.es, 144 F. 2d 729, certiorari denied,

EEE EG ae pen ee a er 10

Quercia v. United States, 289 U.S. 466................ 10

Simmons v. United States, 142 U. 8S. 148............... 10

United States v. Frankel, 65 F. 2d 285, certiorari denied,

I a te als Wels ba b 12

United States v. Goldstein, 120 F. 2d 485, affirmed, 316

ee ce Re ee Mg ale ca deat oe tak 10

United States v. Murdock, 290 U. S. 389............... 10

Weiss v. United States, 122 F. 2d 675, certiorari denied,

MN PRE sc Sete KER Cxus Sexe dat ewok 10

Statute:

Section 215 of the Criminal Code, 18 U.S.C. [1946 ed.]

Re or arms rns Sern erie aa was 2

ee

Gnihe Supreme Court of the Winited States

OcToBER TERM, 1949

No. 482

VALENTINE BroaDway Bowers, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 334-337)

is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on November 16, 1949 (R. 337). The petition

for a writ of certiorari was filed on December 14,

1949. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1). See also Rules 37(b)

(2) and 45(a), F. R. Crim. P.

(1)

2

QUESTION PRESENTED

Whether the trial court’s supplemental charge to

the jury, after they had first reported inability to

agree on a verdict and later returned with ques-

tions as to what constitutes a contract, was preju-

dicially erroneous as being argumentative and one-

sided.

STATUTE INVOLVED

Section 215 of the Criminal Code, 18 U.S.C.

[1946 ed.] 338, provides in pertinent 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, pam-

phlet, 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 de-

livered by the person to whom it is addressed,

any such letter, postal card, package, writing,

circular, pamphlet, or advertisement, shall be

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fined not more than $1,000, or imprisoned not

more than five years, or both.

STATEMENT

Petitioner was indicted in seven counts for using

the mails to defraud, in violation of Section 215 of

the Criminal Code, 18 U.S.C. [1946 ed.] 338 (R.

1-7). He was found guilty on counts 4, 5 and 7

and the jury was unable to agree on a verdict on

the remaining counts (R. 10). After verdict, his

motion in arrest of judgment as to count 7 was sus-

tained on the ground that the statute of limitations

had run against the offense charged therein (R.

10, 15). He was sentenced to five years’ imprison-

ment on each of counts 4 and 5, to run concurrently

(R. 14). The Court of Appeals affirmed the con-

viction (R. 337.)

The evidence as to counts 4 and 5, summarized

below, illustrates both the nature of the scheme

to defraud and the means used by petitioner in its

execution:

After answering petitioner’s advertisement in

the Cleveland Plain Dealer for an associate mana-

ger in an automobile business in Fort Lauderdale,

Florida, Jay MacLaren received a letter dated

April 15, 1946, signed ‘‘Coastal Motors, Inc., by

V. B. Bowers, Jr.,’’* asking him to call in regard

to the position (R. 91-92). In answer to Mac-

Laren’s phone call, petitioner arranged a meeting

1 Petitioner’s subsequent letters of May 5 (R. 95) and May

21, 1946 (R. 98-99), were signed “Coastal Motors, by V. B.

Bowers, Jr.”

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at Jacksonville, where he informed MacLaren that

he owned two service stations at Fort Lauderdale,

as well as used car and rental car businesses. Peti-

tioner proposed a $5,000 escrow deposit (later re-

duced to $3,000; R. 108-109) by MacLaren. (R.

93.) At Fort Lauderdale, petitioner took Mac-

Laren for a drive, and pointed out as his proper-

ties two filling stations and a used car lot known

as Island Motors. When MacLaren expressed his

satisfaction with the set-up, petitioner requested a

$1,000 check immediately, but MacLaren wanted

to wait until his return to Cleveland and insisted

upon a contract first. In Cleveland, MacLaren

received a letter dated May 5 together with a con-

tract from petitioner. (R. 94-95.) In a letter

dated May 9, MacLaren forwarded to petitioner a

check for $1,000 payable to Coastal Motors as the

initial payment on a total of $3,000, in accordance

with the terms of the signed contract enclosed with

his letter. Under the terms of the one-year con-

tract, petitioner was to pay MacLaren $75 per week

for his services in the business, and at the end of

the year MacLaren was to have the option of pur-

chasing a one-half interest in the business. (R.

96-98.) In a letter dated May 21, petitioner re-

quested that MacLaren have copies of the contract

made on legal size stationery, sign the original,

and return it for his signature. MacLaren com-

plied with this request in his letter of May 23. (R.

98-100.) MacLaren received no reply until peti-

tioner’s letter of June 6, stating that his contem-

a

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plated trip North had been delayed and that he

would bring the contract when he arrived to talk to

MacLaren. Meanwhile, MacLaren had given up

his job and sold his furniture, and he became des-

perate when petitioner did not come to see him.

(R. 100-102.) After sending an urgent letter dated

July 22, 1946, MacLaren received a phone call

from petitioner telling him to come to Fort Lauder-

dale (R. 102). Upon his arrival, MacLaren found

that there were no longer two service stations as

specified in the original agreement, but only a used

car lot with separate telephones for Coastal Motors

and Island Motors. Petitioner told MacLaren that

he was also distributing motor scooters as part

of the business of Coastal Motors. (R.105.) After

resisting petitioner’s efforts to obtain the addi-

tional $2,000 from him, MacLaren learned from

Darwin York that they had both answered the same

ad, had talked to petitioner in Jacksonville on the

same day, and had similar contracts for a one-

half interest in the business. MacLaren then in-

sisted upon the return of his $1,000, which peti-

tioner gave him together with $75 for one week’s

salary. (R. 106-107, 114-115.)

York also responded to an advertisement in the

Cleveland Plain Dealer and later went from War-

ren, Ohio, to Jacksonville to discuss petitioner’s

proposition. Petitioner informed York that he

would share in the profits from several businesses,

including used cars, used parts, the Pompano Taxi

Company, and two gasoline stations. (R. 119-120.)

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After petitioner showed York his purported busi-

ness properties in Fort Lauderdale (R. 120-121),

York decided that he wanted a 50 per cent interest

in the business for which he was to pay $5,000 (R.

122). After York returned to his home, petitioner

mailed him a letter dated May 21, 1946, enclosing

a copy of the contract and asking him to have it

typed on legal size paper and mail it to petitioner

(R. 123-124). In a letter of June 6, petitioner

informed York he had changed his plans in regard

to keeping the gasoline stations and said he would

arrange to meet York in Cleveland. He did not

do so. (RR. 127-128.) On July 16, after selling his

home, York went to Fort Lauderdale. He turned

over to petitioner a total of $5,800, $300 of which

was for rent for a home petitioner obtained for

him (R. 125-126) and $5,500 of which petitioner

used to pay W. G. Ford for Island Motors (R. 137).

York did not recover any of the funds he gave

petitioner, nor was he paid any salary (R. 130).

Later petitioner gave York a non-negotiable note

for $5,500 which York reduced to judgment but

was unable to collect (R. 131-132). In other

essentially similar transactions, petitioner ob-

tained substantial amounts from six other victims

(see R. 336).

The other facts relating to the question presented

are set out in the Argument.

ARGUMENT

In his main charge to the jury, the trial judge

gave the usual instructions on the presumption of

ae;

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innocence, the burden of proof, and the ‘‘duty and

obligation”’’ of the jury as the ‘‘sole triers of the

fact.’’ In this connection, he admonished that ‘* Any

comments which I may make upon the evidence

are expressions of my own opinion, and are only

made in the effort to assist you in arriving at a true

verdict.”’ (R. 298-299.) He then read the per-

tinent part of the statute, summarized the allega-

tions of the indictment, and explained the elements

of the offense (R. 299-302). He observed that there

seemed to be ‘‘little doubt that in each instance, the

mails were used in connection with the plan which

the defendant had’’ and that it therefore seemed

to him ‘‘that there is only one issue for you to

determine, and that is the issue of whether or not

this defendant had devised a plan or scheme to

defraud’’ (R. 302-303). He emphasized that in-

tent to defraud was an essential element of the

offense and explained that in determining whether

petitioner had such intent the jury must consider

what he said and did and ‘‘all the circumstances

attending these various transactions”? (IR. 304).

The jury were also instructed, however, that evi-

dence concerning petitioner’s transactions with

government witnesses Clark and Laki, who were

not named as victims in the indictment (see R. 1),

and evidence that he had previously been con-

victed of mail fraud * could be considered only on

the issue of intent (R. 303, 304). In addition, the

* This fact was brought out on cross-examination of peti-

tioner, without objection (R. 277).

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jury were told that they should consider on the

issue of intent the evidence that petitioner made

refunds to some of the witnesses, but that his actions

in this regard would not exculpate him if he had

in fact devised a scheme to defraud and used the

mails in its execution (R. 303-304). Finally, the

judge adverted to petitioner’s defense that ‘‘his

plans were honest, business transactions’’ and told

the jury tha¢ if they believed him they should

find him not guilty (R. 305).. Beyond these refer-

ences to the evidence, the judge did not, as he him-

self observed at the conclusion of his charge (ibid.),

undertake a comprehensive review of the trial.

After the jury had deliberated awhile, they re-

ported that they were unable to agree on a verdict

on any of the counts, but they desired no further

instructions.* The trial judge, as was proper (see

Allen v. United States, 164 U.S. 492, 501), and

without objection, urged them to try again to reach

a verdict on one or more counts. (R. 306-309.)

The incident of which petitioner complains oc-

curred later, when the jury returned to ask whether

‘‘a letter quoting terms as a contract would be

considered a contract’”’ (R. 309-310). After some

colloquy between the judge and the jury as to the

elements of a contract (R. 310-312), the judge

3 It does not appear how long the jury had deliberated be-

fore they reported disagreement or how much time elapsed

before they again returned to the courtroom for further in-

structions, as related in the text. The record shows, however,

that the testimony was concluded at 11:10 a.m. and the ver-

dict returned at 7:15 p.m. (R. 297, 317).

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gave a supplemental instruction obviously caleu-

lated to clarify their thinking and focus their atten-

tion on the only issue developed by the evidence—

the issue of petitioner’s intent. He first adverted

to petitioner’s testimony that ‘‘these were legiti-

mate transactions and legitimately entered into,

open and above board,” and said that if the jury

believed petitioner, or if his testimony left a rea-

sonable doubt in their minds, they should acquit

him. (R. 312.)* He reiterated at the close of

this instruction that the real issue was whether

petitioner’s ‘‘representations to these people were

| honest. And if they were, even if they were rosy,

| that is one thing, and it is quite another thing if it

was his purpose to defraud these people’”’ (R. 314).

The judge also commented briefly on the evi-

dence adduced by the Government, pointing out that

over a period of approximately two years, peti-

tioner ‘‘took in as partners or associates, or what-

ever you might call them,” the six people named

in the indictment and three others, that all of these

people ‘‘put up money,” that some of them got

back all or part of their “‘eash investment,’’ while

others received nothing, and that none of them re-

ceived any profit or was ‘‘made whole, if you count

their time and expenses and quitting their jobs,

* The only witness for the defense, in addition to petitioner,

was one Hertel, who testified that he had heard government wit-

ness Laki tell petitioner in the corridor of the courthouse, be-

fore Laki took the stand, that he would leave the courthouse

if petitioner would give him back his money, and that petitioner

replied that Laki would not “get a cent” (R. 206-208).

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and selling their homes and moving down here.”’

The jury were told that they should ‘‘consider

those things’’ and the fact that ‘‘nearly all of these

transactions followed the same pattern.’’ The

judge also referred to petitioner’s prior conviction

and repeated that the jury could consider this fact

as bearing on his credibility and ‘‘what his motives

and intentions were in these transactions.’’® (R.

313.) Finally, after telling the jury, in response

to a question, that each count was ‘“‘separate’’ and

that it was within their province to convict or

acquit on all or some of the counts, the judge re-

peated in substance his earlier instruction respect-

ing the evidence of petitioner’s repayments to some

of the government witnesses (R. 314). Although

defense counsel excepted to some parts of this sup-

plemental charge, there was no objection, as there is

now, that it was ‘‘argumentative and one-sided”

(Pet. 16).

It is settled, of course, that a federal trial judge

may draw attention to and comment on the evi-

dence which he deems important, and even express

his opinion on the facts, so long as he does not by

command or other coercion infringe upon the jury’s

province to determine them. See Simmons v. United

States, 142 U.S. 148, 155; Horning v. District of

Columbia, 254 U.S. 135, 138, 189; Quercia v. United

States, 289 U.S. 466, 469 ; United States v. Murdock,

290 U.S. 389, 394; United States v. Goldstein, 120

5 This instruction was a correct statement of the law. King

v. United States, 144 F. 2d 729, 732-733 (C.A. 8), certiorari

denied, 324 U.S. 854; Weiss v. United States, 122 F. 2d 675,

687 (C.A. 5), certiorari denied, 314 U.S. 687.

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F. 2d 485, 491 (C.A. 2), affirmed, 316 U.S. 114.

There was no such infringement here. The trial

judge’s review and comments on the evidence ap-

pear appropriate in the particular circumstances

of this case. As we have shown, he expressly re-

frained from reviewing the evidence in his main

charge. But when the jury returned the second

time to ask for instructions on the law of contracts,

it became apparent to him, as it is to us from a

reading of the record, that they were being delayed

in reaching a verdict by consideration of irrelevant

matters.” Accordingly, he undertook to define

again for them the crucial issue of petitior «c’s

intent and to focus their attention on the sigr* «ant

items of evidence they should consider in resolving

that question. In doing so, he summarized briefly

the evidence on both sides. While his summary of

the Government’s evidence was longer than his

statement of petitioner’s defense, this can be ex-

plained by the nature and extent of the proof ad-

duced to show fraudulent intent. The judge was

not required to mention all the items of evidence,

either for the prosecution or the defense, especially

since he had cautioned the jury in his main charge

that his comments on the evidence were only in-

tended to assist them, that they were the sole triers

® Toward the end of his supplemental instructions, the judge

adverted to the jury’s questions about contract law and prop-

erly charged them that ‘legal questions about a contract [have

no| great bearing in this case. A question of not whether or

not the man entered into a legal contract—it may be that it

was a legal contract; maybe it was dated as of a certain date—

the question is, his motive.” (R. 313-314.)

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of the facts, and that they were to consider all the

circumstances in determining petitioner’s intent.

Allis v. United States, 155 U.S. 117, 123-124.

Nor was the supplemental charge argumentative.

As the judge pointed out, the evidence concerning

petitioner’s dealings with the government wit-

nesses was largely uncontradicted. And this re-

view of the evidence does not appear to be ‘‘one-

sided.’’ The judge’s references to the similarity of

the transactions with the various government wit-

nesses, and to the fact that they derived no profits

from their partnerships with petitioner, do not in-

volve error. A trial judge may fairly point out

to the jury the rational implications of the evi-

dence (United States v. Frankel, 65 F. 2d 285, 288

(C.A. 2), certiorari denied, 290 U.S. 682), especi-

ally where, as here, intent is the crucial issue.

CONCLUSION

The judgment below is correct and there is no

conflict. The petition for a writ of certiorari

should be denied.

Respectfully submitted.

'

| Puuir B. PERLMAN,

. Solicitor General.

~ | James M. McINERNEY,

Acting Assistant Attorney General.

| homes S. ERpAd,

Ropert G. Maysack,

Attorneys.

JANUARY 1950.

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