# Opposition Brief — Bowers v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1950
- **Citation:** 338 U.S. 954

## Text

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INDEX
Page
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Sy oe sa sed a tra kwon de Wan wpe es Chk KOU 1
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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.”

4

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.)

5

6

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).

: “3

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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).

9

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.

_——
11

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.)

a 8 RTT

12

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2509%3A2. Public record. Not legal advice.