Brief for the Respondents in Opposition — Leche v. United States

Page

Opinions Below. --- - -- ----------------------------------- 1

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Questions Presented _--.------------- Vince chess ee wee 2

PMC BRUNO ik dus wide chance anda eedeeacnccadedescaau 2

DRRMNES ceca ks ced cami dn dekes Cee abedenn ewe ohiwewanme A 2

Argument... _.....-----------------------------2-------- 8

oneision. .-.. - . <- 62-6. nena nescnns iui bwiaa th endplaes 22

CITATIONS

Cases:

Aplin v. United States, 41 F. (2d) 495 -.---------------- 20

Berger v. United States, 295 U. 8S. 78_.------------------ 22

Cochran v. United States, 41 F. (2d) 193....------------ 15

Cross v. United States, 68 F. (2d) 366.------------------ 19

Dyhre v. Hudspeth, 106 F. (2d) 286 ----.---------------- 14

Feener v. United States, 249 Fed. 425_..-.-------------- 21

Green v; Uneled States, 0S F. (20) Sal. ........-----.4--- 13

Greenbaum v. United States, 80 F. (2d) 113.------------- 15

Ball V. Untied sities, NOG U2 S. Obs. co cnc ce cee ons 10

PIAL SN . (ClO OMREE, OT BOG hU es sens ch aw oe te ccew sees 19

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

Uc OO Ra Odin, Sa nc wink wna Saka mated warset 10, 14

Havener v. United State., 49 F. (2d) 196, certiorari denied

et ee be ek Cer eee name eum ms ae 15

Hoffman v. United States, 20 F. (2d) 328 .-.------------- 21

McDonald v. United States, 89 F. (2d) 128, certiorari

Baie GE IROE So ae asaenn esa deca sewn cans 14

McIntyre v. United States, 49 F. (2d) i SIRT SES aay ee 15

Meyer v. United States, 220 Fed. 800-.-.---------------- 14

Mitchell v. United States, 118 F. (2d) 653.....----------- 14

Murphy v. United States, 39 F. (2d) 412-.-------------- 21

Nobile v. United States, 284 Fed. 253_.---..------------ 19

Rose v. United States, 45 F. (2d) 459_.-.---- ti eae See ae 20

Sconyers v. United States, 54 F. (2d) 68_--.-------------- 16

Beolt v; United States W712 U.S. O48 2 cca cw acenn a. cca 18

Shea v. United States, 251 Fed. 440, certiorari denied, 248

Rs Oels aio SSO St hy I aT eS Sp eR a 15

Shushan v. United States, 117 F. (2d) 110, certiorari denied

MAGS: 1a; NOON 665 acc nec cancncSi ne cebaeisn enw eeene 9, 10

Strom vy. United States, 12 F. (2d) 233, certiorari denied

ee aan dad ce oe i eu Pk ei eeleern ce ae 18

Stumbo v. 2 Tnited States, 90 F. (2d) 828, certiorari denied

ST eS Sa tdcaick uwd wad aosle seen tiara cene 16

402320—41——1 (1)

HI

Il

Cases—Continued. Page

Tam Shi Yan v. United States, 244 Fed. 422 ....--------- 18

Tincher v. United States, 11 F. (2d) 18, certiorari denied

OF Tl BR OBR oan i ienc cbs cp nc bed wdne cca eks ene eee 13

United States v. Buckner, 108 F. (2d) 921, certiorari denied

BOO Ul. 0. OO0 |. oo Soc ean casio oe nsec cece 9

United States v. Graham, 102 F. (2d) 436, certiorari denied

SOS Bi eo ce cock a dkc ioecwet a Sees seeds ee 17

United States v. Manton, 107 F. (2d) 834, certiorari

denied 800 U. 8. 664. ...........---.---..--.-------- 17

United States v. McCann, 32 F. (2d) 540, certiorari denied

, § eee ene ery err et Trt et 15

United States v. Siebricht, 59 F. (2d) 976..-------------- 16

United States v. Socony-Vacuum Oil Co., 310 U. S. 150--- 19, 22

United States v. Weisman, 83 F. (2d) 470, certiorari

denied 200 U. 8. 660......... 2-2... - 2-2-2 e een - se -ese 15

Van Riper v. United States, 13 F. (2d) 961-------------- 16

Vause v. United States, 53 F. (2d) 346, certiorari denied

BARAT BOON so sic oces uk sdb anadam knew ccakdenstene 21

Statute:

Criminal Code §215, 18 U. 8S. C. §388_.-.---------------- 2

Miscellaneous:

Wharton, Criminal Evidence, 11th Ed., Vol. III, see. 1354- 19

=k be ae See . -

SOON ES I ME SES OTE ee ES 5 MR: a

e ae Re Re Se

Inthe Supreme Court of the Wnited States

OcToBER TERM, 1941

No. 169

RicHarp W. LECHE, PETITIONER

Vv.

THE UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT

RRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Circuit Court of Appeals (R.

1099-1101) is reported in 118 F. (2d) 246. The

opinion of the District Court overruling the de-

murrer to the indictment (R. 35-50) is reported

in 34 F. Supp. 982.

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered March 13, 1941 (R. 1101); a petition

for rehearing was denied May 9, 1941 (R. 1145).

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

(1)

2

of the Criminal Appeals Rules promulgated by this

Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether the trial court, by instructing the

jury to disregard as surplusage an allegation in the

indictment that the scheme to defraud involved a

violation of the laws of the State of Louisiana, al-

tered the indictment so fundamentally that it was

error to submit the case to the jury; and whether

the indictment, in the light of the instructions,

charged a scheme to defraud.

2. Whether the evidence was sufficient to estab-

lish that the mailings alleged in the indictment were

for the purpose of executing the scheme to defraud.

3. Whether the indictment, charging a general

scheme to defraud, is rendered duplicitous by al-

legations particularly describing two transactions

carried out as a part of the general scheme.

4. Whether petitioner was denied a fair trial by

rulings restricting cross-examination of prosecu-

tion witnesses or by alleged misconduct of prosecut-

ing attorneys.

STATUTE INVOLVED

The pertinent provisions of the Mail Fraud Stat-

ute (Criminal Code § 215; 18 U.S. C. § 338) are

as follows:

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, representa-

3

tions, or promises * * *_ shall, for the

purpose of executing such scheme or artifice

or attempting so to do, place, or cause to be

placed, any Jletter * * * in any

* * * authorized depository for mail

matter, to be sent or delivered by the post-

office establishment of the United States

* * * or shall knowingly cause to be de-

livered by mail according to the direction

iw, * * * as * * * oo

* * * shall be fined not more than $1,000,

or imprisoned not more than five years, or

both.

STATEMENT

Petitioner was convieted (R. 74) in the United

States District Court for the Western District of

Louisiana on all three counts of an indictment

charging that petitioner, together with one L. P.

Abernathy and one George B. Younger, made use

of the United States mails in the execution of a

scheme to defraud (R. 1-16). Abernathy and

Younger entered pleas of guilty (R. 56). Peti-

tioner proceeded to trial and upon conviction was

sentenced to 5 years’ imprisonment on the first

count and 5 years on the second count, the sen-

tences to run consecutively.’ Imposition of sen-

tence on the third count was suspended, and the de-

‘At the conclusion of petitioner's trial, Abernathy was

sentenced to pay a fine of $1,000 on Count 1. Imposition of

sentence on the remaining counts was suspended and Aber-

nathy was placed on probation for five years. Younger was

sentenced to pay a fine of $1,000 on each of the three counts

of the indictment (R. 68).

TES IOS

4

fendant placed on probation (R. 74-75). The Cir-

cuit Court of Appeals for the Fifth Circuit affirmed

the conviction (R. 1101).

The case proved under the indictment may be

summarized as follows:

In May 1936, petitioner became Governor of the

State of Louisiana (R. 613). One James Thomas,

a sales agent for various companies doing business

with the State and with contractors working for

the State (R. 430-433), contributed heavily to

Leche’s election campaign and also to the success-

ful campaign for the passage of a State constitu-

tional amendment appropriating $500,000 for the

purchase of trucks and equipment for the Loui-

siana Highway Commission (R. 395-396, 470, 473).

The defendant Abernathy, a close friend of

Thomas, was appointed by petitioner as chairman

of the Highway Commission (R. 94, 485-436,

674-678).

Sometime prior to August 1937, in the course of

conversations between petitioner and Thomas re-

garding the purchase of trucks by the Highway

Commission, Thomas informed petitioner that the

defendant Younger, a dealer in International trucks,

would be willing to pay a ‘‘commission’’ (R. 399).

Petitioner told Abernathy not to make any pur-

chase until he should instruct Abernathy on the

matter (R. 673-674). Early in August 1937, peti-

tioner, Abernathy, and Thomas met to discuss the

number of trucks to be purchased and where the

business should be placed (R. 398, 672, 685-686).

5

Petitioner instructed Abernathy to purchase 12 of

the 150 trucks from one James Buie and the bal-

ance ‘‘through Mr. Thomas from the Younger

Motor Truck Company” (R. 685-686). As they

were leaving the office, Thomas asked petitioner

what he should do with the commission he was to

receive from Younger, and petitioner replied “TI

will tell you when you get it’’ (R. 399).

The 188 trucks were delivered to the Highway

Commission over a period from September 27,

1937, through October 8, 1937 (Ex. G-17, R. 845-

862). Under date of October 5, 1937, the Younger

Motor Truck Company rendered an invoice to the

Commission for the purchase price in the aggre-

gate amount of $227,173.54 (Ex. G-16, R. 842-

844). Upon instructions from Abernathy, after

all of the trucks had been delivered, the

State Highway Maintenance Engineer and _ the

Highway Commission Purchasing Agent prepared

a formal requisition and a purchase order, the nee-

essary data being copied from Younger’s invoice

of October 5, 1937 (R. 161, 234-235, Ex. G-14 and

G-15, R. 837-841). These officials, as well as

other employees and members of the Highway

Commission including two whose signatures ap-

peared on the checks issued to the Younger Motor

Truck Company, testified that they knew nothing

of the merits of the purchase (R. 164, 217-218,

238, 242-244). The purchase had never been dis-

cussed at a Commission meeting nor had the Com-

mission adopted any resolution authorizing the

6

purchase (R. 242, 245). Three Highway Commis-

sion checks totalling $227,173.54 were issued to the

Younger Motor Truck Company on October 13,

1937. Younger endorsed them in the office of the

Highway Commission auditor, who mailed them

to Younger’s bank. This mailing is the basis of

Count 1 of the indictment (R. 9, 203-204, Ex.

G-19, R. 865-870).

In July or August, 1938, petitioner Aber-

nathy and Thomas met once more in Abernathy’s

office to discuss additional equipment requirements

of the Highway Commission (R. 412-414), and

Thomas thereafter transmitted to Younger an

order for 95 more trucks. <As on the earlier oe-

easion, the requisition and purchase order were

prepared after the trucks had been delivered and

on the basis of an invoice presented by Younger

(R. 162-163, Exs. G-25, G-26, and G-27, R. 879-

884). In payment for the trucks the Highway

Commission issued a warrant in the amount of

$170,158.51 dated September 16, 1938, payable

December 31, 1938, and bearing interest at the rate

of 4 per cent (Ex. G-30, R. 953). Younger sold

the warrant on the day he received it (R. 293-298).

Due to a shortage of funds in the Highway Com-

mission accounts the warrant was not, however,

redeemed until January 26, 1939 (R. 208).

Excluding such items as freight and handling

cost, the net amount paid by the Highway Com-

mission to Younger for the 233 trucks was $385,-

152.54 (R. 127-128). The retail list price of these

S

7

trucks amounted to $352,306.25 (R. 152). Thus

the Highway Commission paid $32,846.29 (9.32 per

cent) more than the retail list price (R. 152-153).

Younger’s profit on the two transactions totalled

$116,571.88, including $6,139.11 in State sales taxes

collected from the Highway Commission, but not

paid to the State * (R. 112, 119-120). There was

testimony that it was the policy of the Interna-

tional Harvester Company, the manufacturer of

the trucks, to sell to governmental units at dealer’s

discounts ranging from 10 to 35 per cent (R. 347).

It was also testified that pursuant to a well under-

stood company policy, dealers would allow to gov-

ernmental units discounts from the retail list price

ranging from 10 to 15 per cent (R. 348-349).

On October 13, 1937, when Younger received the

Highway Commission checks for $227,173.54, he is-

sued a check to James Thomas in the amount of

$31,000 as ‘‘commission”’ on the sale (R. 116, 399,

400, Ex. G-35, R. 960). Similarly, on September

17, 1938, the day following the issuance of the $170,-

158.51 Highway Commission warrant in payment

for the 95 trucks, Younger issued to Thomas a

sight draft for $22,000 as ‘‘commission”’ on the

1938 sale (R. 121, 400, Ex. G43, R. 971). Thomas

deposited these commissions in his own bank ac-

count, but testified that he held the $53,000 so

* Younger started payments in installments on the 1938

tax of $1,684.73 on August 21, 1939, after a State tax audit

(R. 120).

402320— .41—— 2

8

received “as a trust’’ for petitioner (R. 495).

Upon instructions from petitioner he included this

amount in his own income tax returns (R. 402, 443,

444, 454, 455). Out of this $53,000 fund Thomas

paid over to petitioner $31,000 in cash (R. 401-

402). Thomas delivered the money in three install-

ments, each wrapped in manila wrapping paper,

to petitioner at his office in the Governor’s mansion

with no other person present (R. 416-417). The

balance of the $53,000 was paid over by Thomas

from time to time pursuant to instructions from

petitioner, chiefly to political creditors of petitioner

(R. 403-408, 502-505, 507-528, 533-536).

ARGUMENT

I

1. Petitioner contends (Pet. 11-20) that the

trial court erred in submitting the case to the jury

after instructing it to disregard, as surplusage, the

allegation in the indictment that it was ‘‘a further

part’’ of the scheme that the defendants would not

comply with the Louisiana law requiring competi-

tive bidding on State purchases of materials and

supplies (R. 6, 767, 779-780). That action, in peti-

tioner’s view, removed from the jury’s considera-

tion an ‘‘essential element’’ of the scheme charged

and subjected him to conviction for a crime not

alleged in the indictment (Pet. 11-12, 14-15, 20).

However, the violation vel non of the Louisiana

statute was in no sense an essential element of the

9

scheme charged. While the indictment alleged the

scheme in great particularity (R. 1-8), in essence

the crime charged was that, in violation of his of-

ficial trust as Governor, petitioner, in connivance

with Abernathy, the Chairman of the State High-

way Commission, and Younger, a motor truck

dealer, caused the Commission to buy a large

number of trucks at excessive prices for the pur-

pose of deriving an exorbitant profit which would

be covertly shared by Younger, the dealer, peti-

tioner, and his intermediary, Thomas. This

scheme, as is apparent from the summary of the

evidence at pp. 4-8, supra, was abundantly proved.

Such a scheme, whether effectuated by failure to

invite bids or otherwise, falls within the well-rec-

ognized category of frauds covered by the Mail

Fraud Statute where one in a position of trust,

public or private, derives a secret profit from his

fiduciary relationship at the expense of those whom

he is supposed to serve. United States v. Buckner,

108 F. (2d) 921, 926-927 (C. C. A. 2d), certiorari

denied, 309 U. 8. 669; Shushan v. United States, 117

F, (2d) 110, 115 (C. C. A. 5th), certiorari denied,

May 12, 1941, Nos. 910-913, last Term.’ Since,

as is apparent from a reading of the indictment,

the failure to comply with the competitive bidding

statute was merely an incidental step in the scheme

alleged, the action of the trial court in removing the

*For a more exhaustive exposition of the controlling

theory see pages 14-16 of the Government’s brief in oppo-

sition in the Shushan case, Nos, 910-913, last Term.

10

inapplicable state statute from the jurysid-

eration was of no consequence.*

2. Petitioner further insists that the ourt

by the instructions in question withdrew the

jury the only two false representations <d in

the indictment (R. 7-8) because, he asit is

apparent from the indictment that their - was

dependent upon a requirement under law

that there be competitive bidding (P19).

Petitioner does not in terms argue ‘alse

represevtations are an indispensablment

of a scheme to defraud (ef. Shushantited

States, supra), but relies upon the sup fact

that this indictment was built upon thePTe-

sentations in question. However, it is that

the misrepresentations were but a min-dent

in the perpetration of the principal freeged

here.

Moreover, the trial court did not lraw

the allegations as to misrepresentations. sub-

stance of the misrepresentations charge that

the defendants fraudulently asserted b’® of

invoices the existence of an indebtedness than

that which was legally due. It is only of

explanation that the indictment then <¢

smaller sum was due ‘‘because it was apr’

the amount that the manufacturers « “

*The power of a court to instruct the jury ni a

immaterial allegations is oreo M4 nied,

States, 112 F. (2d) 128 (C. C. A. dth), certs ¢g9)

311 U. S. 684, 722; ef. Hall v. U nited States,

639.

11

trucks and equipment would have, without the in-

terference of the said defendants, sold the motor-

trucks and equipment to the Louisiana Highway

Commission under legal and competitive bids and

contracts’? (R. 7). This allegation, that competi-

tive bidding would have resulted in better prices for

the State, was amply supported by evidence, unre-

lated to the Louisiana bidding laws (R. 344-349,

368-370, 382-386), which the trial court instructed

the jury to consider in determining whether the

trucks could have been purchased more cheaply ‘‘if

an effort had been made”’ (R. 777).

3. Petitioner further asserts that the elimination

of the Louisiana bidding statutes from the case

leaves his conviction resting solely upon his failure

to exercise ‘‘discretion’’ or ‘‘business prudence’’,

relying in this connection upon isolated extracts

from the opinion of the Cireuit Court of Appeals

and the trial court’s charge to the jury. He argues

that there can be no scheme to defraud without de-

ceit (Pet. 12-15). The short answer to petitioner’s

contention is that his conviction did not rest upon

any innocent failure to exercise business prudence.

The trial court specifically charged that ‘‘deliberate

purpose’’ and ‘‘guilty knowledge and _ participa-

tion’? were required (R. 764), and that (R. 773):

Carelessness alone, or inattention to busi-

ness, would not be sufficient upon which to

base a verdict of guilty, and you must be

convinced beyond a reasonable doubt that

he [petitioner] did so participate and did

12

—

have such an interest in the matter as the

Government contends. * * *

Petitioner was apparently satisfied with the fair-

ness of these instructions, since he did not object to

them or request any additional charge.

II

1. Petitioner contends (Pet. 20-21) that the let-

ter and voucher checks set forth in count one (R.

9-12) were not mailed in the execution of the

scheme to defraud. The letter in question was a

letter from the Highway Commission Auditor to

Younger’s bank transmitting the three checks

issued by the Commission in payment for the first

auto trucks. The checks were credited to Young-

er’s account by the bank (R. 201, 203-204, Exs.

G. 18 and G. 19, R. 863-870, 876-877). It was from

this account that Younger paid the ‘‘commissions”’

to Thomas, who in turn made distribution to peti-

tioner and his nominees (R. 116, 399-408, Exs. G.

24, R. 877, G. 34, R. 959).

It is clear that the forwarding of the checks was

an important step in the transmission of the fruits

of the fraud to those who were to benefit therefrom.

It is wholly immaterial whether the mailing of the

checks was also, as petitioner insists (Pet. 20-21),

in pursuance of some agreement which Younger

had with his bank. The issue, viewed most favor-

ably to petitioner, was one of fact upon which the

jury found against petitioner under the instrue-

—

13

tions given at his request that ‘‘the mailed matter

* * * must be a step in the attempted execu-

tion of the scheme’? (R. 774, 776). Green v.

United States, 93 F. (2d) 537, 5389 (C. C. A. 10th).

2. Petitioner also contends (Pet. 21-24) that the 3

mailing alleged in the second count of the indict- .

ment (R. 13-14) was not in furtherance of the .

scheme, because the scheme had then terminated.

This mailing occurred in the clearance of the

$22,000 sight draft drawn on the Guaranty Bank

of Alexandria, which Younger gave Thomas as

“commission”? on the second truck deal. After

Thomas deposited this draft in his account at the

City National Bank of Baton Rouge (Exhibit

G-44, R. 972) the bank forwarded the check for

collection to the Commercial National Bank of

Shreveport, which in turn mailed it to the Rapides

Bank and Trust Company in Alexandria (R. 319,

322, 335-336). The last-named bank collected

from the drawee bank by messenger (R. 315, 336).

As has already been noted, Thomas was the inter-

mediary through whom a portion of the proceeds of i

the fraud was distributed to petitioner. It is :

plain that the clearance of the draft was intimately

connected with the distribution of the fraudulent

proceeds, and until that distribution was aeccom-

plished the scheme cannot be said to have termi-

nated. Tincher v. United States, 11 F. (2d) 18,

21 (C. C. A. 4th), certiorari denied, 271 U. S. 664;

ef. McDonald v. United States, 89 F. (2d) 128,

wes

RA PRS eh et Is DTS

ale a al

14

133-134 (C. C. A. 8th), certiorari denied, 301 U. 8.

697.”

Moreover, the Louisiana Highway Commission

(R. 2) was not finally defrauded until the $170,-

158.51 Highway Commission warrant issued in

payment of the second group of trucks was re-

deemed and this amount charged against the Com-

mission’s bank account. Hart v. United States,

supra, at page 131; Cf. Meyer v. United States,

220 Fed. 800, 804-805 (C. C. A. 9th). This did

not occur until January 27, 1939, approximately

four months after the mailing of the $22,000 draft

(Exs. G-51 to G-56, R. 981-986).

3. Petitioner argues (Pet. 23-24) that the de-

posit of the $22,000 sight draft by Thomas in the

City National Bank, which thereupon credited his

account, relieved the defendants of responsibility

for the subsequent mailing of the check for col-

lection, because in collecting it the bank acted as

‘‘owner”’ rather than as agent for Thomas. But

the issue in a mail fraud prosecution is whether

the defendants ‘‘caused’”’ the mails to be used, and

any reasonably foreseeable use of the mails which

results from the operation of the scheme is suffi-

cient under the statute. Hart v. United States,

5 Mitchell v. United States, 118 F. (2d) 653 (C. C. A.

10th), and Dyhre v. Hudspeth, 106 F. (2d) 286 (C. C. A.

10th), cited by petitioner to show a conflict of decisions

(Pet. 11, 23), involved no question of division of proceeds,

necessary to complete the scheme. The remaining cases

cited at this point in the petition relate to sufficiency of proof

of mailing, which is discussed at p. 15, infra.

Re

15

supra, at page 131; United States v. Weisman, 83

F. (2d) 470, 473 (C. C. A. 2d), certiorari denied,

299 U. S. 560; Shea v. United States, 251 Fed. 440,

448 (C. C. A. 6th), certiorari denied, 248 U.S. 581.

It is clear that a man of Thomas’ business experi-

ence would reasonably anticipate that the deposit

of an out-of-town draft would be likely to result in

its clearance through the mails.

4, Petitioner asserts that there was no proof of

mailing under the second count (Pet. 25). How-

ever, there was abundant testimony by the em-

ployees of both the sending and receiving banks

that the uniform practice of the two banks was

to transmit items such as the drafts set forth in

counts two and three through the United States

mails (R. 321-324, 328-329, 340-341). In addi-

tion, witnesses employed in the transit depart-

ments of the banks testified unequivocally that

these items had been received and dispatched

through the mails (R. 319, 335-338). This evi-

dence was called to the attention of the jury in

the District Court’s charge (R. 768-772), and

there can be no question of its sufficiency.” In

none of the cases cited by petitioner (Pet. 25) was

“See Greenbaum v. United States, 80 F. (2d) 113, 124-125

(C. C. A. 9th); Melntyre v. United States, 49 F. (2d) 769

(C. C. A. 6th); United States v. McCann, 32 F. (2d) 540,

541 (C. C. A. 2d), certiorari denied 280 U.S. 559; Cochran v.

United States, 41 F. (2d) 198, 205 (C. C. A. 8th) ; Zavener

v, United States, 49 F. (2d) 196, 200 (C. C. A. 10th), cer-

tiorari denied 284 U.S. 644.

-

there the volume of testimony of mailing found

in the present case.

16

Ill

The indictment was not duplicitous. Petition-

er’s contention to the contrary (Pet. 26-28) is

based on the allegations particularly describing the

two truck deals effected by the defendants. But

the indictment (R. 1-8) charges that these deals

were carried out as part of a single general scheme

to defraud, that each purchase of trucks was made

from the same company, that each transaction in-

volved the payment of similarly excessive prices by

the Louisiana Highway Commission and distribu-

tion of spoils through the Younger Motor Truck

Company, and that the profit from the two sales

was treated as a single fund. It is well settled that

such allegations charge a single scheme. Sconyers

v. United States, 54 F. (2d) 68, 69 (C. C. A. 5th)

Van Riper v. United States, 13 F. (2d) 961, 964

(C. C. A. 2d) ; Stumbo v. United States, 90 F. (2d)

828, 832 (C. C. A. 6th); certiorari denied 302

U.S. 755.

United States v. Siebricht, 59 F. (2d) 976 (C. C.

A. 2d), relied on by petitioner (Pet. 11, 27), aetu-

ally held that the indictment in that case charged a

single scheme. The conviction was reversed, how-

ever, on the ground that the proof established two

separate schemes, one of which was barred by the

17

statute of limitations.’ In the instant case, the evi-

dence fully supported the theory of the indictment

that there was a single integrated scheme to de-

fraud. It was proved that the parties to both

transactions were the same; that the money to pay

for the trucks came in both instances from a com-

mon source ; that the method of operation was iden-

tical in both transactions. Indeed, when Thomas

gave Younger the 1938 order he did not even give

him a memorandum of specifications, as on the 1937

purchase, but simply told him ‘‘to just furnish so

many trucks the same as previously’? (R. 467).

The pattern of the scheme had been established.

Further transactions followed the pattern.

IV

1. Petitioner complains that it was improper

to call the witness Hill to contradict certain testi-

mony given by petitioner on cross-examination

(Pet. 29-30). Petitioner had testified as to his

participation with Hill in an oil and gas syndicate

which paid petitioner, while Governor, $189,000,

* The holding that the evidence established two schemes

seems hard to justify, and subsequent decisions of the Cir-

cuit Court of Appeals for the Second Circuit show that

plurality of transactions does not mean plurality of schemes,

given a nucleus of common participants, reasonable contimu-

ity, and similarity of objectives and methods of operation.

United States v. Manton, 107 F. (2d) 834, 838 (C.C. A. 2d),

certiorari denied 309 U.S. 664; United States v. Graham,

102 F. (2d) 436, 443-444 (C. C. A. 2d), certiorari denied

307 UL S. 648.

a a

REP EPR TMP RATA Key ors 701

ey

b

18

mostly in cash, in the course of three years (R. 622-

632). Although petitioner claimed that these pay-

ments were for legitimate private business services,

it appeared that he had made no investment in this

enterprise and that his name was not shown on the

company’s books (R. 621, 649). Hill was called

as a Government witness to explain the true nature

of the payments to petitioner, but claimed his priv-

ilege against self-incrimination and did not testify

(R. 689). The Government sought to establish

through Hill evidence of ‘other similar transae-

tions’? bearing upon the issue of the fraudulent

intent in the transactions charged in the indict-

ment.” Accordingly, this was not a ‘‘eollateral”’

matter, as petitioner urges, but a fundamental issue

in the case and properly the subject of rebuttal

testimony. Scott v. United States, 172 U.S. 343,

345-348; Tam Shi Yan v. United States, 224 Fed.

422, 423 (C. C. A. 2d); Strom vy. United States, 12

F, (2d) 238, 234 (C. C. A. 6th), certiorari denied,

271 U. S. 683. Even if the subject matter were

collateral, the admission of rebuttal testimony

could hardly constitute reversible error, for the rule

barring such contradiction rests on the policy

against prolongation of trials by the injection of

* Although, as petitioner states (Pet. 29), the trial court

ruled at the conclusion of the Government’s case in chief

that there was no similarity between the two transactions

(R. 603-608), the record shows that he ultimately came to

the view that the Hill arrangement was a similar transac-

tion and therefore was material to the Government’s case

and subject to rebuttal (R. 689).

aaa

19

extraneous issues—a consideration which would

seem to be properly left to the trial court’s discre-

tion. See Hall vy. United States, 277 Fed. 19 (C. C.

A. 8th); Wharton, Criminal Evidence, 11th Ed.,

Vol. III, See. 1354.

The prosecutor in closing argument should

doubtless have made no reference to Hili’s refusal

to testify (R. 722). But petitioner did not object

to these remarks when they were made and did not

ask for any instruction requiring the jury to disre-

gard them. Cf. United States v. Socony-Vacuum

Oil Co., 310 U. 8. 150, 238-239. Even where prose-

cutors have commented regarding a claim of priv-

ilege made by a defendant convictions have been

sustained if the trial court took prompt remedial

measures or, if no objection has been made, where

guilt is clearly established. Cross v. United States,

68 F. (2d) 366 (C. C. A. 5th); Nobile v. United

States, 284 Fed. 253, 255-256 (C. C. A. 3d).

2. Error is also urged (Pet. 30-32) because of

the cross-examination of petitioner upon the as-

sumption that a $14,030.90 item in his income-tax

return was a gain, whereas it was actually a loss

(R. 633-634). The incident was plainly uninten-

tional and certainly not prejudicial. The prosecu-

tor, having only a photostatic copy of the income

tax return on which red ink loss figures could not

be distinguished from black ink gain figures, as-

sumed that the item was income.’ And although

® Petitioner’s assertion that Government counsel had the

original return in his possession (Pet. 31) is contrary to

fact.

20

the return and accompanying schedules were shown

to the petitioner in the course of the examination

(R. 633-634) and were available to his counsel, no

one discovered the error until after the trial. The

inquiry was directed simply to one figure among

many others in petitioner’s income-tax returns

which the prosecutor was exploring in order to dis-

cover whether the returns reflected the income de-

rived from the truck transactions. The prosecutor,

assuming the item to represent income, was natu-

rally surprised to have the taxpayer express ig-

norance of the source of such a large item, and, on

the basis of the facts as he understood them, prop-

erly pointed to this circumstance as reflecting upon

the credibility of the defendant.

3. There is clearly no error in the trial court’s

refusal to permit petitioner’s counsel to cross-

examine Thomas for the purpose of bringing out

what petitioner had told Thomas that he intended

to do with the ‘‘commission”’ on the truck deal.

It would make no difference whether Leche in-

tended to use this money for political or personal

purposes.

Petitioner also finds ‘‘quite incomprehensible”

(Pet. 34) the trial court’s ruling restricting cross-

examination of Government witness Abernathy to

matters covered on direct examination (R. 682-

683). It is plain, however, that this ruling but con-

forms to the well-established rule on this subject in

the Federal courts. Aplin v. United States, 41 F.

(2d) 495, 496 (C. C. A. 9); Rose v. United States,

21

45 F. (2d) 459, 465 (C. C. A. 8) ; Feener v. United

States, 249 Fed. 425, 427 (C. C. A. 1).

4. Petitioner cannot show reversible error upon

improper remarks of Government counsel in their

summations to the jury (Pet. 35-36). In the first

place, the record contains only a portion of the

speech made by petitioner’s counsel (R. 1083), but

from that portion which does appear it may be

assumed that the provocation was great.” The

subsequent arguments of Government counsel are

by no means models of temperate reasoning, but it

is clear that much of the heat was generated by the

attacks upon the prosecutors by defense counsel

(R. 749-750, 1080). An appellate court will not

reverse a conviction in the absence of a record of

the defense argument, from which the extent of

provocation for the prosecutor’s remarks may be

determined. Vause v. United States, 53 F. (2d)

346, 354 (C. C. A. 2d), certiorari denied, 284 U. S.

661; Murphy v. United States, 39 F. (2d) 412, 414

(C. C. A. 8th); Hoffman vy. United States, 20 F.

(2d) 328, 329 (C. C. A. 8th). Moreover, it is set-

tled that where the evidence of guilt is strong and

convincing, as in the instant case, argument of

counsel, even if improper, will not be held to have

* The principal prosecution witness was characterized as

an “evil bat” and “dirty package” (R. 1092), an attempt was

made to provoke sectional prejudice by referring to the

Assistant Attorney General who led the prosecution, as com-

ing “down here from Chicago” (R. 1095; ef. R. 97, 113) and

the Government’s evidence was referred to as a “heap of

rubbish” (R. 1089).

a BOLE TP EOE EN

22

substantially prejudiced the defendant’s rights.

See United States v. Socony-Vacuuwm Ou Co., 310

U. S. 150, 239-240; Berger v. United States, 295

U. S. 78, 89.

CONCLUSION

The decision below is clearly correct, and there

is neither conflict of decisions nor any question of

general importance. We therefore respectfully

submit that the petition for writ of certiorari

should be denied.

CHARLES Fany,

Acting Solicitor General.

WENDELL BERGE,

Assistant Attorney General.

OscaR A. Provost,

Special Assistant to the Attorney General.

Louis B. ScHwakrTz,

W. Marvin SMITH,

Attorneys.

JULY 1941.

U. S. GOVERNMENT PRINTING OFFICE: 1941

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