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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1941
- **Citation:** 314 U.S. 617

## Text

Page
Opinions Below. --- - -- ----------------------------------- 1
PPC chap sebwacewhuneceas POE RT 1
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

BANTER BIS GE LEE TE ET RS SEES OR OPN SE SR BNL EY Gk RE TI oD HOR TE GRY EO LE RRS RE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0537%3A2. Public record. Not legal advice.