United States v. Solomon

MERCER, Chief Judge.

This cause arose on a seven count indictment against defendants, the first six counts alleging substantive offenses in violation of federal law and the seventh count alleging a conspiracy between defendants and others to commit the acts alleged in the substantive counts.

Counts One, Two and Three of the indictment charge offenses in violation of the Mail Fraud Statute, 18 U.S.C.A. § 1341. Count One alleges that on or about August 12, 1957 defendants, for the purpose of executing a scheme to defraud as therein alleged, deposited for collection with a bank at Tupelo, Mississippi, a check drawn on a bank at Raritan, Illinois, “which check the defendants knowingly caused to be sent by the post office establishment of the United States through regular banking channels and to be delivered according to directions thereon,” to the bank at Raritan, Illinois, in violation of said statute. Counts Two and Three, in essentially identical language, allege that defendants violated the same statute by depositing with a bank at Tupelo, Mississippi, for collection checks drawn, respectively, on a bank at Table Grove, Illinois, and on a bank at Galesburg, Illinois.

Count Four alleges that defendants transported a certain, specifically identified Cadillac automobile in interstate commerce from Indianapolis, Indiana, to Moline, Illinois, “and the defendants then knew the aforesaid motor vehicle to have been stolen” in violation of the National Motor Vehicle Theft Act, commonly known as the Dyer Act, 18 U.S.C.A. § 2312.

Count Five, based upon the same check alleged in Count Two, alleges that defendants did knowingly cause to be transported in interstate commerce from Tu-pelo, Mississippi, to Table Grove, Illinois, a falsely made and forged check with knowledge that the drawer’s signature thereon was forged and falsely made in violation of the National Stolen Property Act, 18 U.S.C.A. § 2314. Count Six, in like language, alleges a violation of said Section 2314 in the transaction involving the deposit for collection of the check drawn on the bank at Raritan, Illinois, which check forms the basis for the charge alleged in Count One.

Count Seven alleges that defendants, from about June 12, 1957, to and including the 31st day of August, 1957, conspired together and with others to commit the substantive offenses which are alleged in Counts One to Six, inclusive, in violation of 18 U.S.C.A. § 371.

Defendants entered a plea of not guilty on all counts. Thereafter, on October 7,1958, defendants filed four pretrial motions directed against the indictment, viz.: (1) Motion to Dismiss; (2) Motion for Discovery and Inspection; (3) Motion for Bill of Particulars and Subpoena Duces Tecum; and, (4) Motion to Compel Election. The several motions are hereinafter considered in the order noted.

I.

In their motion to dismiss, defendants assert 11 separate contentions against the sufficiency or legality of the indictment, or various counts thereof. Each of those contentions has been considered by the court and each is found to be without merit. A statement of the basis for each such finding would serve no purpose other than to lengthen this opinion, and the following remarks are addressed to those contentions upon which defendants seem principally to rely.

First, defendants contend that Counts One, Two and Three, alleging offenses under the mail fraud statute, contain no allegations that defendants in any manner utilized the post office establishment; that, conversely, each of those counts shows on its face that certain banking houses, not defendants, utilized the mails. The contention, on its face, seems logically meritorious, but can avail defendants nothing in view of the decision in Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435.

The facts of Pereira are strikingly similar to the facts alleged in this indictment. In that case, Pereira and another had devised a confidence scheme with the objective of separating a wealthy widow from a substantial sum of her money. The objective was accomplished when the widow caused a check drawn on a bank at Los Angeles, California, to be delivered to Pereira. Pereira then deposited the check for collection at a bank in El Paso, Texas. Pereira and his accomplice were indicted and found guilty on each of three counts of an indictment founded upon that transaction which charged, respectively, violation of the mail fraud statute, violation of the National Stolen Property Act and conspiracy to commit the mail fraud and stolen property offenses.

Pertinent to defendants’ contention here, the Court, in affirming a judgment of conviction, said at 347 U.S. at pages 8-9, 74 S.Ct. at page 362:

“The elements of the offense of mail fraud under 18 U.S.C. (Supp. V) § 1341 [18 U.S.C.A. § 1341], are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. * * * Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira ‘caused’ the mailing. That question is easily answered. Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used. United States v. Kenofskey, 243 U.S. 440 [37 S.Ct. 438, 61 L.Ed. 836], The conclusion that Pereira’s conviction under this count was proper follows naturally from these factors.”

The quoted language disposes of defendants’ first principal contention.

Secondly, defendants contend that Counts Five and Six, each purporting to charge an offense in violation of the National Stolen Property Act, 18 U. S.C.A. § 2314, fail to set forth the securities therein alleged, or the tenor thereof, with sufficient certainty to permit defendants to prepare for trial and to plead a conviction or acquittal upon said counts as a bar to further prosecution for the same offense.

Summarized, each of these counts alleges that defendants knowingly transported and caused to be transported in interstate commerce a falsely made and forged security. In each count, the security alleged is described as a check, which is further described as to its date, amount, name of payee, name of drawee bank, the name of the purported drawer thereof and the point outside the State of Illinois from which the check was transported into the State of Illinois and this Judicial District.

Though I think it desirable that the tenor of an alleged security be set forth in the indictment on a charge of this nature, Counts Five and Six are sufficiently complete to advise defendants of the charge they are to meet and to protect them from future prosecution for the same offense. A contention similar to that here advanced was before the court in United States v. Taylor, 2 Cir., 207 F. 2d 437. In a 225 count information the government alleged that Taylor had deposited for collection in divers banks outside the State of New York a number of forged checks, purportedly drawn on accounts in a New York bank, and thereby had caused the same to be transported in interstate commerce in violation of said § 2314. In sustaining the sufficiency of the information the court held that the description of each check by date,amount, name of payee, name of drawee bank, the account upon which the cheek was purportedly drawn and the point outside the State of New York from which the check had been transported into that State constituted a sufficient allegation of an offense under the stolen property statute. I think the Taylor decision is correct and should be followed in this case. Counts Five and Six are sufficiently precise to satisfy the requirements of Rule 7, Fed.Rules Crim.Proc., 18 U.S.C.A.

Thirdly, defendants contend that either the substantive counts, Counts One to Six, inclusive, of Count Seven, alleging a conspiracy to commit the substantive offenses alleged .in the prior counts should be dismissed for the reason that prosecution on both the substantive counts and the conspiracy count would constitute double jeopardy. The contention is also squarely opposed to the Pereira decision and must, therefore, be overruled. In Pereira, the Court held that the commission of a substantive offense and the effecting of a conspiracy to commit the offense “are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both.” Pereira v. United States, 347 U. S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435. As, the Court there pointed out, the deposit for collection of a falsely made check purportedly drawn upon a bank in, another state may constitute three separate federal offenses, i. e., mail fraud, violation of the stolen property act, and when done in concert by two or more persons, conspiracy. The elements of each' offense are different and, therefore, prosecution for all does not sustain a claim of double jeopardy. Pereira v. United States, supra, 347 U.S. at pages 8-9, 11, 74 S.Ct. at pages 362-363, 364.

The motion to dismiss is overruled. .

n.

Upon considering defendants’ motions for discovery and- inspection and for a' bill of particulars, the court is convinced that' said motions should be, and they hereby are, allowed to the following ex-, tent:

1. The government shall produce for copying and inspection, or furnish to defendants a true and correct copy of, the following documents, to-wit:

a. The checks which are alleged in Counts One, Two, Three, Five and Six;

b. Signature card and ledger of the alleged bank account at the Bank of Tu-pelo, Tupelo, Mississippi;

c. All installment contracts, automobile title documents and checks upon which the government relies to sustain the charges made in the indictment.

2. In addition to furnishing the above documents for inspection, the government shall file a bill of particulars setting forth the following information, to-wit:'

a. The names and addresses of all per-, sons, firms and corporations who comprise the class of persons in the indict-' ment described as “buyers, sellers, auctions and finance companies'”;

b. The names and addresses of all persons who have knowledge of facts rele-' vant to the issues of intent and the exist-' ence of a pattern or scheme of conduct by defendants to defraud;

c. The source, or sources, from which title documents reflecting a good and dn-encumbered title to automobiles Were secured as alleged in the indictment;

d. The number of automobiles involved in the alleged' scheme' to defraud.

e. The name and address of the owner of the automobile alleged in Count Four to have been stolen, and the names and addresses of the persons, or person, who had stolen said automobile;

f. The addresses of Boyce Roy Carter and Everett Johnson if they be actqal persons; if they be fictitious persons, the bill of particulars should so state; ,

g. The number, and names and addresses of other persons with whom .defendants allegedly conspired and confederated as alleged in Count Seven.

h. The prior criminal record of Amp Poore;

i. The names and addresses of expert witnesses upon whom the government will rely in the trial of this cause; and

j. The names and addresses of all persons who have knowledge of facts relevant to the transactions alleged in the indictment.

Defendants pray also for an order to compel the government to have available to defendants at the time of trial all prior statements of all witnesses whom it will then call. The Court need not rule upon that prayer. An order at this time could neither add to nor detract from defendants’ right to compel the production of such statements at the time and in the manner contemplated under the provisions of Title 18 U.S.C.A. § 3500.

Subject to the exceptions hereinabove expressly delineated, the said motions for discovery and inspection and for a bill of particulars are overruled.

III.

The fourth motion now before the Court is defendants’ motion (1) to compel the government to elect upon which of the substantive counts it will proceed and (2) to elect whether it will proceed upon the substantive counts, Counts One-Six, inclusive, or upon the conspiracy count, Count Seven.

A motion to compel election between counts of an indictment is addressed to the sound discretion of the trial court. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; United States v. Hunt, 7 Cir., 120 F.2d 592, certiorari denied 314 U.S. 625, 62 S.Ct. 97, 86 L.Ed. 502; Arnold v. United States, 7 Cir., 7 F.2d 867. Unless it appears that the rights of defendants would be prejudiced and that they would be embarrassed in their defense by the fact of being tried upon multiple charges before the same jury, a court should not compel election between counts properly joined in an indictment.

There is no reason to require an election as beween the substantive counts. The six substantive offenses charged are closely related in point of time, and each is alleged to be a part of a single continuing scheme to defraud. To some degree it appears that the same evidence may tend to prove each of the six counts, or at least tend to prove the mail fraud and stolen property counts. The court cannot say that defendants will be prejudiced by a joint trial on the substantive counts.

A more serious question is presented by the motion to compel election between the substantive counts and the conspiracy count. Of necessity, to some extent, a jury sitting on the trial of this cause will be faced with a mass of evidence relating to all, or a number, of the counts, and also with evidence which relates to each count alone. While it appears to be true that much of the evidence introduced to prove the substantive counts will be relevant also to the conspiracy charge, trial of the conspiracy count with the substantive counts can be expected to flood the jury with a mass of evidence admissible on the conspiracy charge only. At best, contemplation of a trial of all 7 counts simultaneously suggests that the situation would be very confusing for any jury. In its worst light, the contemplated situation inherently contains the probability of prejudice to defendants inasmuch as evidence admissible upon the conspiracy count alone must perforce affect the jury’s thinking when it considers the fact questions presented by the substantive counts.

Mr. Justice Jackson, concurring in Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 719, 93 L.Ed. 790, ably discussed the pitfalls for a defendant in a trial upon a scattergun indictment including a conspiracy charge. Among the dangers of a proceeding of that nature, he included the morass of evidence, irrelevant to the substantive charge, upon which the existence of the ■conspiracy charge brings to bear on the whole case. To protect his rights under the circumstances a defendant is left with the “unmitigated fiction” that prejudicial effects of such evidence being before the jury can be overcome by a protective instruction, supra, 336 U.S. at page 453, 69 S.Ct. at page 723.

The government has shown no necessity for the use of the conspiracy count, here superimposed upon six other counts each charging a separate substantive offense. There is nothing before the court which suggests that prosecution for the substantive offenses would not adequately cope with the evil effects of defendants’ alleged acts. If a prosecution for the substantive offense be adequate, inclusion of the conspiracy count should be carefully scrutinized and separate trials should be had if it appears that the conspiracy count, like a two-edged sword, serves a principal purpose to give the government a procedural advantage and a corresponding advantage of probably prejudicial effect upon the defendants’ rights.

Of course there is no basic repugnancy between the counts of this indictment. The substantive charge alleged in each of the first six counts is realleged in count seven as one of the overt acts done pursuant to the alleged conspiracy. But if the court be correct in its view that, inherently, prejudice to defendants’ rights could be expected to pervade a simultaneous trial upon this indictment as a whole, then in the exercise of a sound discretion it ought to compel the government to elect whether it will proceed upon the conspiracy count or the substantive counts. The added expense to the government of time and money in trying the conspiracy and substantive charges separately is, of course, a factor to consider, but that is a factor of small moment compared to the probable prejudice to defendants of disposing of all charges in one grandiose trial.

Defendants’ motion to compel an election is allowed to the extent that the government be, and hereby is, required to elect whether it will proceed upon counts one to six, inclusive, or upon count seven.