259 F. 371 | 9th Cir. | 1919
Byron and Alley were indicted jointly for having devised a scheme to defraud and used the mails in furtherance of the scheme, in violation of section 215 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [Comp. St. § 10385]). Alley was not apprehended, but Byron was tried and convicted under the five counts included within the indictment. He brought writ of error.
The scheme charged was as follows: The defendants, for the purpose of defrauding certain persons named and others unknown, and the public generally, called “victims,” would fraudulently represent that they could procure for them patents and titles to certain lands in Oregon called “selected lands” and “patented lands,” if the “victims” would pay to defendants certain moneys as location fees and expenses. Defendants had been successfully engaged in procuring, for applicants, title to such “patented’ and “selected” lands located in Oregon, having great value fox; timber thereon, by means of a procedure substantially as follows: It would be represented that the lands designated as “selected” were in the Roseburg, Oregon land district and had previously been selected by Hyde & Co. and one Kribs and other transferees under the Forest Rieu Selection Act of Congress of June 4, 1897, c. 2, 30 Stat. 11, 36 (Comp. St. §§ 5123-5134); that the manner by which the title to the base lands offered to the selector had been acquired was unlawful, and adverse proceedings were pending in the Rand Department seeking to cancel the selection on the ground of fraud; that the result of such adverse proceedings would be the cancellation of all selections; that there were large tracts of other lands, designated as “patented,” which were lands to which patents from the United States had. previously been fraudulently obtained; and that the lands had been restored to the public domain by reason of a decision of the Supreme Court in certain equity suits wherein the United States was plaintiff, axid the Rinn & Rane Timber Coxnpany and others were defendants. The following misrepresentations were to be used with respect to these matters: That the “selected” and “patented” lands were open to patent and sale under the Timber and Stone Act June 3, 1878, c. 151, 20 Stat. 89. That those who filed through defendants’ agency on such lands would receive patent and title within two years from the date of application. That persons who would make application for such lands through defendants would, by such applications and services to be rendered by defendants, obtain preference rights to purchase from the government at $2.50 per acre. . That in order to get title to said lands it was necessary and proper to file applications in the Roseburg Rand Office, and preference .rights to purchase would be secured. That the United States asked $2.50 per acre and no more. That personal examination by
The indictment negatives the several alleged false representations and pretenses by setting up that the defendants never had succeeded in securing title for any one for either the said “selected” or “patented” lands by means of their procedure or otherwise; that the procedure was worthless; that it was impossible to initiate or secure preferences for the lands; that neither the “selected” nor “patented” lands were open to sale, selection, or entry under any of the public land laws of the United States, and applications for the same would be rejected; that the lands could not be purchased under the Timber and Stone Act for $2.50 per acre, and if open to entry could only be procured by payment of the appraised value thereof; that patent could not be secured for any lands under the Timber and Stone Act unless the applicant personally examined the land applied for within 30 days prior to filing the application; that every application filed would be rejected by the Land Office; that upon various tracts upon which the “victims” might file there had already been similar applications to purchase said lands, filed by others whose filings were prior; that defendants never intended to repay the moneys paid by the “victims”; and that any agreements for the return of moneys were made to induce the “victims” to believe that their money would be returned and to prevent them from discovering that they had been cheated and defrauded.
In the scheme charged there may have been some seeming or real inconsistencies. Certain of the alleged misrepresentations would be used by the defendants in persuading one of the “victims” who might be defrauded, while others would be made to another; yet, if the scheme was as pleaded, the indictment was sufficient. That seems too plain for discussion.
It is said that the court erred in admitting testimony of a witness to the effect that Byron told him there were about ten million feet of timber on the land the witness applied for, and that, acting under the advice of Byron, • witness had stated in his application that the land contained but one million feet. We see no error in the ruling. If the applicant in good faith relied upon and believed Byron’s representation and did what Byron told him was necessary to acquire title, the competency of the evidence is not affected by the fact that the applicant endeavored to deceive the land officers of the government.
By regulation of the General Land Office (1908), an appraisal of lands subject to entry under the Timber and Stone Act was made and a minimum of $2.50 per acre fixed as the sale price. Witnesses testified that Byron gave them to believe that the lands could be had at $2.50 per acre. The regulation is said to be invalid and therefore that such evidence was improperly admitted. But the regulation was being enforced by the Rand Office, and under the practice no patent could be had unless the price at which the land was appraised was paid, provided the appraisal was made within the time limited in the regulation. The District Court charged that the Land Department was enforcing the rule with respect to appraisement; that it controlled applications for the purchase of lands; and that a representation, if made, that the applicant could not be required to pay to exceed $2.50 an acre for the land, “is not true and not the law.” Our opinion is that the question of the validity of the regulation was not directly in issue, for if the defendant believed that his view as to the invalidity of the regulation was sound, yet, if he knew of the rule and made the representations that he is charged to have made, intending to defraud the persons to whom he made such representations out of moneys which they would pay to him, and if he used the mails as charged, he would be guilty of a violation of the statute. Ness v. Fisher, supra; Virinda v. Vinson, 39 Land Dec. 449. The court, however, specially guarded defendants’ rights by instructing that if Byron acted upon the advice of counsel, and if in good faith he sought legal advice and followed the same, he could not be convicted of crime, even though such legal advice were erroneous as to a true construction of the law.
The Cascade National Forest was created by proclamation of March, 1907. The Santiam National Forest was created July 21, 1911, and included part of the Cascade National Forest. A portion of the lands involved in the equity suit heretofore referred to was within the ex
It is contended that the court erred in ruling that unapproved forest lieu selections, such as were involved upon the trial, operated to segregate the land selected from the general public domain, and that during the pendency of such selections other applications for the land selected would not be allowed. Again, in making such ruling the District Court was but recognizing the rule of the Land Office and the practice which has prevailed for many years. Santa Fé R. R. Co. v. California, 34 Land Dec. 12; O’Shee v. Coach, 33 Land Dec. 295. Of the practice Byron appears to have been fully cognizant, and, while there may have been some early decisions of the Land Department based upon a different practice, it is indisputable that the Land Department may make appropriate rules for the orderly administration of the public land laws, and under such power we believe the practice was not in excess of authority.
Error is assigned because the court made special reference to the testimony of a witness who was a member of the Board of Law Review of the General Land Office at Washington. This witness testified to certain practices of the Land Office with respect to contests and applications. A fair reading of the instruction complained of shows that the court did not mean to draw any invidious distinction between the testimony of the witness and that given by a witness for the defendant who testified as to his belief with respect to the consequences of filing by applicants upon certain public lands. The court indicated that it adopted the construction of the Land Office rule as testified to by the one witness, rather than that testified to by the other witness. We find no error in the course pursued.
There are in the many assignments references to some other points, but they are of less importance, and we find none of them well founded.
'Judgment is affirmed.