Byron v. United States

273 F. 769 | 9th Cir. | 1921

HUNT, Circuit Judge

(after stating the facts as above). [1,2] The defendants contend that the indictment is fatally defective, because it fails to charge any use of the mails in the execution of the scheme alleged as one to defraud; but after setting forth the scheme and its purpose there are allegations that defendants, “having devised the scheme or artifice hereinbefore fully described, and intending so to do, to defraud Emma V. Christensen, the defendant * * * did willfully, * * * and for the purpose of executing the aforesaid scheme or artifice to defraud,” mail a writing styled an appeal, etc. That is sufficient. Of course, it cannot be said that on its face the paper called notice of appeal indicated any intention to defraud or was in execution of such an intention. But if one with corrupt intent has devised a scheme to defraud by getting money from people through deceit and misrepresentation, and for the purpose of carrying out a described scheme or artifice puts a writing in the mails, it is not material *772whether the writing is valid. The mailing of any letter or writing for the purpose of executing the fraudulent scheme is what the statute (section 215) makes an element of the offense. United States v. Young, 232 U. S. 155, 34 Sup. Ct. 303, 58 L. Ed. 548. As said by the Supreme Court in Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709, “The significant fact is the intent and purpose.” They .are questions for the jury.

[3] Nor is the pleading defective on the ground that it is manifest from the indictment that there was an “intrinsic impossibility” of bringing the prosecution of the claims within the scope of the fraudulent scheme alleged. If, as alleged, defendant falsely pretended to certain persons that preference rights to any of the lands described could be had through the Interior Department, by means'of applications made through defendants and moneys paid to them, and if it was promised that moneys paid would be refunded if there was failure to get title within a certain time, whereas in fact, as defendants well knew, no preference rights could b,e secured from the Department of the Interior by virtue of such applications, and defendants knew the applicants would receive nothing of value for the money paid to defendants, and- defendants had no intention of repaying the money which applicants were induced to pay to ^defendants, the scheme was clearly within the scope of the main allegations of the indictment. The statute does not malee the guilt or innocence of one who devises such a scheme dependent upon its actual success.

It is wholly unsound to say that the court should hold that the land law was so firmly established that the representations made by defendants were “braggings,” and would be unavailing to deceive any one and would be censurable merely because they were silly. The court cannot say the plan was absurd in its outline or contemplated steps. Schemes to defraud are often devised and carried out by designing men, who make representations which seem transparent to some people ; yet it is astonishing how many credulous ones are induced to believe in the alluring promises of wealth and part with money upon the faith of the representations.

[4] Plaintiffs in error argue that an erroneous statement concerning a point of law is not indictable. If such a statement is honestly made, of course, no criminal charge will stand; but if there is a willful misstatement, made deliberately and with intent to deceive, and with a purpose to perpetrate a- fraud, it is plain the statement may become an essential element in crime. It is a misunderstanding of the indictment to argue that it should be read as a charge that defendants considered that in point of law the regulations of the Eand Office were unwarranted, and that defendants showed confidence that the courts would declare the law as defendants construed it. No construction of the. pleading can ignore the elements of criminal intent and false representations and deceit which are the significant things alleged. The Department of the Interior may have been in error in respect to its regulations concerning applications for some classes of the lands described, and it may have been entirely lawful for defendants to decline to follow the regulations of the department, yet if defendants with *773corrupt intent made the misrepresentations alleged; and with the evil purpose set forth devised the scheme to defraud, well knowing that preference rights could not he obtained through the Interior Department to acquire the lands referred to, they were guilty, provided always they used the mails as alleged. United States v. Comyns, 248 U. S. 349, 39 Sup. Ct. 98, 63 L. Ed. 287; Byron v. United States, 259 Fed. 371, 170 C. C. A. 347.

[5] Error is assigned to an instruction to the jury wherein tlie court commented upon the decision in Hoover v. Salling, 110 Fed. 43, 49 C. C. A. 26, decided in 1901, by saying that it had been there held that the rules and regulations of the Department of the Interior as applied in that case were contrary to law, but that a filing had been accepted by the Hand Office and the applicant therefor had initiated a right, and when that right was subsequently denied by the Hand Office and a, patent was granted to another person the fact that his application had been accepted gave him a standing in a court of equity, and that, in that case he was the only party who had such a right, and that in a court of equity it was held that under all the circumstances the ruling was inoperative as against his claim. The contention is that tlie court should have granted the request to modify the instruction by stating that, if the application is made, whether or not allowed by the department, if under the law it should be allowed and is rejected, the successful applicant may firing an action in court as though his application were allowed in the first instance. Modification was denied, and in denying it we find no error.

The instructions explained the general character of the rules of the Interior Department, and the difference between a department rule to be enforced by the department and a penal statute to be enforced by the courts, and the court charged that under the rules of the Hand Department applicants referred to in this case could not obtain preferential or vested rights to the lands applied for by filing their applications for the purchase of the same in the local land office, and that such applicants could not and did not thereby acquire any right to institute suits in equity to set aside patents which might be issued to oilier persons for the lands which the applicants applied for, and have the holders of such patents declared trustees for them; that under the department rules applicants for timber and stone entries had to inspect land applied for personally before filing; and that with the question of the reasonableness of such a rule the jury had no concern, for the rule had the force of law until set aside or annulled. Inasmuch as there was no proof of any right in the defendant to get title through the Interior Department, modification was properly refused. The case was tried under an allegation of the indictment that defendants represented that they would obtain title to these lands from the Department of the Interior, not that they had obtained title for the applicants.

[8] A witness, Canfield, was permitted to testify over objection of defendants to certain representations made in his presence by defendants to one Shull, named as one of the “victims” in the indictment, concerning land Shull had applied for. The testimony was competent, even though Shull was not called.

*774It is unnecessary to go further into detail. The more important points are sufficiently covered by what we have said, and upon consideration of the whole record we are led to the conclusion that the case is free from error of law and that the verdict of the iury must be sustained.

Affirmed.

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