Thе appellant was convicted of a scheme to defraud in the execution of which the United States mails were used in violation of section 215 of the Criminal Code (18 U.S.C.A. § 338), and he appeals.
The transaction charged in the indictment and described in the testimony was executed in 1935.. The' aрpellant had in his possession six forged $1,000 bonds of the city of Omaha, Neb., ea.ch bearing interest at the rate of 4% per cent, payable semiannually on May 1st and November 1st. The bonds were dated November 1, 1925, and matured November 1, 1945. The interest coupons maturing prior to May 1, 1935, had been сlipped.
On January 25, 1935, appellant persuaded Mrs. Myrtle S. Wilson of Kansas City, Mo., to negotiate for him a loan of $5,000 at the City National Bank & Trust Company of Kansas City, using the forged bonds as collateral. At his request she executed the loan upon her own note for 90 days and delivered to him the proceeds.
When the note matured. about April 25, 1935, appellant gave Mrs. Wilson $75 with which to pay the interest and requested her to renew the note, leaving the bonds as collateral. At the same time he asked her to clip the coupons and send them in for payment and turn the money over tо him. In accordance with his request, Mrs. Wilson renewed the note; and an officer of the bank clipped the coupons, placed them in an envelope, and mailed them to the Federal Reserve Bank in Omaha with a collection letter to the county treasurer of Douglas county. Upon receipt of the coupons in Omaha they were presented to the county treasurer for payment, marked “forged,” and returned. Upon the discovery of the forgery, Mrs. Wilson paid the note at the bank and endeavored without success to recover from apрellant.
Reversal is urged on four grounds, based upon appropriate assignments of error. Appellant’s propositions may be summarized as follows: (1) The transaction in which the fraud was perpetrated was complete before the mails were used, and the letter, thereforе, did not contribute to carrying out the scheme; (2) there was a variance between the charge in the indictment and the proof; (3) the proof failed to show that the letter referred to in the indictment was ever placed in the United States mails; and (4) the court erred in refusing a requested instruсtion.
The first contention of appellant is that the mail was not used until the last days of April, and that the scheme to defraud ended on January 25th when the money, $5,000, was obtained; and that the
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attempt to cash the coupons and the use of the mails for that purpose was no part of the execution of and not in furtherance of the scheme to defraud. He relies upon Mc-Near v. United States (C.C.A.10) 60 F. (2d) 861, 863; Barnes v. United States (C.C.A.8)
On the 25th day of 'January appellant told Mrs. Wilson that the “interest on the bonds would be almost enough to pay the interest on the loan”; and on April 25th he told her “to have the coupons clipped and sent to Omaha * * * so that the money would be available as soon as possible. * * * ” He advanced the $75 necessary to pay the interest and directed Mrs. Wilson to turn the proceеds from the coupons, about $129, over to him when it arrived. Evidently he assumed that the forgery would not be detected if the coupons were sent in for collection through the bank.
The scheme alleged in the indictment was a continuing one. It was not limited to a scheme to defraud Mrs. Wilson and the Kansаs City bank only. It is charged that the scheme contemplated defrauding '“that class of persons, buying, selling, transferring, negotiating, investing in or making loans on municipal bonds and securities.” This charge is supported by the fact that about May 1st, after the note was renewed at the bank and before the forgery was •discovered, appellant took to Mrs. Wilson seven other bonds of the same kind and asked her to get a loan on them. The scheme was at that time, after the letter liad been sent to Omaha, still in the course of execution. That the specific use of the mails alleged and рroved, therefore, tended to contribute both to the immediate and to the subsequent execution of the scheme cannot be doubted. Brady v. United States (C. C.A.9)
The second proposition urged by the appellant is that there is a variance between the charge in the indictment and the proof in respect of the use of the mails. It is said the appellant was charged with causing a letter to be mailed to the county trеasurer of Douglas county, Neb., whereas the evidence referred to a letter to the branch of the Federal Reserve Bank at Omaha.
The indictment charged that the appellant “did * * * place and cause tp be placed in an authorized depositary for mail, to-wit, in the Post Office * * * in Kansas City * * * to be sent and delivered by the mail of the United States according to the direction thereon a certain letter addressed to the county treasurer of Douglas County, Omaha, Nebraska. * * * ”
The evidence is to the effect that the coupons after they had beеn clipped, from the bonds at the Kansas City bank were .placed in an envelope with a collection letter addressed to the treasurer of Douglas county, Neb., and mailed by registered mail to the Omaha branch of the Federal Reserve Bank of Kansas City. When the letter arrived аt the Bank in Omaha, it was sent by a messenger to the office of the county treasurer.
Upon this point it will be observed that it is not claimed that the letter in question was not carried from Kansas City to Omaha in the mails, nor that the proof op
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erated to prejudice appellant’s casе nor that it came as a surprise. The claim is that since the proof shows that the letter was sent to the addressee through the Federal Reserve Bank and a messenger instead of directly, the appellant “may” be exposed “to the injury of being put twice in jeopardy for the samе offense.” The appellant is entitled to protection against such risk if there be ground for the alleged peril. Wol-pa v. United States (C.C.A.8)
Appellant’s next contention is that there was no proof of facts sufficient to warrant the jury in drawing the inference that any letter was placed in the mails. It is not questioned that the letter was transported by some means from Kansas City to Omaha and that it was delivered to the county treasurer’s office by a messenger from the Federal Reserve Bank. Was there evidence from which the jury was justified in finding that it was deposited in the post office at Kansas City to be sent by mail to Omaha? Thе testimony as to what occurred is without dispute. The witness Bradley, assistant cashier of the Kansas City bank where the transaction was handled, testified that the sending of the coupons was done under his direction; that he detached the coupons from the bonds and placed them in the collеction department of the bank with instructions to mail them to the paying agent, the county treasurer of Douglas county, for payment. Gunther Stein testified that he was head of the mailing department of the same bank; that he placed the coupons with a collection letter addressеd to the county treasurer in a brown envelope addressed to the Federal Reserve at Omaha, sealed the envelope, put the stamps on it, placed it with the rest of the registered mail in a mail bag, and it was taken over to the post office right away. And the deputy county treasurer of Douglas county testified that the coupons were presented to him for payment on May 1, 1935, by the Omaha branch of the Federal Reserve Bank in an envelope bearing the name of the City Bank & Trust Company. This testimony excludes any reasonable possibility that the letter was sent by express, a possibility suggested by appellant.
It is settled that the use of the mails in the execution of a scheme to defraud may be established by circumstantial evidence. Cochran v. United States (C.C.A.8) 41 F. (2d) 193, 205; Havener v. United States (C.C.A.10)
The appellant relies upon the cases-of Brady v. United States (C.C.A.) 24 F. (2d) 397, and Freeman v. United States (CC.A.)
In this connection appellant contends-that there is no evidence that he “caused”" or had any thing to do with the mailing of any letter. This contention is without merit. Mrs. Wilson testified without objection and without contradiction that on April 25th, at the time appellant furnished her the sum of $75 with which to pay interest on the renewal note at the bank, appellant directed her “to have the coupons clipped and sent to Omaha * * * so-that the money would be available as soon as possible” — “that he was anxious to have the interest money on the bonds as he was-short.” He did not direct Mrs. Wilson to-use any particular means for transporting-the coupons to Omaha. The authority confеrred left the means, therefore, to her discretion. He was, under the broad instruction given, responsible for the means selected. The use of the mails was a natural sequence of 'the order which he gave, and he cannot be heard to deny that he “caused”" their use. See United Statеs v. Kenofskey,
Finally, appellant insists that the court erred in refusing to instruct the jury, as requested, that if the conduct of the defendant was as compatible with innocence as with guilt, it was their duty to acquit him. Upon this point appellant relies upon the case of McLendon v. United States (C. C.A.6) 13 F. (2d) 777, 779. In the opinion in that case it is said: “That idea in some form should be included in the charge where the evidence is wholly circumstantial or is both circumstantial and direct.' * * * But was we think, included in the charge here. The court was careful to say more than once that defendant was entitled to every presumption of innocence respecting the various elements of the offense which the government was required to prove beyond a reasonable doubt.” So it was in this case. The court instructed fully upon the burden resting upon the government to prоve the elements of the offense beyond a reasonable doubt. With respect to a similar request Judge Learned Hand, speaking for the Circuit Court of Appeals of the Second Circuit in United States v. Austin-Bagley Corporation,
Judgment affirmed.