Foster v. Goldsoll

48 App. D.C. 505 | D.C. Cir. | 1919

Lead Opinion

Mr. Justice Kobb

delivered the opinion of the Court:

The complaint against Goldsoll is in three counts, the first charging that on March 25, 1915, in Paris, with intent to defraud the Eepublic of France, he fraudulently did pretend and represent to the Pierce-Arrow Motor Car Company, through its agent Norris Perry, “that no order or orders for the purchase in the United States of America of automobile trucks could be obtained from the French government except through an agency established in the city of Paris * * * and the payment to said agency of certain sums of money as commissions on all orders placed with the company, and that the relations of him, the said Frank Joseph Goldsoll, with the War Department of the French government, were such that he, the said Frank. Joseph Goldsoll, was in position to control the giving of orders for American automobile trucks; and by the employment of said false and fraudulent pretenses and representations, the said Frank Joseph Goldsoll unlawfully * * * and with intent to defraud the Eepublic of France did induce the said Pierce-Arrow Motor Car Company, in reliance upon said false and fraudulent pretenses and representations, to designate him, the said Frank Joseph Goldsoll, under the name of Elie Heliopoulos, as agent and representative in the city of Paris, Eepublic of France, of the said Pierce-Arrow Motor Car Company; and thereby the said Frank Joseph Goldsoll between the 9th day of July, 1915, and the 31st day of December, 1917, did obtain from the government of the Eepublic of France the sum of, to wit, $1,563,104.84, * * * the money and property of the said Kepublic of France, in the manner following; that is to say, the said money was part of the payment made by the said Republic of France to the Pierce-Arrow Motor Car Company for certain automobile trucks purchased from said Pierce-Arrow Motor Car Company by said Republic of France, the cost of which said automobile trucks to the said Kepublic of France had been burdened so as to include the amount of the commissions to be paid to said Frank Joseph Goldsoll, * * * •which said sum of money as commissions, the said Pierce-Arrow Motor Car Company did pay to the said Goldsoll; whereas, in truth and in fact orders for the purchase in the United States of America of automobile trucks could be obtained from the French government without an agency established in the city of Paris * * * and without the payment of certain sums of money as commissions on orders for the purchase of automobile trucks by the said Republic of France;” that Goldsoll was not in position to control the giving of orders, and that “at the time of the making by him of such false and fraudulent pretenses and representations aforesaid and the obtaining by him of money as aforesaid,” lie well knew the said representations to be false and fraudulent. The second count does not differ from the first materially, and the third count charges an attempt, so that we are concerned with the first only.

That count in effect charges Goldsoll with the making of false representation to the Pierce-Arrow Motor Car Company, through its agent Perry, which induced that company to appoint him its agent and to pay him certain commissions, and that he thereby obtained from the government of the Republic of France the amount named, being money of that government.

“Obtaining money, valuable securities, or other property by false pretenses” is made criminal by the laws of both the; United States and France, and therefore is an extraditable offense under the treaty of July 26, 1911, between the two countries. 37 Stat. at Ij. 1526. Under article 1 of that treaty the contracting’ parties agree to deliver up persons who, having been, charged with or convicted of any extraditable offense within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territory of the other, “provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” It results, therefore, that the question of the guilt of Goldsoll must be determined with reference to the laws of the District of Columbia.

Section 842 of our Code (31 Stat. at L. 1326, chap. 854) provides that “whoever, by any false pretense, with intent to defraud, obtains from any person anything of value,” shall be jmnished. In Robinson v. United States, 42 App. D. C. 186, this court in interpreting the statute said: “The elements of the offense are a false pretense or false representation by the defendant or someone acting for and instigated by him, knowledge by the defendant as to the falsity, reliance on the pratense or representation by the person defrauded, intent to defraud and an actual defrauding.” The justice who sat as a committing magistrate was of opinion that “the record as presented to.me (him) shows a sufficient ground for a judicial investigation of his (Goldsoll’s) guilt by a court competent to make it.” The justice whose decision we now review reached the opposite conclusion. The question before us is whether there was presented to the committing magistrate “competent and adequate evidence” that a crime had been committed by the appellee Goldsoll. Bingham v. Bradley, 241 U. S. 511, 60 L. ed. 1136, 36 Sup. Ct. Rep. 634. Of course, the writ of habeas corpus is of much narrower scope than a writ of error, but it would be valueless, indeed, did it not permit a reviewing court to determine whether, under the laws of the land, there is substantial evidence tending to prove the guilt of the accused. Our sense of obligation to foreign powers under extradition treaties ought not to outweigh our sense of duty to the accused and cause us to surrender him “in violation of those well-settled principles of criminal procedure -which from time immemorial have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defense as others accused of crime within our own jurisdiction.” Grin v. Shine, 187 U. S. 181, 47 L. ed. 130, 23 Sup. Ct. Rep. 98, 12 Am. Crim. Rep. 366.

We come now to an analysis of the record before us. We use the term “record” advisedly, for much of the matter therein is not evidence in any real or legal sense, although counsel for the accused throughout have not sought to stand upon technientities; nor shall we. The Pierce-Arrow Company is one of the large and reputable automobile firms of the United States. In common with most American firms it sought to supply the Allied governments with its output, and in October and November of 1915 obtained certain orders from the Republic of .France. There followed, according to the evidence and the finding of the committing magistrate, “a lean period, several months, and which the Pierce Arrow Company spent in watchful waiting.” It was impossible even to obtain an interview with the French Purchasing Commission in New York. The situation apparently was hopeless. Mr. Perry was directed to proceed from London to Paris and get in touch with the French War Office. He carried out instructions, hut without success. Of the two men he saw in that office, one, as we have seen, informed him that no more trucks were needed, while the other says he never promised him “any order whatsoever.” Mr. Perry then saw Heliopoulos, who in turn saw Higgins and De Yero of Goldsoll’s firm, and later a “verbal arrangement” was filtered into between Perry, Lleliopoulos, Higgins, and He Yero looking to the appointment of Heliopoulos as the Paris i oprosentative of the Pierce-Arrow Company. Up to this time Perry had neither seen nor heard of Goldsoll, so far as this record discloses. He certainly had not seen him. Perry cabled for authorization, and he then saw Goldsoll for the first time. There is no evidence that Goldsoll made any representations whatever "to him, or to anyone else. The complaint is against Goldsoll and does not charge a conspiracy. Whatever representations may have been made, therefore, by He Yere and Iliggins (and there is no evidence as to any improper representations by them) are not chargeable to Goldsoll, as there is no evidence that Goldsoll had even heard of Perry until after the verbal arrangement was entered into. "We already have sufficiently analyzed the two cablegrams which, in our view, have assumed an importance in the case all out of keeping with their terms. The evidence is convincing that Goldsoll did not even meet Perry until a day or two after the second cablegram was sent, and there is no evidence that either cablegram ever was brought to the attention of Goldsoll. Upon what theory, therefore, it may be said that they constitute evidence against him is not apparent to us. But, be that as it may, there is nothing suspicious in either of the cablegrams or inconsistency between them. And at this point it may be observed that in a criminal case the accused is entitled, where two interpretations are open, to that consistent with innocence. This case throughout seems based upon unrelated and unwarranted suspicions, from which strained inferences have been deduced. The French War Office knew that Goldsoll’s firm represented a considerable number of automobile firms, and it "does not appear that the propriety thereof ever was questioned. From the testimony of the officers of the French Automobile Service it is apparent that the firm was in a favorable and apparently unique position to obtain orders for its principals. That business was obtained by the Pierce-Arrow Company immediately after Goldsoll’s firm, became its agent must be admitted, indeed is not denied. Here, again, in the face of admitted facts, we are asked to find that Goldsoll had nothing to do with obtaining these orders; in other words, that the Pierce-Arrow Company would have obtained the business anyway. We think the logical inference deducible from the facts is to the contrary. But, even assuming that Goldsoll’s firm did nothing, it is not for the French government to complain, since the Pierce-Arrow Company -saw fit to enlist the services of Goldsoll, and is not now complaining.

Much is attempted to be made of the supplemental contract between the Pierce-Arrow Company and Goldsoll under date of September-30, 1915, but in our view there is nothing unusual about tbat contract. Tbe commission Goldsoll’s firm had been receiving was less than that voluntarily offered the Bethlehem Steel Company, and, on the uncontradieted evidence, less than the firm was receiving from other manufacturers. It was not strange, therefore, that Goldsoll should suggest that this discrimination be removed, and nothing more than that was done. The commission provided in the supplemental contract was the usual commission allowed American dealers. Notwithstanding the apparent attempt in the examination of Mr. Thomas of the Pierce-Arrow Company to have him express an opinion inconsistent with that really entertained by him concerning the interview with Goldsoll in September of 1915, we think a fail’ reading of his entire testimony makes it very clear that his understanding of the interview did not differ from that of Yice President May of the same company; namely, that the Goldsoll firm, being in touch with the purchasing department of the French War Office, was in a good position to get business. We have seen that Do Yere of the Goldsoll firm, possessed the entire confidence of that office. Therefore Goldsoll’s statement was not an extravagant one. The complaint involves the March, and not the September, contract; but, assuming the relevancy of the latter contract on the ground of intent, it adds nothing to the ease, because it discloses no wrongdoing, or even suspicion of wrongdoing, on the part of any one.

We attach very little importance to the correspondence between the Pierce-Arrow Company and Goldsoll’s firm concerning the Williams letter of November, 1915. In the first place, there is no evidence that this correspondence ever came to the attention of Goldsoll, and, in the second, his firm very promptly repudiated any connection with the parties who had furnished Williams his information. Not content with that, Goldsoll’s firm very clearly and emphatically stated “that the French authorities have never entered into a deal of this sort with anyone, neither have they or any one connected with them sought a commission or profit of any kind.” And this to the officials of the company to whom it is charged Goldsoll, the head of the same firm, had represented exactly the contrary for the purpose of being appointed its agent. In other words, this statement is inconsistent with the charge against Goldsoll.

Viewed from any angle we can find no “competent and adequate evidence” (which, as we understand, means substantial evidence), in support of the charge against Goldsoll. The complaint is that false representations were made to the Pierce-Arrow Company and that the money was obtained from the French government'. The contract of purchase was between the Pierce-Arrow Company and that government. Payments by the government were to that company in this country, and these payments of course included the commissions here involved. ■In short, it was the usual and customary arrangement. The Pierce-Arrow Company then paid its agent here. If anyone was deceived, it was the Pierce-Arrow Company, and not the French Republic; for the commissions paid Goldsoll’s firm in New York were not paid by that Republic, but by the company from money of which the company had absolute ownership. The theory of the prosecution is that no agency was necessary. Jn other words, that exactly the same number of trucks would liave been purchased by the French government had the Gold.'soll agency not intervened. It logically follows that no deception was practised upon that government. It wanted Pierce-Arrow trucks, and it got what it wanted, at an agreed price. But it knew that an agency did intervene, and that knowledge came to it immediately following the creation of the agency. Since commissions are usually considered a necessary incident of agency, it is somewhat strange that more than two years should have elapsed before any effort was made to deal directly with the Pierce-Arrow Company. Of.course, that company would have been perfectly willing to eliminate the agency, but, having unsuccessfully tried direct dealings, it ought not now to be convicted of bad faith by a finding based upon pure suspicion that it made a correct bargain with Goldsoll.

The prosecution cites Com. v. Call, 21 Pick. 515, 32 Am. Dec. 284; State v. Hargrave, 103 N. C. 328, 9 S. E. 406, and Com. v. Johnson, 161 Ky. 727, L.R.A.1916D, 261, 181 S. W. 368, each of which we have examined. These cases are authority for the proposition that if one person makes a false statement to another and obtains from that other person money, the crime of false pretenses has been committed even though the loss falls upon a third person, but that is not this case. The contention here is that the alleged false pretenses were made to the Pierce-Arrow Company, and that the money was obtained “from the government of the Republic of Prance.” The payments by Prance not having been induced by the false pretenses, the most essential element of the crime of false pretenses is lacking. And it was not possible for the prosecution to avoid the creation of this illogical situation; for had it been alleged that Goldsoll obtained the money from the Pierce-Arrow Motor Car Company, obviously his extradition to Prance could not have been accomplished.

The Pierce-Arrow Company endeavored to do business direct with the French government. It was unsuccessful, and, exercising its undoubted right, it appointed an agent and paid that agent usual and reasonable commissions. Of course the price to the French government was “burdened” with those commissions, but that is true of all sales, and because that government now is convinced that it should not have permitted an agency to intervene is no ground for holding Goldsoll, whose firm succeeded where its principal failed, guilty of a crime. We fully concur in the able opinion of the justice, whose decision we now affirm, with costs. A ffirmed.

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Dissenting Opinion

Mr. Chief Justice Smyth

dissenting:

For the reasons which I am about to state I am unable to concur in the opinion just announced.

Goldsoll is charged with obtaining from the Republic of France $1,563,104.84 by means of false representations made by him to the Pierce-Arrow Company. It is conceded that the offense charged must be denounced by the law of the District of Columbia. Section 842 of our Code [31 Stat. at L. 1326, chap. 854] provides that “whoever by any false pretense, with intent to defraud, obtains from any person anything of value * * * shall * * * be imprisoned.” There is nothing in this which requires the false pretense to be made to the person defrauded. To say that there is would require that we read into the section a limitation which Congress did not place there. Our duty is to enforce the law as we find it, not to mold it to suit cur convictions as to what it should be. True, in the Robinson Case, 42 App. D. C. 186, referred to by the majority, this court held that the representations must be made to the person defrauded, but I think the holding was obiter, for the reason that the question was not presented for consideration, it being* admitted that the representations in that case were made to the person who was defrauded.

Other courts have dealt with the subject under a statute similar to ours. A person was charged in Massachusetts with having defrauded another by. false pretenses made to a third person. Speaking of the indictment the supreme judicial court of the commonwealth said: '“A combination of facts has here occurred and may occur again, where a deception has been practised upon one person, and his property obtained, and the loss has fallen upon another, the intention being to defraud him. This is clearly within the mischief intended to be guarded against, and, we have no doubt, within the effective prohibition of the statute.” Com. v. Call, 21 Pick. 515, 520, 32 Am. Dec. 284. A Kentucky statute provides that “if any person by any false pretense, statement, or token, with intent to commit a fraud, obtain from another money, property, or other thing, which may be the subject of larceny, * * * he shall be confined,” etc. Commenting* upon the supreme court of the state said: “The statute does not require that the false statement should be made to any particular person, or that it should be with the intention of committing a fraud upon the person to whom the false statement was made. The offense is committed when the false statement is made with the intention to commit a fraud, and money or property is thereby obtained.” Com. v. Johnson, 167 Ky. 727, L.R.A.1916D, 267, 181 S. W. 368.

In State v. Hargrave, 103 N. C. 328, 9 S. E. 406, it appeared that one Hargrave had a claim against the county for witness fees which he assigned to Olodfelter. He then went to Kinney, the court officer authorized to pay the claim, represented that he was still the owner of the claim, and obtained the money thereon. Charged with obtaining from Kinney money by false pretense with the intent to defraud Clodfelter, he was convicted and the conviction upheld by the supreme court, which said “that the making of a false representation to one person so as to defraud another constituted an indictable offense, under the statute.” The accomplished fraud must have reasonable connection with the pretense (Bishop, Statutory Crimes, see. 452), and the pretense must be shown to be false, and made ■with intent to injure or defraud. Defraud whom? The statute does not in terms inform us. Usually the intent is to defraud the owner of the thing obtained; but it is sufficient if the intent be to defraud anyone connected with the ownership, possession, or custody of the chattel.” Mack v. State, 63 Ala. 138, 140. I think the indictment clearly charges a crime under the laws of the District of Columbia.

Before proceeding to consider the evidence I think it proper to inquire by what rule, according to the decisions of the Supreme Court of the United States, we should be guided in our investigation. As I read those decisions, if there was any legal evidence of Goldsoll’s guilt submitted to Mr. Justice Hitz, sitting as a committing magistrate, the case must be reversed and the writ of habeas corpus discharged. That court has said that in a habeas corpus proceeding the judgment of the committing magistrate cannot be reviewed “on the weight of evidence “(Ornelas v. Ruiz, 161 U. S. 502, 509, 40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689) ; that unless it can “be said that the commissioner had no choice on the evidence but to” (id. 511) discharge the accused he is not entitled to the writ; that the judgment of the commissioner cannot be reviewed if “there was any legal evidence at all upon which the commissioner could decide that there was evidence sufficient to justify his commitment for extradition” (Bryant v. United States, 167 U. S. 104, 105, 42 L. ed. 94, 95, 17 Sup. Ct. Rep. 744); that “the ques-don simply is whether there was any competent evidence before the commissioner entitling him to act under the statute. The weight of the evidence was' for his determination.” [Italics mine.] McNamara v. Henkel, 226 U. S. 520, 523, 57 L. ed. 330, 332, 33 Sup. Ct. Rep. 146. This decision is followed in Bingham v. Bradley, 241 U. S. 511, 511, 60 L. ed. 1136, 1140, 36 Sup. Ct. Rep. 634. In the last case the court said that the finding of the commissioner could not be reversed “if he acted upon competent and adequate evidence,” I do not think the court intended by the use of the word “adequate” to reverse its previous holdings. “Any legal evidence” is adequate. See also Strassheim v. Daily, 221 U. S. 281, 55 L. ed. 735, 31 Sup. Ct. Rep. 558. Little weight is given in proceedings upon habeas corpus to those, niceties of reasoning which may find effective play on the trial of a criminal case. Glucksman v. Henkel, 221 U. S. 508, 512, 55 L. ed. 830, 833, 31 Sup. Ct. Rep. 704. In the Strassheim Case the court in denying the application for the writ said disparingly'that “considerable ingenuity was spent in pointing out defects that would occur to no one outside the criminal law,” and objections which “savored of technicality” were rejected in the Bingham Gase.

Following, then, the rule announced by the Supreme Court of the United States in the foregoing decisions, it seems to me that our duty is to search the record carefully, not for the purpose of determining whether or not we can find sufficient evidence Avhicli, if believed by the magistrate, would have warranted him in discharging the accused, but for the purpose of ascertaining whether or not the holding of the magistrate is supported by “any legal evidenceand here, as I understand the opinion of the majority, is where my associates and myself part company. This is well illustrated by the majority opinion, wherein it is said “that in a criminal case the accused is entitled, where two interpretations are open, to that consistent with innocence.” If the testimony is open to two interpretations, the examining magistrate may take his choice, and we have no power under the decisions which I have just quoted to review his action.

Perry at the instance of the Pierce-Arrow Company arrived in Paris on March 23, 1915, for the purpose of obtaining orders from the French Minister of War for five-ton automobile trucks, upon which he was authorized to make a discount of 15 per cent from the list price. Tie soon learned that five-ton trucks were not then needed, but that possibly two-ton trucks might be, and if they were they would be purchased in New York. The next day he sought the aid of Tleliopoulos, who told him that he would see what could be done. Soon thereafter Ileliopoulos went to the firm of Gold soil, 12 Rue Tronchet, where he found !)e Yero and Higgins. He told them of Perry’s visit, and they said, “bring him, there is perhaps something to be done.” He brought him to Goldsoll’s office but did not remain. On this point he testified; “I have simply brought him to 12 Rue Tronchet, and I have been present at none of the interviews that they have had together.” What took place at this meeting or who was there we do not know, except by inference. Heliopoulos said that Higgins told him that he, Higgins, “asked Mr. Perry if he was authorized to sign a contract granting to us the exclusiveness for the duration of the war.” The answer was that he had authority, but “for more certainty he was going to telegraph.” This testimony is purely hearsay and should not be considered. It is not “legal evidence.” Bingham v. Bradley, 241 U. S. 517, 60 L. ed. 1140, 36 Sup. Ct. Rep. 634, supra.

The meeting between Perry and those who were present at Goldsoll’s office, it appears, took place on March 26th. At 9 :40 a. m. of that day he cabled his company that the French government did not require any five-ton trucks, and asked the company to give him at London “best monthly deliveries, discount, and body prices by June 5. He [the French Minister of War] needs my firm offer immediately. If accepted, will cable American Commission place order with you.” This cablegram must have been sent prior to the meeting at Goldsoll’s office; for at 1:55 on the same day and after the meeting he cabled to his company: “Very large orders are certain on same terms as before if allow trading house here seven and value otherwise possibility business very unlikely. Strongly advise you cable me instructions sign commission letter this and future business immediate action necessary. Cable here deliveries twos and fives April, May, June, make no offers your side instruction will be sent New York place, orders with you presume my commission payable.” The Pierce-Arrow Company responded to Perry’s second cablegram and authorized him to sign a contract, which he did. It is beyond doubt that something took place between the sending of the two .cablegrams which wrought a marked change in Perry’s mental attitude towards the business which he had in hand. The first indicates no confidence on his part that he would be able to do business with the War Department; the second shows that he had become convinced that he could and that “large orders are certain.” It is urged that these telegrams aré merely hearsay and hence incompetent, but I do not think so. They are in the nature of verbal facts (3 Wig-more, Ev. 1768) disclosing the change which had taken place in Perry’s mind, and its character. What produced this change? It had a cause. Something must have been said or done at the meeting in Goldsoll’s office which led Perry to believe that the person to whom he had there talked could do what he had been unable to do, — that he had power to procure contracts where Perry had failed. On no other theory can the change be accounted for. Was that person Goldsoll, and, if so, what did he say?

The majority opinion says that Perry and Goldsoll did not come together until after the second cablegram was sent; but I think the facts, as I shall show, indicate otherwise — at least there is room for that inference; and if there is, that is sufficient for the purpose of this proceeding. Heliopoulos is relied upon to establish what the majority asserts, but his competent testimony does not do so. As I have shown, he testified that he was not present at any of the interviews which Perry liad in Goldsoll’s office prior to the time the contract was signed, lie further said: “I was present at only one talk — the one where took place the signature of the contract and where Gold-soil was present.” No one, then, tells us who made the representations which induced .Perry to send the second cablegram, but we do know that Goldsoll was present at the time the contract was signed and that it was made for his use and benefit. To be sure it runs in the name of lieliopoulos, but Goldsoll, according to the witness Thomas, stated that “he trades under the name of lieliopoulos to avoid the appearance of a monopoly,” and lieliopoulos said: “I am not at all of the Goldsoll syndicate. I am only a simple intermediary.” There is testimony to the effect that lieliopoulos was to have some interest in the contract, but the commissioner was justified in believing- the testimony to which we have just invited attention as showing that Goldsoll had no associates, — that lieliopoulos was only an intermediary.

Somebody must have conducted the negotiations with Perry which resulted in the sending of the second cablegram and the making of the contract. I think it more reasonable to find that this was clone by Goldsoll, the person interested, than by someone not interested. I think, also, that the facts recited warrant the inference that at the interview between Perry and Goldsoll the whole situation was gone over fully; that Perry explained to him that he was authorized to give the French government a discount of 15 per cent on five-ton trucks, and that he was unable to secure orders for trucks of any kind [under the circumstances what could have been more natural than a discussion of such matters between them] ; also that the representations which induced Perry to send the second cablegram and close the contract were made by Goldsoll.

I next come to consider the nature of the representations made by Goldsoll.

Goldsoll came to tliis country in August of the same year, 1915, and had an interview with II. Nerr Thomas, assistant general manager of the Pierce-Arrow Company, in which he stated “that he was in position to control, through the War Department [of Prance] the giving of orders for American trucks,” and asked that in the future he should be allowed 12] per cent and the French government only 7-]- per cent. This testimony was given in answer to a question by Mr. Pecker, special deputy attorney general of the State of New York. It is said in the majority opinion that there was an “apparent attempt in the examination of Mr. Thomas * * * to have him express an opinion inconsistent with that really entertained by him concerning the interview with Goldsoll.” This criticism of a public official, endeavoring to perform his duty, is not, in my judgment, warranted by the record. Furthermore, the answer did not express an opinion. It was a positive statement of fact: — “Yes, he said so.” Mr. Thomas was not a single person, easily misled. At no place did he show dissatisfaction with his answer or ask that he might be permitted to modify it. It is then stated that a fair reading of his entire testimony makes it very clear that his understanding of the interview with Goldsoll did not differ from that of Vice President May of the same company; and the conclusion is reached, as I understand it, that Thomas did not mean what he said when he answered the question under consideration. But this, I submit, is weighing the testimony, — the very thing the Supreme Court of the United States says this court may not do in a proceeding of this character. Ornelas v. Ruiz, 161 U. S. 502, 509, 40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689.

The Pierce-Arrow Company, acting through Thomas, yielded to the request of Goldsoll and made a supplementary contract with him, providing that thereafter he shofild receive 12-J- per cent and the French government 7-£ per cent discount. When Goldsoll made the statement to Thomas that his relations with the French War Department were such that he could control the giving of orders for American trucks, he must have done so in the belief that it would persuade him to change the contract so as to give him, Goldsoll, the 12J per cent. It was the only argument used. Ho was dealing with the same subject and seeking to accomplish the same end as those covered by the contract with Perry. Is it not a permissible inference that he felt that what had persuaded Perry would persuade Thomas, and hence that the representation in each case was identical,— that the statement -made to Thomas “was a retrospectant indication” (3 Wigmore, Ev. sec. 148) of the representations made to Perry? This may be indulging in niceties, but under the decisions of the Supreme Court of the United States to which I have invited attention, we are permitted to do that in a case of this kind, for we are seeking not for convincing proof, but for “any legal evidence” of the crime charged.

Goldsoll was a soldier of France, a gunner conductor in the artillery. In 1916, a year and some months after he made the contract of March 25 and while it was still being performed, he was in New York. General Vignal, his military superior, discovering that he was there without legitimate reason, ordered him to return to France, but he did not obey, claiming he “had a, bad crisis of appendicitis.” An examination by a physician showed that he was -well. General Yignal then sought him with a view to again ordering him to France. After searching for sometime he was able to locate him, and renewed the order. Goldsoll then endeavored to influence the French officials to permit him to remain here, but without success, lie was again ordered, and for a third time, to proceed to France, and also admonished that unless he obeyed he risked being condemned as a deserter in time of war. Still he lingered. Tieing a soldier, why this reluctance to return to his country at a time when she sorely needed fighting men ? Does it not warrant the inference that he was conscious of having committed some wrong against her law? If so, it must be the crime for which his country now demands him, for the record does not show that he was at that time under any other charge. Flight, or refusal to return, which is the same thing, is a circumstance tending to show guilt. Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154; Bird v. United States, 187 U. S. 118, 47 L. ed. 100, 23 Sup. Ct. Rep. 42. I think that these circumstances when taken together are sufficient to justify the belief that Goldsoll procured the contract of March 25 by representing that orders from the French government to the Pierce-Arrow Company for American trucks could be procured only through him, and that he knew at that time that the Pierce-Arrow Company was willing to allow the French government a discount of 15 per cent on five-ton trucks.

The falsity of tbe representations is abundantly established by the testimony of several witnesses, and clearly authorized a finding to that effect. But did the French government lose anything by reason of the representations ? It is admitted that it was the practice of the Pierce-Arrow Company to allow a discount of 20 per cent from the list price of its trucks, — 7-J per cent to the'customer and 12-|- per cent to the dealer. No matter what the division of the 20 per cent might be, the company alv ays insisted upon receiving 80 per cent of its list price. The division, then, of the 20 per cent between the dealer and the customer in nowise affected the price which it received for its products. Perry, the London agent of the Pierce-Arrow Company, was authorized to sell five-ton trucks to the French government at a discount from the list price of 15 per cent. By the contract with Goldsoll he was to receive 7J per cent; hence the French government could receive but 12-^ per cent. Thus France was coriipelled to pay 2-J per cent more than it would have had to pay if the contract had not been made.

In April, 1915, two-ton trucks were ordered through Gold-soil, but the first order for five-ton trucks was not until November. In August, 1917, the Pierce-Arrow Company wrote the French government “that the price of its five-ton trucks comprises a commission that we are obliged to pay our agent,” and followed with a statement that if it could secure a discharge of its obligation to pay the agent the commission it would reimburse the Republic “the entire sum or part of said commission of which it had been freed.” The agent referred to was Goldsoll. As we have seen, he in September, 1915, induced the company to supplement the contract of March 25 by changing the rate of commission so that the French government would receive only 7¿ per cent instead of 12-J per cent, and he would receive 12-J per cent instead of 7-| per cent. Under this arrangement the French government was obliged to pay 7-|- per cent more for its trucks than would have been required of it if the arrangement had not been made. But as this arrangement was effected upon representations made in the United States, perhaps the additional amount which France had to pay on its account cannot be attributed to the contract of March 25. The arrangement of September 25 did not, however, supplant the first contract. It only supplemented it, leaving the first contract as it was; and under that contract, as already appears, the French government contract had not been made.

This money was paid to the Pierce-Arrow Company by the French Republic!, and it is urged that it thereby became the money of that company; that when Goldsoll received it it was the property of the company, and hence that it cannot be correctly said that he, by his false representations, defrauded the French Republic; that if he defrauded anybody it was the Pierce-Arrow Company. This is not tenable. While the company had the legal title to the money at the time it was delivered to Goldsoll, it had exacted the money from the French government because of the representations which he had made, and the French government was as truly defrauded as if the money had been paid directly to Goldsoll instead of through the Pierce-Arrow Company. In the Massachusetts, Kentucky, and other cases cited above, the legal title to the money received by the accused was not in the defrauded person at the time he received it; nevertheless it was held that he was guilty of obtaining money under false pretenses.

Equally untenable is the claim that since the complaint charges that the money was received from France, evidence that it was obtained from the Pierce-Arrow Company, which had received it from France, does not support the charge. The manner in which the money was obtained is specifically set out in the first count, and conforms strictly to the testimony adduced. A count must be construed as a whole, and when this is done there can be no doubt as to what is meant by the statement that the money was obtained from France. It is not necessary that the same exactness should be observed in a complaint as in an indictment or information, upon which the accused must stand trial. In Bingham v. Bradley, 241 U. S. 517, 60 L. ed. 1140, 36 Sup. Ct. Rep. 634, it appears that there was no allegation that the crime was committed in Canada, the requesting country; nevertheless the Supreme Court of the United States sustained it, saying that it was inferable from statements in the complaint that the crime was committed there, and concluding with the observation that it was “clear that the intent was to charge that it was committed in Canada.”

Finally, it is urged that if there was any evidence tending to show that Goldsoll committed the crime alleged, it was committed in the United States, and not in France, because while the false pretenses may have been made in France the money was obtained in the United States. He committed part of the offense in France and compléted it in the United States. “We think it plain,” says the Supreme Court of the United States, “that the criminal need not do within the State every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the State and does the rest elsewhere, he becomes a fugitive from justice, when the crime is complete, if not before. Re Cook, 49 Fed. 833, 843, 844. Ex parte Hoffstot, 180 Fed. 240, 243. Re Sultan, 115 N. C. 57, 28 L.R.A. 294, 44 Am. St. Rep. 433, 20 S. E. 375. For all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there (Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291), and his overt act becomes retrospectively guilty when the contemplated result ensues.” Strassheim v. Daily, 221 U. S. 280, 285, 55 L. ed. 735, 738, 31 Sup. Ct. Rep. 578.

The evidence is by no means satisfactory or convincing, but it is not necessary that it should be. Sternaman v. Peck, 26 C. C. A. 214, 51 U. S. App. 312, 80 Fed. 884. Re Herres, 33 Fed. 165, 167, Judge Brewer said: “I might observe, with reference to these extradition proceedings, that the substance, and not the form, should be the main object of inquiry, and that they should not be conducted in any technical spirit with a view to prevent extradition.”

The testimony may be-entirely consistent with the innocence of Goldsoll, but whether it is or not is a matter with which wc have ño concern. All we are required to is to ascertain whether tliere is “any legal evidence” on which to base the charge made against him.

The Supreme Court has shown in extradition proceedings a strong disposition to grant the request of the State interested whenever it is possible under the law to do so. If ever there was a case where all doubt should be resolved in favor of extradition, this is the one. Goldsoll, a citizen of France — more even than that, a soldier of France, — is charged with defrauding his government out of more than $1,500,000 at a time when it was in dire need. France demands that he answer to her for his dereliction. He appeals to the courts of this country to save him from making response to the charge. I think his appeal should be denied, and that he should be returned to France that lie may be acquitted if innocent, or punished if guilty.

A petition for appeal to the Supreme Court of the United States was denied May 10, 1919.

Case Details

Case Name: Foster v. Goldsoll

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 31, 1919

Citation: 48 App. D.C. 505

Docket Number: No. 3216

Court Abbreviation: D.C. Cir.