248 F. 193 | 9th Cir. | 1918
(after stating the facts as above).
The offense with which the defendants are charged is conspiracy to commit another offense denounced by Congress, namely, devising or intending to devise a scheme to defraud. The indictment does plainly charge that the defendants did knowingly and unlawfully conspire to commit the offense. This is formal, however, and it should further appear by reasonable intendment that what they are charged with conspiring to do was done with willful intent. While the word “willful,” or its equivalent, is not in the indictment, other language is employed which is clearly indicative of an intent to defraud. The indictment shows that the acts alleged to have been done were done with the purpose of inducing persons to believe they were afflicted with a serious disease, when in fact they were not so afflicted, and this with the ultimate purpose of getting from such persons money to which the defendants were not entitled, by reason of not having rendered any service whatsoever. This shows very plainly the intent with which, the acts were committed, and they were necessarily and essentially fraudulent.
Where the facts alleged necessarily import willfulness, the failure to use the word itself is not fatal. Van Gesner v. United States, 153 Fed. 46, 82 C. C. A. 180.
So, in the present case, fraudulent intent on the part of defendants, though not specifically averred, appears more than inferentially from
“The court further instructs you that, while the acts or declarations of a coconspirator cannot prove the existence of the conspiracy itself, any act or declaration done or made by one of the conspirators during the existence and in furtherance of the unlawful combination, when proven, is not only evidence against him, but is evidence against the other conspirator who, if the combination be proved, is as much responsible for such act or declaration as if done or made by himself. You must not, however, permit yourselves to use against either defendant anything said or done outside the presence of such defendant, unless you believe from the evidence, beyond a reasonable doubt that at the time the things were said or done a conspiracy existed between the party saying or doing the things and the defendant to be effected thereby. In such a case it is only those things said or done in furtherance of the objects of the conspiracy which are chargeable against the other member or members of such conspiracy.”
That the letters were competent is beyond question. The inspectors in no way became parties to the alleged conspiracy in sending the decoy letters. Their course was adopted simply for the purpose of ascertaining whether the law was being violated by the defendants, which resulted in obtaining pertinent evidence tending to show such violation of the law.
‘•The defendants, N. A. Hughes, T. W. Hughes, August Marable, J. F. Allen, and Edward Parian are shown by the government’s evidence to have been physicians arid principals in the business that was being conducted at the two locations mentioned as the seats of the conspiracy, and the jury were authorized to infer from the evidence that these defendants were responsible during the period covered by the years 1912 and 19 IS for whatever was being done on the premises at each location, and that they shared, or were to share, in the profits of the transactions, knowing their actual character. It was also open to the jury to infer from the evidence that the purpose of the business that was being conducted during the period mentioned, at those places, was not the bona fide treatment of disease, but a scheme to secure money from patients, with no purpose to treat them in good faith as promised, but merely as a pretext for taking the money solicited. The correspondence between the inspectors and the defendants, introduced in evidence, was of a character which justified the jury in drawing the inference of bad faith and fraud, if they saw fit. The fact that only fictitious transactions, based on decoy letters written by inspectors, were in evidence, and that no money is shown to have been received by the defendants, did not prevent the jury from inferring the existence of the conspiracy charged in the first count or the fraudulent scheme charged in the remaining three.”
1'he court instructed the jury, by its instructions 12 and 13, as follows :
“If at the time the said decoy letter or letters were mailed, to the defendants, or one of the defendants, the said defendants were engaged in the criminal practice charged in the indictment, and the said defendants, in response to said alleged decoy letters, mailed one or both of the letters set forth in the indictment in answer to such decoy letters, or either of them, in order to execute or carry out such consiuracy, or in an attempt so to do,*199 then the use oC such decoy letters and the answers thereto can lawfully he received as evidence to prove said conspiracy.
“A government official cannot conspire with another person to violate the laws of the United States ior the purpose of getting such person convicted of a crime. The conspiracy with which the defendants are charged must be proven to exist independently of any inducement to elder therein by any government official. In other words, if the conspiracy existed, it does not matter what the government officers did in order to procure evidence to prove it. * * *
“You are instructed that the fact that the letters alleged in the indictment were in reply to such decoy letters is no defense in this action. You are further instructed that a government officer, suspecting' that a person or persons may he engaged in a business in violation of the laws of the United states, has a right to seek information under an assumed name, directly from such person or persons so suspected; that if such suspected person or persons respond to such inquiry for such information, and by so responding violates a law of the United States by using the mails to convoy such information. which use of the mails is prohibited by law, then such person or persons so using the mails cannot, when indicted for that offense, set up lliat he would not have violated the law if the Inquiry had not been made of him by the government official or through the procurement of the government official.”
Practically every phase of defendants’ requested instructions 3, 4, and 5, it: will be seen by comparison, is covered by the court’s instructions 12 and 13. The only point especially urged is that the court should have instructed that the facts and circumstances acquired by the decoy letters were not of themselves sufficient to sustain a verdict of guilty, unless the jury believed that defendants had, independently of the decoy letters, entered into the conspiracy.
In a certain class of cases, the action of the party respecting decoy letters will render him liable criminally, and will constitute the substantive offense, regardless of what he may have done previously. Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed, 550, is a good illustration. There the defendant had been suspected of posting nonmailable matter, and decoy letters were sent for testing out whether lie was thus transgressing the law, with the result that the defendant mailed such nonmailable matter, lie was indicted for doing the particular act, and the prosecution was sustained. Goode v. United States, 159 U. S. 663, 16 Sup. Ct. 136; 40 L. Ed. 297, is another case, where a letter carrier was suspected of embezzling from the mail, and his conviction for taking money and stamps from a decoy letter was upheld.
It is not claimed here that the act of replying to the decoy letters constitutes the substantive offense. Rut an clement of the offense charged is the existence of the conspiracy. The decoy letters were not designed or calculated to induce the defendants to conspire together for committing the offense of devising or attempting to devise a scheme to defraud, but their purpose was to elicit from defendants something of what they were doing. If the answers contained matter tending to show that a conspiracy existed, they were pertinent evidence for establishing that fact, and it was proper for the jury to consider them, along with the other testimony in the case, for determining whether or not such a conspiracy did in fact exist. Rut it is true that the conspiracy must have existed independently of the decoy letters;
The cases of Woo Wai v. United States, 223 Fed. 412, 137 C. C. A. 604, and Sam Yick et al. v. United States, 240 Fed. 60, 153 C. C. A. 96, are without application to the present controversy.
By requested instruction’ 7, it was sought to have the court instruct that the jury should acquit unless they believed from the evidence that the defendants in some way knew of, or intentionally authorized, the mailing of the letters set out in the indictment. We think that this is sufficiently covered by the court’s instruction 9. The same may be said of the defendants’ requested instructions 9 and 11, in so far as they correctly state the law.
“First, that the jury are told that the conspiracy must be proven independently of any inducement to enter into it-by the government official, and in the next place that the fact that the letters were decoy letters is no defense in this case, when as a matter of fact they! may or may not have been a defense, depending upon whether or not the jury believed the conspiracy existed independently of the letters, and for this reason, also, the charge was upon the weight of the evidence. In other words, the court had plainly told the jury that the conspiracy must be proven independently of any inducement to enter therein by the government officials, and then, with full knowledge that the decoy letters were the only evidence in the case relied on by .the government, the court instructed the jury that the fact that they were decoy letters was no defense, thereby making the instruction misleading, contradictory, and confusing.”
This harks back somewhat to the discussion touching requested instructions 3, 4, and 5. The decoy letters, taken in connection with the replies thereto, were proper to. be considered as evidentiary of the fact of the conspiracy. But the conspiracy must have existed independently of any inducement exerted by or through the agency of the decoy letters. The inducement here spoken of must be taken to signify the incitement of the defendants to commit tire offense, whereby the government became a party thereto. Now, while the replies did constitute certain overt acts, which were made the basis of the indictment as having been committed in furtherance of the conspiracy, and were evidentiary, to some extent at least, of the fact of conspiracy, yet, as we have said, the decoy letters were not .designed or calculated to induce nor, to emphasize the word, to incite the defendants to enter into the conspiracy, and could have no such effect. ’ In this view, it was perfectly consistent for the court to tell the jury that the fact that the letters were decoy letters could not afford the defendants any defense to the prosecution: This simply because they did not incite the defendants to enter into the conspiracy, nor could they have, by any reasonable construction thereof. They did elicit the replies
Having fully answered the objections and alleged errors specially insisted upon,"and finding no error, the judgment will be affirmed.