*1 they protected in- from State are Amendment. First terference Although no reference there is matter, appellant now
third count argues action
that he states cause § laws. 15 U.S.C.A. antitrust
under the respect this, seq. need 1 et With promoting only dis- his be said that through religious ideas semination of incidentally appellant only
book, at-
tempting or commerce. to enter trade defendants, enterprise and that of His activi- has no resemblance to the various recognized
ties which have been under these acts.
“trade or commerce” Shubert, U.S. United v. See States According
222, 226-227,
religious min- order its own to select isters, advocates, authors and sacred
writings. judgment is affirmed.
UNITED STATES of America
Abraham A. BROWNE.
No. 11284. Appeals Court of
United States Seventh Circuit.
Aug. 1955. *2 ap Oliver, Chicago, Ill., for
Frank W. pellant. Tieken, Atty.,
Robert U. S. John Peter Lulinski, Atty., Chicago, Ill., Asst. U. S. Walter, Lavin, Anna Alexander 0. R. Chicago, Attys., Ill., U. S. of coun Asst. sel, appellee. DUFFY, Judge, MA- Before Chief Judges. LINDLEY, Circuit JOR Judge. MAJOR, Circuit Defendant, Browne, Abraham A. jointly Maxwell Riffkind with aliases) under latter numerous in an containing counts, indictment six the fraudulent use of the United States mails, in violation Title 18 U.S.C.A. alleged 1341. The indictment that de- § fendants, pursuant schemе, ato defraud- attempted ed or to defraud certain enu- making companies by merated insurance for losses claims which were fictitious. presented claims Such were and in some instances the defendant Browne, practicing a licensed and at- torney Illinois, State was em- ployed negotia- by Riffkind to conduct knowledge, with the insurers with tions alleged, so it was of their fraudulent nature. pursuance scheme, each
the six counts of the indictment separate and distinct use in the Northern District of Illinois. plea guilty, Riffkind entered a Browne guilty. plea of not The latter was tried jury and Riffkind was a witness government. found guilty on, 2, .4, counts 5 and govern-; and not on count 1. ment conclusion dis- case the. missed count 3. Counsel for Browne against “2. the defendant ver- As directed appropriately for a moved government’s abetted, appeal, if he then aided on the basis dict proof necessary prove as to him is it insufficient to counts was on all *3 jury. motion, of of of all the elements venue and the This the case to take motions, post-trial the substantive offenses after con- the usual as well as guilt by principal by judgment fession of the de- and the court was denied upon fendant?” Browne the vеrdict. was entered prison for of sentenced to terms government Thus, does take the eighteen four of months each issue with defendant’s contention that judgment $1,000. The counts and fined proof was insufficient take the separate provided that sentences attempts case but to excuse concurrently. were to served be proof, particularly make its failure to as judgment (herein- mails, From Browne of relates to venue and use theory referred to as the de- after sometimes fendant) appeals. on a that because defendant was confusing proof situa- The аn aider and abettor such was un- attending presentment necessary, of tion in of the fact Riff- view that plea guilty case is shown is- here contested had kind entered a of and parties. government opposing as sues stated testified as a witness. The defendant states the contested issues shall We first consider the as situation as follows: 2 it relates to 6. 2 counts and Count denying “The trial court in erred charged the defendants that caused be motions for dismissal defendant’s delivered mail 175 at West Jackson judgment acquittal and at the Boulevard, Chicago, Illinois, a letter ad- government’s close case and at Casualty to the New York dressed Com- evidence, close all the be- pany, Boulevard, Jackson West Chi- cause : cago 4, Illinois, Gadwell, Attn.: Mr. previously placed There
“a.
was no
of venue which had
been
in the
delivery.
II
as Counts
and VI
indict-
A letter cor-
responding
alleged
ment.
in count
signed by
Browne,
A. A.
was introduced
“b. There was no
of use of
government.
charged
Count 6
the mails as to
II
Counts
and
ofVI
defendants caused to
de-
be
the indictment.
livered
mail
West Jackson
government’s
"c. The
evidence
Boulevard, Chicago, Illinois, a
ad-
demonstrated that
the defendant
Fidelity
dressed
the United States
and
implicated
was not
in an unlawful
Company,
Guarantee
170 West Jackson
transaction in Count IV of
in-
Boulevard, Chicago, Illinois, which letter
dictment.
placed
previously
in
been
the mails
government’s
“d. The
evidence
delivery.
for such
The
demonstrated that no offense was
support
upon
of this count relies
exhibit
attempted
committed or
A,
letter,
alleged,
is not
5—
Count V the indictment.”
report signed by Philip
but an accident
Goldberg, in or on which defendant’s
(Other issues are stated which need
appear.
stamped
does not
name
No
ad-
point.)
not be mentioned at this
envelopе
sup-
dressed
was introduced in
states
contested issues
allegation
port of the
that the exhibits
as follows:
relied
2 or
counts
6 were trans-
“1.
Is there sufficient evidence in
by mail.
mitted
support
charge
record
the
aiding
abetting
government,
under 18 U.S.C.
consistent with
against
2 as
ap-
issues,
defendant on
statement
contested
after
peal?
referring
plea
guilty
to Riffkind’s
way
up
him
have been left to
states,
the would
left is to tie
“All
deny
that he
other than to
Riffkind’s defense
into
defendant
plea
alleged.
pleads
party
His
principal
scheme,”
“If the
offense,
guilty
no other
have raised
then of not
would
substantivе
against
proved
aider
issue.
all that need be
though
abettor,
he be
even
indulge
However,
if we
principal,
is that
the defendant
as a
consciously
presumption
merit
violent
knowingly
aided and
government’s contention, it would
sup
cases are cited
abetted.” Three
port
of no
on the
record
benefit
instant
*4
argument:
v.
of
United States
this
it
that
is not ascertainable
because
380;
Klass, Cir.,
373,
F.2d
Unit
3
166
and
as an aider
Browne was convicted
7-8,
Carengella,
3,
198 F.2d
ed States v.
he
that
abettor. The
claims
Alexander, 219 F.
United
v.
and
States
gave
the court
an instruc
was because
225,
(The
two named
2d
226-227.
last
point
on
not ob
tion
that
court.)
decisions are
this
We think jected
to
think
the defendant. We
any other
there is not in these or in
tried,
that if
the same
Riffkind
been
slightest
of which we are
case
aware
might appropriately have
instruction
theory.
government’s
support for the
given
parties were
been
as to him. Both
fact,
court, in
In
referring
in the Klass case the
charged
principals
as
Browne was
and
accessory statute, made
such,
convicted
and
it is
as
we think
following statement,
page
166
F.2d
sequitur
non
assert
that because
380:
gave
instruction,
court
such an
Browne
necessary
“It is
ac-
not
that thе
was convicted as an aider and abettor.
convicted,
principal
tual
be tried or
Certainly
nothing
there is
in the verdict
nor is it material
that
the actual
jury by
question
which that
can be
principal
acquitted.
has been
[We
that,
quite
resolved. More than
might
think the court
also have
merely
doubtful whether Bi’owne acted
added that it is immaterial that the
an aider
and abettor.
It seems more
principal has been
en-
convicted or
reasonable to believe from
that
plea
guilty.]
tered
of
The aider
part
scheme,
any,
if
may
and
be
abettor
principal
of a
rather thаn an aider and
offense,
the substantive
each
and
abettor.
participant must stand on his own
[Citing
two feet.
cases.]”
government,
notwithstand
ing
issues,
government’s theory
at
its
contested
statement
on
We think the
grounds
justify
tempts
point
on other
unsound. To
this
countenance
issue,
is,
meet
one
it would mean that
defendant
his failure
guilty
prove
guilt, by plea
venue and
it failed
use
or
admission of
argues
otherwise,
any
It
waived
deprive
mails.
that defendant
all co-
could
“by going
rights
merits”
to trial on the
venue
of fundamental
defendants
privileges.
by taking
illustrate,
be
the stand
his own
To
A number of cases are cited in
half.
clаims
the letter
forth in
set
including Hag
argument,
signed
support
(the
2, purportedly
this
Browne
States,
335,
App.D.C.
60
ner v. United
same is true as to the exhibits described
446;
States, 5
counts),
F.2d
Ladner v. United
other
54
in some
was mailed
773;
Cir.,
771,
government’s
168 F.2d
Rodd v. United
Under
Browne.
56;
States, Cir.,
54,
theory,
appear
9
165 F.2d
it would
United
novel
that be-
Gallagher,
342,
Cir.,
plea
v.
3
183 F.2d
of Riffkind’s
States
cause
346;
Karavias,
precluded
denying
States v.
170
from
United
the au-
968;
thenticity
signature
Jones,
United States
of his
F.2d
Chiarelli,
(there
genuine), F.2d
and United States v.
is no
that it was
that he
or
last three named deci
or
wrote mailed or
192 F.2d
caused to
court).
Nothing
None of
be mailed the letter as
sions are
these
claimed.
Hag
ques-
In
support
States v. Jones has decided this
contention.
cases
ner,
government’s
adversely
its face tion
con-
showed
the indictment
doing
place
stated,
took
In
so
the trial
tention.
the court
court where
page
held that
and it was
v. Mackett not sufficient. See This was the mail is use of “That the 464, 462, States, Cir., 90 F.2d V.United 7 so gist corpus of the crime or There was and cases therein cited. require no as to well established competent proof either venue must, of authority, and citation course, alleged count. as of the mails use essential as other the same ' testimony 6, rеlative As beyond elements, proven rea- be is even issues under discussion doubt.” sonable possible. defective, if that be more States, Cir., Brady 8 Baker, United also v. See that a that count it was and United States F.2d United delivered mail Cir., 122. 50 F.2d Guaranty Company, Fidelity and States Boulevard, Chicago, dignified Jackson proof, 170 West it can be if alleged such, Illinois. No letter as to both venue which relates relies introduced but counts use of the mails support of exhibit briefly in 5-A, this count 6, may stated. The false pre- report *6 is concerning which an accident in claim which the by pared alleged think Riffkind. We there is 2 have been mailed was count merit in defendant’s contention that a Riffkind Gold case of related including berg. exhibits, conviction cannot be sustained on this A number of letter), because of a variance between 2-B were identified count allegation proof. However, by and the we and introduced witness Gadwell rely upon discrepancy be- He letters need this in evidence. testified that by proof is no either as venue received a cause there and other documents were through Casualty or received officeof the New that the exhibit was central Company, York Garr, supervisor per- they a referred to the mails. where were injury finally department a sonal claims for the United States claim delivered handling Fidelity Guaranty particular Company, person testi- (exhibit proce report fied that the accident claim. It was as a result of this 5-A) placed and, on his when was desk 2-B dure that exhibit came to his desk. received, how it was testified: asked He admitted that some the exhibits pertaining to this claim were delivered say “A. I would it came in the ** by personally himto Browne. Our at mail *. proof called to no and we find tention is yes is “The Court: The answer Casualty none that the New York Com no. or pany Chicago, an had office in or as to “The Witness: I don’t know. department the location of its claim or Oh, “The Court: the answer is office, central or as to where Gadwell was you no, don’t know? located at the time the letter was de “The Witness: No.” proof his desk. livered to There was no (2-B) envelope Again stamped that the letter received addressed by any person other witness or connected introduced in which the exhibit stamped might company in with the insurance or have been received. The wit- (This envelope. reports admitted addressed is circum ness that accident reach shown, upon company by per- if much stance relied both mail and creating delivery. some of cases as an in sonal There is evidence that Fidelity ference letter was officeof in received the home Balti- through mails.) more, Maryland, is It true that Gad- and that it an office examining proof proof In relates Chicago, as it there is no but counts, report in the Chi- to these two we assume that received accident proof cago that, there was from which a could than More office. party report, prepared testified as a have found that Browne was a who he filed to some the schemes Riff- devised for the witness office, companies. mili- kind to defraud insurance it with the insurance indulge against assumption it was We inference that notwith- tates an standing against through proof As to this mails. received count, convincing government’s proof is venue less than the proof mailing fatally have is defective. would us believe. No called is attention, none, our find and we previously de As shown profits Browne received or issues, fendant’s statement of contested money obtained Riffkind aas result the attack the conviction undеr any event, of his fraudulent conduct. counts and 5 that the court erred is not the scheme to defraud which in its refusal to because direct a verdict only the federal statute condemns but implicate was insufficient the use its execution. It or connect Browne with the offenses corpus that use which constitutes the charged. question No therein is made is, therefore, delicti of the offense. It proof mailing as to venue evident that each count constitutes charges these counts. Count that separate and distinct offense. defendants, purpose for the of exe so, Even the facts and circumstances cuting the defraud as thereto which form the basis alleged, July 20, 1949, fore on or about charges contained in counts 4 and 5 “did mail and cause to be mailed at closely they may ap- are so related that Chicago, Illinois, a letter addressed propriately together and, be considered Mazzoni, Mr. A. Potomac Insurance Com original inasmuch as the events relative pany, Boulevard, 175 West Jackson Chi prior *7 to occurred to those con- cago, Illinois, to be sent and delivered by the Post OfficeEstablishment of the 4, with cerned logical count we think it more they to state first the facts as alleges United States.” Count 5 pertain to count 5. defendants, purpose executing for the January, 1949, Riffkind claimed the scheme to defraud as al theretofore guns that automobile, four were stolen from his leged, did July 29, 1949, on or about occasioning a loss of $535. to by cause be delivered mail a letter reported Riffkind this loss to the insurer addressed to the same insurance com which, investigation, replaced after an pany and at the same address as that al guns a cost The draft $535. leged in count 4. purpose drawn for this was dated March 21, 1949. Both of these counts relate claims by July made 20, 1949, reason of the On asserted loss sus- Riffkind filed a claim by tained against theft of $1,500, pur- certain the same fire arms in- insurer for by sured porting Potomac Com- to be Insurance the value of an Italian pany. The claim Miquelet by relative count 4 was rifle. Claim for this loss a Singer the amount $1,500, predicated prepared by upon one al- by leged the loss insured) theft Miquelet presented of an Italian was to the in- purportedly rifle $1,500. by Riffkind, although pre- value of surer it had (This claim viously reported by telephone sometimes by referred to as been gun loss.) the second Upon investigation by The claim one relative Gaston. predicated to count 5 upon insurer, it loss ascertained that Riffkind guns theft of four stolen from per- and Gaston were Riffkind’s one and same early (This car in 1949. claim is some- son and that the claim was fraudulent. gun times Riffkind, referred to loss.) Gaston, the first under the name on signed (Exhibit 3-C),” July 23, 1949, statement read 1949] a and re- a mistake follows: loss was claim from all claims leased the insurer “Gentlemen: Nothing paid connection therewith. false claim. on this the insurer “Relative the matter Max- Riffkind, please Riffkind, re- date that he well be advised that same appointment insurer, an after an examination of all the facts made leased the telephone. Browne, and conferences with certain indi- with Browne during personal day meet- viduals in this matter I later involved or two that, ing have was informed that come the conclusion with gun my opinion, fraud- Riffkind did loss was Maxwell claim for second any your suspicious perpetrate upon frauds that the insurer ulent and gun company, re- Riffkind also insurance and further that first loss. quested and sustained him in the the insurer loss see ago first all about. Browne instance six months
find what it was out July legitimate insurer on bona if the officeof the fide loss and went to any irrеgularities existed, may he has 1949. There suggest you investigate the first I with either connection gun gun prior that time. Two transactions of the loss seller and second employees, Reid certain other of Mazzone, insurer’s individuals as to the conversation matter. testified of his visit Browne on the occasion “Therefore under the circum- insurer’s office. advising I am stances Mr. Maxwell government has guns assume that We Riffkind to stand count 5 in investiga- relative to stated the facts will even stand further light to it and that most favorable tion. “Very truly do no better than reiterate yours,
we can “[Signed] record makes “The facts so stated. A.A. Browne” was, fact, a theft clear that govern- legitimately as a further, Riffkind witness for the claim could that a ment testified that all his conversations made of the insurer. have been (first Browne about this claim occa- with transaction was taint gun loss) propensities were to the effect it was irresistible sioned legitimate, past ap- *8 and is Riffkind, that deviations whose knowledge or Browne had reason to think other- parently him to color this caused guns that this loss was other than authentic He three and one. lost wise valid agents replacement until his interview with the and received claimed guns Evеn at the insurer. that time the latter He then sold the $250. four. any por- not claim did state that the or Subsequently, summoned the insurer claim, tion it was At and Riff- fraudulent. the most to discuss the Riffkind appears ‘go that had it the insurer .become down and Browne to kind contacted suspicious they of this first loss because of Browne went see want.’ what discovery Mazzone, of fraud him connection with who took see witness loss, second and Mr. that Browne had of the witness Reid. to the office suggested that Riffkind in- reimburse the Browne that their Reid informed vestigation the extent insurer amount indicated that the insurer guns Riffkind had received amount ex- which reimbursed should be rely- guns replaced Browne, replacement the insurer. pended of the ing upon gun the information him offered a com- furnished [first loss]. client, gun promise that the The conversa- first $250 $200. legitimate (admitted by accomplish- without loss tion was concluded legitimate days to have been two or three later Browne ment and July July 28, part), the count letter dated letter wrote the count [dated wrote 28, speaks company 1949. The letter for itself went to the and saw Mr. Maz- only it noted it hut should be that refers and Mr. zone told Reid. He them that gun loss, long he company paid the first about was so as the had not out agents. claim, money, insurer’s In on interviewed it had lost no so he slightest view, (cid:127)our nothing.” it does not afford the felt that Riffkind owed it charge support only proof it upon by constituted This relied money pur- a use of the mails to obtain to connect Browne with the suant to a defraud. offense ing in this count. A read- testimony govern- witnesses feebly suggested by It plain, Reid and Mazzone it makes how- though money ment that even ever, major portion that the of their con- fraudulently been obtained have versation with Browne related to the paid many Riffkind had been to him gun loss, first and that the second loss befоre, months Browne’s was of only incidentally was referred to and lulling variety, patently “typical cal- during such reference Browne made inquiry fraud, culated to into stem quoted. the statement above It is investigation to deflect further how discernible that statement made aft- strangers,” direction of er the fraudulent claim had been sub- it aided in the furtherance the scheme. subsequent mitted and to the time of the Bowcott, Cir., United States 170 F. discovery of the fraud the insurer support argu- 2d is cited in of this any support charge furnishes for the similarity, however, ment. There is no that Browne used or caused the between thе facts of that case and those be used in the execution of a fraudulent If properly here. this letter can be Assuming scheme. that Browne “lulling” variety, characterized as of the knowledge claim, of the fraudulent it would seem that letter written proof did, there is that he attorney that he concerning an a controverted went to the officeof the insurer for the claim fall category. would in the same purpose discussing such claim It is too much to believe an in- proof shows that he did not but company surance with all of its ex- only incidentally), same was mentioned periencе investigating and means for we would still doubt if the detecting claims and fraud can so sufficient to easily connect Browne with put guard, off cannot be charged. offense He reasonably committed no act inferred from the letter or presentation relative to the fraudulent other that Browne’s letter was in- of the claim and made no statement with expected tended for or that he such a reference opinion express to it other than to result. There should been have a direct- nothing that Riffkind owed be- ed as to verdict this count. paid. cause the claim had not been The facts relied as a basis for charge contained in have The record reveals that the trial partly been skeptical related. The concerning fraudulent court was pro *9 claim priety admitting admitted to have been such of exhibit 4-G presented to the exhibit). insurer Riffkind in fourth count At the time this July 20,1949. (cid:127)a letter dated (together It was after exhibit was first offered time, subsequent that discovery as well exhibits), as to the other the on court defendant’s objection government of the fraudulent of nature counsel, stated to insurer, claim that Browne “You will admit that as to the letters any knowledge shown havе offered, to con- that are the exhibits do not tie cerning it. There is govern that he had in the defendant?” to which knowledge falsity prior of its replied, to his in- ment counsel “I will to have ad agents terview with the insurer’s at its mit that much.” The court sustained July 23, objection, office on as heretofore re- with the statement that visit, might lated. With reference to that the counsel renew the offer at government’s in its brief states: “Browne close of case. Later testified, Browne and en- Riffkind was on kind conceived and while trial again gineered attempts (usual- stand, barefaced exhibit 4-C the witness government’s ly succеssful), objection, to defraud insurance offered. On casualty Indeed, up.” companies stated, and airlines. will them “We tie counsel according exhibits, instance, in- in one this wit- to court admitted suggested ness, Riffkind, cluding 4-C, of the to aft- Browne “on the assurance damage truck, Attorney latter’s he there will er that United States something proceed policy of in- the ex- once to obtain to indicate that damages, go prove issues surance which would cover the some of the hibits to Notwithstanding already fol- incurred. advice was in case.” here this basis, however, lowed and fraud on exhibit consummаted. which flagrant equally admitted, further are far Other instances there was 4-C testimony from rare. to no one which con- It seems me that story In can read this sordid of a faithless with Browne. nected the exhibit fact, lawyer testimony escape only the conviction of followed guilty participation in ma- under the fraudulent the admission of the exhibit having purpose their chinations related was the cross-ex- sole circumstances obtaining money by preten- who the of false amination of the witness completely having Being participant in sions. an active exonerated undertaking, knowlеdge any evil fraud this Browne cannot with reference escape gun ex- the acts and of his loss and likewise statements to the first being co-conspirator promotion party to con- him from of the onerated during spiracy attempt its actual to the. insurer as to existence. defraud gun We think that exhibit second loss. I am convinced likewise whether have been admitted but 4-C should not promotion was use of the mails in any insuffi- event undertaking charged in the in- justify cient a conviction. jury. question was a dictment manager Other have been -raised which issues The office ceipt testified as to the rе- unnecessary find or discuss. we relate of the II letters Count judgment government’s incoming explained It is our detail how insufficient,. proof was for the reasons As mail was handled. VI the Count any stated, charge explained take the case to'the person in in detail the judgment parties receipt of the four counts. The All of the mail. lived in is, therefore, Chicago. conviction as to each count All transactions occurred testimony Ample use there. as to the Reversed. appeared I the record. mailing the evidence as to within think dissenting. Judge, LINDLEY, Circuit the district was of character as regret I cannot accede to the I justify jury’s verdict my all I have read brethren. decision of the mails in use furtherance du- record. It reflects an extended fraudulent scheme. part of defendant'Browne plicity on the Riffkind, which, also that the evidence as to the Maxwell I think witness and the light counts, effrontery depravity viewed in most and other for brazen Government, required daring repeated I have sel- favorable frauds n jury. attempt equalled. I At rate shall not submission seen dom justified verdict of epitomize *10 the’ evidence to me sentence guilty upon but points conclusively one count. Other Browne in with a ties argued continuing defendant were not raised be- over a to defraud time, Riff- I would affirm the years. Time low. conviction. period after