UNITED STATES v. McGUIRE et al.
No. 327.
Circuit Court of Appeals, Second Circuit.
April 10, 1933.
64 F.2d 485
Appeal dismissed.
UNITED STATES v. McGUIRE et al.
No. 327.
Circuit Court of Appeals, Second Circuit.
April 10, 1933.
Max D. Steuer, of New York City (Irving J. Levy, of New York City, of counsel), for appellant McGuire.
Martin Conboy, of New York City (Joseph R. Kelley and David Asch, both of New York City, of counsel), for appellant Mann.
Basil O‘Connor, of New York City (Samuel B. Pettengill, of South Bend, Ind., and William F. Snyder, of New York City, of counsel), for appellant Hering.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge (after stating the facts as above).
The basis of the demurrer is that the tickets which the government alleged the defendant caused Finn to receive were tickets “which had theretofore been transported” in interstate commerce, and that they did not themselves purport to be lottery tickets as the indictment with its facsimile was claimed to show on its face.
The statute (
Little light can be shed upon the intention of Congress in using the word “purporting” in this statute from its history or by comparing it with the statute relating to the use of the mails.
In our judgment the ticket did under this construction of the statute come within its terms. It was well adapted for such use. The language of the statute is not wholly restrictive as the appellants seem to think, but rather by making appearance the test might in some instances apply to what was not a lottery ticket in fact. The absence of any language on the ticket to indicate that the prizes were to be awarded by lot or chance is not conclusive. But the absence of anything to indicate that they could or would be awarded in any way other than by lot or chance, coupled with the ease with which their construction permitted this method to be used, afforded all that was necessary to give them the appearance which the statute covered.
Another ground of the demurrer strikes directly at an element essential to federal jurisdiction and is fatal to the first count. The defendants were alleged to have caused Finn to receive the tickets which had theretofore been transported in interstate commerce. True it is that the use of the word “theretofore” was unfortunate as the District Judge remarked. He thought that
There is no such disability as to the second count charging conspiracy. There are allegations that the defendants conspired to cause the tickets to be deposited for interstate carriage, as well as to be received, and allegations of acts done within the jurisdiction in furtherance of the conspirators’ agreement. The verdict was general and will stand, since one count is good. Evans v. United States, 153 U. S. 584, 14 S. Ct. 934, 38 L. Ed. 830; Claassen v. United States, 142 U. S. 140, 12 S. Ct. 169, 35 L. Ed. 966.
The exceptions relating to the plea in abatement need not detain us. As we have held the first count bad, they need be noticed only as to the second count. There was no proof or offer of proof of any facts to show any want of evidence produced before the grand jury in support of the second count except what is claimed to have been an offer to prove by the testimony of an assistant district attorney who was called as a witness by the defendants that “there was no competent proof of any kind or nature before the grand jury as to the commission of any overt act or acts specified in the first and second count of the indictment.” It would be going too far to believe that this offer embraced more than a legal conclusion, more than the assurance, obviously rather surprising, that the witness was ready to testify, if permitted, that in his opinion there was no competent evidence before the grand jury as to the commission of any of the overt acts specified in the second count. If this were enough, an investigation as to the competency of the evidence before a grand jury could be compelled by a respondent even where there was no suggestion of any misconduct on the part of jurors or irregularity in the panel. It would require a disclosure of the evidence, if the government can thus be required to justify the indictment, and in effect a trial of the grand jury before a respondent could be tried. It would provide a respondent in advance with much, if not all, of the government‘s case. Without discussing what power the court has, should there be real reason to believe that improper conduct has entered into the finding of an indictment, to inquire into the nature of the evidence before the grand jury, the assertion of the respondent that the evidence is insufficient will not avail. See Kastel v. United States (C. C. A.) 23 F.(2d) 156; Murdick v. United States (C. C. A.) 15 F.(2d) 965; McKinney v. United States (C. C. A.) 199 F. 25. The best evidence on this subject would have been the minutes of the grand jury. But they were not offered, and there is nothing to show that these respondents either knew what they contained or could have obtained them to offer in evidence. U. S. v. Violon (C. C.) 173 F. 501; U. S. v. Rubin (D. C.) 214 F. 507; U. S. v. Perlman (D. C.) 247 F. 158; U. S. v. Gouled (D. C.) 253 F. 242. Nor can it be thought that any different legal situation arises when the mere assertion that the evidence before the grand jury was insufficient takes the form of an offer to prove that conclusion in support of a plea in abatement. United States v. Morse (D. C.) 292 F. 273, 277, 278. Consequently, it was not reversible error to exclude the offer made.
Confining ourselves now to the second count, we are convinced that a conspiracy to cause what purported to be lottery tickets to be transported in interstate commerce by an express company was alleged and proved as to all these appellants. There was ample evidence from which the jury could find that McGuire proposed the scheme to Mann, that Mann approved, and that Hering conferred with Mann and acquiesced. Compare Rumely v. United States (C. C. A.) 293 F. 532. All three put their money and credit behind the plan, and, when the program had been carried out in the way the jury was justified in finding from the evidence these respondents had agreed it would be, they divided the profits among themselves.
An overt act done within this jurisdiction in furtherance of the conspiracy to transport these tickets in interstate commerce was alleged and proved in respect to the tickets received by Finn. Whether or not the tickets were in interstate commerce when they caused him to receive them, these defendants caused those tickets, in furtherance of their conspiracy, to be transported in interstate commerce within the Southern dis-
It is claimed that it was error to admit evidence to show how the scheme was carried out right down to the time the drawing was had on the boat and the respondents divided the proceeds. Of course, the offense charged is not conspiring to conduct a lottery, for we are not concerned with what might be unlawful only under state laws. However, the forbidden use of interstate carriage of what purported to be lottery tickets became fruitful to the respondents only as it made the lottery possible. Evidence to show how their scheme was of benefit to them disclosed the motive for their entering into it, and was admissible for that purpose. United States v. Noelke (C. C.) 1 F. 426. Moreover, although we have here only what might be called a conspiracy within a conspiracy to conduct a lottery, the conspiracy before us did not end until the money the conspirators realized, at least in part from it, was divided among them. What the conspirators did and caused to be done to fulfill the purpose of the conspiracy with which we are now dealing was properly shown. Shea v. United States (C. C. A.) 251 F. 440; Lew Moy v. U. S. (C. C. A.) 237 F. 50; Ferris v. United States (C. C. A.) 40 F.(2d) 837. Thus it was not error to show what was done with the tickets after they were transported according to the agreement of the conspirators. Whether they were strictly lottery tickets before they were actually sold goes to what they were in fact when transported, and leaves the proof that the conspirators agreed to cause to be transported, in violation of the statute, what purported to be lottery tickets still abundantly show by the evidence.
Granted that after these tickets were sold to the public it would be unlawful to conspire to transport in interstate commerce only what purported to be that part which was kept by the purchaser, Francis v. United States, supra, it does not follow that it was not unlawful to conspire to transport from state to state the whole of these tickets before they were sold to the ultimate holders. Indeed, the tickets involved in The Lottery Case (Champion v. Ames) 188 U. S. 321, 23 S. Ct. 321, 47 L. Ed. 492, were alleged to have been “caused to be carried, as aforesaid, for the purpose of disposing of the same,” and in the opinion at page 353 of 188 U. S., 23 S. Ct. 321, 326, it is said, “These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn.” Moreover, in Brooks v. United States, 267 U. S. 432, 45 S. Ct. 345, 346, 69 L. Ed. 699, 37 A. L. R. 1407, the Chief Justice took occasion to observe, “In the Lottery Case, 188 U. S. 321, 23 S. Ct. 321, 47 L. Ed. 492, it was held that Congress might pass a law punishing the transmission of lottery tickets from one state to another, in order to prevent the carriage of those tickets to be sold in other states and thus, demoralize, through a spread of the gambling habit, individuals who were likely to purchase.” Nor did Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724, in dealing with the prohibition of interstate shipment of the products of child labor, modify Champion v. Ames, supra, in respect to such transportation of things purporting to be lottery tickets.
The court in its instructions to the jury failed to mention the presumption of innocence. The omission was not called to its attention, nor was any exception taken. No reversible error has therefore been shown. Dinger v. United States (C. C. A.) 28 F.(2d) 548; Silverberg v. United States (C. C. A.) 4 F.(2d) 908.
After the jury had deliberated for some hours, the court on its own motion recalled it and delivered a supplemental charge in which each juror was urged to get into his mind what his colleagues had to say before arriving at his final decision and then finally be guided by his own judgment. This did not usurp the province of the jury. See Lias et al. v. United States (C. C. A.) 51 F.(2d) 215. It was plain common sense to point out a practical way to be followed by the jury in doing its work. Nor was it beyond the exercise of a sound discretion to recall the jury for further instructions. Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91; Dwyer v. United States (C. C. A.) 17 F.(2d) 696.
Judgment on the verdict on the first count reversed. Judgment on the verdict on the second count affirmed.
MANTON, Circuit Judge (dissenting).
The appellants have been convicted on two counts. The first charges that they
In 1926, Mann entered into a contract with the Board of Grand Trustees to conduct the affairs of the department of bazaars, fairs,
and like attractions. The contract provided that he should assume direction and control of this department for a period of ten years. His compensation was fixed at 40 per cent. of the net profits, 60 per cent. to be retained by the several subordinate aeries of the Eagles. On October 1, 1926, Mann entered into a contract with Hering transferring a third interest to him. This contract was for ten years. Until December, 1928, when the contract with the trustees was amended for the purpose of permitting Mann to utilize the services of independent promoters, the results were negligible. In December, 1930, McGuire became interested in the plan of fund-raising campaigns to be conducted under the auspices of the subordinate aeries of the order throughout the country. A conference took place on December 29 and 30, 1930, at which Mann,
The tickets were printed at Scranton, Pa. They were shipped, when printed, to Philadelphia, where they were placed in packages with certain literature, and consigned to individual members of the participating subordinate aeries through the Railway Express Agency. On their face the tickets entitled the purchasers to admission to a designated frolic and dance to be held under the auspices of the local subordinate aeries. When the ticket was sold, the purchaser wrote his name and address on the stub pertaining to the ticket so purchased; the stub being retained by the member who sold the ticket, the tickets themselves stating that the awards thereon referred to would be made August 12, 1931, and nothing more. On July 9, 1931, about a month after the last book of tickets was shipped in interstate commerce, a circular letter was issued to the officers and members of the subordinate aeries which had participated in the fund-raising campaign from the headquarters of the bazaar department bearing a mimeograph signature of Mann. It stated that the delegates of the subordinate aeries during the week of August 9, 1931, would meet at the Grand Aerie Convention at Toledo, Ohio, and there as members of the committee would take charge of making the awards. A number of witnesses, who served as representatives of the bazaar department of the order, testified that they informed the membership of the subordinate aeries when questioned that the making of the awards would be left to the committee, and this was done at McGuire‘s instruction. On the evening of August 12, 1931, the delegates to the Grand Aerie Convention assembled on a steamer for an excursion, and during the course of that night the awards were made by a drawing of the stubs of the tickets which had been sold by the membership of the order from a receptacle. The person whose name and address appeared on the first stub received the first prize, and this continued until 180 awards were made.
Appellant Hering‘s only connection appears to have been entering into the contract of October 1, 1926, with Mann. In March or April, Hering came to Kansas City at Mann‘s request for a consideration of meeting the liabilities on the contract, if it became necessary. No one testified as to what transpired at this meeting except a witness testified that “in a cursory sort of way, we [Hering and the witness, before and after the meeting] discussed the possibilities of its [the frolic and dance venture] being successful.” A witness said that he met Hering at South Bend in July, 1931, and discussed in “a brief sort of way” this matter; that the $230,000 in checks received by Mann were deposited in the “Contingent Reserve” account kept under the contract between Mann and Hering, and that the latter received from this account $60,000 in 1931 and $7,500 in 1932. He drew no money from that account prior to July 1, 1931. Hering was on the boat at Toledo before the drawing took place. In any event, there was no evidence to warrant submitting Hering‘s guilt to the jury.
The court permitted evidence of events subsequent to the receipt of the ticket to show their purport. The prosecution is predicated upon the tickets purporting to be lottery tickets or to represent chances, shares, or interests in a lottery or similar gift enterprise. The purport of the tickets must necessarily be ascertained within the four corners of the tickets. Francis v. United States, 188 U. S. 375, 23 S. Ct. 334, 335, 47 L. Ed. 508; France v. United States, 164 U. S. 676, 17 S. Ct. 219, 41 L. Ed. 595. The
“The assumption has been that the slips carried from Kentucky to Ohio were papers purporting to be or represent a ticket or interest in a lottery. But in our opinion these papers did not purport to be or do either. A ticket, of course, is a thing which is the holder‘s means of making good his rights. The essence of it is that it is in the hands of the other party to the contract with the lottery as a document of title. It seems to us quite plain that the alternative instrument mentioned by the statute, viz., a paper representing an interest in a lottery, equally is a document of title to the purchaser and holder—the thing by holding which he makes good his right to a chance in the game. But the slips transported, as we have pointed out, were not the purchasers’ documents. It is true that they corresponded in contents, and so in one sense represented or depicted the purchasers’ interests. But ‘represent’ in the statute means, as we already have said in other words, represent to the purchaser. * * * The function of the slips might have been performed by descriptions in a book, or by memory, if the whole lottery business had been done by one man. They as little represented the purchaser‘s chances as the stubs in a check book represent the sums coming to the payees of the checks.”
A review of what the proof shows transpired prior to the receipt of the tickets by Finn demonstrated that they were not in fact lottery tickets and did not represent chances in a lottery. The court below submitted the case to the jury as if the question was not one of the purport of the tickets, but what they were in fact and were known and intended to be by the appellants after the time of their transportation in interstate commerce. The tickets were shipped in a book of 32 to be sold by the recipient and to be accounted for to the secretaries of the subordinate aeries. If anything, Finn, the recipient of the tickets, took them from interstate commerce as the agent of the lottery and not as a purchaser. As stated, upon their face and when received, they did not represent chances or interests in awards any more than a bundle of unissued and unsigned certificates would show a property interest. It was not until after the interstate transportation had been completed and after the tickets had passed beyond the power of Congress to legislate respecting their use or control that they were in any sense used to represent chances in a lottery. United States v. Wade (D. C.) 59 F.(2d) 831.
Section 213 of the U. S. Cr. Code (
The reason why Congress made this distinction between the two statutes probably was that the power of Congress to prohibit interstate shipment of lottery matter was un-
That I think is the situation at bar. On the other hand, it has long been recognized that Congress had the power to establish post offices and the plenary power to keep the mails free from objectionable matter. Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877. The aid which Congress could give the states in suppressing lotteries under the commerce clause was assistance in preventing distribution of tickets or lottery information. That this was the intent of Congress was clear from the opinion of the majority in the Lottery Case, supra. Only by forbidding interstate carriage and deterring express companies could Congress help, and, before a crime was committed, it must be clear that the ticket was in fact a lottery ticket. This must be judged solely by what transpired before sending and what appeared on the face of the ticket when sent. Under this statute, Congress did not penalize the interstate transportation of lottery tickets as well as papers purporting to be lottery tickets, but significantly limited the application to papers purporting to be lottery tickets. The statute is highly penal, rendering its violators subject to fine and imprisonment (France v. United States, 164 U. S. 676, 17 S. Ct. 219, 41 L. Ed. 595), and the courts must construe it strictly. The statute does not cover the tickets sent to Finn. We must not construe the statute so as to extend it by judicial interpretation. Prussian v. United States, 282 U. S. 675, 51 S. Ct. 223, 75 L. Ed. 610.
If, as the prevailing opinion holds, the first count charging the substantive offense must be reversed, a conviction for conspiracy to violate the statute forbidding the transportation of lottery tickets should likewise be reversed. If any crime has been committed, it is a violation of the state law and not the national law.
The judgments should be reversed.