Foster v. Goldsoll

48 App. D.C. 505, 1919 U.S. App. LEXIS 2352

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 31, 1919
• Docket: No. 3216
• Status: Published

Opinions

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.