United States v. Akers

232 F. 963, 1916 U.S. Dist. LEXIS 1708

• Court: District Court, N.D. Georgia
• Decided: April 21, 1916
• Docket: No. 1159
• Status: Published

Opinion

NEWMAN, District Judge.

There is a demurrer to the indictment in this case. I was very much inclined to believe that this case was controlled against the government in favor of the demurrer by the case of Etheredge v. United States, 186 Fed. 434, 108 C. C. A. 356; but I have re-examined it very carefully in the last few days, and I am not satisfied now that it is controlling in this matter, or hardly persuasive, in view of the language used. In the opinion by Judge Jones, towards the close of the opinion, this is said:

“A mere fraudulent promise to be performed in the future, whereby one obtains goods from another, without paying for them, disconnected from anything in the transaction which amounts to a ‘scheme or artifice,’ will not suffice to uphold a conviction for a violation of section 5480 of the Revised Statutes as amended by the act of March 2, 1889. Whether such conduct would come within the statute, as it appears greatly enlarged in section 215 of the Penal Code (U. S. Comp. St. Supp. 1909, p. 1455), or whether the making of a fraudulent promise as a means of obtaining property, constitutes a ‘scheme or artifice’ within its meaning, is not involved in this writ of error, and no opinion is intended to bo expressed as to it. The inclusion in the revision of the statute of the words ‘for obtaining money or property by moans of false or fraudulent pretenses, representations or promises,’ not found in it before, after frequent amendments to broaden the scope of the legislation, is persuasive at least that Congress in its legislation prior to that amendment has not construed a mere false or fraudulent promise, standing alone, to constitute a ‘scheme or artifice.’ ”

In the case of Bettman v. United States, decided by the Circuit Court of Appeals for the Sixth Circuit, 224 Red. 819, 140 C. C. A. 265, the court, in the opinion by Circuit Judge Knappen, says this:

“We are asked to reject the Keheinberg Case upon the authority of Etheredge v. United States (C. C. A. 5) 186 Fed. 434, 108 C. C. A. 356, in which a construction is put upon section 5480 inconsistent with the construction of section 215 of the Code adopted in the Scheifiberg Case [213 Fed. 757, 130 C. C. A. 271, Anil. Cas. 19141), 1258]. We are not satisfied to follow the Ether-edge Case, because wo think some of the views there expressed are out of harmony with some of the decisions of this court (notably the Horman Case [116 Fed. 350, 53 C. C. A. 570], already cited), and because the case is opposed to the holding of the Circuit Court of Appeals for the Third Circuit in Culp v. United States, 82 Fed. 990, 27 C. C. A. 294 (cited with approval by this court in Milby v. United States, 109 Fed. 642, 48 C. C. A. 574), and with the decision of the Circuit Court of Appeals for the Fourth Circuit in Charles v. United States, 213 Fed. 707, 712, 130 C. C. A. 221, Ann. Cas. 1914D, 1251, decided since the adoption of the Criminal Code. It is, moreover, to be noted that the learned judge who wrote the opinion in the Etheredge Case expressly refrained from deciding whether the conduct involved In that case ‘would come within the statute, as it appears greatly enlarged in section 215 of the Penal Code.’ ”

In the Scheinberg Case referred to (213 Fed. 757, 130 C. C. A. 271, Ann. Cas. 1914D, 1258) it is held:

“That the use of the words ‘scheme or artifice’ to defraud did not limit the offense to a predetermined plan or contrivance to mislead or seduce the public into parting with their money or property similar to several swindles expressly designated in the statute, but prohibited the use of the mails for the transmission of a false financial statement by defendant to commercial agencies, with intent that the same should be used as a basis for the purchase of goods by defendant on credit to which he was not'entitled.”

These cases and others which might be cited, and which were referred to by Judge Knappen in the Bettman Case, are not in harmony with the decision of our Circuit Court of Appeals. If our Circuit Court of Appeals, however, had determined what they did upon this statute as embodied in section 215 of the Penal Code, I should be disposed to follow them as being controlling authority in this circuit; but the language which I have quoted, in which the court states that “no opinion is intended to be expressed as to it” — that is, as to the new language used in section 215 of the Penal Code — makes that opinion no authority upon the question submitted in this demurrer.

I think the indictment states a case against the defendant, and the demurrer must be overruled.