PREEMAN et al. v. UNITED STATES, 244 F. 1

ALSCHULER, Circuit Judge (after stating the facts as above). i. It is urged that the indictment is defective in failing to set out the contract above referred to, or to set out that such contract was entered into. The case of Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573, and others are cited to sustain the contention. But they are cases where the defendants were charged with the offense of obtaining property through some fraudulent scheme or pretense.

This indictment charges defendants with using the mails in execution of a scheme or artifice to defraud which they had devised; the conspiracy counts charging a conspiracy to so use the mails. Where the charge is that of obtaining property by fraud, the material elements of the fraudulent scheme whereby the property was obtained should be set forth in the indictment; but here it is necessary only to set forth generally the scheme or artifice which the defendants devised, and to charge the use of the mails in execution of the scheme. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L.

Ed. 709; Bettman v. United States, 224 Fed. 819, 140 C. C. A. 265; Farmer v. United States, 223 Fed. 903, 139 C. C. A. 341; Gourdain v. United States, 154 Fed. 453, 83 C. C. A. 309, And the scheme itself is not required to be charged with the detail and particularity necessary in an indictment for the specific offense of obtaining property through false representations. Bettman v. United States, supra; Emanuel v. United States, 196 Fed. 317, 116 C. C. A. 137; Blanton v. United States, 213 Fed. 320, 130 C. C. A. 22, Ann. Cas. 1914D, 1238; Foster v. United States, 178 Fed. 165, 101 C. C. A. 485.

In apt language the counts set forth the scheme to represent that bankrupt debtors of the victim had fraudulently concealed assets, or that there were responsible secret partners; that seizures of property had been made or were about to be made for other creditors; that the collection would surely be made; and other of the alleged knowingly false and fraudulent matters and things above stated. We regard the contract as evidence tending to show the manner in which the fraudulent scheme to obtain money would be made effective, and as such unnecessary to be referred to in the indictment. 2.

Insufficiency is claimed because the indictment fails to state what the Barr & Widen Agency is, whether a partnership, corporation, or whatever else,.and because the relation of the defendants to the agency is not stated. Had the Barr & Widen concern been a defendant or a victim of the fraud, it might hjave been necessary to allege its capacity as a business entity. But, appearing only as a means through which defendants realized upon their scheme to defraud, it is not material what was its precise legal capacity.

If defendants fraudulently devised a scheme to falsely represent the “agency” as having done things which it had not, or as having information concerning, or taken steps affecting certain bankrupt debtors, which it had not, the fraudulent scheme is the same, whether the alleged “agency” be corporation, partnership, or what not.

In brief for defendants it is said: . . “The allegations all the way through indicate, however, that it [the agency] is a body of men that have been engaged in the collection business.” This being so, the indictment sufficiently advised defendants that the “agency” had in some capacity the right to transact business, and could have participated in the execution of the scheme which defendants had devised.

If in preparing their defense defendants needed to be more fully informed of tire legal capacity of the agency, motion for a bill of particulars would doubtless have elicited whatever, if any, further facts thereon the government possessed. Foster’s Federal Practice, § 522; May v. United States, 199 Fed. 53, 117 C. C. A. 420.

And what is said on this point applies as well to the contention as to failure to allege the relation of defendants to the “agency.” Whether they constituted it or were employed by it, or whether they had or had not a right to make representations concerning it, were matters, not of allegation, but of evidence, bearing on the proof of the scheme and its conception and operation. 3.

It is insisted that the letters set forth in the several counts as having been mailed inherently show they had no power or tendency to execute the alleged scheme, and that it is not sufficiently alleged that they were mailed for the purpose of executing the scheme. Our reading of the indictment letters, far from convincing us that on their face they had no power or tendency to execute the fraudulent scheme, induces the opposite conclusion.

The letters set forth in 14 of the counts are presumably to various of the intended victims, signed by defendant Wendler, and are all in substantially the following form appearing in count 11: “Stromberg Motor Devices Co., Chicago, Illinois — Gentlemen: We are In receipt of advice from our solicitor ot the list of your present delinquent claims, that you had handed him, for the purpose of arriving at the basis for charge covering our service, and one of our special representatives will call upon you in the near future regarding the same.

Thanking you for your courtesy in the matter, we beg to remain, very respectfully, Barr & Widen Mercantile Agency, F. D. Wendler, General Manager. April 23, 1912. Ir-30.” Surely such letters advising of the receipt of the list of claims, and of the intended call of a special agent to closo a contract, show on their face they had some power or instrumentality in the execution of the scheme to defraud. In most of the other counts under

section 215 the letters set forth as having been mailed in execution of the scheme to defraud are from Preemau to various agents in the field, some referring to the sending of lead cards, other encouraging the agent, or giving directions relating to the business of realizing on the alleged plan fraudulently to secure moir'v from victims. The letter which is mailed need not be one to or from the intended victim of the fraud, in order to come within the terms of

section 215. The execution oí the scheme may be, and here was, most effectively furthered, and the purpose of its execution or attempted execution most directly served, through communications by mail between the persons who concocted or entered into it. Some of the indictment letters refer to the stoppage by the victims of payment on checks given for realization charges, and one of them (count 22) is an acknowledgment of receipt of a list of claims and of a contract, promising prompt attention and enclosing further blanks for claims.

The scheme alleged, being one for obtaining money through the fraudulent representations and practices set forth, the use of the mails, even after the money is received, for the purpose of assisting in retaining the money, or to convey to the victim assurances calculated to lull him into inaction and to postpone, perhaps indefinitely, his taking action in respect to his loss, is within the purview of the law which condemns depositing in or taking from the mails any letter, etc., for tire purpose of executing any scheme to defraud. Farmer v. United States, supra.

The counts charge that the letters therein set out were mailed “for the purpose of executing the said scheme and artifice to defraud, and for the purpose of attempting so to do”; and as the letters themselves do not indicate that they could not and did not have such tendency, but, on the contrary, carry the inference that they could and did, we find no merit in the contentions in this regard. 4.

The conspiracy counts (25, 26, and 35) are criticized mainly for their alleged failure sufficiently to aver that the conspiracy charged does not include in its purview the use of the mails in the execution of the contemplated fraud, and that the indictment letters and the other things stated therein as overt acts manifestly had no power to effect the object of the conspiracy.

The counts charge: “That the defendants * * * unlawfully, etc., conspired, etc., together, * * * for the purpose of executing the said scheme and artifice to defraud « * * and attempting to do so, to place and cause to he placed letters in the post office.” We regard this as sufficient averment of a conspiracy to use the mails in execution of the alleged scheme to defraud. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 U. Ed. 667; Emanuel v. United States, 196 Fed. 317, 116 C. C. A. 137.

In each of these counts the sending of letters of the same general purport as those heretofore referred to is charged by way of overt acts, and in counts 25 and 26 there are further charged as overt acts such things as sending lead cards, securing, lists of delinquent accounts, the meeting of certain of the defendants at particular places — all charged as having been done in pursuance of the conspiracy and to effect its object.

It seems clear that all such acts from their very nature may well have been influential in effecting the object of the conspiracy, and without here presenting analysis or discussion of counsel’s elaborate argument to the contrary, we find the counts sufficient in this respect.

Other objections to the indictment are urged with much detail of argument and authority, but they seem to be largely refinements of such matters as we have considered, and in most instances quite too hypercritical to serve as substantial and fatal objections to the indictment or any of its counts, which, upon careful consideration, we conclude duly and sufficiently advised defendants of the nature of the charges thereby preferred. 5.

Error is assigned on the admission in evidence of a certain book in which were entered the “realization charges” which were received at Preeman’s 'office for about three months of 1912. A tabulation of these showed a total of about $130,000 received for this period.

It is claimed not only that the book was inadmissible as not being properly authenticated, but that in no event were its contents competent evidence, and that great harm accrued to the defendants through its admission, because it showed not only the realization charges as to which there was offered evidence of fraud, but also realization charges as to which there was no evidence of any fraud offered, and also many which were not sent in by defendants, but by other agents in the field, As 1o the authentication of the book, it appears that it was regularly kept in the Chicago office, where defendant Freeman was in control.

Those who kept the book were his employés, and it may well be concluded that it was under his general direction that the book was kc.pt, although he made no entries in it. Freeman and the other defendants were interested in the book, in that it was the record of the realization charges, of which Wendlcr, Freeman, the solicitors, and the list men were to receive cei'tain proportions.

The men who kept the book testified to the correctness of its entries, which were made as the checks were received, and even if the book wore required to be authenticated with the particularity of account hooks offered in evidence on behalf of those by or for whom they were* kept, we find such requirements to have been substantially complied with. But the book was offered and admitted rather in the light of an admission or declaration by the defendants or some of thorn, and as such the book would be sufficiently identified if shown to have been kept with the knowledge and under the general direction of defendant.

Bettman v. United States, 224 Fed. 819, 140 C. C. A. 265. As to the contention of the incompetency of the book, it did not appear that the fraudulent scheme proved was concocted with reference to any definitely intended victims, but should be operative as to any and all whom the agents might undertake* thereby to influence. Indeed many of the other agents shown by the book to have secured such realization charges, were of the witnesses by whom the fraudulent scheme was proved.

The fraudulent scheme being shown, it was competent to prove the extent to which realization charges were solicited and secured, as bearing on the motive and intent of those who concocted the scheme, even though in many cases it did not appear whether fraudulent representations were made to secure them. It must be borne in mind, however, that the extent of success of the scheme as charged under

section 215 was in no manner necessary to be shown, the only essential elements being the fraudulent scheme and the use of the mails in its execution. But in any event no prejudice to the defendants resulted from this evidence. Even had the jury believed that the total amount of realization charges shown in the account hook had been secured by the defendants, and by fraud, nevertheless they could only have found the defendants guilty, which was all they could do with the proof showing only $10,000 of these realization charges to have been, so secured by them.

And in this connection it may be noted that one line of defense consisted in showing by witness Salter the great volume of business which the agency had transacted — the many thousands of claims handled, and of dollars collected since the year 1901. And one item of evidence was a long list of realization charges aggregating many thousands of dollars, collected from concerns not in evidence as complaining, showing in each such case where collections had been made of at least two and one-half times the amount paid.

On cross-examination Salter testified without objection that about 12,000 had paid realization charges. Surely all this evidence coming from practically the only witness of importance offered for the defendants, and designed to show the magnitude of the business which the agency transacted, is quite inconsistent with any claim of prejudice arising from evidence offered by the government of large receipts of realization charges within a given time. 6.

It is seriously contended that all evidence was incompetent whereby it was shown that defendants had made representations of promises to intended victims inconsistent or conflicting with the terms of the contracts which were executed, on the ground that, the contracts being in writing and signed by the parties to them, no evidence was admissible to vary their terms.

As before observed, the indictment charges the use of the mails by defendants for the purpose of executing the alleged scheme or artifice to defraud, and if the evidence shows that the scheme devised or intended to be devised was the false representation of past or existing-facts to induce belief of ability to collect certain stale accounts, and that thereby the intended victims were to be defrauded of their money, it is not essential that one of the steps in the carrying out of the fraudulent scheme.was the signing of a contract.

The rule against the varying of written contracts by parol, applicable to instances where the contract is the subject-matter of the controversy, has no relevancy here, where the contract is merely one of a series of evidentiary facts bearing upon the ultimate question whether a scheme or artifice to defraud was in fact devised or intended to be devised.

The relation of the contract to the transaction was well described in a letter of October 12, 1912, .from Preeman to agent Tappe, when, as trouble seemed to be brewing for the “agency,” he wrote: “Relative to the contracts received, wish to advise you there has been still another change made in the contract, namely, as per sample herewith inclosed, and I understand this will be the final contract — at least, until the present agitation subsides. The firm has been compelled to make this change on account of certain statements made by the contract men regarding matters of fact relative to claims.

If it were not for the fact that I have been on the firing line myself, and sold a great many contracts, I might be inclined to make the statement that it will be hard to close these contracts. My experience, however, teaches me that the contract has very little to do with it, and I think you will find this to be a fact after you get out on the proposition.” 7. The claim is persistently made that under all of the evidence the conclusion of guilt is wholly unwarranted as to any of the defendants, mainly because: (

a) The agency repeatedly instructed and warned agents against making any of the false representations charged and proved as constituting the alleged scheme to defraud, and the contract form as well as the printed letter heads of the agency carry on their face notice that the agents had no power to make representations or agreements not contained in the form of the contract; (

b) the contract provides for a three-year term of service of the agency, during which time all delinquent accounts of the client must be sent to the agency for collection, and that not till the end of that period could it. be known whether the contract was or would be fulfilled; (

c) the agency in good faith intended and tried to fulfill the contract, undertook to collect each account sent it, and did in fact collect large amounts for clients, and stood ready to serve them as in the contract provided during the term of its existence; that in practically eyery instance as to which proof showed the money was obtained through the fraud alleged the three-year period had not expired, and that the executed contract was broken by the client through failure to send to the agency current delinquent accounts, and that as a further consideration for the contract, the agency was to furnish and did furnish clients certain form letters for collection by the client of its own accounts, and that thus everything in the way of service and the like which was intended to be given and which the contract provided should be given the client was in fact given, or the agency in good faith stood ready to give it.

It appears that in most instances an agent entering the service of the “agency” was required to acknowledge receipt of a printed circular called “Instructions to Solicitors,” in which it was stated, among other things, that the solicitor’s power was limited to soliciting and closing the printed contracts unchanged, and forbidding the use of testimonials except such as were supplied by the agency, and from securing business by other than “legal, legitimate, and truthful methods,” and from stating to prospective clients that the agency “has any knowledge whatever as to any matter of fact that would make possible or probable the collection at any time of any claim,” or that the “agency has made any investigation as to the collectibility of any claim prior to the closing of the contract,” or that the “agency will refund all or any part of the realization charge in case this agency fails to recover the amount of minimum recovery.” In the contract forms and on other stationery was also printed notice of the solicitor’s want of power to vary the form of contracts.

If all this has been in good faith, with expectation of observance of these instructions, it might carry inference of the innocence of wrongdoing of those in charge of the project, men like Preeman and Wend-ler; but if, on the other hand, these fulsome warnings and notices appear from the evidence to have been merely a hypocritical pretense devised and employed with the view only of protecting from possible evil consequences of the scheme, a foil to parry the charge of fraud in case of prosecution, the fraudulent scheme and purpose is thereby only intensified.

That this was really “an anchor to the windward” to provide for safety in time of stress, the jury was well warranted in concluding from the evidence.

On cross-examination by defendants’ counsel of different agents, letter after letter from Wendler was produced reproving the agent for making misrepresentations complained of, and threatening discipline and discharge; but few, if any, were for such cause discharged, none permanently, notwithstanding the constant stream of complaints coming to Wendler from the victims of the misrepresentations and promises of the very kind so peremptorily forbidden to be made in the “Instructions to Solicitors.” A significant instance occurred in 1909 when Preeman then a field man had been instrumental in obtaining a contract, with the result that shortly after-wards a letter from the victim reached Wendler calling attention to the representations which Preeman had made to secure it; whereupon Wendler wrote the usual reply, stating that Preeman was only a solicitor, and that if promises, representations, or changes in the contract had been made by him the responsibility was up to Preeman and the victim, and not the “agency,” but assuming the victim that Preeman’s services had been dispensed with, and that notice to that effect had been duly published.

But contemporaneously with this correspondence it appears there were continuous lively and friendly exchange of letters between Wendler and Preeman, referring, among other things, to this contract, but without suggestion of dismissal or disciplining of Preeman; on the contrary, his rapid rise in the service appears, soon becoming, and thenceforth remaining, second in importance only to Wendler himself.

At times there was indeed reproof of agents, genuine reproof; but not because of the fact of misrepresentation, but the quality of it, in the rashness and imprudence displayed, as for instance, where an agent, utterly without any foundation in truth, stated that á certain named boat then alleged to be at a certain named dock was about to be attached by the agency, “and again that an automobile of a certain debtor would pass through a nearby point at a certain time in the near future and would be seized by the agency — all as inducements to the client to close at once so as to get in on' the proceeds.

Of course, such representations were too specific and immediate to be at all consistent with safety, and for such gross imprudence reproof manifestly was well merited. Agent after agent testified to being advised to pay no attention to such instructions and warnings; that these were merely for protection in case of trouble.

And the agents themselves, when expressing worry about their own possible liability, were assured that whoever executed one of these contracts “signed away his life,” and that there could be no possible “come-back.” Two letters from Preeman to agent Myers, written in the early fall of 1912, well illustrate the utter hollowness of any pretense of virtue in these oft-reiterated instructions and warnings.

One reads: “You must adhere strictly to your printed instructions to solicitors signed by you and refrain absolutely from making any representations to any prospective client or patron that you or Barr & Widen Mercantile Agency have any knowledge of any kind or character as to any matter of fact regarding the collectibility of any claim or claims, or that any claim of client or patron had been investigated prior to execution of contract.” And the other: “Relative to instructions to solicitors which you inclosed, duly signed, wish to state that it does not amount to a row of pins, and you are not signing away your life, as you say.

They have received enough complaints about you. and Kaiser, and I have been instructed several times to discharge both of .you, which I did when I was in Phila., but as you have been subsequently reinstated, of course it has been necessary to have new instructions. Do you get me?” But the plan of operation itself clearly shows that it was not intended nor expected that these instructions and notices would be complied with; else what possible purpose did the lead cards serve?

Why did the principal defendants, at the expense of so much effort and money, evolve this elaborate “lead” system, if it was to have no place in their enterprise? Why put the agent in possession of information regarding stale and admittedly uncollectible bankrupt claims of the intended victims unless representations concerning such claims were contemplated? Plainly the truth concerning such claims would have accomplished nothing.

Of the significance of the “leads” Freeman wrote agent Millard: “Up to three years ago we secured business in the samo manner as other agencies do as we had no leads.” The conclusion is irresistible that the “leads” were devised as a basis for the false, but alluring, tales which this large company of trained agents with singular sameness relate^ all over the country, to induce creditors of bankrupts to part with large sums in the hope of realizing on claims they had long regarded, as in fact they were, irretrievably lost.

In the elaborate briefs and arguments no possible function for the “leads” is suggested, other than as the vehicle for the plausible presentation of gross untruths to further the mulcting of gullible business men.

The very list plan and Wendler’s letters acknowledging receipt of the lists, indicate that prior investigation of the list claims would he made to give a basis in each case for the terms of a contract which would be submitted; and when the contract was presented the victim was led to believe that investigation of ¡be collectibility of the claims had in fact been made, and that it was this factor which entered largely ino the fixing of the amount of the realization charge stated in the contract, although in truth no investigation of any kind was ever made, or intended to be made.

These instructions and warnings, therefore, far from exculpating the defendants, only fortify the conclusion that there was here a premeditated scheme of widespread and profitable deception.

It is earnestly pressed upon us that, the contract being for services, proof of “an honest intent to render the service stated in the contract is wholly inconsistent with guilt.” If by these flagrantly false representations of existing' facts persons were induced to believe there would be speedy collection of certain of their hopeless claims, and were thereby inveigled into making substantial advance payments, will the fact that the recipient intends to do, and after securing the payment, actually does, all that can be done to make the collection (though well knowing lhat.no effort would be availing), neutralize his culpability in the formulation of the fraudulent scheme to obtain the advance payment?

Manifestly not. If it were otherwise, the most deliberate and circumstantial plan of deception to obtain in advance payment for services would be rescued from the charge of being in law “a scheme or artifice to defraud,” if only there is present an intent to render service, which, as here, can avail the victim nothing. The real and ultimate “service” contemplated as the result of the false representations was the collection of the old and delinquent un-collectible accounts.

If the fact of intention to send letters in each case demanding payment of the listed claims will obviate the implication of the defendants “having devised a scheme or artifice to defraud,” a more effective investment in envelopes, form letters, and postage stamps could scarcely be imagined, nor a more cheap, simple, and efficacious instrumentality for deliverance from tire toils of the law be conceived.

It is evident that the only thing intended to be done, or in fact done, towards collection, was the sending out of the form letters demanding payment, and then after a time, if the client manifested impatience at the delay in the realization of the promises and expected results, another letter or two, all at trifling cost, practically nothing compared with the payment made, the defendants all the time well knowing that neither such puny effort, nor any effort, could by any possibility bring any degree of success. We do not consider the three-year period provided in the contract as of any essential consequence.

It would be serious, indeed, if persons could by fraudulent means secure advance payment upon a contract which had three years or more to run, and would thereby be immune from prosecution for the fraud for the period fixed in the contract. If the present payment of the realization charge was to be secured through the fraudulent scheme alleged, it is immaterial for how long or short a term the contract in which it was mentioned undertook to bind the parties, nor indeed whether the victim, after paying his money and signing the contract, did, or did not continue to comply with its terms.

Besides, what of those many instances shown in the record where, in pursuance of the same fraudulent scheme, the schemers were not successful in procuring a contract to be signed, or, in securing the realization charge, notably those cases where the victim gave bank checks on which he succeeded in stopping payment, thus saving his money? In all such where the use of the mails was shown in attempted, though unsuccessful, execution of the scheme,

section 215 was not less violated than in those where the scheme proved successful. Defendants’ counsel place much stress on the voluminous evidence of collections made and work done by the agency as bearing on the good faith of the defendants. It was testified that from 1901 to 1912 accounts collected by the agency amounted to about $650,000; that the agency had a list of lawyers all over the country to whom claims might be sent, and a force at St. Louis which made effort to collect every claim which came to the agency.

As to the total of the collections in these 11 years (most of the time being before this “realization charge” scheme was 'conceived), it may be said that, where clients sent to the agency their current collections accruing after the contract was made, the ordinary results in the handling of such accounts, as might reasonably be expected, were achieved.

Undoubtedly attempt was made to collect all such, particularly as regular collection commissions or fees were to be paid the agency for each collection, wholly aside from the “realization charge.” But as to the stale accounts concerning which the untruths were put forth, it can make no material difference that it was really intended there should be sent out letters demanding payment, or that, if subsequently other accounts are sent in, effort will be made to collect them.

The evidence discloses no rational purpose in sending out the letters about the stale bankrupt claims, except perhaps to provide some proof of good faith in the transaction in case that was ever questioned. This may also be said of that part of the contract by which the agency obligated itself, without extra charge, to supply the client on request, printed forms of dunning letters to enable the client thenceforth to make his own collections without further expense, by employing this vari-colored literature of graduated degrees of persuasion and insistence.

But even this contractually proposed generosity does not import into the transaction such substantial consideration to the victim as will obviate the conclusion that the evidence shows a scheme or artifice to defraud. Conceding the intention to give something in return for the money which it was fraudulently planned to secure — stationery for dunning letters, making demands upon debtors, attempts to collect new accounts, and the like — this is not inconsistent with having devised a scheme to defraud, as is contemplated by the act. In Bettman v. United States, 224 Fed. 819, 140 C. C.

A. 265, it was well said: “It is not necessary to criminality under the act that nothing whatever is to be given in return for the money.” The “minimum recovery” clause of the contract is urged as further indicating fairness of the transaction; it being contended that through it, if the collections made did not equal the minimum recovery stated in the contract (usually fixed at four times the realization charge), a certain amount would be returned to the client.

From casual reading it might be concluded that such was the effect of the clause, but analysis and comparison with other parts of the paper shows it to be a mere collocation of words and phrases signifying nothing.

Whatever right in this respect it seems to confer on the victim appears to be at the option of the agency, to refund, or to continue its service to the client for another year, the client, of course, receiving back none of the realization charge, and the agency continuing its “service” for yet another year, the client being bound for that additional time to send in all of its current delinquent accounts for collection at usual rates, to a concern whose operators had already fraudulently separated him from a substantial amount, under the guise of a “realization charge.” 8.

It is maintained that the evidence fails to show that any of the defendants except Wendler and Freeman used or caused to he used the mails, or that the use of the mails in execution of a scheme to defraud was shown to have been part of the alleged conspiracy. Under

section 215 it is not essential that the use of the mails be contemplated by the fraudulent scheme. It may have been carefully designed to avoid using the mails altogether, but if in the execution of the scheme the mails are in fact used, the act is violated. Farmer v. United States, 223 Fed. 903, 139 C. C. A. 341. True it is that the evidence as to some of the defendants does not show them to have physically deposited in or taken from the mails any letters. But it is inconceivable that the scheme here charged and proved could have had vitality without using the mails.

Freeman was at the Chicago office, Wendler at St. Uouis, and the agents were in the field all over the country. Frequent communication was essential to progress and success. The material for the lead cards had to be gathered from various parts of the land, and literature and supplies sent back and forth. The intended victims were in most cases large business concerns of the different cities of the land with whom much of the business must in the nature of things have been carried on by correspondence.

Without the use of the mails the formulation and execution of the fraudulent scheme would have been an utter impossibility. It follows that all who participated in the scheme contemplated the use of the mails in the execution of their common design; and when to this end Freeman and Wendler made use of tire mails it was not only on their own behalf, but as well on behalf of their coparticipants, and their acts in this regard became the acts of each of them. This is not less true where the prosecution is under

section 215 than under the charge of conspiracy. Fitzpatrick v. United States, 178 U. S. 304, 20 Sup. Ct. 944, 44 E. Ed. 1078; Belden v. United States, 223 Fed. 726, 139 C. C. A. 256. And as to the conspiracy, the evidence showing, as it does, that it was to be executed, and that in its execution the use of the mails was indispensable, the intent to use the mails as a part of the conspiracy is thereby sufficiently shown. Farmer v. United States, supra. In Wilson v. United States, 190 Fed. 430, 111 C. C.

A. 231, in affirming conviction under an indictment containing counts for misuse of the mails and for conspir-acy to misuse the mails, it was said: “They could accomplish their objects only through the use of the mails and through the use of the mails has come this condemnation under a federal statute.” 9. Error is claimed to have intervened in the admission of evidence as to the bankruptcy of certain persons, the claims against whom are charged to have been a subject-matter of the fraudulent scheme.

No impropriety is asserted in showing that such persons were adjudicated bankrupt, but the errors claimed are that in the instrument of evidence showing them to have been adjudicated bankrupt in some instances it appeared also that they had been discharged from bankruptcy, and the contention is that it was improper to show the discharge. Even if this were incompetent to be shown, we do not understand how the evidence could in any manner have harmed defendants.

But we believe it was competent as bearing on the collecti-bility of the accounts against the bankrupts, and as thus throwing light on the intent and good faith of the defendants in representing they could and would collect such claims. 10. Complaint is made that the court did not charge the jury in accordance with certain requests for charges made on behalf of the defendants. In so far as such requests are not covered by the charge which the court gave, they .refer to the contract and its asserted influence on the issues herein as contended for on behalf of defendants.

This we have already considered in dealing with that subject, and it need not be further discussed in this connection. The charge which the court gave was not objected to, but we find no material error in it, neither in what it includes, nor in what it fails to include, it being particularly urged by counsel (though no such objection was made at the time) that the charge did not sufficiently present the case to the jury. 11.

In support of the earnest contention that through conviction on the conspiracy counts as well as on the others there is a double conviction, it is said that in each of the conspiracy counts there is set forth as the overt acts the mailing of certain letters, which letters are also stated in some of the other counts as letters mailed in violation of

section 215; the proof showing such letters to be in fact the same. 4 Under the facts here, the case of Ryan v. United States, 216 Fed. 13, 132 C. C. A. 257, decided by this court, is controlling upon this contention. There the indictment joined counts charging defendants with the consummated act of aiding and abetting in carrying explosives on passenger trains with counts for conspiracy to so transport explosives.

Overt acts were charged, apart from the actual transportation of the explosives, and the court, speaking by Judge Seaman, said: “Thus the counts for conspiracy, on tlio one hand, and those for aiding and abetting unlawful carriage of explosives, oil the other hand, cannot rightly be defined as ‘interdependent,’ nor were both charges either proved or provable by the same evidence, as contended; and the further contention that commission of the offenses averred in the last-mentioned counts was relied upon and involved for conviction under the conspiracy counts is unsupported by the averments in such counts, wherein neither of such commissions of offense is set forth in the specification of overt acts, so that no question arises whether their averment therein as overt acts would affect the rule above stated as to the independent, nature of the other counts.

Undoubtedly the evidence introduced in support of the conspiracy charge may weli serve as evidence tending to support the charges of aiding and abetting commission of the offenses averred in the other counts; but this coincidence in part gives no support to either contention of identity of the offenses charged, or of identity of the evidence involved for conviction. It is obvious that proof to convict of commission of the unlawful carriages, as aiders and abettors, must extend beyond the requirements for proof of the conspiracy.” The situation there does not differ materially from what here appears.

Here, as there, is found the coincidental fact that the evidence to prove the scheme to defraud serves also as evidence tending to support the conspiracy charge. Under

section 215 an actual use of the mails is essential to conviction. Under

section 37 the overt act to complete the offense may be any act. It may be mailing a letter or anything else. If the act charged and proved as the only overt act under

section 37 were the mailing of a letter, and the same letter only was charged and proved as the letter mailed in execution of a scheme to defraud alleged under

section 215, it may well be that the mailing of the one letter, completing as it would an offense under

section 37, and at the same time an offense under

section 215, would not admit of the defendant’s conviction and punishment under more than one charg'e, so proved; and such state of facts would well justify the doubts expressed by Judge Denison in the recent case of Hendrey v. United States, 233 Fed. 5, 147 C. C. A. 75. But that is not the situation with which we are dealing. The conspiracy counts do set forth as overt acts the mailing of letters, some of which appear in counts under

section 215; yet each of the conspiracy counts set forth as overt acts the mailing of letters not set out in the counts under

section 215 as the letters mailed in execution of the scheme. Counts 25 and 26 further charge as overt acts, other things, such as procuring lists, sending out lead cards, and meeting together, or of mailing letters other than letters charged and proved as completing offenses under

section 215, the proof of which established the conspiracy charged, as an offense separate from those charged and proved under

section 215. Applying the rule laid down in the Ryan Case, it follows there was here no double conviction. While we have confined our discussion to those contentions we deemed most important, we have given consideration to all the points raised, and from a perusal of the record and study of the extended briefs and the arguments, oral, printed and written, we conclude no error appears which would justify disturbance of judgment as to any of the defendants. Judgments affirmed.