Opinion
No. 321.
April 1, 1929.
Appeal from the District Court of the United States for the Southern District of New York.
Percy Jay Fuller was convicted of an offense, and he appeals. Affirmed.
The defendant was tried in the District Court for the Southern District of New York upon an indictment in five counts, charging him with violating section 215 of the Criminal Code (18 USCA § 338), by mailing certain letters in furtherance of a scheme to defraud. The fifth count was dismissed and he was convicted on each of the other four. He carried out his fraudulent designs by selling stock in the New England Tobacco Company, a Delaware corporation of which he was treasurer, and also by selling stock in the French Franc Pool, the American Central European Syndicate, and the United States Power Syndicate, none of which were incorporated.
During the course of the trial, the ledger of the New England Tobacco Company was introduced in evidence against the objection of the defendant, on the ground that its introduction was contrary to the unreasonable search and seizure clause of the Fourth Amendment, and that it compelled one to give evidence against himself in violation of the Fifth Amendment.
The book was used exclusively as a record book of the corporation. It was in the custody of the defendant's secretary, who also held the office of secretary in the New England Tobacco Company, and when it was subpœnaed it was in the office used by the defendant. Its admission affected only the first and second counts of the indictment.
Before the trial certain books and papers of the French Franc Pool, the American Central European Syndicate, and the United States Power Syndicate had been subpœnaed from the possession of the defendant by the Attorney General of the state of New York, for use in an investigation of the defendant being conducted under the New York statute. While these books were thus in the possession of the Attorney General, they were subpœnaed by the government for use in the trial of this case, and were offered and introduced in evidence in support of the third and fourth counts in the indictment. To their admission the defendant made the same objection which he made to the introduction of the New England Tobacco Company's ledger.
Edgar F. Hazleton, of Jamaica, N.Y., for appellant.
Charles H. Tuttle, U.S. Atty., of New York City (Radcliffe Swinerton and Elbridge Gerry, Sp. Asst. U.S. Attys., both of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
Although the ledger of the New England Tobacco Company may be treated as having been in the possession of the defendant when it was subpœnaed, it was a book which had to do wholly with corporate matters, and the evidence it contained which tended to incriminate the respondent was in the book solely because it was a part of the records of the corporation. The defendant asks us in effect to disregard the existence of the corporation, and treat this ledger as if it were only his own private book. This would enable him to make use of the corporation in carrying out his plan to defraud, and, when brought to trial, relieve him of the consequences of the means he himself had chosen to further his scheme, and, upon the theory that he was the corporation, and that it had no existence whatsoever apart from him, procure the exclusion of the evidence tending to show what he had done.
The defendant rests his claim of error in the admission of this book mainly on the authority of Boyd v. United States, 116 U.S. 633, 6 S. Ct. 524, 29 L. Ed. 746. In doing so he overlooks entirely the fact that the book was not his, that it belonged to the corporation, and that his possession of it was for, and in the right of, the corporation in his capacity as its treasurer. He ignores all the duties to the corporation he voluntarily assumed when he became its treasurer, and puts his claim of privilege upon his physical possession of the ledger. That such claim is untenable is shown by the case of Wilson v. U.S., 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912d 558, and we deem the question no longer open to debate.
The books and papers of the French Franc Pool, the American Central European Syndicate, and the United States Power Syndicate stand differently. They belonged to the defendant himself, who was doing business under these names. They were themselves nothing but names.
All of these books and papers, however, were in the possession of the Attorney General of New York when they were taken by the government on subpœna. The privilege of the defendant was not broad enough to protect him from the production by others of his private books or papers, when they were found in the possession of a third party; but only prevented the voluntary production of them by himself while he had the custody of them. Johnson v. United States, 228 U.S. 457, 33 S. Ct. 572, 57 L. Ed. 919, 47 L.R.A. (N.S.) 263. See, also, Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A.L.R. 1159, and Schenck v. U.S., 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470.
Judgment affirmed.