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United States v. Rowe

Circuit Court of Appeals, Second Circuit

March 14, 1932

No. 276


 [*748]  Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The indictment laid the scheme and conspiracy -- for there is no substantial difference between the two when more than one are involved -- as follows. Lyons and one Jerome Collins organized two corporations which they called Bureaus, by which through the press and by emissaries they got in touch with persons who had lost money in stocks, and who had, or thought they had, claims against the sellers. They told the claimants that they could secure for them a settlement of their demands, and procured confederates to appear as the sellers and offer to convey lots of land to them in compromise. In these negotiations they attributed a higher value to the lots than they believed them to have, and said that they could sell them in a short time at an increased price, knowing they could not. By these deceits they got the claimants to pay to them the difference between the false value of the lots and the amount of their claims. All this was a deliberately planned scheme to defraud; the lots were [**2]  of little value; they had not in fact approached the sellers; the supposititious sellers were not real. Rowe and Michael Collins were confederates who assisted in the sale of the lots. The proof came chiefly from one Kliefeld, another confederate, though not indicted; he was corroborated by a number of those practiced upon. The substance of the charges were proved beyond question and the case should clearly have gone to the jury, so that the only questions which can arise upon the appeals are those touching the indictment and the regularity of the trial.

The first is of a variance. Evidence was admitted that part of the plan was to tell the claimants that there were mortgages upon the lots, which it was necessary to release. Though there were in fact such mortgages, the defendants represented them as greater than they were, and required of the claimants a larger amount than was necessary for the releases. This was not laid in the indictment, and is the variance alleged. Literally it was; the evidence cannot be defended on the theory that it merely proved intent, and was competent because collateral transactions may be admitted upon that issue, as in cases of receiving stolen [**3]  goods.  The deceit as to the mortgages was a part of the scheme, though not as laid in the indictment, a term of the actual criminal agreement; and the proof varied from the charge pro tanto. But such variances have long been disregarded in trials for conspiracy, though apparently pleaders still try to fend against them by  [*749]  alleging that the details specified were only "part of the scheme"; which would not serve if the point were a good one, since defendants are entitled to a true statement of the agreement. The answer is that ] as to the conspiracy a strict correspondence between pleading and proof is not required [Schouweiler v. U.S., 27 F.(2d) 515 (C.C.A. 9); Shepard v. U.S., 236 F. 73, 81, 82 (C.C.A. 8); Kepl v. U.S., 299 F. 590 (C.C.A. 9)]; and indeed in modern times variances are in general disregarded which do not mislead the defense [Meyers v. U.S., 3 F.(2d) 379 (C.C.A. 2); Sotorios Targakis v. U.S., 12 F.(2d) 498 (C.C.A. 5)]. This was such a case.

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56 F.2d 747 *; 1932 U.S. App. LEXIS 2828 **


Prior History:  [**1]  Appeal from the District Court of the United States for the Southern District of New York.


indictment, bureaus, claimants, conspiracy, settlement, utterances, promises, sellers, buy

Criminal Law & Procedure, Inchoate Crimes, Conspiracy, Elements, Evidence, Burdens of Proof, Variances Between Pleadings & Proof, Accusatory Instruments, Indictments, General Overview, Fraud, False Pretenses, Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Torts, Civil Procedure, Judicial Officers, Judges, Trials, Jury Instructions, Requests to Charge, Jury Trials, Requests for Instructions