Appeal from the District Court of the United States for the Eastern District of Wisconsin.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Appellant was indicted for unlawfully, wilfully, and knowingly concealing by trick a material fact for the purpose of defrauding, etc. the Home Owners Loan Corporation. Upon his conviction by the jury he was duly sentenced, from which sentence he presents this appeal. His assigned errors are failure to fully instruct the jury on the issue of intent, exclusion of evidence offered to establish absence of criminal intent, and refusal to direct a verdict of not guilty.
The evidence upon which conviction rests consists of proof that Christensen aided one Oster, resident of Racine County, Wisconsin, in applying for a loan from HOLC, an instrumentality of the United States in which the Government is the sole owner of its stock. Christensen was financially interested in a piece of real estate, holding the deed thereto which he claims was a mortgage to secure a loan for $5715.88 by him made. Christensen obtained an abstract which showed that while the paper title rested in him a judgment was entered against him for $946.99. Christensen eliminated, or caused to be eliminated, from the abstract the page of the abstract upon which the judgment appeared and caused another page to be substituted, with the same number of entries, which contained no reference to the judgment. He offered evidence to show that the deed of the property to himself was in fact only a mortgage, and he asserted that the judgment against him was never a lien upon the land because his interest therein was merely that of a mortgagee. It was for this reason, so he asserts, that he eliminated the page from the abstract and removed all evidence of the outstanding judgment.
The statute (18 U.S.C.A. § 80) upon which appellant was indicted reads as follows:
"§ 80. Presenting false claims; aiding in obtaining payment thereof. Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States, or any department or officer thereof, or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent; or whoever, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
It appears that the Government, before acting on Oster's application, learned of the existence of the judgment and refused to make the loan. Certain expenses were incurred in examining the abstract and investigating the application. Somewhat later after the Government began inquiry into Christensen's action, the judgment was paid and satisfied.
At the trial, appellant offered evidence tending to show that he believed the judgment was unjust and was for a sum larger than his indebtedness. The court excluded this evidence, and error is assigned on such exclusion.
The fact that a judgment debtor believes a judgment rendered against him is excessive and is unjustifiable is not unusual. Such belief, whether sincere or not, does not, however, impeach the validity of the judgment, nor does it justify the judgment debtor in removing the record of such judgment from an abstract of title to real estate upon which it was apparently a lien. This evidence was properly refused.
In the course of the trial the Government offered evidence which the court received, which bore on appellant's . intent. His firm's stenographer testified that she made a false written statement supporting the reason which Christensen gave for deleting the abstract of one of its pages. She said she made this false written statement at the request and urge of Christensen. Such evidence not only tended to contradict Christensen, but it indicated guilt on his part, so it is argued. Securing from one's stenographer in advance of a criminal charge a statement of facts known to him to be false is suggestive of a consciousness of criminal misconduct. Such evidence was somewhat persuasive on the issue of guilty knowledge and guilty intent. Appellant sought to overcome the effect of this testimony by offering the evidence of Cox, also in his office and at times engaged by him as his attorney. The court refused to permit Cox to testify. The record is as follows:
"(Defendant's Counsel:) If the Court please, in view of the testimony as to this statement here we will have to ask for some surrebuttal testimony. I would like to make a statement with reference to the position of the young attorney who is here, prior to his being called --
"The Court: (interposing) Active in the trial of the case?
"(Counsel) No. Mr. Cox has been assisting to a certain extent, but he is the man who prepared the statement and had ...