Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.
Defendant, Abraham A. Browne, was jointly charged with Maxwell Riffkind (the latter under numerous aliases) in an indictment containing six counts, with the fraudulent use of the United States mails, in violation of Title 18 U.S.C.A. § 1341. The indictment alleged that defendants, pursuant to a scheme, defrauded or attempted to defraud certain enumerated insurance companies by making claims for losses which were fictitious. Such claims were presented by Riffkind, and in some instances the defendant Browne, a licensed and practicing attorney in the State of Illinois, was employed by Riffkind to conduct negotiations with the insurers with knowledge, so it was alleged, of their fraudulent nature.
In pursuance of the scheme, each of the six counts of the indictment alleged a separate and distinct use of the mails in the Northern District of Illinois. Riffkind entered a plea of guilty, Browne a plea of not guilty. The latter was tried by a jury and Riffkind was a witness for the government. The jury found Browne guilty on counts 2, 4, 5 and 6, and not guilty on count 1.The government at the conclusion of its case dismissed count 3. Counsel for Browne appropriately moved for a directed verdict on the basis that the government's proof on all counts was insufficient to take the case to the jury. This motion, as well as the usual post-trial motions, was denied by the court and judgment was entered upon the verdict. Browne was sentenced to prison for terms of eighteen months on each of the four counts and fined $1,000. The judgment provided that the separate sentences were to be served concurrently.
From this judgment Browne (hereinafter sometimes referred to as the defendant) appeals. The confusing situation attending the presentment of the case here is shown by the contested issues as stated by the opposing parties.The defendant states the contested issues as follows:
"The trial court erred in denying defendant's motions for dismissal and for judgment of acquittal at the close of the government's case and at the close of all the evidence, because:
"a. There was no proof of venue as to Counts II and VI of the indictment.
"b.There was no proof of use of the mails as to Counts II and VI of the indictment.
"c. The government's evidence demonstrated that the defendant was not implicated in an unlawful transaction in Count IV of the indictment.
"d. The government's evidence demonstrated that no offense was committed or attempted as alleged in Count V of the indictment."
(Other issues are stated which need not be mentioned at this point.) The government states the contested issues as follows:
"1. Is there sufficient evidence in the record to support a charge of aiding and abetting under 18 U.S.C. 2 as against the defendant on appeal?
"2. As against the defendant on appeal, if he aided and abetted, then is it necessary to prove as to him all of the elements of venue and of the substantive offenses after confession of guilt by the principal defendant?"
Thus, the government does not take issue with defendant's contention that the proof was insufficient to take the case to the jury but attempts to excuse its failure to make proof, particularly as it relates to venue and use of the mails, on a theory that because defendant was an aider and abettor such proof was unnecessary, in view of the fact that Riffkind had entered a plea of guilty and testified as a government witness.
We shall first consider the situation as it relates to counts 2 and 6. Count 2 charged that the defendants caused to be delivered by mail at 175 West Jeckson Boulevard, Chicago, Illinois, a letter addressed to the New York Casualty Company, 175 West Jackson Boulevard, Chicago 4, Illinois, Attn.: Mr. Gadwell, which had previously been placed in the mails for such delivery. A letter corresponding with that alleged in count 2, signed by A. A. Browne, was introduced by the government. Count 6 charged that the defendants caused to be delivered by mail at 170 West Jackson Boulevard, Chicago, Illinois, a letter addressed to the United States Fidelity and Guarantee Company, 170 West Jackson Boulevard, Chicago, Illinois, which letter had previously been placed in the mails for such delivery. The government in support of this count relies upon exhibit 5-A, which is not a letter, as alleged, but an accident report signed by Philip Goldberg, in or on which defendant's name does not appear. No stamped addressed envelope was introduced in support of the allegation that the exhibits relied upon in counts 2 or 6 were transmitted by mail.
The government, consistent with its statement of contested issues, after referring to Riffkind's plea of guilty states, "All that is left is to tie up the defendant Browne into Riffkind's scheme," and "If the principal pleads guilty to the substantive offense, then all that need be proved against the aider and abettor, even though he be charged as a principal, is that the defendant consciously and knowingly aided and abetted." Three cases are cited in support of this argument: United States v. Klass, 3 Cir., 166 F.2d 373, 380; United States v. Carengella, 198 F.2d 3, 7-8, and United States v. Alexander, 219 F.2d 225, 226-227. (The last two named decisions are by this court.) We think there is not in these or in any other case of which we are aware the slightest support for the government's theory. In fact, in the Klass case the court, in referring to the accessory statute, made the following statement, 166 F.2d at page 380:
"It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted. [We think the court might also have added that it is immaterial that the principal has been convicted or entered a plea of guilty.] The aider and abettor may be charged with the ...