
    GERNERT v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    March 5, 1917.)
    No. 2785.
    Conspiracy <&wkey;47 — Evidence—Stjeetciency—Participation.
    In a prosecution for conspiracy to use the mails in furtherance of a fraudulent scheme to sell corporate stock, evidence, consisting of a letter written by defendant to the sales manager, requesting the manager to write defendant certain false statements concerning the demand for the machines which the corporation was represented to be manufacturing and for the corporate stock, and the manager’s reply, held, sufficient to show defendant’s participation in the conspiracy.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 105-107.]
    In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.
    O. E. Gernert was convicted of conspiring with other persons to use the mail in furtherance of a fraudulent scheme, and he brings error.
    Affirmed.
    Littlefield & Maguire, of Portland, Or., for plaintiff in error. Clarence E. Reames, U. S. Atty., and John J. Beckman, Asst. U. S. Atty., both of Portland, Or.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   ROSS, Circuit Judge.

The plaintiff in error was indicted with certain other persons, to wit, Frank Menefee, F. M. LeMonn, Thomas Bilyeu, B. F. Bonnewell, H. M. Todd, Joseph Hunter, O. L. Hopson, P. E. Muraine, and Oscar A. Campbell, for a violation of section 37 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. 1913, § 10201]). All of the defendants to the indictment, except Hunter, Muraine, and Hopson, came up regularly for trial,, which trial resulted in the conviction of each of them, except Bilyeu, as to whom the verdict of the jury was by direction of the court not guilty. Thereafter Menefee, Todd, Campbell, and Bonnewell sued out a writ of error, which, upon presentation to this court, received its very careful consideration, the decision on which is reported in 236 Fed. 826, - C. C. A. -. The present plaintiff in error sued out a separate writ, which is now for disposition.

The charge against the defendants to the indictment is fully and clearly stated by this court in the former case, reported as above stated, and need not be here repeated. And all of the material questions involved on the present writ were there very carefully considered by this court and decided adversely to the contentions of the present plaintiff in error, except his contention that' there was no evidence given in the case tending to show that he was connected with the alleged conspiracy. In answer to that contention we think it sufficient to quote the following letter of the plaintiff in error, who was assistant sales manager to the sales manager of the United States Cashier Company, and the latter’s reply to that letter appearing in the evidence:

“The Stockton.
"Stockton, Cal., 2/24.
“My dear Le Monn: I Rave yours of tlie 27th. As to this country give me two inches of rain and I’ll come home with forty feet of gold. What is Amsden doing in Sacramento he is hiring men posing as fiscal ag’t. A fellow by the name of Nathan was in Lodi last week with a street car machine. Some one in Stockton this week. I am working Tracy, wired you today asking for list of stockholders & especially Cal. & S. Francisco holders.
“I believe I will do business with the Tracy bank, directors el all. I told them I had 35000 to sell & if I sold it all in their community the Co would permit one man to seat on the advisory hoard & see that everything is taken up legitimately. They are to have another special meeting at which my presence will be required at which time I must have stockholders list &' statement. Show up cash & notes in one item.
“Write me a personal letter and tell me you will do all in your power to help me get that 1000 machines I ask for, for my territory. Also say in a joking way that you never knew there were so many banks in the country, as the fetters show which are coming in daily asking about machines. Also state that one of the directors stated at luncheon the other day that they are figuring to keep the wheels running 24 hrs a day 3 — 8 hr shifts in order to supply the great demand which I know there is for our new born toy.
“Also state that the other two agencies are almost through with the stock selling & if I want to let them have what* I got to sell to let you know as they want it, but personally you wouldn’t do it as it would mean that I would have to lay ideal for a month or two until the machines are ready.
“I am feeling fine physically & seem to be sound mentally,, its only once in a while I get bugs.
“Tours mit lof Gemert
“P. S. I hocked my sparker today in order to save myself from being knocked down, theres so many hold ups these days.”
“March 2, 1912.
“Mr. O. E. Gemert, Stockton, Calif.' — My Dear Gernert: I have your favor of the 27th and have carefully noted contents of same, and beg to advise that Mr. Amsden has reported at this office this afternoon and is not leaving any one working in California.
“We are to-day sending you a partial list of stockholders in California, as the entire list was eight pages long, together with financial statement as shown by our books February 1, 1912.
“We will be only too pleased to have a member on the Advisory Board from that section of California providing they sell $35,000 worth of stock allotted to you, as then they would have a, sufficient investment to take a deep personal interest in advising with us as to plans of manufacturing and selling.
“You may count upon me using my personal influence in giving you all the possible support toward providing you with 1000 machines which you have requested for your territory.' You would really be surprised at the number of unsolicited orders that are coming in from almost every quarter, and it has been a very agreeable surprise to tbe writer, as I bad no idea there were that many banks and paymasters in tbe country.
“You may be interested to know that tbe Board of Directors have decided to have tbe factory work overtime and we are figuring on getting tbe factory on three shifts of eight hours each, which means that they will have to work twenty-four hours a day if the orders keep on coming, in order to supply the great demand, which' we are assured for this new device, our Automatic Cashier.
“Just a word to advise you t*hat the other two fiscal agents have almost sold their entire allotment and want to know if we can supply them with another block, which means, if we are to do this, that we get same from you and want you to advise us by return mail if you are willing to release any part of your block and turn it over to them. In fact, I think they would give you a small premium if you would do so. Just bear in mind that we are not asking you to do this, as it would mean that you and your men would have to remain idle for at least thirty or sixty days until we could supply you with enough machines to keep your men busy.
“It may interest you to know that a week ago I saw the first Standard Commercial Automatic Cashier demonstrated and in action and watched it work for a period of thirty minutes without it making a symbol of an error and I believe that this demonstration proved one fact: That it is the first time in the history of the world that any machine ever made three automatic visible records of a transaction, two of which were permanent, one on the endless tape and the other on the check itself, and these, together .with the visible total which is always before you, constituted these three records. Besides these three records we had two others, one when the keys were depressed, and as you know remain down until the machine is operated, and the other the money which was paid from the machine automatically.
“We have been very enthusiastic after this demonstration and are absolutely satisfied that these machines will revolutionize the present systems of handling money and prove to be one of the greatest of modem inventions.
“Am glad to know that you are feeling yourself again and wishing you continued success, beg to remain,
“Yours very truly, Sales Manager.
“FML:E”

We agree with the attorney for the government that comment upon these letters is unnecessary.

The judgment is affirmed.  