347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435 (1954)
On April 19, 1951, Mrs. Gertrude Joyce, a wealthy widow, fifty-six years old, and her younger half-sister, Miss Katherine Joyner, were accosted by the petitioner Brading as they were about to enter a hotel in El Paso, Texas.1 Mrs. Joyce and her sister had just arrived from their home in Roswell, New Mexico, and were preparing to register at the hotel.2 Brading identified himself, assisted them in parking their car, and invited them into the hotel bar to meet petitioner Pereira.3
Brading represented himself as a prosperous oil man dealing in leases, and Pereira as the owner and operator of several profitable hotels.4 On May 3, Pereira exhibited a telegram to Mrs. Joyce stating that his divorce would be granted on May 27 but that he would not receive his share of the property settlement, some $48,000, for a month.5 Brading then told Mrs. Joyce that Pereira was about to lose an opportunity to share in the profits of some excellent oil leases because of the delay in the divorce property settlement, and persuaded her to lend Pereira $5,000.6
Pereira and Mrs. Joyce were married May 25, 1951, in Kansas City, Missouri.7 While there, Pereira persuaded Mrs. Joyce to procure funds to enable him to complete an arrangement to purchase a Cadillac through a friend.8 She secured a check for $6,956.55 from her Los Angeles broker, and drawn on a California bank, which she endorsed over to Pereira.9
On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso.10 The check cleared, and on June 18, a cashier’s check for $35,000 was drawn in favor of Pereira.11 At five o’clock in the morning of June 19, Pereira and Brading, after telling their victim that they were driving the Cadillac to a neighboring town to sign some oil leases, left her at home in Roswell, New Mexico, promising to return by noon.12
The petitioners were convicted in the District Court for the Western District of Texas under three counts of an indictment charging violation of the mail fraud statute, violation of the National Stolen Property Act, and a conspiracy to commit the aforesaid substantive offenses.13 The Court of Appeals for the Fifth Circuit affirmed.14 This Court granted certiorari to consider questions which are important to the proper administration of criminal justice in the federal courts.15
Whether Mrs. Joyce's testimony was admissible as based on confidential marital communications?16
Marital communications are presumed confidential, yet that presumption may be overcome by proof of facts showing the communications were not intended to be private, including statements made in the presence of third parties or information intended for transmission to others.17 The privilege extends only to utterances and not to acts.18
Yes. The established facts show that Brading was present when Pereira exhibited the telegram on May 3 stating his divorce would be granted and when Brading persuaded Mrs. Joyce to lend five thousand dollars for nonexistent oil leases.19 Pereira and Brading discussed the hotel purchase in Mrs. Joyce's presence after the marriage, and the three traveled together to view the property.20 Much of the testimony concerned acts, trips taken with third parties, and events before the marriage on May 25.21
The presence of Brading or Miss Joyner during these discussions negates any presumption of privacy under the rule.22
Mrs. Joyce's testimony was admissible because the communications were not confidential.23
Whether the evidence was sufficient to establish the mailing element required for mail fraud convictions?24
Yes. The established facts show Pereira and Brading devised a scheme to defraud Mrs. Joyce of thirty-five thousand dollars by false representations about a hotel purchase.27 On June 15 Mrs. Joyce received the check drawn on the Citizens National Bank of Los Angeles and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso.28 The check cleared and a cashier's check was issued on June 18.29
Pereira delivered the check to the El Paso bank knowing it would be mailed to California in the ordinary course of business to complete collection, an essential step in the scheme.30
The evidence was sufficient to establish the mailing element for the mail fraud convictions.31
Whether the evidence was sufficient to establish the interstate transportation element required for stolen property convictions?32
The National Stolen Property Act requires knowledge that property has been obtained by fraud and causing it to be transported in interstate commerce.33 Delivering a check drawn on an out-of-state bank for collection causes interstate transportation because such checks must be sent to the drawee bank.34
Yes. The established facts demonstrate that Pereira and Brading knew the thirty-five thousand dollar check was drawn on a Los Angeles bank.35 Pereira endorsed the check for collection at the El Paso bank on June 18 after the marriage and the fictitious hotel representations.36 It is common knowledge that the check would be sent across state lines to California for collection, satisfying the interstate element of the offense.37
The evidence was sufficient to establish the interstate transportation element for the stolen property convictions.38
Whether Brading could be convicted on the substantive counts under an aiding and abetting theory?39
Yes. The established facts show that Brading made the initial contact with Mrs. Joyce in El Paso and persuaded her to lend five thousand dollars for nonexistent oil leases.42 He participated in conversations about the hotel, engaged a telephone service under the name E. J. Wilson, and sent a telegram extending the spurious option.43 Brading supplied the false excuse for departure on June 19 and fled with Pereira and the proceeds.44
This abundant circumstantial evidence of close cooperation supports the jury's finding that Brading aided and abetted Pereira in the specific acts charged.45
Brading could be convicted on the substantive counts under an aiding and abetting theory.46
Related opinions on this issue
Justice Minton dissents as to Brading on the substantive counts.47 There is no evidence that Brading could reasonably have expected the mails would be used or that the check would be drawn on an out-of-town bank.48 Brading appeared only after the check had been mailed and collected.49
Nothing establishes he knew the funds would come from an out-of-state bank or that mailing would be required.50 Aiding the fraudulent scheme alone does not constitute aiding the federal offenses of mail fraud and interstate transportation.51
Whether convictions on both the substantive offenses and the conspiracy count constituted double jeopardy?52
The commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes.53 Double jeopardy does not arise unless the substantive offense and the conspiracy are identical, which they are not when the substantive offenses can be committed by one person and the conspiracy requires proof of an agreement.54
No. The established facts show the substantive mail fraud and stolen property offenses require only the scheme, the mailing or transportation, and knowledge, none of which necessitates an agreement.5556 The conspiracy charge requires proof of an agreement to use the mails or transport the check, an element not required for the substantive convictions.57 Pereira acted as principal and Brading as aider and abettor without any agreement being essential to those convictions.58
Convictions on both the substantive offenses and the conspiracy count did not constitute double jeopardy.59
Whether the evidence was sufficient to support the conspiracy convictions?60
Yes. The established facts demonstrate that Pereira and Brading collaborated from the initial contact through the final flight with the proceeds.63 Brading knew of the scheme to obtain funds from Mrs. Joyce and participated in the false representations about oil leases and the hotel.64 When Mrs. Joyce stated she would sell California securities to raise the thirty-five thousand dollars, the circumstances support the inference that Brading shared Pereira's knowledge that an out-of-state check would be involved.65
This supports the agreement to its collection by the only appropriate means.66
The evidence was sufficient to support the conspiracy convictions.67