Fitzgerald v. State

in the district court proceedings be taken fees, may be attorney’s findings conclusions

consistent with the

of this court in this order. LeRoy FITZGERALD, Appellant

Delton

(Defendant below), Wyoming, Appellee

The STATE

(Plaintiff below).

No. 5058.

Supreme Wyoming. Court of

Aug. 1979. failing

“1. trial court erred in to declare the value of the obtain- pretenses. ed under false failing “2. trial court erred in to suppress the State’s evidence which seizure, by illegal search and subsequently police used appellant. secure a statement from failing “A. The trial court in erred suppress consisting the State’s evidence appellant’s bank records obtain- police voluntary ed on a basis legal process bank without consisting of either a search warrant subpoena. failing

“B. The trial court erred in suppress consisting the State’s evidence to the application defendant’s Department a box Post Office for [sic] Mills, Wyoming applica- number in acceptance drop tions and for a mail in Chicago. failing

“C. The trial court erred in suppress appellant the statement of given questioning to the after postal about bank records U.S. illegally records seized as evidence. specific “3. The prove State failed to appellant beyond intent of the to defraud a reasonable doubt.” Finding no in of the error matters complained Fitzgerald, we af- shall firm his conviction. Jerry Yaap, Bishop, Bishop Yaap, A. & case, discussing In facts this

Casper, appellant. apply principle we the evidence light be most favor should examined Gen., Troughton, Atty. John D. Gerald A. when able to Stack, Gen., Deputy Gusea, Atty. James W. sufficiency We of the evidence raised. Atty. Gen., Asst. Dunn, and Sandra Legal evidence to the accept true favorable Intern, Cheyenne, appellee. State; disregard we evidence favorable to RAPER, J., Before C. and McCLIN- the defendant conflict with the in State’s TOCK, THOMAS, ROONEY, ROSE and JJ. evidence; evi and we afford to State’s every dence favorable inference which THOMAS, Justice. reasonably it. fairly be drawn from Fitzgerald, LeRoy having State, Delton Harvey Wyo., waived v. P.2d convicted, by jury, trial Wyo., (1979). after a trial Hovee court, obtaining goods apply false Heretofore we have had occasion to pretenses 6-38, only violation concepts § W.S.1957 these to cases tried before (now 6-3-106, however, W.S.1977). Fitzgerald juries. compunction, § We have conviction, seeks reversal of joining applied this and in have other courts which appeal he asserts these concepts claims of error: these trials the court. Sim- advertisement, Fitzgerald address. his

mons v. 255 Ark. 498 S.W.2d 870 price per Johnson, offered the towels at a $4.98 (1973); People Cal.App.2d dozen. This would dozen for the first five Cal.Rptr. 683 The function of 41.5 cents. price per into a towel convert tried to a court of the finder of fact in cases reducing price scale so also had juries, in cases tried to identical to hundred many as one that if one ordered as applicable are with re and the same rules dozen, per or price was $3.09 dozen the spect principles ap to the standards comparison A per 25.75 cents towel. plied appellate review. Fitzgerald’s pricing scales reveals 1976, Fitzgerald a In the fall of 1,450 and between markup was somewhere subscription magazine to a six-month trial 1,660 gained no assuming that he percent, Opportunities.” He “Money-Making called ordering towels in markup by additional magazine consisting described it as a smaller lots at large quantities to be sold in schemes, get-rich-quick products. ideas and greater price per towel. He answered several of advertisements Brothers, by Two In the advertisement eight magazine, from this some seven or all Inc., following language appears: through told. He did follow with one of “ * * * know Towel We SHOULD them, an a firm called advertisement 80,000,000— values, more than we’ve sold Brothers, Inc., Louis, showing Two a St. already! We’ve that’s MILLION — Brothers, Inc., Missouri address. Two Switzerland, Sweden, sold MILLIONS offering drop-ship to sell and unwoven cot- France, companies Germany, rayon fifty ton or towels. One could obtain And, in the United all over the world! plus thirty cents their towels for $1.45 States, million after million! we sell postage packing. price per for Tow- ship a million we about Sometimes gradual towel then at a rate from declined els in month.” towels, for 200 or two and one-half $5.00 veracity of the is silent as to the The record each, cents for ten thousand tow- $164.75 Brothers, Inc. In his by Two claims made per els which in 1.6475 cents would result Casper Shopper, Fitz- in the advertisement towel. The cost of one hundred dozen tow- following language: gerald used the els, inferentially have been would “ * * * values; We should know towel Brothers, Inc., price sold Two at their 80,000,000 we’ve sold more than —that’s towels, 1,000 would have been $17.75 80,000,000 already!! — per or 1.775 cents towel. $21.30 Sweden, sold millions in Switzer- “We’ve Fitzgerald responded to this advertise- France, land, other coun- Germany ment, and he that he was sent a testified And, in the the world!! tries all over reply prices pretty letter in which had the mil- States, million after we sell much like those reflected in the advertise- lion.” ment. explanation There was also an the record that Cannon It is obvious from drop-shipping, what referred to as Inc., of such previous Bros. had no record pursuant which was a method to which sales. Fitzgerald supply money for the could be- the bill for this advertisement When together pre- merchandise ordered of the Cas- delinquent, publisher came labels, typed shipping and Two addressed by tele- Fitzgerald per Shopper contacted Brothers, Inc., package, pay would in turn Fitzgerald had phone. He knew that forth, the mailing ship costs and so account from an placed the advertisement product persons in smaller lots to the whose saleslady prepared had at card which his mailing names were on the list. was obtained. the time the advertisement Fitzgerald through with this followed time, him that Fitzgerald advised At that running Casper an advertisement advertising responsible he was not Shopper February 1977. This adver- his commis- paid he because had Inc. tisement was taken out in the name of that Cannon Bros. sion and he assumed Inc., Chicago, pay Cannon would for the advertisement. Bros. with a Illinois 1977, Fitzgerald opened payable Fitzgerald March checks to Del but which checking account at the First signed by National were Damon Cannon. Bank of in the name of Cannon then Mr. Fitz- attempted She to contact Bros. signa- He identified himself on the gerald, and about hour and later she half president ture card as under the name received a return call at the bank from him. money of Damon Cannon. transactions complained failure to She to him about the relating sale of towels were handled receive the told him that she had towels and through checking Fitzgerald his account. asking written her order. She testi- about advising saleslady admitted for the Cas- the ad- placed fied he had said per Shopper advertising he repre- company, he had vertisement but senting Cannon Bros. testified nothing placing more to with it after do Inc., Bros. makeup is a name advertisement, he did not know what Brothers, of Cannon Towels and Two Inc. happened. him who Damon Can- She asked cross-examination, response On in ques- to a was, a repre- and he her he non told was why tion name, as to he chose the Cannon company. then asked sentative She he answered: Cannon, she Damon him how could contact “Well, that is a well-known A name. Fitzgerald and her that she could not told person towel, buying a maybe the idea of him. contact towel, it is a Cannon would be more depart- Upon investigation by police the them, probably.” inclined to order Casper, bank rec- City ment of the the Also, 1977, Fitzgerald in March obtain- relating to ords of the First Bank National Inc., ed a mail box for Bros. the Cannon at Bros, voluntarily made availa- Cannon were Mills, Post Office in Wyoming. At police investigating ble the bank to same arranged time he confidential part of officers. After a motion on the Bros, mailing address for Cannon at records, they Fitzgerald suppress to these Mail Chicago, Center of 216 Jackson Boule- his trial. were admitted into evidence at vard, Chicago, Illinois 60606. This was Similarly, authorities of the United States address used in the advertisement in Casper available Postal Service made to Casper Shopper. Mail to that sent address police the Postal records officers Service address, would be forwarded to Mills Chicago. relating drop to the mail in subject but payment postage of new these Again, suppress, after a to motion for which the Mail re- Chicago Center into over records were admitted evidence quired deposit. an advance objection. is clear Fitzgerald’s record In March respond- give Cashel not his consent in Delores that ed to Shop- being advertisement in either instance to the records per. records, She submitted an for 85 these order dozen available. After per Fitzgerald, towels at dozen for police $3.09 a total officers interviewed $262.65, together postage At that in the made a written statement. and he time, amount enclosed an that $25.50. She Omaha he advised the officers National January Bank Draft an adver- No. of 1977 he had answered amount of Inc. in represent Mrs. Cashel at tisement Cannon Bros. $288.15. worked the First National an ar- Casper, Bank and of towels. He described sale received, they agreed when the rangement pursuant towels were not she to which checked he then pay advertising the draft in the bank records and together found that had paid. Casper Shopper been She also dis- contacted the deposited up covered it had the adver- been with the saleswoman made Bank, began First he He advised that National endorsed Cannon tisement. then Bros. week of deposit slip receiving complaints she about the last addition found $288.15, getting for that May people firm the amount of who were not from orders, she concerned further discovered that their but he was not amount had He at that time. ad- complaints drawn out of account about the name, known mailing peated very use of a well setting up the address at

mitted patent subject to a federal Chicago, probably stated that about the last of very well known receiving copy right protection, checks May he started commission business; used that you apparently Bros. Inc. He said he re- people to believe apparently for a total of intended ceived three or four checks towels.” selling Cannon about $700. Fitzgerald to the then sentenced court part in the latter He stated he realized Penitentiary for not less Wyoming State June 1977 that he was of a fraud of and one- than one than one and not more kind, nothing help some but that he did $1,000; and ordered years; half fined him correct He stated that he did the fraud. of the amount make restitution that he write a letter to Cannon Bros. Inc. about attempted to who had obtained from those complaints the fact he had received about order towels. being orders He stated the received. stamp of error Turning Fitzgerald’s letter was returned to him with a claim the value envelope party across the that no such was because of the failure to declare obtained, points property at that He stated that he knew of the address. 7-11-502, W.S.1977, checking there at the First us to § account 7-267, W.S.1957, providing that: National Bank for Cannon Bros. Inc. but he § nothing had to do with this account. charges an offense “When the indictment Again, following an unsuccessful motion against by larce- of another suppress Fitzger- the statement and over obtaining under ny, embezzlement or conviction, objection, ald’s his statement was admitted pretenses, jury, false on into ver- evidence at the trial. and declare in their shall ascertain stolen, em- property dict the value of the right waived his to be tried falsely bezzled or obtained.” jury, a and after the trial the court he to instanc- question that in several There is no guilty. was found The court at that time court has juries to this involving es trials stated that there to be much did not seem jury for the to held it to be reversible error Fitzger- difference between the and State v. finding. a Cham- fail to make such ald exception as to the facts with the of (1952); bers, 288, Wyo. Fitzgerald’s subjective of mind. The state 186, 136 P. 795 Wyo. Merrill v. court following made the comment in con- 196, Wyo. Thomson v. finding guilty: nection with its of urges applica- (1913). Fitzgerald P. 850 sense, “In this somewhat odd I am not trial to the court. tion of the same rule in a beyond convinced reasonable doubt that Mr. take the statute on Fitzgerald, you intended to We conclude that trials to the keep applicable only entire its face is to amount here received present to assure entirely jury. requirement The yourself; to I am not convinced elements beyond you jury did not that the in fact considers all reasonable doubt crime, value particularly mean where delivery to obtain some of some of the convinced, however, goods. severity of the sentence I am increase did, you specifically consider you jury at the time of the is asked to case, inception way. In this element of value in this of the scheme as had been said of a by [counsel], was in the form terminology, property rather his here, general check, was not in dis expressing of the con- and value law cashier’s it was over you something pute vinced that its face did obtain at the trial. On required to pretense false amount knowingly and de- the one-hundred-dollar addition, circumstances, it is signedly, by felony. In all of the but make the offense a particular specifically con trial court employment in the. of vari- clear that names, In ous of the offense. it seems to me must have sidered that element the trial designed reporting finding guilty, to mislead and to state his something that was not true. The re- court stated: “I come the conclusion that there was States Postal Service. 39 265.6 C.F.R. § value, states, thing an of a (1978), among over things: limit, statutory minimum “(4) The business name and address pretenses, knowing which was and de- of post being the holder office box used signed.” purpose doing busi- soliciting public, ap- ness person with no We find error here in the failure of the holder, plying for box in behalf of a will trial court to specifically find the value of any person be furnished without taken. charge. postmaster may furnish respect With to the points error information when he is satisfied from arising out of the obtaining of the bank 1093, entries appearing Applica- Form records and the United States Postal Ser Box, evi- tion for Post Office or from vice legal records without process, we note dence requestor, furnished such holding Supreme Court advertising circular, that a be- box is Miller, United States in United States ing for such purpose. used a business 425 U.S. 96 S.Ct. L.Ed.2d 71 * * * (1976), to the effect person that a has no Again they voluntarily the fact that expectation reasonable privacy with re available Postal Service spect bank records. The Court held that Department officers of the Police checks, statements, such financial and de because there material was no unlawful slips posit voluntarily contained information seizure of such records. given bank, to the and that were rec ords of the bank respect with to which the Holding as we have that the bank records customer could ownership assert neither nor and the United States Postal rec- Service possession evidence, because party the bank is a properly also ords were received in to transactions involving such accounts. there no error in the into admission held legiti Court that there Fitzgerald’s could be evidence of written statement expectation mate privacy with officers. His claim re- Poole, such accounts. spect States to the statement is that it was obtain- (5th 557 1977), F.2d 531 by unlawfully Cir. the Court of the rec- using ed Appeals adopted decision, ords, and, therefore, the Miller was the the fruit of stated made no poisonous difference whether we tree tree. Since hold that the any process fruit, purpose was obtained poisoned, for the of in fact then its obtaining been, the permission may records. The of whatever that have was availa- the bank to search for the records was prosecuting ble to the authorities in connec- to be adequate deemed Fitzgerald. for the officers to tion trial of with the adopt obtain them. We and in rule so Fitzgerald’s final the claim is that reject doing contrary espoused the by rule record is insufficient to estab evidence of the Superior California court in Burrows v. of lish the element fraudulent intent. of Court San 13 County, Bernardino Cal.3d There is the intent no Cal.Rptr. 166, 118 (1975). P.2d essential element of crime defraud is an the We then are the obtaining property by pretenses. satisfied that same false appropriately State, rule applied Wyo., (1979). is to be with re Driver v. 589 P.2d 391 spect to the records of the United States be inferred the This element from Service. Postal The Postal Service conduct of the defendant and from circum party to the by State, supra; transactions these reflected stantial Hovee v. evidence. records, Wyo., there could be reasonable Beane v.

expectation of privacy by Fitzgerald with The evidence favorable to the has respect to them. particularly This is true in in some Fitzgerald been recited detail. light the regulations relating representations to the dis made false seller, closure of names and of custom sales identity prior addresses the the ers which have adopted by even might volume. The finder of fact part complaining or in witness’ deci- representation infer that of value Despite money and which was Fitzgearald’s price sales was false. sion to with her knowledge of its Fitzgerald did in fact send a made with defendant’s fact that Bros, falsity. account check drawn on Cannon customer who had submitted cashier’s obtaining The elements of the crime $288.15, correctly the trial court check for recently enun- pretenses, property false finding ruled that the of fraudulent intent in Driver v. ciated this court premised upon an intent not to was not 391, 393, “(1) pre- Wyo., P.2d are: Instead, deliver some merchandise. it was tenses; (3) (2) falsity; the fact of their premised upon pretenses the false found in by reason of obtaining property A de- Shopper advertisement. part (4) knowledge on the pretenses; suggestion nationally recog- liberate of a (5) falsity; of their the accused encompassed in the nized manufacturer was intent to defraud.” Fitzgerald business name chosen incorporated in the advertisement. When The Intent Issues misrepresentations these problem I have no with the conclusion are examined in connection of the specific-intent requirements that the with the other conduct of pretenses were met with re- crime of false assuming identity purpose a false represen- spect to at least some of the Bros, writing checks on the Cannon account pay to have tations. Even if himself; disclaiming knowledge as to shipped complaining wit- the towels Inc., although up he had set Bros. ness, testimony that it is clear his own entity; misleading that business and in the Brothers” in he chose the name “Cannon through his statement officers the adver- hopes inducing readers of conceding while at the same time that he getting tisement to believe that fraud, was aware of we are satisfied that by the Ne- As was said “Cannon” towels. there is which would sufficient evidence year: Supreme Court earlier this vada permit requi- infer the the finder of fact to ‘repre- ‘[Fjalse pretense’ “. . . site fraudulent intent in this case. It circumstance of some fact or sentation properly finder to draw the role of the fact is calculated to which is not true and evidence, inferences circumstantial may consist of . . . mislead [and] justifiable, and if those inferences are act, word, calculated symbol or token are, appellate these does not court sub- may be made It and intended to deceive. stitute its own inferences for those of the implication. expressly, either ’ ” State, Wyo., trial 588 P.2d court. Russell State, Nev., 590 . Buckner v. Spoonhunter, United States (1979), citing Bright v. P.2d 1973); (10th 476 v. F.2d 1050 Cir. State 170, 371, Sheriff, 168, 90 521 P.2d Nev. 192, Bloom, (1977); 90 N.M. (1974). supplied] [Emphasis 373 State, Okl.Cr., (1977). P.2d Hall v. 559 856 Brothers It was not true that Cannon in this judgment The of conviction case was misrepresentation The sold the towels. affirmed. Accordingly, the two designed to mislead. Wyoming crime “intent elements” of the ROSE, Justice, dissenting, with whom pretenses were obtaining property by false Justice, McCLINTOCK, joins. pretenses: false respect met with to certain proofs I would have reversed because the the ac- (1) knowledge the necessary mental elements and the (2) the intent to falsity; of their and cused complaining witness’ reliance were made State, supra. defraud. Driver v. with misrepresenta- to different Representations tions. on the False Reliance case, limited her tes- complaining In witness proved this has The State (1) following: sent misrepresentation timony in whole She resulted

579 representation draft along bank to Cannon Brothers someone relied on false towels; order (2) got nothing she by by made him him to and known be false. return; (3) she down tracked complaining Were it established that satisfaction; (4) and demanded Fitzgerald money upon witness had sent (5) responsibility; denied she went to representations get that she would towels police. and that the would be towels Cannon tow- els, Fitzgerald’s good faith as to one of the The law is clear that the above testimony representations two would not establish his is sufficient to allow the inference that the But, Driver, supra. innocence. complaining parted with money witness her logic authority, same State had the upon in reliance representation that she burden of that proving money was Hymes would receive the towels. v. United obtained, States, part, at least because of re- D.C.App., (1970); 679 260 A.2d State Allen, 250, of New liance on a Jersey representation v. 53 N.J. false made with 12 (1969); Crow, Mo., A.2d v. knowledge falsity State of its and with intent (1972); S.W.2d 461 and Davidson v. Com- defraud. monwealth, Ky.Ct.App., 436 S.W.2d 495 authority Additional this obvious

(1969). point page is found 660 of at LaFave representation get that she would Scott, (1972), Criminal Law which contains the towels turned out be false. How- citations to cases. More recent cases on ever, judge found there was at point Boratto, are: v. N.J.Su least reasonable as to doubt whether Fitz- 386, per. (1977), granted 381 A.2d 794 cert. gerald knew representation to be false 475, Court, New Jersey Supreme 77 N.J. or intended —at obtaining the time of 391 A.2d 490 Kinder v. Tex. money complaining defraud the witness —to Crim.App., (1971), reh. S.W.2d giving her the towels. den.; Ferrell, Colo., People 591 P.2d Because my ultimate resolution of this case, I need not consider whether a false

representation as to future conduct is a The Rationale for Affirmance representation sufficient false justify logic judge and the ma- the trial conviction for the of obtaining prop- crime jority pronouncing Fitzger- disturbs me. In erty by pretenses. false This guilty, ald said: judge the trial reserved in Driver supra, 589 P.2d at 394. “I come to the conclusion that there thing was an of value . record, In this is not one there iota of knowing pretenses, false which was support evidence in (or of the State’s case designed. this somewhat odd defense) the rebuttal indicating sense, beyond I am not convinced reason- complaining witness relied on Fitzgerald, you in- able doubt that Mr. representation Fitzgerald. entire here Whether tended to take the amount or not complaining witness thought ordering keep entirely yourself; she received towels is I beyond not known. am not reasonable complain- Whether or not the convinced ing witness was induced mail in her doubt that not mean to obtain money by Fitzgerald’s (in claim goods. adver- some I am con- delivery of some tisement) that he millions of vinced, however, had sold towels ... at the is not known. Whether or not the non-exis- inception time of the of the scheme . Chicago tent by used address you designed . . . to mislead and induced the complaining witness state was not something that true. . with her money is known. not “This . . . seems to me to consti- is, therefore, There insufficient law, evidence tute what if required is here even ” money because meant to obtain delivery. some . . trying to purposes For understand HARRIS, the Personal Andrew Lawrence assume, majority I judge, and the trial will Representative, Administrator to de- arguendo that intent somehow Harris, Ap Geraldine Deceased Diane permeated misrepresentation every fraud (Plaintiff), pellant Still, trial made defendant. judge expressly representa- found get tion that the victim would her towels Flick, GRIZZLE, William F. O. Claude not with proven to have been made Hospital Phillip Sharp, M. Memorial falsity. knowledge by the accused of its County, Wyoming, William C. Laramie appears It majority to me that Nichols, capacity as Ad his official in adopting by implication mis- one of two Hospital ministrator of Memorial (1) express exculpatory takes: Either Harry County, Wyoming, P. Laramie finding, supra, can negated be inferenc- Pattno, Smith, Stevens, John F. Dean es, (2) the crime of Emerich, Baggs, all in Fred and Carl pretenses has where been committed capacities as members of their official complaining parts proper- with witness Hos Trustees of Memorial the Board of ty upon misrepresentation in reliance Wyoming, County, pital of Laramie knowledge by made without the accused of Hos Trustees of Memorial the Board of falsity long its so accused Wyoming, Ap pital County, of Laramie defraud, misrepresentations intent (Defendants). pellees misrepresentations even if these other No. 5080. complaining relied on witness parting property. with her Supreme Wyoming. Court of may could, It logic well be that we Aug. 1979. law, prosecu- had affirm this conviction complaining only tor asked the one witness

more which have would established

her misrepresentation rebaneé on a

satisfied intent both elements the crime. not, my judgment, supply

But we

missing by speculation. elements of a crime States, 20, 22,

Moore v. 429 U.S. 29,

S.Ct. 50 L.Ed.2d 25 To infer engage

such reliance this record speculation.

in mere

I would have reversed.

Case Details

Case Name: Fitzgerald v. State

Court Name: Wyoming Supreme Court

Date Published: Aug 17, 1979

Citation: 599 P.2d 572

Docket Number: 5058

Court Abbreviation: Wyo.