*2 MATHEWS, Bеfore HAMLEY and Judges. MERRILL, Circuit Judge. HAMLEY, Circuit Martin Bruin Jack A. Lemon and de jointly and convicted all tried charg counts of a five-count indictment ing defraud, use the mails to in viola activity tion of 18 U.S.C.A. 1341.1 The in connection were con victed involved the sale of booklets en titling purchaser certain receive articles and services from Honolulu mer chants. The sales were made over the telephone, and the orders were filled and payments obtained means of C.O.D. mailings. court,
Appealing defendants that the evidence is insufficient contend They support verdict. filling the mails were used in cede that obtaining payments. Ap- orders and any post so, places in office or author provides: do 1. Section any matter, having for mail “Whoevеr, mat devised or intend- thing whatever to be sent or de ter or or artifice to scheme devise Department, obtaining money prop- livered the Post Office defrand, or for ** * pre- shall be fined more than erty or fraudulent of false imprisoned $1,000 not more than five representations, tenses, * * * years, or both.” attempting or artifice scheme however, Stein pellants assert, evi- find- 579. warrant insufficient to dence was ing involved scheme that there was allegations factual Consistent with the Honolulu, or to defraud residents of III, evi- contained in substantial *3 means of obtain therefrom tending as show dence received represen- or false fraudulent number follows: contacted a charged
tations, in the as Honolulu merchants and agreed indictment. tracts under each merchant honor cards or recit- service indictment All counts ing specified articles or services scheme, charged each the same available such merchant with- were from person as addressee named a different charge, discount, with at a Each C.O.D. a booklet mailed kind de- without stated im lant was sentenced on cоunt below. cards scribed Service prisonment months three and to for books, the latter denominated “Honolulu The sen a fine of five hundred dollars. describing Checkbook,” Customers what concurrent, on all tences counts from articles and services were available judgment payment provided that printed. which merchants were then I would of the fine count constitute Residents of and Coun remaining payment each of ty of then Honolulu were called on the By necessary payment inference counts. telephone, a number women em would thus con count the fine place making ployed to these calls. In payment other on each of the stitute to, calls the women were these directed It follows that counts. did, and fоr the most follow written the conviction on to sustain substantially is sufficient instructions worded as n.2 margi judgment Among quoted is be affirmed. those telephone slenderizing pro- “Hello, No...........? Free is this treatment figure analysis Customers Checkbook fessional from is Honolulu calling news have some wonderful Stauffer you you. follow- If can answer Free butter dish or mustard and cat- for you correctly sup question will set your you opportunity to check- And for car will receive customers receive: grease jobs in useful 2 Free book worth services, entertainment tickets and free Free car wash repair gifts. Free flat tire question? ready your battery charge you Free “Are largest adjustment second town on Free What “1. Answer. Wahiawa Free tire rotation Island Oahu? packed bearing Free wheel or Kailua. sorry, answer Free flush “I’m is the town radiator Kailua, points you but since tried Your cleaned set Wahiawa give you ques- many we another other valuable hard will services. many “Now, a few are tion. your which hand does values offered statute wonderful “2. Eight. gone liberty who have hold the torch? Answer. local businessmen to a congratulаtions. you expense acquaint great you Now will order “Well following: places of business. receive Larry you pizza printing Vincentes and han- 1 Free cost dling your Mur- cost of dance lessons Arthur checkbook. 2 Free you rays do In all receive in use- are values. These books limited to boat ride ful Free per family, Sports subscription and it will be Extra Year’s magazine your Do mail man C.O.D. I have the wrestling right matches address Mrs..................... ticket Free (Head name and ad- call T.V. service Free phone photograph dress out of silvertone Free 5x7 book) your child Bowling Lines Nozawa, phone telephone J. to some such items. were attached called on below, items, of Certain III an addressee other as described in count named аppellant’s would have been available her matter in execution free mailed coupon. appeared plan, witness.3 without the need as a who Nancy Nozawa testified that the tele- part: This witness testified in phone caller led her there to believe that “Q. you please us tell Would gifts many other merchandise words, briefly, your na- own which she those hаd won in addition to Yes, I received call ? A. ture of the Indicating named over the telephone who from a woman call the effect which this call had Cus- from the identified herself as *4 upon her, this witness testified: told And she tomers Checkbook. “Q. say you, ‘Now, Did she if I and that a contest me was your Checkbook will be delivered to following ques- could answer the you week,’ something next tiоn, valuable I would receive some Well, effect? A. I time question asked merchandise. The happy excited, I don’t re- largest the was: What second member she said not. that or city Oahu, I answered which * * * Q. say, she ‘Thank Did ‘Congratu- And she said Wahiawa. you’? A. I I don’t was excited. of You is some lations. have —this remember whether she said ‘Good you have won.’ the merchandise bye’ Q. Probably yоu.’ or ‘Thank Oh, tickets to mentioned some she say you’ she did ‘Thank or ‘Good boxing wrestling matches, the bye’? remember, A. I can’t be- matches, a meal' at Vincente’s I cause was excited.” too grease jobs minor some oil and Nancy adjustments, The wash for which Nozawa re- through Ray’s Then she con- ceived mail and which Shell Service. the saying, charge paid she a cluded hеr conversation C.O.D. of $4.90 pieces printed ‘You won worth tained have two matter. a cost of One was a “Honolulu valuable merchandise for Customers Cheek $4.75,’ postage twenty-nine coupons, which to cover Book.” It contained printing referring check- and the the to some article or service cost agreed.” books, to which obtained some Honоlulu mer- piece printed The other chant. mat- Nancy Nozawa further testified that “Passenger ter was labeled Car Service agreed the the she Card.” charge paid later C.O.D. $4.75 printed pieces The when the booklet was de- two matter en This booklet contained titled holder to certain livered. articles and entitling her to all the articles services indicated merchants with charge and which had been mentioned over with no conditions of attached, consequence However, as listed in margin.4 not mentioned over the No evidence was tele- offered as to which your “Now, $4.75. checkbook will be The above services are offered you people they You next week. understand when Do not tell win the brings your
your mail man services.” only you pay him $4.75. The checkbook gave Nancy her 3. The witness name as respect your want businessmen Nozawa rather than J. Nozawa. She you good time, patronage we wish testified, however, that she had received advantage of these wonderful so take piece of mail matter addressed “J. your Honolulu customers check- offers jury accordingly Nozawa.” The en- book. Nancy to find that titled Nozawa and J. you goodbye. Thank person. one and Nozawa were the same only offers Mention above. No re- pizza, general one medium admis- 4. One fund. wrestling match, sion to in Stauf- However, meaning ises within the of § items. value of the total technique, appellants contend, could not normal has a sеrvice article each such gul- except commonly most have deceived known. range price total lible. found have could The in footnote listed value the items is immaterial whether thirty- thirty or exceeded not have could gullible been de most would have regard factors dollars, without five technique. ceived Section below. mentioned wordly proteсts the as the naive as well dollars representing seven The wise, former more need are actu treatments in Stauffer protection than latter. ally $3.50, since wrorth Sylvanus, Cir., States “ * * * been could treatment fact, 105. As matter Likewise, coupon. without guile solicited lack of those Murray re lessons dance two Arthur may point persuasion itself could have booklet ferrеd to artifice.” fraudulent character n obtainedwithout coupon. F. Norman refer to a printed pieces matter 2d *5 avail were items which of other number find that could making purchase, only by another able n or by the describ lants intended to deceive con discount, other some as a ruse, they it. not have used during ed else the not named dition that The evidence indicated (cid:127)conversation.5 though gov doing so, the in successful necessary for a convic- The elements prove required ernment not to (1) the U.S.C.A. 1341 are tion under 18 Kreuter Unit the scheme succeeded. v. to with an intent of a scheme formation States, Cir., 532. ed 218 F.2d (2) fur- (cid:127)defraud, mails in and use mis- therance of that scheme. No actual foregoing to addition the necessary representation to fact of of a scheme formation which indicates Gregory complete. make crime the misrepre- deceive, actual intended two 104, 253 F.2d United made. One of sentations of fact were argue technique representation these was the soliciting whereby charged order, for the $4.75 $4.90 in used congratulated upon expenses defray Nancy of Nozawa book was handling.” answering Actually simple question “printing and told a and thereby directly major part mer- won certain of amount went that she chandise, appellants. not involve false or fraud- Had this statement not did representations, prom- made, person pretenses, solicited would not ulent treatments, purchase ticket, six lines of bowl- of one adult tion with the fer ing Murray open ringside wrestling play, two Arthur dance a one ticket match original purchase seat, credit on an of with the one reserved lessons value), purchase course, ($5.00 one TV service call watch with the one Benrus n one5x7 equal value, portrait, silvertone child’s one one lubrica Benrus watch purchase change, ride, dish оr of an boat one butter with the oil ten-minute tion ketchup purchase gallons gasoline mustard and dis- with the a free set of recording, $1,000, gallons pensers, a one-minute voice a used car over Sports purchase subscription Extra, gasoline year of a with the used car (cid:127)one wash, $1,000, gallons lubrications, one car between and $600 two Shell n one tire battery purchase repair, charge, gasoline one one with the used inspec- service, $600, one under discount on air cleaner car 50^ 25$ wash, adjustment, tion, rota- one brake tire discounts on wheel-bearing packed, washes, ap tion, on $1 one serv- ear credit cleaning setting purchase $10, points, parel and and ice discount 25% rides,” pur on “boat discount one radiator flush. tires, and a of five discount chase 10% Two These were follows: theatre battery. on a new tickets, each available in connec concerning obtaining money guard property have been thrown off obtaining repre- of false and in an fraudulent interest the solicitor’s order, probability appellants, sentations would have all wary. said sсheme been more artifice, so, did, attempting to do withhold- Then the studied there was 1958, or County 10, about June concerning of information Honolulu, District many coupons. The attached to difficulty Hawaii, place deposi- in an authorized articles here is not tory for mail matter a addressed letter services which could obtained be Clayton Holloway, C. be sent Rather, price paid. worth less than Department. the Post Office represented could that the full value except upon 1, Counts 2-5 unmentioned were similar be except that, referring terms and conditions which were unfa- instead to a let- placed depository ter vorable to the solicited. an authorized 10, 1958, or about June addressed to say that it was This is not to Clayton Holloway, C. count 2 duty necessarily solicitor to placed deposi- letter in an authorized spell every condi out each and term and tory on or about June addressed coupons. Honest tion attached to the Kahookele; to Mrs. William K. count 3 solicitation, however, required that placed referred to a letter in an author- promise tempеred of free merchandise be depository 16, on or June about some with strings reasonable mention Nozawa; addressed to J. count 4 also, See, attached. placed referred to a letter in an author- Sylvanus, supra, 192 F.2d at States ized 1958, on or about June page 105.6 *6 Margaret Sorrell;, addressed to tending to The show placed count 5 and ato letter in- combination of deceits described above an depository authorized on or about. ample sustain verdict to on 17, 1958, June addressed to Robert Eno- III. moto. judgments The are affirmed. Appellants arraigned, pleaded not. guilty, trial and were found! Judge MATHEWS, (concur- Circuit guilty on each count indictment. ring result). in the conviction', Thereupon, judgments 3, 1958, On October in the United against apрellant were entered-—one States District for the District of Court against and appellant Lemon de Hawaii, (Jack appellants Lemon A. and Thereby Bruin. each was sen Bruin)1 Martin de were indicted for imprisoned' tenced each on count to be violating 18 U.S.C.A. 1341. The in pay three months and to a fine of' dictment was in five counts. appeal judg from the alleged, that, substance, Count ments. having intending devised and question presented devise is whether the- and scheme artifice to defraud and for evidence was sufficient to sustain the- appears decep- 6. There have been sometimes called themselves practiced upon merchants, tion since Customers Honolulu Check Book. represented it was to them that the cou- judgment provided 2. Each that the sen- pon books would be advertised news- imprisonment on tences counts 1-5 papers television, and over and orders concurrently, pay- run should and that door, be would solicited door to no men- $500 ment of the fine of on count would telephone campaign. tion made payment constitute the fine on each of' since the But indictments that the remaining counts. Thus the sen- persons defrauded were those who were nothing on 2-5 tences counts added to- telephone, solicited predicate we do not on count the sentences holding sufficiency our as to the deception the evidence of the merchants. persons them appellants either of conviction of and firms whose names were printed thereon; There them. 1-5 counts such and that booklet following very would little, any, substantial evidence value. effect: part that, relying scheme appellants 10, 1958, pretenses, representations the false orOn before June obtaining money promises above, devised a scheme for mentioned each per- persons persоns called the appellants hereafter from whom appellants schemed money schemed sons from whom to obtain would believe money. more than envelope (cid:127)obtain There sealed sent 4,000 persons. lants promised such contained the check book and, believing, would $4.75 to part scheme It was carrier, mail whereupon the agents through lаnts, acting by containing coupons, no booklet of employees, make to each would book, check would to such be delivered appellants persons schemed whom person, and would sent be representa money pretenses, to obtain by appellants. and received (1) promises3 effect tions and appellants each send would Obviously, the for ob- scheme was one C.O.D., person by mail, check book4 taining pretens- false services, enter worth es, representations promises. (2) gifts; free tainment tickets and Having scheme, appellants, devised the delivered would be that such check book it, did, for the upon payment person of $4.75 to such or about June carrier;5 (3) the mail County Honolulu, plаce in an author- de book was whom such check for mail matter a letter receive, further without livered Clayton Holloway, addressed to C. goods obligation, cost or sent and the Post De- Office having more than a value of $50. partment. scheme that It was I conclude that the evidence was suffi promises representations *7 cient sustain the conviction of еach making them, false; that, after would be 1. on count Since sentenc C.O.D., by mail, appellants send would nothing es counts 2-5 added to the persons from whom to each unnecessary l,7 sentences on enve a sealed to obtain schemed whether was suffi to decide the evidence lope such be delivered to the conviction of cient to sustain carrier; payment mail of them on lants or either counts 2-5 or book, that, promised check instead them.8 contain a booklet6 would consisting purporting indicated, reasons For the judgments goods affirmed. should be “redeemable” anything resembling part check book the scheme was 3. It representations promises check book. would be made 2. 7. footnote See Stаtes, Cir., prom- part United 9 8. Haid v. 157 F.2d of the scheme that 4. It 630; Jaynes States, Cir., v. United 9 would be described and book ised check 621; by appellants 15 224 Alaska as a “Honolulu F.2d Toliver v. Cir., States, 742; 9 224 United check book.” Paquet States, Cir., v. United 9 236 F. part of the scheme It Simpson 203; States, 2d United pretend lants 222; Cir., 241 F.2d Chin Bick Wah v. “printing the cost and han- to cover States, Cir., 274; United 245 F.2d Don promised dling” check book. States, Cir., aldson v. United 248 F. 364; of the scheme States, Robinson 2d 645; be labeled Cir., booklet would “Honolulu Cus 262 F.2d Stein v. United Book,” Cir., 579; would not be States, Check tomers Elkins 263 F.2d States, Cir., F.2d 588.