207 F. 1002 | N.D. Ohio | 1913
The defendant was indicted for violation of section 215 of the federal Penal Code of 1910. Act March 4, 1909. This section is founded on Rev. Stats. U. S. § 5480, and the act of March 2, 1889 (25 Stat. 873, c. 393 [U. S. Comp. St. 1901, p. 3696]). To the indictment there have been filed a motion to quash and a demurrer.
Omitting provisions which are not necessary to the disposition of the pending case, section 215 of the Penal Code provides:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by "means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or advertisement, whether addressed to any person residing within or outside the United States, in any post office, or station thereof, or street or other letter box of the United States, or authorized depository for mail matter, to be*1004 sent or' delivered by the post office establishment of the United States, or shall take or receive any such therefrom, whether mailed within or without the United States, or shall knowingly cause to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such letter, postal card, package, writing, circular, pamphlet, or advertisement,” etc.
Section 5480 of the Rev. Stats., in so far as it is necessary to quote it, provides:
“If any person having devised or intending to devise any scheme or artifice to defraud, * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the post office establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter, package, * * * circular, *. * * or advertisement in any post office, branch post office, or street or hotel letter box of the United States, to be sent or delivered by the said post office establishment, or shall take or receive any such therefrom, such person so misusing the post office establishment shall, upon conviction, be punishable,” etc.
It has been held that under section 5480 it is essential, to work a conviction, that the government must charge in the indictment, and establish in the proof, first, that the person charged devised a scheme or artifice to defraud; second, that he had intended to effect this scheme by opening or intending to open correspondence with some person through the post office establishment, or by inciting such other persons or person to open communication with him; third, that in carrying out such scheme the accused has either deposited a letter or package in the post office, or taken or received one therefrom. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; Horman v. United States, 116 Fed. 350, 53 C. C. A. 570; Foster v. United States, 178 Fed. 165, 101 C. C. A. 485.
_ The indictment in this case charges in substance: That Goldman had devised a certain scheme or artifice -to defraud men of reputed high financial and social standing in the city of Cleveland, the names of, whom were unknown to the grand jury. That this scheme was to be effected by Goldman inciting, encouraging, and causing certain persons to enter into communication and correspondence with him, by means of the post office establishment of the United States, and this misuse of the mails and use of the mails was part of the scheme and artifice to defraud. That the scheme and artifice devised by Goldman was that Goldman planned and intended that he would rent a post office box in the city of Cleveland, that this box would be kept by him for. the reception of mail, and that, having rented the box, he would thereafter advertise in a newspaper in the city of Cleveland, inserting the following advertisement:
“Desire tbe assistance and co-operation of a well-educated and well-groomed lady on a big financial proposition. Must be good looking, cliic, and bare tlie ability to interest men of means. If you can measure up witli this standard, write me for personal interview. Box 14, Station D.”
That Goldman planned, having inserted this advertisement, that he would encourage various women to answer the same by placing a let
The indictment further alleged that Goldman had full knowledge of this scheme, and had fully planned and formulated it at the time he took certain letters from the mails in execution or attempted execution of the scheme. It is alleged in the indictment that Goldman, having devised the scheme and artifice to defraud, in executing or in attempting to execute this scheme or artifice, unlawfully, knowingly, and feloniously took certain letters from the post office establishment of the United States, which had been placed there in answer to his advertisement.
“It includes everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future. The significant fact is the intent and purpose. The question presented by this indict*1006 ment to the jury was not, as counsel insist, whether the business scheme suggested in this bond was practicable or not. If the testimony had shown that this Provident Company and the defendant, as its president, had entered in good faith upon that business, believing that out of the moneys received they could, by investment or otherwise, make enough to justify the promised returns, no conviction could be sustained, no matter how visionary might seem the scheme. The charge is that in putting forth this scheme it was not the intent of the defendant to make an honest effort for its success, but that he resorted to this form and pretense of a bond without a thought that he or the company would ever make good its promises. It was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent; the post office from being used to carry them into effect, that this statute was passed; and it would strip it of value to confine it to such eases as disclose an actual misrepresentation as to some existing fact, and exclude those in which there is only the allurement of specious and glittering promises.”
Weeber v. United States (C. C.) 62 Fed. 740, is in accordance with this decision. The court said:
“The criminality of the defendant does not rest upon the probabilities of the success of the scheme, or upon- the fact of success, nor is it avoided by the fact that the act of using the mails is only one step in a series of acts intended to accomplish the fraudulent scheme. It is enough that the defendant, having devised a scheme to defraud, in the execution of that scheme, and as a necessary or convenient step in the execution thereof, transmits through the post office a letter used, or designed to be used, for the purpose of carrying that scheme into effect.”
This construction has been followed in the cases of United States v. Stever, 222 U. S. 167, 32 Sup. Ct. 51, 56 L. Ed. 145; Milby v. U. S., 109 Fed. 638, 48 C. C. A. 574; O’Hara v. United States, 129 Fed. 551, 64 C. C. A. 81; Bartholomew v. United States, 177 Fed. 902, 101 C. C. A. 182; Foster v. United States, 178 Fed. 165, 101 C. C. A. 485; Harrison v. United States (C. C. A.) 200 Fed. 662, 665.
It is thoroughly established that the essential elements of an offense, under section 5480 of the Rev. Stats., are three, as has been referred to earlier in this memorandum. Section 215 of the Penal Code is, however, much broader. It is not necessary, under the requirements of section 215, to incorporate in the indictment, or substantiate in the proof, that the scheme was to be effected by either opening or intending to open correspondence or communication with any person, or incite such person so to do by the use of the mails. Under the later statute it is only required, to complete the offense, that two things must be done: First, that a fraudulent scheme be devised; and, second, that for the purpose of executing it there be placed or caused to be placed any letter, postal card, etc., in the postal establishment, or onefaken therefrom; consequently, under the earlier statute, it was necessary that the use of the post office establishment should be a part of the plan, and that such use should be contemplated, while under the later statute this element is not essential.
It has been urged in argument that the act of taking these letters from the mails was not done for the purpose of executing the scheme, but was simply an act in preparation therefor. It is only necessary to read the indictment to see that the taking of the letters from the mails was a necessary step in the execution of the scheme, that it was a material and important part of the scheme, and was a step directly in line with the furtherance of a plan previously devised, and that when these letters were taken from the post office box, the crime was completed.
'.I'he scheme to defraud in the present indictment is very similar to the scheme alleged in the indictment in the case of Horman v. United States, 116 Fed. 350, 53 C. C. A. 570. In each of these cases the scheme planned was to receive sums of money by threats to ruin .and blacken the reputation and character of others by accusations of misdeeds. Such schemes are not innocent, but are aimed at personal enrichment by reason of threats. As was said in the Horman Case:
“In other words, these persons were to be despoiled of tlieir money unless they paid for silence as to accusations which” they believed “would ruin their character.”
Under the provisions of section 215 of the Penal Code, the essential elemeiits of the statute have been pleaded with the particularity required in indictments of this nature.
The motion to quash and the demurrer are overruled.