United States v. K. C. Edwards, A/K/A Kermit Edwards

THORNBERRY, MORGAN Before CLARK, Judges. Circuit Judge regular on active service No having requested that the Court banc, hearing polled en Appellate (Rule Federal Rules 12) Procedure; Rule Circuit Local Fifth Hearing En Banc for the Petition denied. THORNBERRY, COLEMAN Before Judges. INGRAHAM, Circuit Judge:

THORNBERRY, Circuit appeal their convic- from indictment on an tion and sentence charging conspiracy them with violation use mails in fraud of the 18, U.S.C.A., and six Title Section Title mail violation counts of U.S.C.A., affirm. 1341.1 We Section provides : The statute as follows for unlawful use counterfeit cure Whoever, having intending coin, obligation, security, spurious devised or or defraud, article, anything represented or devise artifice to or other or money property by obtaining held be such or out to or for or be or intimated article, pretenses, spurious for means of false or fraudulent counterfeit promises, sell, executing representations, purpose or ar- or to such scheme places exchange, give attempting do, dispose of, loan, alter, so to tifice pro- depository away, supply, any post distribute, authorized or furnish office or conspira- equity, proviso of the in reliance several members added in the instant case to the Alabama torial cast involved divorce laws in require a brief identification. Defend- known as the Hooten Amendment. The ex-attorney, pertinent language dis- ant is an of this statute is Edwards May practice of law follows: barred violating 2, 1969,2 rule an Alabama nonresident, defendant is a When the forbidding attorney involve- of ethics marriage the other must securing divorces for ment of this have been a bona fide resident known nonresidents. Defendant year state next before ex-attorney, for simi- also an disbarred filing bill, al- which must be same rule of ethics lar violations of the leged provided proved; in the bill and on March 1967.3 Defendant provisions section Twenty-Fifth was Circuit shall not be when of force effect during the Circuit of Alabama Judicial jurisdiction par- the court has both of brought Charges question. time in ties to the cause action. of against Judge ac- in 1964 for Ala., (1959). granting 5,000 Code of divorces Tit. tivities in over § proceedings The to nonresidents. amendment, many of As a result enjoined, however, because the rules of recognized attorneys possibility of sitting inapplicable a ethics were held to rivaling title of Reno for the Alabama’s judge. Cox Lawanda and Annette Smith Capital Names “Divorce of the World.” for Huie and Edwards were secretaries began appear of famous nonresidents to period in defendants increasing frequency on the Ala- with engaged ques- in in the activities pub- rolls, attendant bama divorce with named tion. All these individuals were emanating licity communica- of seven as defendants in each 1961, after certain tions media. In Judge except Moore, counts who Bar members of the Alabama State conspirator I. in named as a Count expressed its Board of Commissioners trial, pleaded nolo Before Smith Cox depicting publicity concern over sordid guilty contendere; found the others were mill,” harboring a “divorce as Alabama charged. on each of the counts of attempt rid an was made to the State reputation. at- must This The tale of defendants’ downfall its undesirable begin history tempt of of Alabama the form of Rule 25-A with a short took by divorces, granted Governing “quickie” Attor- Conduct of Rules rule, sitting Although judge, neys an Alabama circuit in Alabama.4 any matter, any thing willfully (a) Knowingly make for mail matter or what- or any judge, representation ever to be sent or delivered the Post of fact false Department, jury court, a ac- Office or takes or receives to induce favorable or therefrom, any thing, ruling by either; such matter or or or tion filing knowingly prosecute (b) in the causes to be delivered mail or aid file or any suit, bill, according thereon, prosecution or cross direction or seeking place proceeding it divorce a at the at which is directed a or attorney person whom it or solic- delivered in Alabama any thing, addressed, complainant shall such matter or or cross com- itor for a imprison- referring $1,000 plainant fined not more or serve therein or years, attorney forwarding five com- ed not more than or both. for such or complainant plainant with cross or Edwards, 2. Matter of Ala. knowledge be- reasonable cause to 248 So.2d suit, party such lieve that neither 3. See Huie v. Board of Commissioners proceeding bill, time is at cross Bar, Ala. the Alabama State complaint filing the bill of (1970), denied, 399 230 So.2d therein, complaint bona bill of cross 2197, 26 E.Ed.2d 560 Alabama; the State of fide resident of acting attorney (c) for either ns while provides for divorce suit as follows : The rule represent person in Alabama ad- heretofore or hereafter Court No any party, conspire practice at- with law Alabama shall Court mitted to Committee, Supreme scrutiny by dicial Bar promulgated the Alabama Association, however, eventually did created a fatal and Bar State make, inescapable operations attempt have could it defect nor provided made, any “quickie” instant divorces which basis for void, provide for indictments. did disbarment securing any attorney thereafter testimony of the wit- numerous persons had reason- who he divorce nesses at trial established fide not to cause to believe be bona able learning or Ed- name either Huie residents Alabama. wards, usually at- from an out-of-state unwilling torney, attorneys, call dissident divorcees Several would legal give up enterprise, con- assist- a lucrative or write defendants securing practice “quickie” an divorce. ance tinued their in a ethics rule. initial contact would result face of new One This attorney “packet” Huie, with mailed to the was defendant who quite es- help packet Moore had customer. contained the particular papers properly line of handled di- successful in this sential complaint, com- The Alabama Bar vorce —a bill an answer work. State agree- respondent, menced a crackdown in to enforce and waiver of 25-A, parties. compliance The customer Rule and as ment bring papers his ac- then Bir- result was disbarred mingham, a interview tivities on short March the defendants. with one more of signifi- Huie’s disbarment caused change and offices stock- in the Huie In the defendants’ cant business necessary piled valid a front to continue all the indicia of a Moore. Huie needed operations, de- of blank and defendant Edwards decree: thousands divorce Regis- alter-ego crees, pursuant seals, the seal evolved as soon arrange- County contingent Chancery to a handsome fee ter in Winston procure Court, stamps rubber bear- ment. now would and Circuit sign pa- ing Judge Lois and and clients Edwards the names of however, Brewer, Register Chancery. pro- attorney. Edwards, pers as spective also in defendants’ ran of the State Bar while soon afoul divorcee Proving ground be- for di- in 1969. was disbarred offices would choose reality greed give testimony vorce, yond any a bit before doubt invention, secretaries, required Ed- Huie and make the the mother Judge suggestion usually wards, payment, $465.00, sent at and be Moore, attor- be loss of that he would did allow their home with assurances not Upon activi- ney return- to interfere with soon thereafter. status divorced ex-attorneys merely ing home, found in the receive the client would ties. pro se purported to a certified to the same be a new means mail what end — signed only by parties copy filed, recorded divorce petitions, of his attorney. ordinarily cree, proceeding not an dated which was day visit to Alabama. as his same Though and Edwards both Huie office, disbarred, pass them- After left continued to the client Judge typed; Moore’s name off to their out-of-state “decree” selves thereon, practicing stamped typed attor- seal prospects the court licensed however, made, far, have neys. embossed, facts certification Thus and the stamp presented Lois a violation via the and seal of to indicate rubber Brewer, Register Chancery, Ala- at- anything which more serious in- file decree Defendants’ tested ethics rules. bama ju- necessity public and of the Winston to avoid recorded records creased represent Alabama, torney, person know- a bona fide resident representation suit sucli false. that either Court Springs, County reach all Circuit Court Double frauds but those which leaving part, Approximately three two or the use of mails is a Alabama. month, by ap- dis- the decrees all other cases to with times dealt Birmingham Judge propriate g., patched from E. State law. Kann by private courier. Of Moore’s 65 S.Ct. chamber pur- recog- approximately We likewise nize, portedly granted period, this that the fact that a scheme way may may never found their State law does violate County and in- Winston determine whether it is within the Circuit proscriptions office. stead remained in Moore’s the federal statute. Congress mailing in fur- forbid primarily contend that the regards therance of a scheme charges indictment them with activities contrary public policy, whether it can solely the concern of the are forbid scheme itself or not. Parr beyond juris- State of Alabama diction of the court. federal district 1171, 4 L.Ed.2d 1277 argue They the indictment limits Sylvanus, States v. functioning gen- of Alabama court of Recognizing principles, F.2d 96. jurisdiction subject squarely eral on a we have concluded that the record herein jurisdiction within that rela- —domestic prohibited reveals a fraudulent scheme procedural, administrative, tions. The by the federal statute. and ministerial functions of the Alabama theory courts were assaulted question, The indictment fair necessary implication when the federal ly summarized, charged the defendants court was on to called instruct the Ala- devising artifice judicial system juris- bama matters defraud the various divorcees diction, filing, recordation, reporting, through Repre use the mails. argument and certification. Defendants’ allegedly sentations were made boils down to the contention that in or- various defendants that ob prove fraud, government der to the had by tained a nonresident would be valid prove jury to and had to find that and would withstand attack in court prospective did not re- divorcees of the United States and that the divorce bargained they ceive what for. This purchased decree and to mailed them admittedly finding would entail a that signed by properly appro an the numerous divorce decrees involved priate judicial Alabama official and filed invalid, alleged were here a matter to be pursuant and recorded to Alabama state solely prerogative within the Ala- representations All law. these were al bama courts. legedly by false and the defend known ants to be false. Statutes like the federal mail fraud statute involved charges here must be The indictment thus strictly construed in paid order to avoid ex that divorcees beyond by thing tension the limits intended one It is received another. Congress. recognized Kline v. Burke well Construction that to de Company, identity ceive 67 as to the substantial (1922); thing prohibited v. Ke received States lem, though 9th Cir. 416 F.2d 346. A nar mail statute, even the item row, especially may be, careful be, construction is received or turn out as appropriate where, here, promised. as the federal valuable as the item See Unit statute Holdsworth, D.Me.1948, threatens to reach ed criminal con States v. 77 F.Supp. 148; duct in the field of domestic relations United States v. Whit can, more, S.D.Cal.1951, should, F.Supp. State effec 97 733. De tively appropriately control. fendants’ As customers in the instant case Supreme repeatedly receiving they has reiter were led to believe were ated, designed signed, Section 1341 valid, is not filed and recorded divorce receiving unable divorce or were tus their fact, they were In decrees. original in the files decree unfiled, de- find the unsigned, and unrecorded repeatedly they Court, upon were the Circuit which, properly acted even if crees the de- that the defendants assured judicial officer, were proper enough filed recorded crees in fact validity. It is questionable question as that there was allege thus law of for defendants validity divorced status. their validity di- to the as Alabama clearly that defend- These indicate facts knows and that no vorces unsettled is only their customers Contra, knew what ants not or not. are valid whether concealing but were intent Griffith, wanted Ala. Matter of getting it. were not the fact (1969); In the Matter 219 So.2d 357 McKay, 191 So.2d Ala. validity questionable Aside Winston, (1966); Ala. states, Winston v. well other of these Hilley (1966); 534, 188 So.2d Alabama, the fact of which as in Hilley, 275 Ala. 157 So.2d artfully concealed from fendants Volin, Ala. (1963); Volin v. the evi- have no victims, we doubt Jennings, Jennings v. So.2d dence, le- to Alabama reference (1948).5 De- 251 Ala. 36 So.2d gal principles, the de- establishes represent their cus- fendants chose customers, at mailed to defendants’ crees divorce decrees receipt, tomers time of were as residency question valid without and that paper. It as a sheet of worthless blank under Alabama law involved government in the in- clear that hour, or a min- even State trying questioning stant case was not indifference ute.6 Such reckless validity “quickie divorc- representations is more truth of general, though is consider- es” in there to afford sufficient validity. question able to their remedy under fraud statute. the mail government’s was in- thrust of the case States, 10th receiving See Elbel stead that customers 127; v. United Gusow pro- copies” of record and “certified 755; F.2d Ir- ceedings time exist. which did not at the win v. charged jury court The trial 770; Epstein, point on this as follows: E.D.Pa.1957, F.Supp. So, then that actions record to be of a are enough for defend- It is likewise not writing reduced to or to a written urge inade- ministerial ants by the summary, some action taken really quacies were not of the decrees way signature placing Judge by or of customers, important and that thereon, stamp approval of final possibility under Ala- a there is at least then with the official same filed got they paid law that all that bama records, such offi- and entered into of defend- for —a divorce. The evidence cial records. in of this ants’ flies the face activities taken, assertion. of the custom- When several steps After have been such legal Judge’s the act worried action ers about sta- has become became contending Defendants, 5. in that at were mailed were the time the decrees validity question is of these divorces not valid. holding able, that in can cite cases representation “quickie” that such 6. It is clear a certain circumstances case, through may which the instant the facts of valid facts constitut under give become intent, domiciliary g., See, ing estoppel. of no indication e. Lut waiver or 185, sky Lutsky, completely v. Richardson false. See 183 So.2d v. 279 Ala. 423, Richardson, Levine, (1966) ; 364 63 So.2d 262 Ala. Levine Ala. v. McCary, McCary 491, (1955). (1953); Ala. cases These v. 80 So.2d Gee, ; (1950) way 468, proposition v. Gee that 45 So.2d no refute the 103, divorces involved in the instant case 39 So.2d 406 252 Ala. itself, merely regard purported to these decrees acts the Court [not] attorneys personal made the disbarred act. secretaries, and their who had no sem- way: The decree another Stated short, power blance so act. writing; effect that so must be was evidence established that there It and recorded. can be understood decree, judgment, no rendi- no fact no way signed, in some or must be reflect tion, judicial and no act whatsoever. decision that it paid a customers thus defendants’ suggested proposed merely a not got nothing. These facts divorce and may may or not have been cree cog- a establish an offense without doubt Judge, that so when acted under nizable Section 1341. Court, placed of the records it is judi- clearly it is reflect that will allege .it next that Defendants by determination of the cause cial process be were denied due law judicial to make authorized official bring government’s delay in cause of the determination; finally, it is that ing years it the indictment several after filed and to character- to be recorded knowledge conspir had obtained to the act of ize the order decree as charged acy. All in the indictment acts court, personal rather than specifically al each count are thereof appointed person act of the elected leged specific dates to have occurred on Judge. applicable well within the statute limi Assuming tations, you you if 18 U.S.C.A. instruct find from § I bringing delay indict there was a that a divorce decree from evidence ment, County, a fact in no sense been has Circuit Court of Winston established, delay does amount of Ala- the 25th Judicial Circuit signed by defendants’ constitution a violation of was not bama rights long applicable al statute in some other so that court did not period is followed and way limitations decision reflect prejudice is shown. United States the court and filed or en- was not Marion, court, 404 U.S. 92 S.Ct. the records of that rolled in (1971); finding you justified States v. L.Ed.2d 468 then would be Ewell, 116, 86 S.Ct. decree not a valid such a (1966); added) (Emphasis States v. L.Ed.2d 627 divorce decree. (on Judice, F.2d 414 emi- this instruction We believe rehearing); petition nently more under- It takes no correct. Grayson, 5th Cir. legal standing principles of Alabama pieces paper determine 24 L.Ed.2d Bruce it would take were not decrees under is not a cow determine that horse 318, cert. go say- It should Alabama law. 16 L.Ed.2d 441 grant private that a allege further other divorce in Alabama or State. acting there was insufficient evidence Only capacity as judges, in their furthering legal fraud use the the of mails alter an judges, individual’s charged. For a exactly which what the evidence status. This is out, Huie, violation of 1341 to made Section tended to show that Edwards only prove a the Judge Moore, must at- with the assistance of defraud, scheme to but also that show tempted evidence re- no do. There is way used the mails in some defendants that flected in the record executing purpose the scheme. for the of petitions filed in his ever considered the g., Uhrig, 7th Cir. E. United States v. them, office, of sort acted made 239; v. 1971, States determination, 443 F.2d United judicial or in other 861, 1970, Bessesen, 433 F.2d 8th Cir. Instead, the decree. sense rendered a 1254, 1009, 91 S.Ct. contrary. 401 U.S. All cert. the evidence establishes thereby security, preventing 545; or at Blachly v. United false 28 L.Ed.2d discovery 1967, delaying the fraud. the The F.2d 665. States, 5th Cir. through mailing of about This came is a sufficient there of whether issue amounting to assur various documents mailing cause a State to transform had prosecution ances the victims after funds mail into federal action paid operators of the scheme. been of wheth determination fraud involves a such a use of the This that Court held in furtherance of mailing er integral part merely the scheme inci mails was collateral or was sending States, case, itself. instant United v. to it. Bannister dental purported a final 750, divorce decree was 1967, F.2d defraud, necessary step in 861, scheme to 19 L.Ed.2d 927, 88 S.Ct. prevent States, to avoid detection ; 5th (1967) v. Brown United recovery money lost the victims Defendants F.2d 652. Cir. part thus a of the and was material solicitation was no there contend v. fraudulent See United scheme. States case and proven instant in the mail Riedel, supra. fraud, all, at occurred if established Bir the defendants offices of together Defendants make mingham, use allegations other numerous error ac Only fraud was the mails. after unworthy deem which we of comment.7 mail complished the defendants did Rule See Local cite for purported decrees. States, proposition Parr v. United separately Defendant Edwards 1171, 4 L.Ed.2d S.Ct. U.S. urges evidentiary grounds two for rever States, (1960) Kann v. United First, sal he conviction. contends supra. It well-established admitting trial court erred cannot be taken hold two cases testimony committing a criminal that which has received once a defendant assault divor through fraudu obtain he has set out to cees, allegedly which was unrelated to the mailing means, subsequent can lent charges in the indictment introduced prosecution under form basis Joyce solely prejudicial effect. See, g., e. Adams v. Unit Section 1341. King, government, a witness for the tes 137; States, 5th ed Cir. giving tified that after her bit of testi States, 1953, U.S.App. Clark v. mony handing required pack denied, 346 cert D.C. 208 F.2d demanded, up office, et Edwards’ she S.Ct. counsel, on advice of out-of-state she Riedel, Cir. 7th actually be allowed to see the decree filed analogous 126 F.2d 81. Facts paying fee. This and recorded before her may be found instant situation demand met Ed with an attack States, 5th Kloian v. United secretary and his which wards the mails were wherein King’s papers, had all Mrs. obtaining originally prepared attorney the funds used out-of-state through action, to lull preparation were used but feeling of the fraud into victims of taken from her. following judicial required :

7. Defendants errors assert determina- cause and prosecution (1) by postal The of the instant case tion authorities. placing (4) in its trial erred Parr violates tenth amendment. See proof on the issue of of the burden January specific intent. 1171, 4 L.Ed.2d 1277 31; 1969, 409 E.2d Gur (2) conspiracy statute uncon- 1968, States, 5th Cir. leski v. United stitutional. 253, v. United cert. Smith F.2d 2127, 977, States, (3) 89 S.Ct. The warrants involved search fatally the instant case were defective L.Ed.2d 765 clearly probable without merit. on All are because based beyond Assuming any on assault Mrs. less See this reasonable doubt. King the con- States, was not in furtherance Kotteakos v. United 328 U.S. (1946); spiracy to and did not show Ed- tend S.Ct. knowledge illegal Lipscomb, wards’ character States 795; Panczko, specific his intent activities and F.2d his States conspiracy, to further we aim the 683. Edwards’ clearly find that the defendant waived that he had contention no intent to right admissibility. urged object during open- to Mrs. both King’s testimony alleged closing argument to the as- statement and goes pages perusal A sault for several able counsel. pages objec- transcript reflecting any record without semblance of Edwards’ Indeed, attorney. testimony clearly tion from defense indicates his conten- (1) King point, properly prepared tion after Mrs. stated that he all pleadings; (2) she had “terrified” the alter- he believed that cation, pleadings being properly processed counsel defense stated: County in the Winston Circuit Court going please, I If the Court am ob- Huie; (3) opinion each file in his ject impression. her I don’t own legally correct; (4) sufficient object to what her state- did but had he known that feeling forth, to her I ment as so properly, handled he would have object. nothing had do with them. Under proceeded counsel Defendant thereafter circumstances, cannot we believe King fully, to cross-examine Mrs. statement Edwards object then and then did to the he effect, “I did not intend to defraud allegedly prejudicial nature tes- of her people,” could fur- have timony. A clearer case of could waiver jury’s ther effect on the verdict. not be shown. States, supra. also Beaudine v. United Secondly, urges Edwards Affirmed. refusing the trial court erred to allow testify him to he intended as whether ON PETITION FOR REHEARING anyone to defraud his actions. There is little doubt that Edwards’ intent was PER CURIAM: highly jury’s relevant to the determina guilty tion of whether he was of fraud petition It is ordered that for re- conspiracy hearing defraud. Under such filed on behalf of K. C. Edwards justice circumstances, we think in the above entitled and numbered cause require given the defendant hereby be and the same denied. opportunity to take the stand and state wrong jury that he intended no ON REHEARING PETITION FOR doing for whatever self- value such a AND REHEAR- PETITION FOR might serving- statement have on ING EN BANC jurors’ minds. See Crawford v. United PER CURIAM: L.Ed. United States v. Rehearing Petition for filed on be- Shavin, 7th 287 F.2d 647. Cir. Moore, half of Jr. J. Robert & Bob cf., But Beaudine v. United 5th panel is denied and no member regular nor service on the active 25 L.Ed.2d having requested the Court all but con polled rehearing banc, (Rule 35 en point cedes this in its brief. Procedure; Appellate Federal Rules 12) Petition case, Local Fifth Circuit Rule Under facts of instant Rehearing En Banc denied. find we error be harm-

Case Details

Case Name: United States v. K. C. Edwards, A/K/A Kermit Edwards

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 5, 1972

Citation: 458 F.2d 875

Docket Number: 71-1283

Court Abbreviation: 5th Cir.