*1 of this ac- “persistent prosecution plaintiffs’ strong catalytic was a factor

tion of America UNITED STATES JA of the Bell memorandum.” issuance had plaintiffs It also found that the Eddie Lee ALSTON a/k/a Eddie out in their policyobjective set achieved Lee, Appellant. complaint publicizing amended second — No. 77-2050. correcting Department’s the Justice rights prose- deferring prior state civil Court Appeals, United States cutions. Id. District Columbia Circuit. sure, fathoming Attorney Gen- To June Argued motives is not the easiest tasks. eral’s Decided Oct. Nevertheless, conclude, I careful after record, that the District Court review awarding

did not abuse its discretion in

attorneys’ appellees “prevailing fees to

parties.”

VI attorneys’ provisions of the fees civil encourage

rights statutes were enacted “to injured by

individuals racial discrimination * * judicial Newman to seek relief Inc., Piggie Enterprises, Park construing attorneys’ Courts these provisions must strive

fees to further this

goal. majority decision Congress’ will defeat in en-

court

acting against Section 1988insofar as suits government

the federal are concerned. An purposes, language,

examination of the provides

legislative history of Section

ample support for the conclusion Con-

gress attorneys’ intended to authorize fees against

awards under the

Act. respectfully

I dissent. *2 Tuttle, Washington, D. C.

Allan Abbot (appointed appellant. Court), by this Adams, Atty., U. S. Whitney M. Asst. C., Earl J. Sil- Washington, with whom D. bert, Peter E. Terry, Atty., John A. U. S. George, Ray- Shaughnessy Brian W. Banoun, Attys., Wash- mond Asst. U. S. brief, ington, C., appel- on D. lee. BAZELON,

Before Judge, Senior Circuit congressional intent, requiring vacation of TUTTLE,* Judge Senior Circuit for the two or Furthermore, four convictions. Circuit, ROBB, Fifth Judge. mailings at issue here cannot sustain con- victions under the mail statute be- Opinion for the filed Court Senior *3 cause occurred after scheme to Judge Circuit BAZELON. defraud Finally, had reached fruition. we Dissenting vacate opinion Judge filed on imposed sentences counts 27 through ROBB. 29 of the because they indictment maximum, exceed the statutory we and re- BAZELON, Judge: Senior Circuit mand for resentencing in accordance with Appellant was by jury convicted on all 18 U.S.C. opinion.6 1014 and this § counts thirty-five of a count indictment judgment remainder of the of the District charging violations of both federal and Dis- Court is affirmed.7 trict of Columbia statutes. offenses

stemmed from a appellant scheme in which I. paid would be accomplice to have an delete from, adverse information and add ficti- MULTIPLE CONVICTIONS UNDER to, tious favorable information the compu- FEDERAL AND D.C. LAW terized credit files of individuals who had gave Each fraudulent credit transaction difficulty obtaining credit. The altered rise multiple to charges against Alston. In credit ap- records would then be sent for transaction, applica- one an altered credit proval institutions, lending to various ulti- report tion and an altered credit sent mately allowing these individuals to by teletype (counts fraud) wire 13 and chase automobiles or other items. The in- (count to a federally savings bank insured dictment, only eight which was on based statements), applicant false transactions, credit included one count of obtained an from the bank automobile loan twenty-five conspiracy,1 counts of mail2 (count 34, and the pretenses), D.C. false (counts 22-26), wire3 fraud 2-21 and bank notified the dealer about loan three counts of false statements to a feder- telephone (count 20, fraud). wire In a ally (counts 27-29),4 insured bank and six transaction, second an individual applied for counts of felony pretenses D.C. false improvement a home from a federally loan (counts 30-35).5 (count 28, insured bank federal false state- multiple

Certain of the ments), convictions under teleeopied credit bureau an al- both federal contrary and local law are (count 14, to tered credit record to the bank * Sitting by designation pursuant posed years, to 28 U.S.C. sentences of ten months to three 294(d). § concurrent with each other but consecutive to imposed through the sentences on counts (1976). 1. 18 § U.S.C. through Counts 27 29 of the renumbered indict- ment, however, are federal false statements (1976). 2. 18 U.S.C. § charges carrying a maximum sentence of two years; thus, imposed (1976). sentences of five 3. 18 U.S.C. § years on these counts must be vacated. 4. § U.S.C. Appellant argues also court the trial 5. 22 D.C.Code declining poll jury erred both in to concern- segment during a television news broadcast sentence, imposing In the District Court inad- trial, allowing prosecutor and in vertently copy referred to a of the indictment appellant concerning plea cross-examine bar- other than the renumbered indictment returned gaining subject by appel- after the was raised Jury. opin- the Grand All references in this light lant on direct examination. In ion are to the renumbered indictment. whole, including record as a the various cau- imposed The District Court concurrent sen- tionary jury respect instructions twenty years tences of months to five on matters, these we find no abuse of discretion 29,” through eight counts “1 months to by the trial court. years through two on counts “30 32.” On 35,” through counts “33 the District Court im- pretenses false fraud), statute and either the feder- applicant obtained

wire In (count pretenses). D.C. false al false statute or the federal statements transactions, applicants obtained four other mail and wire Because of fraud statutes. company from a finance automobile loans the similar the false purposes underlying (counts 30, 31, pre- 32 and D.C. statutes, pretenses we and false statements transactions, fraud tenses); in these wire intend Congress think that did automobile charged for each time the punishments presented in the circumstances application telecopied dealer hand, we discern a here. On the other do 11), (counts 2, company the finance 9 and congressional impose multiple intent telecopied the credit bureau an altered cred- punishments when an act or transaction (counts 3, lender record to the violates both the false and the telephoned notice of and the lender mail wire statutes. or *4 17, 18, (counts loan to the dealer 21). each charged 19 and Mail fraud was A. completed

time the mailed a sales dealer (counts through contract to the lender statute, 22 The D.C. false transactions, 26). in- remaining Two which (1973), provides that D.C.Code § attempts volved unsuccessful to obtain in “[wjhoever, any pretense, with false loans, federal false triggered charges of defraud, any person tent obtains from (count 29) wire fraud statements value,” any shall be anything service or of (counts 4, 5, 8). subjected up to three imprisonment years. stat The federal false statements problems This case raises that flow from ute, (1976), provides charges against an a defendant. U.S.C. § overkill of any false Pyramiding charges particularly knowingly is trouble- makes “[w]hoever Columbia, some in where the District of report, statement or . . for the joined local and can be in federal offenses action of pose influencing any way of pursuant one indictment to 11 D.C.Code can any [federally bank” insured] (1973). years. two imprisoned be for not more than Appellant argues multiple con- separate Congress clearly defined victions under federal and local law denied provision “each offenses in each statute: equal protection him of the laws. Subse- the other which requires proof of a fact quent submission of case States, v. Blockburger does not.” decision, this court has clarified the method 180,182, 299, 304, 76 L.Ed. U.S. challenges which we analyze will to con- Ohio, see Brown victions law under both federal and local (1977). 2221, 53 L.Ed.2d 187 when the complained acts of arise within pre charge of false Conviction on the local essentially the ex- same transaction.8 As following ele requires proof tenses of plained in Dorsey,9 States (2) (1) representation; ments: a false court must Congress determine whether in- (3) to de- falsity; intent knowledge of the multiple punishments tended to authorize fraud; (4) party; reliance the defrauded particular under the question, statutes in (5) something value as a obtaining so, and if whether multiple punishments Convic- representation.10 result Therefore, are constitutional. we first con- state- charge tion on the of false Congress impose sider whether intended to punishments requires (1) ments a material false multiple single proof for a fraudu- statement, federally lent transaction that violates both the D.C. insured finan- (2) to a Girst, (D.C. U.S.App.D.C. 9. 192 8. See United States v. No. 77-1604, decided Mar. Dorsey, 591 F.2d 922 10. Fowler v. United 374 A.2d (D.C.Ct.App. 1977). institution, (3) cial for the of influ- Moreover, fense.15 year three maxi- encing the action of the institution.11 mum sentence pre- under the D.C. false tenses applicable when a loan is face, statute — On their the local and federal stat- actually appears analogous to an obtained— utes address different interests. The local enhancement of years the two maximum anything statute focuses on the loss of sentence under the federal false statements value, regardless identity of the of the vic- applicable when a false statement tim. The federal statute — designed statute is is made in attempt an to obtain loan. protect specific financial institutions from fraud “in connection with loans or other Congress the intent of is stated “[U]nless similar transactions.”12 federal of- ‘clearly ambiguity, and without doubt will complete fense is when the false statement turning against single resolved trans- ”16 made; require does not that the bank action into offenses.’ Since we actually part something of value.13 here, find no such we apply statement “a corollary lenity, outgrowth of the rule

Yet some fraudulent applications of our reluctance multiply might loan, result grant of a punishments absent a clear and here,14 leg- definite occurred resulting in separate crimi- islative directive.” Simpson v. United charges nal based on the same act or acts. 6, 15-16, case, proof In this of the federal false state- Accordingly, we di- charge ments proof coincided with rect vacation of the convictions under either D.C. false pretenses charge, except for the *5 (false counts 27 and statements) or element obtaining the loan: the “false (false counts 33 pretenses) and 34 of the statement” knowingly made was a “false indictment, renumbered appropriate re- made; representation”knowingly “pur- sentencing appellant. pose of influencing the action” of the bank was the “intent to defraud” the bank to B. loan;

obtain a and a having bank federally deposits insured was the party” “defrauded We turn now to the multiple punish acting in applica- reliance on the fraudulent ments under the or wire fraud federal mail Thus, tion. in the context of this case the pretenses statutes and the D.C. false stat allege two counts essentially the same of- ute. The mail17 and wire18 fraud statutes g., Potts, 11. E. United States v. Knight, U.S.App.D.C. 540 F.2d 16. United States v. (5th 1976); Savatino, 1974), Cir. (D.C. quot- States v. 509 F.2d 361-62 Cir. denied, (2d 1973), 485 F.2d Cir. cert. Canty, United States v. 39 L.Ed.2d 563 469 F.2d 126-27 Cir. Dorsey, at 930. H.R.Rep.No. Cong., 91st 2d Sess. 66 provides pertinent part: 17. 18 U.S.C. § in (1970) (Conference Report); H.R.Rep.No. Whoever, having intending devised or Cong., (1970) Cong. 2d 91st Sess. 35 U.S.Code any defraud, devise scheme or artifice to or 5582; p. & Admin.News see United obtaining money property by for or means of Lentz, (5th pretenses, false or fraudulent . . . for denied, rehearing en banc 526 F.2d 815 purpose executing such scheme or do, attempting places any artifice or so to in post depository office or authorized for mail See, Trexler, g., e. States matter, any thing matter or whatever to be (5th Cir.), Service, sent or delivered the Postal or therefrom, takes or receives ... or knowingly causes to be delivered mail Only eight applications two of any . thing, such matter or shall be yield did not loans in this case. $1,000 imprisoned fined not more than or not years, [Emphasis more than five or both. Girst, supra note States 15. Cf. United added.] (transportation slip op. in interstate at was, provides pertinent part: on the 18. 18 a felon U.S.C. of a firearm commerce single presented, which could offense a Whoever, facts having intending to devised or statutes). punished under two not be any defraud, devise scheme or artifice to or visions constitute the “same offense” un- each use19 for prescribe penalty a Blockburger. der of execu purpose wires “for mails or or to obtain to defraud ting” a scheme 591 F.2d at 942. pre of false by means

money property or clearly question The statutes upon each statute tenses. The focus of separate define offenses. Conviction instrumentality of comm misuse of the proof only wire requires mail or fraud protected interest to be defraud, unication.20 (1) two elements: a scheme to clearly dis statutes is (2) under these federal wires for the use of the mails or Conviction for safeguard executing the scheme.22 interest property tinct from of several pretenses requires proof false have courts by the local statute. Several elements, require not and does additional to authorize Congress intended found that or wires.23 Since proof mails of use of the mail under both the or multiple punishment requires proof each of a fact that other and other federal fraud fraud statute wire not, the “same clearly are does Congress We conclude that like statutes.21 Thus, Blockburger. offense” under the mail or wire intended violations of wise prohibit clause does not jeopardy double separately punishable statute to be under these statutes. multiple punishments of the local from violations second consti Appellant advances a statute. the mul question tutional in his claim estab- analytical Under the framework equal protec tiple punishments denied him Dorsey, supra, we lished in United States tion claim rests on of the laws. This inquiry: a next consider constitutional outside the assumption that no defendant punish Congress if intends [E]ven subject District of Columbia would violating two statu- twice for defendant the De such because punishment double jeopardy tory provisions, policy the double bars partment of Justice’s Petite24 multiple punishment prosecutions clause such bar successive state-federal The Petite “the single statutory pro- the two same act or acts.”25 at trial if *6 730, (2d Cir.) (mail obtaining money property by 2 579 F.2d 731 & n. and or means of denied, pretenses, fraud), cert. or fraudulent wire fraud and securities by 991, 592, transmits or causes to be transmitted 439 U.S. 99 S.Ct. 58 L.Ed.2d 666 wire, any writings, signs, signals, (1978). means of pictures, sounds for the of execu- or artifice, ting or shall be fined such scheme States, 1, 8, 74 347 U.S. 22. Pereira v. United $1,000 imprisoned not more than or not more 358, (1954); States v. S.Ct. 98 L.Ed. 435 United years, [Emphasis than five or both. added.] 964, Pollack, 227, 175 534 F.2d 924, denied, (D.C. 1976), 971 429 See, 9, Cir. cert. U.S. g., Joyce, States v. 499 F.2d 19. e. United 324, (1976). 1031, denied, 97 (7th Cir.), S.Ct. 50 L.Ed.2d 292 cert. 419 U.S. 95 18 512, (1974); S.Ct. 42 L.Ed.2d 306 Henderson States, 134, (5th supra. United 425 F.2d 138 n. 4 Cir. accompanying 10 23. See text note States, 1970); Hanrahan v. United 121 U.S. 134, 363, App.D.C. F.2d 366 348 Cir. 529, States, 24. U.S. See Petite v. United 361 845, 95, denied, 1965), cert. 389 U.S. 88 S.Ct. 19 530, 450, (1960). 80 S.Ct. 4 L.Ed.2d 490 (1967). L.Ed.2d 111 by policy, originally the Attor- 25. The stated the wire fraud 20. The mail fraud statute and General, ney prosecution is: “After a state statute have both been construed as authoriz act there should be no federal trial for the same multiple convictions for compelling.” or reasons are acts unless the Calvert, See, g., e. 523 uses. 6, (Apr. Dep’t at 1 U.S. of Justice Press Release 895, 6, (8th cert. F.2d 903 n. 903-04 Cir. 1959). 1106, 911, 424 47 L.Ed.2d U.S. States, (1976); 425 314 Henderson v. United critical discussion of the Petite For a recent 134, (5th Note, Jeop- F.2d 138 n. 4 policy, The Problem of Double ardy Prosecutions: in Successive Federal-State See, Weatherspoon, g., 21. e. Solution, 31 Stan.L.Rev. A Fifih Amendment 1978) (mail fraud (1979). 488-96 Mahler, statements); United States v. and false Petite policy The response law, was 1959 in direct to here.28 announced in is not but rulings that the Con- Supreme Court’s permits rather policy an executive that federal prohibit stitution does state and not exceptions in discre- Attorney General’s governments prosecuting a defendant from government The federal tion.29 remains As recently for the same the Court act.26 free, Supreme ruling under Court’s in States, in Rinaldi United explained States, Abbate v. United 359 U.S. U.S. L.Ed.2d S.Ct. (1959), bring S.Ct. a (1977): “Although constitutionally man- prosecution subsequent federal a state dated, protect policy [Petite] serves to the Pe- Furthermore, neither prosecution. which, sovereign- but for the interests ‘dual tite serves as a nor the Constitution policy ty’ system, in principle inherent our federal state prosecution bar and a sentence Jeopardy would be the Double embraced sen- following prosecution Clause.” federal and therefore, possible, It is tence.30 that de- Petite recognize Although we pun- fendants outside the District could be strictly en- long standing ished for state both federal and offenses forced,27 provides we conclude that no equal protection basis for a claim arising successful from the same act or transaction.31 request approval United 359 U.S. See Abbate v. can ney Assistant Attor- from the Bartkus v. 3 L.Ed.2d and then General relevant Division Illinois, Attorney Dep’t 3 L.Ed.2d 359 U.S. from the General. See U.S. Release, Justice Press note at 1. In Rinaldi v. States, supra 30. See Rinaldi v. United note Supreme (1977), 54 L.Ed.2d 207 (discussing at 98 S.Ct. 81 respect Court held federal courts must sovereignty” principle). the “dual Department even a belated effort Justice policy. in Ri- passing presents invoke the Petite Defendant 31. We note case that this charged with example naldi was state offenses injustice engendered another of “the stemming then unguided indicted for offenses generally the unfettered and exer robbery. from a hotel He was convicted of the power” prosecutorial awesome cise of that charges years’ state sentenced to six im- Roberts, discretion. prisonment. Subsequent to the state convic- (D.C.Cir.1978), rehearing en banc de tion, held, - two federal trials were first hav- 30, 1979), (Apr. granted, nied ing ended in a mistrial. Defendant was con- -, State trial, charges jury victed of the federal after a Bazelon, why Judge, as to ment of he years’ imprison- and was sentenced to twelve banc, rehearing slip op. en at 7 n. voted for concurrently ment to run with the state sen- Supreme Court decisions Abbate and appeal judgment, tence. On from the federal Bartkus, supra 26, holding that both the argued defendant that his conviction violated governments prosecute federal and state policy. agreed the Petite Government acts, ground- defendant for the same act or are appellate asked the court to remand the case so *7 principles ed in of where the laws federalism: that the Government could move to dismiss the violated, “sovereigns” govern- of two are each remand, indictment. Court After the District may legitimate ment have a reason exercis- denied the Government’s motion to dismiss power prosecution. its of criminal But this the Fifth en banc lower affirmed the underlying rationale is absent where defend- ruling. Supreme court’s But the vacated Court prosecuted violating ant is laws of both the judgment the and ordered dismissal the in- of Columbia, United States and the of District that, doing In dictment. although so the Court stated sovereign. since the laws emanate from one expenditure judicial prose- the of Moreover, Supreme Court this court by irreparable, cutorial resources then long recognized multiple punish- have “ ‘no societal interest would be vindicated essentially ments for acts are same unwar- punishing already a defendant further who has except particular “in ranted enor- instances of been convicted has received a substantial mity, public safety or where the demanded ex- sentence in state court. Id. at Ohio, traordinary rigor.” (5 Fox 46 U.S. General). (quoting 98 S.Ct. at 86 Solicitor How.) (1847), quoted 12 L.Ed. 213 Rinaldi v. United Jones, U.S.App. 28. See United States v. 27-28, 81; note U.S. at S.Ct. D.C. 821-23 Knight, supra Attorney If a that a 351. believes 509 F.2d at One question prosecution seriously appropriate dual would be under whether this case satisfies standard, “compelling reasons” those criteria. he or she lender was led to believe. We are not

II. unmindful and other credit that installment DEFRAUD INTENT TO problems of created financial sales have evi argues that the Appellant also for consumers and proportions substantial de the intent not establish dence did are finan- Many alike. consumers creditors under the required for convictions outstanding cially incapable paying of statutes, and mail and wire fraud debts, Conse- intentions.34 despite good Conceding pretenses statute. the local false a scheme quently, we cannot sanction and credit records applications that the loan fraudulently whereby would-be borrowers appli to allow were falsified in order not otherwise be would obtain loans that credit, appellant neverthe cants to obtain them, whether regardless of available to was no intent to that there less contends repay long so they might have intended applicants intended to defraud because the doing so. capable as of retention of a and because repay the loans goods made security interest III.

loans risk free. requisite intent under the feder USE OF THE MAILS may be al mail and wire fraud statutes appellant asserts that his Finally, the circum totality inferred from the of five counts of mail fraud convictions on the proven by direct stances and need not be (counts 22-26) Each count cannot stand. Where, here, the relevant evidence.32 an installment mailing arises from the misrepresen documents contained material automo sales contract to the lender designed tations to induce an extension of that, because Appellant argues bile dealer. made, credit that would not otherwise be mailings applicant these after each occurred reasonably jury could infer intent automobile, they had an possession taken addition, the misrepresenta defraud.33 In to defraud had occurred after the scheme tions in each transaction were made on two sufficiently were not fruition and reached key people acting documents and several to fall within the connected to the fraud concert, increasing thus the likelihood correct, appellant is scope the statute. If that the creditor would be deceived as to invalid. Unit then are See the convictions the nature of the financial risk involved. Maze, S.Ct. support jury’s We believe these facts 38 L.Ed.2d 603 verdict. For mail fraud stat- conviction under the We also conclude that intent defraud ute, “for the statute can- the mails must be used under the local false scheme, alleged pose executing” the fraudulent solely upon applicant’s not turn repay merely intent to the loan. In these transac- and not “as a result of” such tions, In probabilities repayment by scheme. id. at See long over the term were less than Kann v. borrower See, Arnold, Attorney Rogers, g., in an- Former General e. United States v. nouncing policy, “the the Petite stated: mere 1225-26 power punishments] of a existence [to . does not mean necessar- should *8 ily Dep’t be exercised.” U.S. of Justice Press (material misrepresentations id. 33. See on Release, pros- at 2. application support Government credit card inference of fifty “compel- ecutors ling the intent). states must show punishments reasons” before will

be added to those of the state for the same act high level of of the current 34. For discussion supra. or acts. See note 29 To the extent that inability consumer debt and of the financial policy satisfactory be- strikes a balance creditors, many repay consumers to 8, 1979, vindicating tween societal interests and avoid- TIME, NEWSWEEK, 46-54; Jan. at defendants, ing may fairly unfairness to Dec. at 53. appropriate said that a similar District of Columbia?

539 (1944), Supreme perpetrator the the L.Ed. 88 Court to aid the continuation or involving fraudulently held that a scheme concealment of the fraudulent scheme. 414 completed checks once the obtained was U.S. at (quoting at 650 United S.Ct. checks were cashed. The Court reasoned Sampson, States v. 83 S.Ct. the intended that defendants had to receive Thus, (1962)). the mail money, money and that the had been re- inapplicable statute was the mail- “irrevocably” ceived when cashed the ings. Thus, banks payor checks. when the mailed Appellant that, here since the argues ob- the checks to the drawee bank for collec- ject of the scheme to obtain an was automo- tion, the mailings purpose were not the bile, it once the car reached was fruition executing the scheme. See id. at driven off lot. The the dealer’s Govern- Parr v. Similarly, United ment, hand, on the other contends that the object was to obtain credit and use of the (1960), L.Ed.2d the defendants had car over the period. Under this theo- gasoline products obtained and other ry, the mailing of the conditional sales con- by services the use of a unauthorized credit tract after applicant the loan had obtained issued employer. card to their The defend- credit car and a would be within charged ants were with mail fraud for hav- the coverage of the statute. sending “caused” the of invoices to the We believe that the scheme to defraud sending employer payments and the mailing reached the fruition before of each issuer. the the The Court held convictions conditional sales contract. dealer’s ground invalid on the that defendants’ mailing contract, of the which contained the goods scheme reached fruition when the terms payment assignment of the received, and services were because “[i]t institution, lending contract neither them, any was immaterial or to consum- e., (i. furthered scheme objective of the scheme, compa- mation of the how [oil obtaining applicant) a loan nor ny] payment. would . its collect” served representa- to conceal the fraudulent at Most recently, Id. S.Ct. at 1184. Although signing tions.35 of the install- Maze, supra, in United States v. the Court ment contemplat- contract have been a mailings ruled that of credit card sales in- step obtaining possession toward bank, voices merchants to a car, we holder, subsequent believe mailing bank to the credit card could not immaterial support perpetrated upon mail to the fraud fraud convictions because the defendant, card, the lender We who had stolen the credit the borrower.36 therefore vacate the irrevocably goods had received the on counts 22 through convictions mailings grounds services before the occurred. 26 on the the mailings Nor were the subsequent mailings did executing” constitute “for “ ” ‘deliberate, planned use of mails’ by scheme to obtain loans.37 Maze, result, See impose United door to such States v. U.S. at 402- which would OS, greater penalties S.Ct. 645. repay criminal on those who intentionally loans than on those who default. (quoting See id. at Kann supra, 323 U.S. at recognize vacating 37. We these convic- length tions appellant’s will not reduce the unnecessary sentence, We believe it to decide the exact maximum since the mail fraud sen- culminated, point remaining at which tences this scheme wheth- were with the concurrent sen- approved conspiracy er it be when tences on the lender the loan or and wire fraud However, signed. appellate counts. when installment sales contract was this does not bar only and, mailings necessary, We decide that the at issue review when correction. See coverage Maryland, 784, 787-91, remote to too be within the intended Benton v. of the mail fraud statute. that, Knight, We also note under the Government’s theory, regular mailing (D.C.Cir. even the of each install- United States v. Can- *9 payment ty, U.S.App.D.C. ment could constitute a violation of 152 469 F.2d 126 & (D.C.Cir. open Hooper, the mail fraud decline n.14 statute. We to the 540 (1974); 275 v. 42 L.Ed.2d United States IV. Cir.), cert. Owen, 492 F.2d 1103 reasons, vacate the we foregoing the Por denied, 42 95 419 U.S. respect District Court

judgment of the v. Es (1974); L.Ed.2d 180 United States 33 and counts through to counts denied, Cir.), kow, (2d cert. indictment, we remand for 34 of the L.Ed.2d 544 398 U.S. with 18 resentencing accordance U.S.C. opinion. The remainder and this mailing of my opinion Furthermore in the judgment the is affirmed. promoted conceal the written contracts It is so ordered. was within of the fraud and therefore ment statute. United condemnation of the the ROBB, part: dissenting Judge, 75, 83 S.Ct. Sampson, v. States my opinion was sufficient evi- In there v. Pol mailings dence to show lack, U.S.App.D.C. 534 F.2d to contracts the lenders conditional sales denied, (1976), to de- were in furtherance of scheme (1977); United States v. L.Ed.2d Accordingly I would affirm con- fraud. Eskow, supra, at 1069. 422 F.2d through 26. on counts 22 viction of Alston holdings in the court’s I in the other concur

opinion.1 purchaser was re- of an automobile from a lender and

quired apply for credit agree would approved before a dealer When sales contract. a conditional Petitioner, KYLE, W. Richard appli- of the loan gave oral lender v. through the a contract was sent cation INTERSTATE COMMERCE assignment of the provided mails which COMMISSION, rights and warranted that dealer’s Respondent. representations appli- in the credit chaser’s Receipt the written cation were true. OSWALD, Petitioner, Robert L. regular, through the was a contract mails necessary contemplated step con- COMMERCE COMMIS- INTERSTATE transaction. These summation of Systems Protection SION and Merit to demonstrate that facts sufficient Board, Respondents. mailings were in furtherance defraud, meaning scheme to within STONE, Petitioner, Paul A. the statute. defraud of the scheme to HEALTH, OF EDUCA- DEPARTMENT was to obtain credit and use of an automo WELFARE, Respondent. TION AND period. any of the bile over the loan If 79-1307, Nos. 79-1345 and 79-1505. representations respect in the contract with history there purchaser’s financial Appeals, United States Court proved the lender free after to be false District of Columbia Circuit. demand immediate rescind the loan and Oct. short, mailing payment. of the written In As Jan. Amended in the exe step contracts was an essential defraud. See Unit cution of scheme to Marando, (2d 504 F.2d States 1000, 95

Cir.), cert. in n.31. not subscribe to dicta I do 605 & n.3 (D.C.Cir. 1970).