United States v. Kram

• Decision Date: 06 September 1957
• Docket Number: No. 12162.,12162.
• Citation: 247 F.2d 830
• Parties: UNITED STATES of America v. Murray KRAM.
• Court: U.S. Court of Appeals — Third Circuit

247 F.2d 830 (1957)

UNITED STATES of America v. Murray KRAM.

No. 12162.

United States Court of Appeals Third Circuit.

Argued April 18, 1957.

Decided September 6, 1957.

Marjorie Hanson Matson, Pittsburgh, Pa., for appellant.

Hubert I. Teitelbaum, Asst. U. S. Atty.,Pittsburgh, Pa. (D. Malcolm Anderson, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.

BIGGS, Chief Judge.

The defendant Murray Kram was indicted for violations of the Mail Fraud Act. 18 U.S.C. Section 1341. Prior to Kram's indictment a series of communications and conferences had ensued between him and the Post Office Department. It appears that commencing in about 1951 Kram had mailed to individuals, chiefly to persons possessing Italian or Eastern European surnames or Christian names corresponding to those of Saints of the Catholic Church and culled from telephone directories, a card or small slip of paper bearing the name "Religious Culture Society" at its top, and a prayer on its left side, accompanied by a small statuette of some holy figure. The card or paper stated that the religious article was made in Italy and that the material was being sent to the addressee in the hope that it would please; and, if it did, the addressee should return 25¢ or 50¢ to Religious Culture Society at a post office box in Pittsburgh, Pennsylvania. A leaflet or paper was enclosed which requested the addressee to forward to the addressor the names of good Catholics. This enterprise was operated by Kram solely for his own benefit and had no connection with any religious organization.

After Kram had pursued this course of business for some months the Fraud Division of the United States Post Office Department disapproved the mailed matter because the Division was of the view that it tended to deceive the recipients, causing them to believe that they were being solicited by a religious organization. Kram voluntarily signed an affidavit of discontinuance. He agreed that material mailed in the future should show clearly that the material was not dispatched by a religious organization but that "it * * * was the sole effort and for the sole benefit of an individual" and that he "* * * would also cause his name to appear on this card as sole owner." Thereafter Kram had printed on the slip of paper or card accompanying the solicitation the statement that the material "is being sent you by an enterprise that is owned and operated for the benefit of Murray Kram." There was no explanatory statement as to who was Murray Kram. The suggestion to forward to the addressor the names of good Catholics was omitted.

These changes did not meet with the approval of the Post Office Department and Kram executed a second affidavit of discontinuance. This was on the printed form "(Sol-54a)" and by its terms Kram agreed that the enterprise "described in the Post Office Inspector's complaint had * * * been discontinued and abandoned and * * * would not be resumed" by him. But Kram actually continued the solicitations generally in the form which he had used following the execution of the first affidavit of discontinuance though he changed the style of his business from "Religious Culture Society" to "Religious Distributing Co." Note that Kram in the continuance of the enterprise still made use of the term "Religious." He sent crucifixes with chains, among other religious objects, described below, through the mails and requested the recipients to pay a dollar for them. Kram was then indicted, tried and convicted of using the mails to defraud. He moved for a judgment of acquittal or, in the alternative for a new trial. The motions were denied¹ and the appeal followed.

The ten counts of the indictment, differing only as to names and dates, charged that Kram "devised a scheme to defraud divers persons" by use of a solicitation; that the solicitation "was drawn in such a manner as to mislead the victims into thinking that it was a solicitation from a religious organization and, in so believing, to return to the defendant the sum of $1.00 by mailing * * * it to the Religious Distributing Co." and that the mails were employed in furtherance of the scheme.² Kram asserts that the indictment did not state a crime cognizable under 18 U.S.C. Section 1341. We cannot agree. The allegations are sufficient to describe a scheme employing a solicitation devised with an intent to defraud within the purview of the statute. We hold that the indictment was valid.

At the trial the United States introduced in evidence packets mailed by Kram after the execution of the second affidavit of discontinuance. The contents of these packets included: a return envelope addressed to "Religious Distributing Co."; a religious article, either a crucifix and chain or a rosary bracelet; and a leaflet on which was printed a prayer, a request for one dollar, and, in accordance with the first affidavit of discontinuance, a statement that the article was sent by "an enterprise that is owned and operated for the benefit of Murray Kram."³ The United States also introduced evidence of the method by which names and addresses were obtained by Kram, and a brief history of Kram's activities from the time the Fraud Division had first intervened, and of his difficulties with the Post Office Department. Finally, witnesses for the United States who had received Kram's mailing packet testified that they had sent Kram money believing their payments were contributions for a religious or charitable organization. Witnesses for Kram testified that they had thought they were buying religious articles from a business house. It is not necessary for us to pass upon the relevancy and materiality of the evidence which we have outlined above. Most of it was admitted without objection. We detail it here primarily to the end that the background of the case may become apparent.

Kram contends that his operations did not constitute a fraudulent scheme because there was no false representation in the mailed matter itself and the United States failed to prove fraud sic "aliunde the communication"; and that it was error to admit the testimony of the witnesses who testified that they had believed their remittances were for the benefit of a religious or charitable organization.

We put to one side Kram's assertion that it was error to admit the evidence of individuals who had purchased religious articles from Kram because they thought that they were making contributions to a religious organization. We do not reach this issue. The United States contends and indeed it is well established that ordinarily the two elements required to constitute a violation of the Mail Fraud Act are the intentional devising of a scheme to defraud and the use of the mails in carrying out that scheme. Pereira v. United States, 1953, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435; United States v....