U.S. v. Curtis
| Citation | 537 F.2d 1091 |
| Decision Date | 11 June 1976 |
| Docket Number | No. 75--1596,75--1596 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis Rex CURTIS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Paul F. Fernald, Oklahoma City, Okl., for defendant-appellant.
John E. Green, First Asst. U.S. Atty., Oklahoma City, Okl. (David L. Russell, U.S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.
Before HILL and SETH, Circuit Judges, and TEMPLAR, Senior District Judge.
The appellant-defendant, Louis Rex Curtis, was charged in a four-count indictment with violation of Section 1341, Title 18, United States Code, which prohibits the devising or intending to devise any scheme or artifice to defraud, or for obtaining money by fraudulent representations and using the mails to execute the scheme.
In substance, appellant was charged with devising a scheme to defraud and to obtain money from persons looking for dates or marriages by inducing them to use facilities of the 'Computer Matching Institute' and to pay substantial fees for computerized and psychologically tested matching without having the intent and capability of performance. Appellant is charged in each count with knowingly making false representations to obtain money. He represented that computers would be used by the Institute through testing by a qualified psychologist and that he could match characteristics and preferences of those similarly processed and tested who would likely prove compatible and willing companions or marriage partners. He represented that the program had been endorsed by prominent religious leaders and other famous people and that he would and did do business as Computer Matching Institute, which he would and did operate and control. Appellant placed advertisements in various newspapers in Oklahoma, Kansas, Arkansas and Missouri, to solicit business and directed in such advertisements that inquiries should be mailed to him at Oklahoma City. Compatibility Questionnaires were sent out to those who responded to the advertisements and checks were sent to him through the mail in response to the false representations made by him in the solicitation by advertising.
It was further alleged that at the time of making such representations and the mailings in question, appellant did not have the intent or capability of processing or matching applications by computer or testing applicants through the services of a psychologist, that no famous people had endorsed his program, and that any processing or matching to the extent computed and reported at all was accomplished by hand by clerical help untrained for the purpose, or by the appellant himself.
To the charges alleged, appellant entered a plea of not guilty. At a jury trial, he was found guilty on all four counts; this appeal followed.
The principal contention of appellant on this appeal is that the trial court erred in overruling his motion to suppress all evidence derived from any investigation of the Computer Matching Institute made by the Oklahoma Department of Consumer Affairs. Appellant also claimed error by the trial court in failing to grant his motion for dismissal prior to trial, his motion for judgment of acquittal during trial, his motion for a new trial and for judgment of acquittal subsequent to trial because no violation of the statute was alleged or shown during the trial.
Appellant insists that there was introduced in evidence certain information identified and obtained by agents of the Oklahoma Department of Consumer Affairs.
The Oklahoma Uniform Consumer Credit Code, Title 14A, Article 1 (§ 1--101, et seq.), was enacted to simplify, clarify and modernize the law governing retail installment sales, consumer credit, small loans and usury, and to protect consumer buyers against unfair practices by some suppliers of consumer credit. 14A, O.S.A. § 1--102.
It is clear that in selling the matching service to various purchasers, in most instances, a contract was entered into which provided for a down payment with the balance to be paid in installments or in a lump sum within a specified time.
The Oklahoma Statute also provided that the Administrator of the Department 'for the purpose of discovering violations of the Act or of securing information required hereunder' was authorized to investigate the books, accounts, papers, correspondence and records of any licensee or other person whom the Administrator had reasonable cause to believe is violating any provision of the Act, 'whether or not such person shall claim to be within the authority or scope of this Part.' 14A, O.S.A. § 3--506(2).
Several complaints came to the Administrator of Consumer Affairs from persons who had made contracts with the Computer Matching Institute. Pursuant to the provisions of the Act, and Administrative Investigation and Demand was directed by the Administrator of the Department. The investigation resulted in a finding by the Administrator that the Computer Matching Service was in violation of the Code and it was directed to commence making refunds to persons from whom payments had been taken under the Matching Contracts.
For the purpose of this investigation, it was not required that the Institute be a licensee of the Department as appellant Curtis contends, any person reasonably suspected of violating the provisions of the Act was subject to investigation by the Department.
While the record does not disclose any extended consiseration of the appellant's motion to suppress evidence obtained by the Administrator, it does appear that agents went to the place of business of Computer Matching Institute and obtained permission and consent from Betty Powers, an officer of the Institute and the office manager of the corporation, to examine its books and records. Mrs. Powers directed a clerk in the office, one Betty Lee, to give up the records of the Institute to the investigators from the Consumer Affairs Department.
The trial court determined that since consent to inspect, examine and copy had been given by the person in charge of the books and records of the Institute, no constitutional right of the appellant was violated.
It was not required that the agents who conducted the examination of the Institute's records advise the persons in large of that business that they did not have to consent to a search of the Institute's books and records without a warrant. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; United States v. Mallory, 460 F.2d 243 (10th Cir.); United States v. Thriftimart, 429 F.2d 1006, 1010 (9th Cir.). There is no evidence of coercion by the agents and the determination by the trial court that the consent was freely given without submission to authority must be sustained.
There is another reason the examination and inspection of the books and records of the Computer Matching Institute violated no right of appellant. The uncontradicted evidence is that the Institute is a corporation. If so, appellant had no constitutional standing, either as an individual or as an officer of the corporation, to premise an objection. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Galbraith v. United States, 387 F.2d 617 (10th Cir.). The papers and effects examined were not the private property of Curtis and were not in his possession in a purely personal capacity. Thus, none of his constitutional rights were violated.
The case of Finn's Liquor Shop v. State Liquor Authority, 24 N.Y.2d 647, 301 N.Y.S.2d 584, 249 N.E.2d 440, is inapposite. There, an agent of the State Liquor Authority, while inspecting a licensed liquor store with the owner's consent, found in a coat an article not used in the business and whose ownership was not known, in which sales slips showed illegal sales of liquor on credit. The right to inspection of the premises, it was held, did not extend to a right of search of items of personal property not used in conducting the business.
Nor does the case of United States v. Anile, 352 F.Supp. 14 (N.D.W.V.), support appellant's contention. There, a co-owner of a drug store, in possession of the premisses, asked a narcotics agent when a search of premises was sought without a warrant, whether he had a choice to grant permission. The agent told him he had no choice and the search followed in which evidence of law violations were found. The court in that case simply ruled that the store owner's consent was not a valid consent. In the case at bar, no such misrepresentation occurred and the appellant was not in possession of the premises inspected, nor was he the owner of them.
The federal statute prohibits the use of the mails in the actual or attempted execution of the scheme to defraud. The required elements for establishing the substantive mail fraud counts are: (1) the act of having devised or intending to devise a scheme or artifice to defraud or attempt to defraud, and (2) the act of using the mails willfully, with intent to carry out some essential step in the execution of the scheme or artifice to defraud.
The success or failure of the scheme is immaterial; it is not necessary to show that any person was in fact defrauded. The use of the mails, in furtherance of the scheme, is an essential element of the crime charged, but it is not necessary that the item mailed show on its face that it was mailed in furtherance of the scheme, or that the participants in the fraud specifically intended that the mails be used. It is sufficient if the mails were in fact used to carry out the scheme and if the use of the mails by a participant or another was reasonably foreseeable.
An examination of the indictment discloses that it contains in considerable detail the acts alleged to support the charge under the statute. 1 In fact, the appellant sought to have...
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U.S. v. Warren
...94 S.Ct. 645, 647, 38 L.Ed.2d 603 (1974)); see also United States v. Roylance, 690 F.2d 164, 167 (10th Cir.1982); United States v. Curtis, 537 F.2d 1091, 1095 (10th Cir.1976); Marvin v. United States, 279 F.2d 451, 454 (10th Cir.1960). Although the mailing must be in furtherance of the sche......
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U.S. v. Smith, 96-1245
...the government must prove all elements of the charged offenses, direct proof of fraudulent intent is not necessary. United States v. Curtis, 537 F.2d 1091, 1097 (10th Cir.), cert. denied, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 (1976). Intent may be inferred from a variety of circumstant......
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...98 L.Ed. 435 (1954) (citation omitted). See also United States v. Warren, 747 F.2d 1339, 1344-46 (10th Cir.1984); United States v. Curtis, 537 F.2d 1091, 1095 (10th Cir.), cert. denied, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 (1976). The Hollises argue that the evidence was insufficient ......
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In re Amendments To the Okla. Unif. Jury Instructions - Civil (second).
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