Baker v. United States, 11683.

• Decision Date: 07 December 1940
• Docket Number: No. 11683.,11683.
• Citation: 115 F.2d 533
• Parties: BAKER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 533 (1940)

BAKER et al. v. UNITED STATES.

No. 11683.

Circuit Court of Appeals, Eighth Circuit.

November 20, 1940.

Rehearing Denied December 7, 1940.

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A. G. Bush, of Davenport, Iowa, and W. R. Donham, of Little Rock, Ark. (Fred A. Isgrig, of Little Rock, Ark., on the brief), for appellants.

Leon B. Catlett and W. H. Gregory, Asst. U. S. Attys., both of Little Rock, Ark. (Sam Rorex, U. S. Atty., of Little Rock, Ark., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and OTIS, District Judge.

GARDNER, Circuit Judge.

Appellants, who will be referred to as defendants, were indicted for violation of Section 215 of the Criminal Code, 18 U.S.C.A., Sec. 338, in an indictment containing seven counts. They were charged with having devised and with intending to devise a scheme to defraud and to obtain money and property by means of false pretenses and representations from sundry persons too numerous to mention. The scheme as alleged in the indictment may be generally described as a scheme to organize institutes and hospitals, and by means of telegrams, telephone, letters, pamphlets, circulars, advertisements, personal conversations and radio broadcasts falsely to pretend and report to the persons to be defrauded that surgical operations, X-ray treatments and radium treatments and all other remedies and treatments recommended and used by the members of the American Medical Association would not and could not in any event cure a cancer, but that Norman Baker, one of the defendants, had during the year 1929 discovered and perfected a sure cure for cancer; that thousands of people suffering from cancer had been cured by that remedy; that Baker Hospital at Eureka Springs, Arkansas and Baker Institute at Muscatine, Iowa, were the places for persons suffering from cancer to go for treatment; that only licensed and competent members of the medical profession who were not members of the American Medical Association were employed as physicians to administer the Baker cancer treatment at said institutes; that many persons who had been given up to die by membess of the regular medical profession had been healed of cancer by the administration of the Baker cancer cure in said institutes; that the price or fee for treatment by the defendants at said institutes was very small and that sufferers from cancer were usually relieved by taking the treatment for a period from three to six weeks; that in the event the cure was not perfected during the patient's first stay at the hospital all future treatments of the patient would be done by defendants free of charge, except for board, room and transportation; that defendants did further falsely report that cancer in its last stages could be and had been cured by the use of the so-called Baker treatments at the Baker Institute and Baker Hospital by distributing printed pamphlets and catalogues showing pictures of sufferers of cancer in its last stages, and in said pamphlets and catalogues to report and pretend that said sufferers had been completely cured by the defendants, it being a part of said scheme to pretend by means of telegrams, telephone, letters, pamphlets, circulars, advertisements, catalogues, personal conversations and radio broadcasts, that the defendants had discovered and were applying a perfected and sure cure for piles, rupture, prostate, varicose veins and numerous other diseases and ailments; that thousands of persons suffering from the diseases mentioned had been cured and were being cured by the defendants at the said hospitals; that persons attending said hospitals were treated by careful, competent licensed physicians. The falsity of the representations was specifically alleged, and it is then charged that for the purpose of executing said scheme and artifice to defraud and to obtain money by false pretenses, and in furtherance thereof, the defendants delivered certain letters and other printed matters through and by the Post Office establishment of the United States.

The indictment is very long, comprising forty printed pages of the record. Its sufficiency was challenged by demurrer, motion to quash, and motion to strike, all of which were overruled. At the close of the Government's evidence in chief, and again at the close of all of the evidence, defendants moved for a directed verdict of not guilty, which motions were denied and the case was submitted to the jury upon instructions to which the defendants saved certain exceptions, and they also requested certain instructions which were refused. The jury found the defendants guilty on each of the seven counts of the indictment, upon which verdict the court entered judgments and sentences from which the defendants prosecute this appeal.

In defendants' brief there is embodied "Assignments of Error Intended to be Urged," occupying sixty-six pages. It will, of course, be impossible separately to consider all of these assignments of error, and we find no very satisfactory grouping of them in the brief. The practice of unlimited assignments is a perversion of the rule requiring such assignments to direct the attention of the court and opposing counsel to the points upon which defendants' counsel intend to seek a reversal and to limit the discussion to such points. An indiscriminate assignment of errors leaves the court to gather from the brief which of the assignments are really relied upon as substantial. We shall attempt to give consideration to such assignments as seem to present some substantial question under the following headings: (1) The sufficiency of the indictment; (2) rulings of the court on the admissibility of evidence; (3) ruling of the court on motion for directed verdict; (4) instructions given and refused; (5) misconduct of Government counsel.

It is charged that the indictment was insufficient because it failed "directly and in express language" to allege that the scheme devised by defendants included obtaining money from the persons induced to come to the hospital, or inducing such persons to part with something of value. It is argued that it is an essential element of a fraud that the person to be defrauded should be induced to part with or be deprived of money or property of some value. The use of the Post Office Department in the execution of an alleged scheme to defraud or obtain money by false pretenses is the gist of the offense which the statute denounces. The devising of a scheme to obtain money by means of fraud or false pretenses is not a crime under the laws of the United States. It becomes a crime only in the event the United States mails are used in carrying out the scheme. Cochran v. United States, 8 Cir., 41 F.2d 193; Busch v. United States, 8 Cir., 52 F.2d 79; Hass v. United States, 8 Cir., 93 F.2d 427; United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548. In Cochran v. United States, supra 41 F.2d 197, we said:

"While the scheme or artifice must be sufficiently set forth so as to advise the defendants with the particulars thereof, yet the scheme need not be set forth with that particularity which would be required if the scheme was the gist of the offense."

Contrary to the contentions of counsel, the indictment alleges that the scheme devised was to obtain money or property by false pretenses. It is not essential that it be alleged that those to whom communications were sent by mail were in fact defrauded or that money was obtained from them. If, as alleged, the mails were used in carrying out a fraudulent scheme, it was quite immaterial whether the scheme were successful or unsuccessful. Busch v. United States, supra; Barnes v. United States, 8 Cir., 25 F.2d 61; Cochran v. United States, supra; Muench v. United States, 8 Cir., 96 F.2d 332.

It is urged that the letters mailed by defendants did not carry out the scheme, nor did the mailing of a package of salve. Letters to Lona Baker referred to treatment of her in the hospital at Eureka Springs. The first letter in count 1 gave information as to treatment. The second letter in count 2 referred to sending some medicine after she had been to the hospital. The letter in count 3 said that they had expected her to return for more treatment. The fourth letter stated it was hard to give a definite answer to what was causing pain in her shoulder and they advised her if possible to return to the hospital for a check-up. Letters set out in counts 5 and 6 were letters advertising and promoting the Baker Hospitals and their cure. Count 7 charged the mailing of a C. O. D. parcel addressed to Mrs. T. J. White, Fordyce, Arkansas, the contents unknown. Incidentally, it appeared in evidence that it contained a salve. All of these had such relation to the scheme as to have aided in its execution. The description in count 7 of the matter mailed is indefinite but that was ground for asking for a bill of particulars. While a bill of particulars was demanded and denied, there is no contention in the brief of error in this regard.

It is urged too that the indictment should have stated the true names of the persons to whom the mail was delivered but this objection is without merit. McClendon v. United States, 8 Cir., 229 F. 523; Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709. The statute does not require the name of the person to whom delivery is made to be stated, and where a name is not an essential element of an offense it need not be stated, nor, indeed, need it be alleged that the name was unknown to the grand jury. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890. Defendants made no claim of surprise. The fact, therefore, that in counts 5 and 6 defendants were charged with having caused mail matter to be delivered to fictitious names employed by the Post Office inspectors was not material. We conclude that the indictment was not subject to the attacks urged by defendants.

J. E. McElroy, called as a witness for...