Fasulo v. United States, 251

• Decision Date: 29 November 1926
• Docket Number: No. 251,251
• Parties: FASULO v. UNITED STATES
• Court: U.S. Supreme Court

272 U.S. 620

47 S.Ct. 200

71 L.Ed. 443

FASULO

v UNITED STATES.

No. 251.

Argued Oct. 13, 14, 1926.

Decided Nov. 29, 1926.

Messrs. John O'Gara and Benjamin L. McKinley, both of San Francisco, Cal., for petitioner.

[Argument of Counsel from pages 621-622 intentionally omitted] The Attorney General and Mr. Assistant Attorney General Donovan, for the United States.

[Argument of Counsel from pages 623-625 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

The petitioner, indicted with others in the Northern district of California, was convicted of conspiracy to violate section 215 of the Criminal Code. 35 Stat. 1088, 1130 (Comp. St. § 10385). The judgment was affirmed. 7 F.(2d) 961. And see Lupipparu v. United States (C. C. A.) 5 F.(2d) 504.

The question for decision is whether the use of the mails for the purpose of obtaining money by means of threats of murder or bodily harm is a scheme to defraud within the meaning of that section. Petitioner contends that sending threatening letters for that purpose involves coercion and not fraud. The government insists that in a broad sense threats constitute fraud, and that the section covers the obtaining of money or property of another by dishonest means. The words of the statute relied on follow:

'Whoever, having devised * * * any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme * * * place, or cause to be placed, any letter, * * * in any post office, * * * to be sent or delivered * * *' shall be punished.

Questions somewhat similar have been considered in the lower courts, but the issue here presented has never been decided by this court.

In Weeber v. United States (C. C.) 62 F. 740, the defendant was convicted under the provision here in question, then a part of section 5480, Revised Statutes. The scheme to defraud alleged was this: One Kearney pretending to have a claim against Stephens placed it in defendant's hands for collection. An action was then pending in the federal court brought by the United States against Stephens. Defendant caused to be mailed a letter purporting to be from the United States attorney to himself in reference to furnishing testimony tending to show Stephens liable to the government, and then caused the letter to be seen by Stephens intending that he would be frightened into paying the false claim in order to prevent disclosures to the United States attorney. The court held the indictment good and affirmed the conviction. But in that case there were involved trickery and deceit as well as threat. The contention that threats to injure do not constitute a scheme to defraud does not appear to have been made; at any rate, it was not discussed in the opinion.

In Horman v. United States, 116 F. 350, 53 C. C. A. 570, the Circuit Court of Appeals of the Sixth Circuit affirmed a conviction under section 5480. The defendant and others, pretending to have knowledge of crimes committed by Douglass and others, threatened to make them public unless given $7,000. The purpose of the conspiracy was to obtain money by means akin to, if not technically, blackmail and extortion. The court construed the section and said the words 'to defraud' were not descriptive of the character of the artifice of scheme but rather of the wrongful purpose involved in devising it. And it held that (page 352 (53 C. C. A. 572)):

'If the scheme or artifice in its necessary consequence is one which is calculated to injure another, to deprive him of his property wrongfully, then it is to defraud within the meaning of the statute.'

On the basis of these cases the government argues that the statute embraces all dishonest methods of deprivation the gist of which is the use of the mails.

But in Hammerschmidt v. United States, 265 U. S. 182, 44 S. Ct. 511, 68 L. Ed. 968, we held that section 37 of the Criminal Code (Comp. St. § 10201), denouncing conspiracy 'to defraud the United States in any manner or for any purpose,' did not condemn a conspiracy to defeat the selective draft by inducing persons to refuse to register. It is there said that the decision in Horman v. United States went to the verge, that since that decision section 5480 had been amended to make its scope clearer, and that its construction in that case could not be used as authority to include within the legal definition of a conspiracy to defraud the United States a mere open defiance of the governmental purpose to enforce a law. And in the discussion of the words 'to defraud' it is said that they primarily mean to cheat, that they usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching, and that they do not extend to theft by violence, or to robbery or burglary. The reference in the opinion to 'means that are dishonest' and 'dishonest...