Gregory v. United States, 16778.

Decision Date12 March 1958
Docket NumberNo. 16778.,16778.
Citation253 F.2d 104
PartiesMarshall T. GREGORY, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit


Herbert A. Ringel, H. A. Stephens, Jr., Atlanta, Ga., Smith, Field, Doremus & Ringel, Atlanta, Ga., of counsel, for appellant.

James W. Dorsey, U. S. Atty., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is an appeal from a conviction for mail fraud, 18 U.S.C.A. § 1341, after a jury verdict of guilty on Count One of a four-count indictment. The substantive questions are whether the transaction involved constitutes a mail fraud within the Act, and if so, whether, on a case almost wholly circumstantial, it was made out with requisite sufficiency. A few procedural questions are also presented.

The scheme to defraud and a use of the mails in its furtherance as set forth in paragraph 1 of Count One (repeated by reference in all other counts) and amplified by the Bill of Particulars applicable to all counts can be briefly summarized. In the fall of 1954 Crosley Division of AVCO Manufacturing Corporation had a nationwide weekly football contest. Contestants had to obtain blanks from authorized dealers. To complete the blanks, the contestant had (a) to indicate the winner of each of twenty intercollegiate football games to be played on Saturday of that week, (b) predict the correct score of the "Gridiron Special," and (c) fill out the last line of the inevitable jingle. The entry had to be postmarked not later than Wednesday preceding the game — Saturday. The winner was to be selected by a professional contest manager, Donnelley Corporation, in Chicago, on the basis of (a) and if tied, on the closest score predicted for (b), and if still tied, on (c) the best jingle. Gregory was a railway postal clerk assigned to the Atlanta-Nashville run. Through access to railway postal cancelling stamps and mail receptacles, he had, aided by his wife, devised a scheme by which the entries would bear a timely postmark and appear to have been mailed by Wednesday, but in fact would have been prepared and mailed after the games had been played. This was to cheat Crosley, other contestants, or both, all of whom assumed that the contest was competition between honest predictions, not a report on a past event.

As the contentions that the transaction could not amount to a mail fraud, but if it could, the proof was inadequate, overlap in part, it both simplifies the matter and avoids mere academic speculation to discuss at the outset the evidence by which, the Government urged and the jury agreed, flesh was put on these bones.

Evidence received in the trial covering entries submitted by Gregory and his wife comprised three games — Saturdays, September 25, November 6, and November 20, 1954. For these three contests, five entries (permitted by the rules) were submitted, one for September 25, two for November 6 mailed in separate envelopes, and two for November 20 sent in one envelope. The time of mailing was in dispute, but by admissions of Gregory made to a Postal Inspector, testimony of his wife and uncontradicted competent testimony that these entries were written on Gregory's typewriter, the fact that these entries were submitted and mailed for or by Gregory was overwhelmingly established. In any case, he could not question the September 25 entry since this was declared the winner for which the Gregorys received the new black Cadillac sedan.

It is here that circumstances begin to pile up. For ready reference and to indicate their cumulative total, we number in parenthesis many of the more striking ones. We begin first with the fact (1) that the entry of September 25 arrived late in Chicago. Most entries arrived on the Friday preceding or the Monday succeeding the game — Saturday. All those arriving thereafter or bearing two postmarks were opened by the contest manager (who testified) and the envelopes were retained and clipped to the entry. The jury was authorized on the contest manager's testimony to find that this entry had arrived late and because of this and its double postmark, he retained the envelope which was admitted as an exhibit. Moreover, (2) this envelope bore two postmarks, one September 22 (Wednesday), timely, and one of September 23 (Thursday) too late.

But more important, (3) each of the postmarks was "Nash & Atl Tr 94" with the respective dates, showing that the piece had been cancelled on the very run on which Gregory served, although he lived in Tucker, Georgia, a small suburban community east of Atlanta. Also (4) Gregory had access to the railway postal cancelling stamps since the foreman customarily put the box with stamp and removable dies for month, year and date in a locker to which all clerks on the car would have a key. Mechanically it was a relatively simple thing to change dates in the stamp. But (5) the envelope could not have been handled by Gregory on the car on either September 22 or 23 because he was not on either run. However, (6) it was uncontradicted that he did work on the run on Sunday, September 26, the day after game — Saturday at which time (7) he had access to mail being processed for Illinois delivery. While it was shown that a railway mail car has a mailing slot for public use while in or at a terminal, there was (8) no proof whatsoever from either Mrs. Gregory or her son, who testified extensively concerning the various places and times of mailing, that any of the three of them had ever made a direct deposit into the mail car on Train 94 on either September 22 or 23, or at any other time, or that the train as then made up for those days made this mail slot available in fact. Since, had it been deposited in any fixed mailbox in the Atlanta area or in the post office (or annex) of Atlanta, or any of these suburban communities, it would, in the regular course of affairs, (9) have borne the postmark of such post office, and (10) it would not have borne the railway postal cancellation even though the piece of mail happened to be transported on Train 94.

In addition, (11) this envelope bore a stamp "Missent to Atlanta Ga." But (12) this stamp varied from all missent stamps used in the Atlanta Post Office as reflected by testimony and as shown by actual impressions made in the spring of 1955. This stamp was in two lines and contained no punctuation. The regular official stamps were one line and punctuated. And this stamp impression was made by an "office kit" by which separate rubber characters are placed in a grooved metal holder rather than a manufactured, rubber cast stamp. Further, (13) a letter missent to Atlanta would bear an Atlanta postmark as the normal result of forwarding to the proper destination.

The entry itself was unusual. It (14) predicted the winner of 19 out of 20 of the specified games. And (15) the one error was in a West Coast game which testimony showed was not listed in the Sunday Atlanta papers of the succeeding day. Even more peculiar was the "Gridiron Special" which correctly listed the score: Duke 52 — Pennsylvania 0. The (16) explanation for this was itself curious. Out of loyalty to the South, they picked Duke, and since Gregory had not seen Duke since 1952 and knew nothing about Pennsylvania, they thought it a good hunch to select 52-0. But (17) actually this was further weakened by Gregory's insistence that from study and research he had become an "expert" prognosticator, but (18) almost in the same breath (in oral statements to the Inspector), he placed teams in the wrong conference and generally indicated no unique familiarity with collegiate football.

The circumstances multiplied in the second weekly contest for the game — Saturday November 6. There were two entries (Counts two and three) and (19) both were mailed in window-type envelopes which would permit mailing to a sender and reuse of the envelope showing the prior postmark. Both (20) of the envelopes bore a November 2, 1954, Atlanta, Georgia postmark. November 2 was a Tuesday and a day ahead of the deadline. Although Gregory and his family resided at 4600 La Vista Road in Tucker, Georgia, (21) one entry was in the name and address of "Tolstoi Gregory, 142 — 7th Avenue, North, Nashville, Tennessee," with the envelope showing a return address "Gregory, 39 — 15th Street, Atlanta, Georgia." The other entry (22) used the same name and Nashville address on the entry but showed "T. Gregory" and the Nashville address as the return address on the envelope. The Nashville address was the hotel at which he made his overnight stops and the Atlanta address was that of a relative.

Here, again, miraculous prescience was shown, for (23) in one of these two entries, all 20 games were correctly picked, in the other there was but one error, and both had the precise score for the "Gridiron Special." In addition (24) scientific tests and photographs indicated to Government expert witnesses that both envelopes had been sealed lightly at one time, the seal carefully broken and resealed tightly. Again (25), like the first entry, Gregory had access to Illinois mail as he was on the Train 94 run of Sunday, November 7.

These circumstances continued in the last entries for game — Saturday November 20 (Count four). For (26) both entries were perfect with all 20 games correctly picked, and the score for the "Gridiron Special" exactly right. Here (27) the postmark, dated November 17, 1954, on the single envelope containing the two entries was "Nashville Tenn TO Union Station." This office was connected with and under the jurisdiction of the Railway Postal Service and was located in the railroad facilities at Nashville. Gregory (28) made the run of November 17. There was, however, no showing that he did or did not make the run on the next Sunday, November 21.

Remarkably significant, (29) all four entries for...

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