O'Hara v. United States

• Decision Date: 04 May 1904
• Docket Number: 1,265.
• Citation: 129 F. 551
• Parties: O'HARA v. UNITED STATES
• Court: U.S. Court of Appeals — Sixth Circuit

129 F. 551

O'HARA v. UNITED STATES

No. 1,265.

United States Court of Appeals, Sixth Circuit.

May 4, 1904

The plaintiff in error was indicted and convicted of violating section 5480 of the Revised Statutes of the United States, as amended by Act March 2, 1889, c. 393, 25 Stat. 873 (U.S Comp. St. 1901, p. 3696), which reads as follows: 'If any person having devised or intending to devise any scheme or artifice to defraud * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States by means of the post office establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending shall, in and for executing such scheme or artifice, or attempting so to do, place or cause to be placed, any letter packet, writing, circular, pamphlet, or advertisement in any postoffice * * * such person so misusing the postoffice establishment shall upon conviction, be punishable,' etc.

The indictment was in three counts. The first count charged:

'That W. W. O'Hara and Thomas H. Walker, * * * on, to wit, the twenty-first day of May, in the year of our Lord one thousand nine hundred and two, in the county of Hamilton, in the state of Ohio, in the Circuit and Western Division of the District aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, and fraudulently devise a scheme and artifice to defraud Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and various other persons to these grand jurors unknown, which said scheme and artifice to defraud was to be effected by opening and intending to open correspondence with said Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and said various other persons to these grand jurors unknown, by means of the post-office establishment of the United States, which said misuse of the post-office establishment of the United States was then and there a part of said scheme and artifice to defraud, which said scheme and artifice to defraud was in substance as follows, to wit:

'That they, the said W. W. O'Hara and Thomas H. Walker, * * * intended to falsify, pretend, and state, in and through certain circulars and letters sent and delivered through the post-office establishment of the United States as aforesaid, that the said W. W. O'Hara, who had offices in the Union Trust Building, Cincinnati, Ohio, was a 'turf commissioner,' and had expert professional handicappers operating in connection with his commission house, and that by reason of his experience and knowledge in the race-horse world, and his system of placing bets upon the various races that were being conducted throughout the United States, all risk of loss was practically eliminated, and, by reason of the manner in which he was to conduct the business of 'turf commissioner' as aforesaid, he would be able to earn for his customers the large dividends and profits that he was from week to week to give to the investors who intrusted their money in his hands; that, with the money received from his numerous customers and investors in the United States, pools would be formed the first of every week; that twenty-five per cent. of the winnings was to be deducted for the services of the commissioner, and the net earnings of each week were to be sent to his customers as aforesaid; that never more than twenty-five per cent. of the money sent by each customer was to be hazarded upon any race at any one time, and that the principle of the investors or customers was always to be kept intact and returned to the said investors or customers upon demand, and that the dividends to be paid and promised to be paid were always to be paid from earnings or profits derived from winnings upon the races or bets made upon race horses.

'The grand jurors further present that said W. W. O'Hara and Thomas H. Walker * * * intended to obtain from said Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and the various other persons to these grand jurors unknown, between the dates of January 1, 1902, and May 23, 1902, large sums of money, to wit, more than $200,000, on the representation that they would use the same in betting upon races or upon race horses.

'In truth and in fact, however, the grand jurors aver that said W. W. O'Hara and Thomas H. Walker * * * did not intend to use the money so received from the said Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and said various other persons to these grand jurors unknown, in betting upon races or upon race horses; that they did not intend to have in their employ professional handicappers, or persons experienced in the racing business; that they did not intend to invest the money so received as they represented as aforesaid, to wit, in betting upon races or upon race horses; but the said W. W. O'Hara and Thomas H. Walker * * * did intend to pay out each week to their customers, or persons who had intrusted money to them to be invested in their pretended scheme as aforesaid, a portion of said large sum of money (the amount is to these grand jurors unknown), which they were to pretend and state were the net profits or earnings of the money received and invested in their pretended scheme as aforesaid, and were to appropriate and convert to their own use a large amount of the money received from the victims of said scheme, the exact amount being unknown to these grand jurors; and at no time after the receipt of the money from Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and said various other persons to these grand jurors unknown, was the principal to be received from these parties, as aforesaid, to be kept intact, so that it could be returned to them upon demand, as they were to promise they would do.

'And the grand jurors aforesaid, upon their oaths and affirmations, do further present that said Henry Hildebrant, P. B. Middleton, Harry O. Thompson, and said various other persons to these grand jurors unknown, by reason of the false and fraudulent acts as aforesaid, and in the use of the mails as aforesaid, were to be defrauded out of the money placed in the hands of the said W. W. O'Hara, Thomas H. Walker, in large sums, to wit, to the amount of more than $200,000.

'And the grand jurors aforesaid, upon their oaths and affirmations, do further present that said W. W. O'Hara and Thomas H. Walker * * * did carry out said scheme to defraud above outlined, thereby defrauding said various persons out of large sums of money, and did unlawfully, wrongfully, and willfully, then and there, in further execution of said scheme and artifice to defraud, and in the misuse of the post-office establishment of the United States as aforesaid, place and cause to be placed in the post office at Cincinnati, for mailing and delivery, a letter addressed to Henry Hildebrant, Washington C.H.O., WHICH said letter was in the words and figures following, to wit:

'Office of W. W. O'Hara, Turf Commissioner, Union Trust Building,

Fourth and Walnut Streets.

"Cincinnati, O., May 21, 1902.

'Mr. Henry Hildebrant, Wash., C.H.O.: The dividend for week ending May 17, 1902, is $3.00 on each $100. Enclosed find money order for $9.00, less exchange on your investment of $300.

'Respectfully, W. W. O'Hara.'

-- Contrary to the form of the statute in such cause made and provided, and against the peace and dignity of the United...