Mende v. United States
| Decision Date | 25 October 1960 |
| Docket Number | No. 16687.,16687. |
| Parties | Milton MENDE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter M. Campbell, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Robert John Jensen, Asst. U. S. Atty., Los Angeles, Cal., Henry P. Johnson, Asst. U. S. Atty., for appellee.
Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges.
This is a mail fraud case. The first point on appeal concerns, because of statutes of limitations, the effect of bringing in a new indictment which dropped the word "either" and changed one "or" to "and," plus the substitution of the word "allegations" for the word "violations."
Mende was one of the principals in an enterprise of soliciting mail orders for towels and perfume by means of radio advertising. Financially the business was a flop. Radio stations generally didn't get paid for their broadcast time. Essentially the basis of three successive indictments was that Mende and his associates bought the radio time from widely scattered stations without intending to pay for it.
The mailing of a letter to each of eighteen different radio stations in connection with the buying of the time as part of the overall business was the core of eighteen separate counts. Convictions were had as to counts 2, 3, 7, 10, 11, 12, 14, 15 and 18. A three year sentence concurrent as to all counts was imposed.
The first indictment was returned April 9, 1958. On the counts here pertinent, the earliest mailing was on May 5, 1953, and the last on August 14, 1953. Thus, the original indictment was within the five-year period prescribed by 18 U.S.C. § 3282. The first indictment was, on defendant's motion, as to all pertinent counts dismissed on July 14, 1958.
A second indictment was returned on November 5, 1958. The mailings described in the counts were the same, but one facet of the original scheme was eliminated. There was no new matter in the second indictment. And the second indictment was timely because it was within the next term and the grace period of 18 U.S.C. § 3288, which reads as follows:
"Whenever an indictment is dismissed for any error, defect or irregularity with respect to the grand jury, or is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court, following the term at which such indictment was found defective or insufficient, during which a grand jury shall be in session which new indictment shall not be barred by any statute of limitations."
On November 19, 1958, the second indictment was dismissed on defendant's motion, and on the same day we have a third indictment returned, identical as to the critical counts except that paragraph 4 was different in the following respects:
In the second indictment (as in the first) In the third indictment ________________________________________ _________________________________________ That those radio stations, managers, That those radio stations, managers and representatives thereof, which and representatives thereof, which had broadcast the advertising originally had broadcast the advertising originally submitted by the defendants submitted by the defendants and which indicated that the broadcasting and which indicated that the broadcasting requested by the defendants requested by the defendants would be terminated were further requested would be terminated were further requested by the defendants to either by the defendants to continue continue the broadcasts or to cancel the broadcasts and to cancel the broadcasts of specific advertising the broadcasts of specific advertising and replace it with other advertising and replace it with other advertising submitted by the defendants; as submitted by the defendants;
Mende's counsel, in an able brief, argues "a new indictment" in the grace statute means one indictment and one only. The trial court, in effect, ruled that any number of new indictments on the same...
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