Norton v. United States, 8567.

• Decision Date: 28 October 1937
• Docket Number: No. 8567.,8567.
• Parties: NORTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

92 F.2d 753 (1937)

NORTON v. UNITED STATES.

No. 8567.

Circuit Court of Appeals, Ninth Circuit.

October 28, 1937.

Morris Lavine, of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Jack L. Powell and Carl Eardley, Asst. U. S. Attys., all of Los Angeles, Cal.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The appellant was convicted of the crime of using the mails to defraud. Criminal Code § 215 (18 U.S.C.A. § 338).

The appeal presents the question of the sufficiency of the indictment to state an offense under the statute. The sufficiency of the evidence is also challenged, but the latter point need not be determined.

For a proper understanding of the problem presented to this court it is essential to review the allegations of the indictment.

It is charged that the appellant, Violet Wells Norton (and certain other parties who were later dismissed), devised "a scheme and artifice to defraud Clark Gable" and to obtain money from him "by means of false and fraudulent pretenses, representations, statements, and promises." The nature of the scheme and artifice is detailed in substance as follows:

That the appellant would represent and claim that she had illicit relations with Gable in the month of September, 1922, in England, and that as a result of such relations a child, Gwendoline, of which Gable was the father, was born to her in June, 1923; and that appellant would thus fraudulently obtain money from Gable for the support and education of Gwendoline, without any right thereto on her part, or any obligation on the part of Gable.

It is charged that all these representations and pretenses were made; that all of them were false, in that appellant had not had sexual relations with Gable in September, 1922, or at any other time, in England, or in any other place; that in truth Gable was not in England in 1922 or 1923 and did not then, or at any other time, know or meet appellant; that Gable is not the father of the child Gwendoline and is not liable for her support; and that neither she nor appellant has any valid claim against Gable. Further, that appellant knew at all times that these representations and pretenses were false, and that they were made knowingly with the felonious intent to cheat, wrong, and defraud Gable of his money.

The indictment then sets out a letter alleged to have been written by appellant and caused by her to be delivered to Gable through the United States mail for the purpose of executing the scheme and artifice. This letter salutes Gable as "Frank." It is couched in terms of endearment. In substance, it assumes the existence at some time in the past of an intimate relationship between the writer and Gable, the latter being addressed throughout as "Frank." It solicits a resumption of the relationship, and Gable is urged to come forward with the means of placing their child, Gwendoline, in school.

On its face the indictment appears to present a scheme to defraud Gable by falsely representing to him that he is the father of appellant's child, conceived and born in England. Since the intended victim had not been in England, he could not have been tricked by this falsehood. It is not, however, a necessary ingredient of the offense punishable by the statute that the one toward whom false representations are directed shall actually be misled by them. The circumstances may be such as to render him immune to deception. Hill v. U. S. (C.C.A.5, 1934) 73 F.(2d) 223.

But intent to defraud is an essential element of the offense. The person devising the fraudulent scheme must intend in some manner to delude the person upon whom the scheme is to be practiced. There can be no intent to deceive where it is known to the party making the representations that no deception can result.

Here, every circumstance upon which appellant might have based a hope of perpetrating a deception is negatived in the indictment. It is averred that the accused and Gable had not met or known each other. It is necessary to conclude from the language of the averments that each was aware of that fact and each knew the other to be aware of it. Humanly speaking, it is not possible to impute to the accused woman the purpose of inducing Gable to part with his money on the strength of her story, since she knew he could not be taken in by it. In determining the sufficiency of the indictment the court will not consider possibilities beyond the range of rational experience.

Nor do we understand counsel for the government so to interpret the scheme charged. Their position is that appellant's assertions that she had had intercourse with Gable and that as a result a daughter was born to them, coupled with the demand for the support of the daughter and the threat to expose this situation to the world if her demands were not met, are false statements and false pretenses within the meaning of the act.

While no threat to make public the details of the pretended relationship is charged in the indictment or is contained in the letter incorporated in it, such threat may perhaps be implicit in the very nature of the artifice. But a scheme of that sort is not one to trick or deceive. It is a scheme to coerce or extort, and is a species of blackmail. See act of July 8, 1932, 47 Stat. 649, as amended by act June 28, 1935, 49 Stat. 427, 18 U.S.C.A. § 338a. The means employed are not trickery or deceit, but the putting in fear. Is such a scheme within the purview of the statute punishing the use of the mails to defraud?

The pertinent words of the statute (Cr. Code § 215, 18 U.S.C.A. § 338) are as follows: "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...