Pereira v. United States, No. 50

CourtUnited States Supreme Court
Writing for the CourtWARREN
Citation98 L.Ed. 435,74 S.Ct. 358,347 U.S. 1
PartiesPEREIRA et al. v. UNITED STATES
Docket NumberNo. 50
Decision Date01 February 1954

347 U.S. 1
74 S.Ct. 358
98 L.Ed. 435
PEREIRA et al.

v.

UNITED STATES.

No. 50.
Argued Oct. 20, 1953.
Decided Feb. 1, 1954.

[Syllabus from pages 1-2 intentionally omitted]

Page 2

Mr. Charles L. Sylvester, New York City, for petitioners.

Mr. John R. Wilkins, Washington, D.C., for respondent.

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Mr. Chief Justice WARREN delivered the opinion of the Court.

The petitioners, Pereira and Brading, were convicted in the District Court for the Western District of Texas under three counts of an indictment charging violation of the mail fraud statute, 18 U.S.C. (Supp. V) § 1341, 18 U.S.C.A. § 1341, violation of the National Stolen Property Act, 18 U.S.C. (Supp. V) § 2314, 18 U.S.C.A. § 2314, and a conspiracy to commit the aforesaid substantive offenses, 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371. The Court of Appeals for the Fifth Circuit affirmed. 202 F.2d 830. This Court granted certiorari to consider questions which are important to the proper administration of criminal justice in the federal courts. 345 U.S. 990, 73 S.Ct. 1134, 97 L.Ed. 1399.

On April 19, 1951, Mrs. Gertrude Joyce, a wealthy widow, fifty-six years old, and her younger half-sister, Miss Katherine Joyner, were accosted by the petitioner Brading as they were about to enter a hotel in El Paso, Texas. Mrs. Joyce and her sister had just arrived from their home in Roswell, New Mexico, and were preparing to register at the hotel. Brading identified himself, assisted them in parking their car, and invited them into the hotel bar to meet a friend of his. They accepted. The friend was petitioner Pereira, thirty-three years of age. After a few drinks, the men suggested that they all go to Juarez for dinner. The women accepted, and after dinner visited some night clubs with the petitioners. Pereira devoted himself to Mrs. Joyce, telling her that their meeting was an 'epoch' in his life. He mentioned that he was getting a divorce. This same performance was repeated the following night. When Pereira said that he would like to return to Roswell with the women, Mrs. Joyce invited the two men to be her house guests, and they accepted. Pereira commenced to make love to Mrs. Joyce, and she responded to his attentions. On May 3, Pereira exhibited a telegram to Mrs. Joyce, in the presence

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of Brading and Miss Joyner, stating that his divorce would be granted on May 27, but that he would not receive his share of the property settlement, some $48,000, for a month.

Brading represented himself as a prosperous oil man, dealing in leases, and Pereira as the owner and operator of several profitable hotels. Brading then told Mrs. Joyce that Pereira was about to lose an opportunity to share in the profits of some excellent oil leases because of the delay in the divorce property settlement, and persuaded her to lend Pereira $5,000.

Pereira suggested that he and Mrs. Joyce take a trip together to 'become better acquainted.' He borrowed $1,000 from her to finance the trip. Brading joined them at Wichita Falls, and the three of them continued the trip together as far as Dallas. Pereira discussed his purported hotel business in Denver during this part of the trip. He stated that he was giving two hotels to his divorced wife, but intended to reenter the hotel business in the fall. In the meantime, he was going to 'play a little oil' with Brading. In Hot Springs, Arkansas, Pereira proposed marriage and was accepted. Brading reappeared on the scene, expressing great joy at the impending marriage. Pereira then told Brading, in the presence of Mrs. Joyce, that he would have to withdraw from further oil deals and get a hotel to assure himself of a steady income.

Pereira and Mrs. Joyce were married May 25, 1951, in Kansas City, Missouri. While there, Pereira persuaded Mrs. Joyce to procure funds to enable him to complete an arrangement to purchase a Cadillac through a friend. She secured a check for $6,956.55 from her Los Angeles broker, and drawn on a California bank, which she endorsed over to Pereira. The price of the car was $4,750, and she instructed Pereira to return the balance of the proceeds of the check to her. He kept the change.

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From that time on, Pereira and Brading, in the presence of Mrs. Joyce, discussed a hotel which by words and conduct they represented that Pereira was to buy in Greenville, Texas. They took Mrs. Joyce—by this time Mrs. Pereira—to see it, and exhibited an option for its purchase for $78,000 through a supposed broker, 'E. J. Wilson.' Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los Angeles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of Pereira.

At five o'clock in the morning of June 19, Pereira and Brading, after telling their victim that they were driving the Cadillac to a neighboring town to sign some oil leases, left her at home in Roswell, New Mexico, promising to return by noon. Instead Pereira picked up the check for $35,000 at the El Paso Bank, cashed it there, and with Brading left with the money and the Cadillac.

That was the last Mrs. Joyce saw of either petitioner, or of her money, until the trial some seven months later. She divorced Pereira on November 16, 1951.

The record clearly shows that Brading was not an oil man; that Pereira was not a hotel owner; that there was no divorce or property settlement pending in Denver; that Pereira arranged to have the telegram concerning the divorce sent to him by a friend in Denver; that there were no oil leases; that the hotel deal was wholly fictitious; and that 'E. J. Wilson' was the petitioner Brading. The only true statements which the petitioners

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made concerned the purchase of the Cadillac, and they took that with them. Pereira and Brading contrived all of the papers used to lend an air of authenticity to their deals. In short, their activities followed the familiar pattern of the 'confidence game.'

The petitioners challenge the admissibility of Mrs. Joyce's testimony as being based on confidential communications between Mrs. Joyce and Pereira during the marriage. Petitioners do not now contend that Mrs. Joyce was not a competent witness against her ex-husband. They concede that the divorce removed any bar of incompetency. That is the generally accepted rule. Wigmore, Evidence, § 2237; 58 Am.Jur., Witnesses, § 204. Petitioners rely on the proposition that while divorce removes the bar of incompetency, it does not terminate the privilege for confidential marital communications. Wigmore, Evidence, § 2341(2); 58 Am.Jur., Witnesses, § 379. This is a correct statement of the rule, but it is inapplicable to bar the communications involved in this case, since under the facts of the case, it cannot be said that these communications were confidential. Although marital communications are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617. The presence of a third party negatives the presumption of privacy. Wigmore, Evidence, § 2336. So too, the intention that the information conveyed be transmitted to a third person. Id., § 2336. The privilege, generally, extends only to utterances, and not to acts. Id., § 2337. A review of Mrs. Joyce's testimony reveals that it involved primarily statements made in the presence of Brading or Miss Joyner, or both, acts of Pereira which did not amount to communications, trips taken with third parties, and her own acts. Much of her

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testimony related to matters occurring prior to the marriage. Any residuum which may have been intended to be confidential was so slight as to be immaterial. Cf. United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1009.

The court below was not in error in admitting Mrs. Joyce's testimony.

The petitioners challenge their conviction on the substantive counts on the ground that there was no evidence of any mailing or of transporting stolen property interstate, the gist of the respective offenses. These contentions are without merit.

The mail fraud statute provides:

's 1341. Frauds and swindles

'Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.' 18 U.S.C. (Supp. V) § 1341, 18 U.S.C.A. § 1341.

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The National Stolen Property Act provides:

's 2314. Transportation of stolen goods, securities, monies, or articles used in counterfeiting

'Whoever transports in...

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1320 practice notes
  • United States v. Agueci, No. 99
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 8, 1962
    ...590, 1 L.Ed.2d 597 (1957). Cf. Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The rule is otherwise, however, with regard to substantive violations of the narcotics laws; there, the j......
  • Whalen v. United States, No. 78-5471
    • United States
    • United States Supreme Court
    • April 16, 1980
    ...79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Holiday v. Johnst......
  • U.S. v. Blandford, No. 93-6011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1994
    ...would routinely send campaign finance reports to the appropriate state and county offices through the mail. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954) ("Where one does an act with knowledge that the use of the mails will follow in the ordinary c......
  • Tribune Co. v. Purcigliotti, No. 93 Civ. 7222 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 14, 1994
    ...F.2d at 191 (citing Schmuck v. United States, 489 U.S. 705, 712, 109 S.Ct. 1443, 1448-49, 103 L.Ed.2d 734 (1989); Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954)). The mailing is violative of the mail fraud statute if the defendant "caused" the mailing and......
  • Request a trial to view additional results
1318 cases
  • United States v. Agueci, No. 99
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 8, 1962
    ...590, 1 L.Ed.2d 597 (1957). Cf. Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The rule is otherwise, however, with regard to substantive violations of the narcotics laws; there, the j......
  • Whalen v. United States, No. 78-5471
    • United States
    • United States Supreme Court
    • April 16, 1980
    ...79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Holiday v. Johnst......
  • U.S. v. Blandford, No. 93-6011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1994
    ...would routinely send campaign finance reports to the appropriate state and county offices through the mail. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954) ("Where one does an act with knowledge that the use of the mails will follow in the ordinary c......
  • Tribune Co. v. Purcigliotti, No. 93 Civ. 7222 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 14, 1994
    ...F.2d at 191 (citing Schmuck v. United States, 489 U.S. 705, 712, 109 S.Ct. 1443, 1448-49, 103 L.Ed.2d 734 (1989); Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954)). The mailing is violative of the mail fraud statute if the defendant "caused" the mailing and......
  • Request a trial to view additional results
2 books & journal articles
  • MAIL AND WIRE FRAUD
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...mail and wire fraud statutes require that the transmission be “in furtherance” of the scheme,68 or, in other 61. Pereira v. United States, 347 U.S. 1, 8–9 (1954); see also United States v. Ward, 486 F.3d 1212, 1212 (11th Cir. 2007) (stating that a person causes the mail or wires to be used ......
  • The Warren Court - After Three Terms
    • United States
    • Political Research Quarterly Nbr. 9-4, December 1956
    • December 1, 1956
    ...United States v. Five Gam- bling Devices, 346 U.S. 441 (1953); United States v. Morgan, 346 U.S. 502 (1954); Pereira v. United States, 347 U.S. 1 (1954); Walder v. United States, 347 U.S. 62 (1954); Remmer v. United States, 347 U.S. 227 (1954); United States v. Dixon, 347 U.S. 381 (1954); a......

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