Rosenthal v. United States

• Decision Date: 07 March 1927
• Docket Number: No. 3496.,3496.
• Citation: 18 F.2d 24
• Parties: ROSENTHAL v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

18 F.2d 24 (1927)

ROSENTHAL v. UNITED STATES.

No. 3496.

Circuit Court of Appeals, Third Circuit.

March 7, 1927.

Louis E. Levinson, of Chicago, Ill., and Frank R. S. Kaplan, of Pittsburgh, Pa., for plaintiff in error.

John D. Meyer, U. S. Atty., and James I. Marsh, Asst. U. S. Atty., both of Pittsburgh, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

Allen L. Rosenthal was indicted, tried, and convicted for having used the mails to execute a scheme or artifice to defraud which he had devised.

The scheme consisted in advertising through newspapers, circulars, letters, etc., that he was the publisher of a Roberts' Masonic Directory which was then being compiled and would very shortly be ready for distribution. The following is a sample of the circular sent out by him:

"Roberts' Pennsylvania Masonic Directory.

"General Offices: Suite C, Arrott Building, Pittsburgh, Pa.

"Philadelphia Offices: Second Floor, 1015 Chestnut St. Phone Walnut 3600, Court 1290.

"Last Notice. — Advertising forms will close positively December 18th.

"Requests. — Due to the great number of requests we have had for space in our directory, we have postposed the closing date until December 18th. Advertising received after that date will be returned to the senders.

"A Directory of Masonic Lodges in Pennsylvania. Locations, names of presiding officers, date and time of meetings, and other valuable information for Masons.

"Jos. Staudacher.

"Office Butler 984-J. People's Phone 1654-K.

"Manufacturer of the Staudacher Refrigerator Wood and Opal Glass-Lined Refrigerators for All Purposes.

"Factory: Mill and S. Wash. Sts., Butler, Pa.

"Detach here and mail immediately with below.

"Gentlemen: Roberts' Pennsylvania Masonic Directory for 1925 now being compiled, will be off the press and ready for distribution very shortly.

"Advertising forms will close within six (6) days.

"It will contain information relative to locations of Blue Lodges, Chapters, Consistory, Commanderies, Shrine, Grotto, Eastern Stars and other branches of the Masonic Fraternity together with names, addresses and telephone numbers of the presiding officers, dates and time of meetings and other information that will be most valuable to the fraternity at large.

"Lodges in the state of Pennsylvania will receive a sufficient quantity of these directories for their membership, and under this method of distribution, which will be free to the members, the circulation will be large and your advertisement therein will be productive of good results as it will be seen and read by members throughout the entire year.

"Regardless of what your business is or what you sell, job, manufacture or distribute, can you afford not to be represented in this directory for the small cost?

"Write your advertisement in the above space or O. K. the attached copy, then detach and mail in to us together with the coupon below properly filled in. The cost is only five ($5.00) dollars. Think of it! A whole year's advertising for only $5.00!

"Your prompt attention will enable you to get preferred position.

"Thanking you in advance, and hoping to be favored with your order by return mail, we are,

"Very truly yours,

"Roberts' Pennsylvania Masonic Directory.

"Detach here and mail immediately with above copy for preferred position in directory.

"Date ______, 192__. "____________ (Name of Bank.) "_____________. (Location.)

"Pay to the order of Roberts Publishing Company $5.00 five and no/100 dollars.

"Firm Name, ____________. "Address, __________ "By ____________.

"This must be signed only by persons authorized to sign checks."

In order to secure advertisers in these directories, the defendant prepared proposed advertisements and sent them through the United States mails. If the person who received one of these samples approved the proposed advertisement of his business, he returned it with $5 to pay for it. The defendant had two offices in the city of Boston, Mass., in which he employed about 30 girls who were engaged in preparing and mailing letters and circulars, containing suggested advertisements to prospective patrons. In doing this they cut out advertisements which they found in telephone books, directories, and other books from the various localities in which the directories were to be published. He also had an office in Rochester, N. Y., where 10 girls were engaged in doing the same kind of work. Some circulars were sent through the mails in stamped envelopes bearing the return address, some by express, and some by parcel post. About 70,000 circulars were prepared in the Boston office and thus sent to various localities. They were similar in all respects except name. For instance, those to be published in Pennsylvania were called "Roberts' Pennsylvania Masonic Directory," "Roberts' Pittsburgh Masonic Directory," etc. In order to secure advertisements, some circulars contained such statements as: "Last Notice. — Advertising forms will close positively December 18;" "Requests. — Due to the great number of requests we have had for space in our directories we have postponed the closing date until December 18th. Advertisements received after that time will be returned to the senders." Directories were to be published for Boston, New York City, Pittsburgh, the state of Pennsylvania, and elsewhere.

Admittedly the defendant did devise a scheme to publish Masonic directories and to secure advertisements to be published therein for which he received considerable money. Did he in good faith intend to publish such directories as his literature described, or did he not intend to do so and thus defraud those who paid for advertisements?

The scheme was devised prior to October 7, 1924, for on that date he wrote letters to various grand Masonic Lodges relative to publishing directories for Blue Lodges, etc., over which they had jurisdiction.

Some time thereafter, he sent out circulars saying this was the "last notice" and that advertising forms would "close positively December 18th"; that the directories were "now being...