Rude v. United States, 1084
| Decision Date | 09 January 1935 |
| Docket Number | No. 1084,1085.,1084 |
| Citation | 74 F.2d 673 |
| Parties | RUDE v. UNITED STATES. HELLER v. SAME. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Philip Hornbein, of Denver, Colo. (Chas. Ginsberg and Chas. Rosenbaum, both of Denver, Colo., on the brief), for appellant Rude.
Cass M. Herrington, of Denver, Colo., for appellant Heller.
Thos. J. Morrissey, U. S. Atty., of Denver, Colo.
Before PHILLIPS and BRATTON, Circuit Judges, and POLLOCK, District Judge.
Rude and Heller were tried, convicted, and sentenced for violations of section 215 of the Criminal Code, 18 USCA, § 338.1
The indictment contained four counts. The first count set out the general scheme,2 and the mailing of a postal card in furtherance of such scheme. Each of the other counts alleged by reference to count one the same general scheme, and the mailing of another postal card in furtherance thereof.
The defendants challenged the sufficiency of the indictment by demurrers and motions in arrest of judgment, and assign as error adverse rulings thereon.
While the formation of a scheme or artifice to defraud is an essential element of the offense under section 215, supra, the gist of the offense is the use of the mail for the purpose of executing or attempting to execute such scheme, and such scheme need not be pleaded with all the certainty as to time, place, and circumstances required in charging the use of the mails. Havener v. United States (C. C. A. 10) 49 F.(2d) 196, 198; Brady v. United States (C. C. A. 8) 24 F.(2d) 397; Cochran v. United States (C. C. A. 8) 41 F.(2d) 193; Mathews v. United States (C. C. A. 8) 15 F.(2d) 139; Chew v. United States (C. C. A. 8) 9 F.(2d) 348; Gould v. United States (C. C. A. 8) 209 F. 730; Cowl v. United States (C. C. A. 8) 35 F.(2d) 794.
But the scheme or artifice to defraud must be set forth with sufficient particularity to apprise the accused of the nature of the accusation and to enable him to prepare his defense. United States v. Hess, 124 U. S. 483, 486, 8 S. Ct. 571, 31 L. Ed. 516.
The substance of the charge with respect to the scheme is that defendants would mail to persons to be defrauded, to induce them to come to defendants' store, postal cards with samples of fine woolen cloth attached, falsely representing that suits of such material could be purchased for $10, and that unclaimed suits of the value of $25 upon which deposits of from five to fifteen dollars had been forfeited could be purchased for five dollars; and that when such persons would call for the purpose of buying the advertised suits, defendants would attempt to sell them other suits made or to be made of "cheap, cotton and wool shoddy material" for five or ten dollars.
Although the indictment is loosely drawn, we are of the opinion that it charged a scheme to palm off to customers enticed into defendants' store by false advertising, cheap, shoddy suits as the advertised suits, and that the scheme was alleged with sufficient particularity to apprise defendants of what they would be required to meet at the trial.
It would be a scheme to defraud notwithstanding the merchandise to be offered might approximate in value the price to be charged. It is common knowledge nothing is more alluring than the expectation of getting what is commonly called a bargain, and a scheme which holds out that one will receive greater value than he pays for, appeals to the avarice of many. A scheme whereby customers are to be induced to part with their money by leading them to believe they are receiving something different from, superior to, and worth more than what is actually being sold, is an objectionable one within the intendment of section 215, supra, although the articles to be sold will approximate in commercial value the price to be asked and received. Durland v. United States, 161 U. S. 306, 313, 16 S. Ct. 508, 40 L. Ed. 709; United States v. Stever, 222 U. S. 167, 32 S. Ct. 51, 56 L. Ed. 145; Harris v. Rosenberger (C. C. A. 8) 145 F. 449, 453, 13 L. R. A. (N. S.) 762.
That the prospective customers were to have an opportunity to inspect the suits to be sold before purchasing them, would not prevent the scheme from being fraudulent. Inspection would not disclose that a suit was not an unclaimed suit, nor the real value thereof. Those were facts within the peculiar knowledge of the defendants. Cowl v. United States (C. C. A. 8) 35 F.(2d) 794.
The defendants by proper motion challenged the sufficiency of the evidence to support the verdicts of guilty, and present that question for review here.
Nelson, a post office inspector, went to defendants' place of business and asked to be shown their five dollar unclaimed suits; a clerk attempted to sell him a $10.00 suit, then a $12.50 or $15 suit. Nelson insisted upon being shown an unclaimed five dollar suit as advertised, and was told by the clerk that he had nothing to do with the advertising, and they did not have any unclaimed suits. Upon further insistence, the clerk found four suits he represented were unclaimed, and Nelson purchased one for five dollars. The suit was introduced in evidence. Other evidence discloses that it was a stock suit.
Lawrence, a former employee of defendants, testified that when a customer would come to defendants' store and ask for an unclaimed suit, he would show him suits priced at $12, $14 and $15; that if the customer wanted a five dollar suit he would show him suits at that price, but which were not unclaimed; that the prices put on the suits indicated the minimum at which they should be sold, but the price to be asked was determined by judging from the customer's appearance what he might be induced to pay. He further testified that on one occasion a customer requested a suit made of cloth similar to the sample attached to a postal card; that he could not find such a suit on the rack, so he took the customer's measure, cut a piece off the sample, and attached it to the order blank; that the order could not be filled, and a few days later he sold the customer a higher priced suit. He also testified that he never represented a five dollar suit as unclaimed and had no instructions to do so.
McCraken, also a former employee, testified that when a customer asked for a suit made of cloth like that on the postal card, he was not able to purchase it for $10 but was charged $15 or $18, or whatever larger amount could be obtained; and that if a customer asked for a five dollar unclaimed suit, he showed him a five dollar suit and told him it was unclaimed, but that he made such representation without instructions from defendants and solely of his own volition. He also testified that he sold unclaimed suits for five dollars.
It is not necessary to prove all the...
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