Silverman v. United States, 14818.
| Decision Date | 09 June 1954 |
| Docket Number | No. 14818.,14818. |
| Citation | 213 F.2d 405 |
| Parties | SILVERMAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Pierre Howard, Howard, Howard, Slaton & Holt, Atlanta, Ga., for appellant.
James W. Dorsey, U. S. Atty., J. Ellis Mundy, Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and WRIGHT, District Judge.
Appellant was found guilty by a jury on an indictment charging him with using the mails to accomplish a scheme to defraud, in violation of Sections 1341 and 1342 of Title 18 of the United States Code, and from the judgment entered upon the verdict he appeals to this court.
Necessary elements of the offenses are as follows: (1) intention to defraud, and (2) execution of the intention by use of the mails. The scheme need not be fraudulent upon its face, and need not misrepresent any fact, because all that is necessary is that it be a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension, and that the mail service of the United States be used in the execution of the scheme. The intention to defraud is shown by the scheme, which consisted of mailing solicitation forms to advertisers and subscribers of the classified directory of the Southern Bell Telephone and Telegraph Company at such time and under such circumstances as to mislead the recipients into thinking that it was a statement or bill from the telephone company for the payment of previously published listings in the company's classified directory, and which, in fact, induced some 350 recipients to respond with payments to appellant of a sum totaling $7,000.
The indictment contains fifteen counts, each of which, from 2 to 15, realleges all of the facts stated in the first count except those contained in the last paragraph thereof. The scheme and artifice, charged in paragraph one of the first count, was to defraud a large number of designated persons and business firms whose names were listed in the yellow section of the telephone directory published for the Atlanta, Georgia, area by the Southern Bell Telephone and Telegraph Company. The scheme was to solicit money from such persons by printed slips, similar to statements of said telephone company, with the intention of deceiving said persons and causing them to remit money to the defendant by mail under the misapprehension that they were paying for renewals of previously published listings and advertisements in the classified directory of said company. Paragraph two of each count alleges specific acts committed by the defendant for the purpose of executing the aforesaid scheme and artifice, and causing the United States mail facilities to be used. No objection was interposed to the indictment and, a plea of not guilty thereto having been entered by the defendant, a jury trial on the merits was had as above stated.
The evidence before the jury was to the effect that, in the further execution of the scheme, operating under the names of Atlanta Classified Directory and Atlanta Classified Business Directory, appellant prepared and mailed some 30,000 solicitations for listings in a proposed classified business directory to individuals and business firms located in Atlanta. All of the addressees were subscribers to and advertisers in the Classified Section of the Atlanta Telephone Directory, which is printed on yellow paper, bound with the regular telephone directory, and published by the Southern Bell Telephone...
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...scheme is one to defraud if it is reasonably calculated to deceive persons of ordinary prudence and comprehension. Silverman v. United States, 213 F.2d 405 (5th Cir. 1954), cert. denied 348 U.S. 828, 75 S.Ct. 46, 99 L.Ed. 653; Gusow v. United States, 347 F.2d 755 (10th Cir. In this case the......
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