Strauss v. United States
| Decision Date | 16 June 1965 |
| Docket Number | No. 14879.,14879. |
| Citation | 347 F.2d 691 |
| Parties | Robert Samuel STRAUSS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
E. Paul Lanphier, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Erwin I. Katz, Richard J. Phelan, Asst. U. S. Attys., Chicago, Ill., for appellee.
Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
Robert Samuel Strauss, petitioner-appellant, was convicted, following his plea of guilty, on a six-count indictment charging him with mail fraud in violation of 18 U.S.C.A. § 1341 by using the mails in furtherance of a scheme he devised to defraud the relatives and next of kin of certain named deceased persons. The District Court imposed a five-year sentence, the execution of which it suspended, and placed petitioner on probation. The probation was subsequently revoked and petitioner entered upon service of the sentence. Thereafter, on October 7, 1964, the District Court denied a motion filed by petitioner pursuant to 28 U.S.C.A. § 2255 to set aside and vacate the sentence. The motion asserts the insufficiency of the indictment to charge an offense and the main contested issue presented by petitioner's appeal from its denial is whether the indictment in classifying those to be defrauded as the relatives and next of kin of named deceased persons charges an offense with that specificity which meets the test recognized as the standard by which the validity of an indictment and its sufficiency to support a conviction are to be measured.
Each count of the indictment specifically sets forth the date of the mailing and the name of the deceased person to whom a bible, imprinted with the name of such deceased in gold type on the front cover, and a covering invoice were mailed. The succeeding counts incorporated the allegations of the first count setting forth the scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses and representations through the mailing of such bibles and invoices to the names and addresses of deceased persons obtained from newspaper obituary columns with a statement on the invoices that: "Here is the bible you ordered, personalized with your name in 24k gold." It is further alleged that the statement in the invoices would be false in that the deceased persons would not have ordered the bibles, and that the bibles and invoices were sent for the purpose of inducing the next of kin and relatives to remit money to the defendant in the mistaken belief that the deceased persons had in fact ordered the bibles.
In connection with whether the sufficiency of an indictment is subject to attack in a § 2255 proceeding this Court has stated the rule to be that an indictment is not open to collateral attack under § 2255 unless it fails to charge an offense under any reasonable construction. United States v. Koptik, 7 Cir., 300 F.2d 19, 22. In United States v. Shelton, 7 Cir., 249 F.2d 871, 874, it was stated:
"On a motion to vacate the sentence under Section 2255, the sufficiency of the...
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United States v. Johnson
...formation of a scheme with intent to defraud, and the use of the United States mails in furtherance of the scheme. Strauss v. United States, 347 F.2d 691 (7th Cir. 1965); United States v. White, 355 F.2d 909 (7th Cir. 1966). The indictment outlines the scheme and specifically describes the ......
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