U.S. v. Curtis

• Citation: 506 F.2d 985
• Decision Date: 10 December 1974
• Docket Number: No. 74-1098,74-1098
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis Rex CURTIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 985

506 F.2d 985

UNITED STATES of America, Plaintiff-Appellee, v. Louis Rex CURTIS, Defendant-Appellant.

No. 74-1098.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 10, 1974.

Decided Dec. 10, 1974.

Edward L. Ray, Oklahoma City, Okl. (Stephen Jones and Jones, Williams, Bane, Ray & Klingenberg, Oklahoma City, Okl., with him on the brief), for defendant-appellant.

John E. Green, Ast. U.S. Atty., Oklahoma City, Okl. (William R. Burkett, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, HILL, Circuit Judge, and CHRISTENSEN, Senior District Judge. ^*

CHRISTENSEN, Senior District Judge.

Charged in four counts of an indictment, and convicted on each by jury trial, for violating the Mail Fraud Statute, 18 U.S.C. 1341, ¹ appellant Louis Rex Curtis questions on this appeal the sufficiency of the evidence to sustain the verdict and the sufficiency of the indictment to survive his motion to dismiss. ²

At the close of the government's case a motion for judgment of acquittal for claimed insufficiency of the evidence was submitted to, and ruled upon by, the court adversely to appellant. He thereafter testified in his own behalf and introduced other evidence. Docket entries forming part of the record before us suggest that a similar motion was filed after the close of the trial within the time permitted by Rule 29(c), Fed.R.Cr.P., and denied. A copy of the latter motion has not been brought up. Assuming that it assigned insufficiency of the evidence as a ground, ³ we have carefully studied the transcript and have concluded that the evidence was sufficient to support the verdict.

More to the point of the insufficiency of the indictment, we note some facts which the record tends to support when construed favorably to the verdict and which we gather from the argument the government intended to cover in its charges, or now wishes that it had. ⁴

Prior to the date of the first mailing mentioned in the indictment, and continuing until after the last, Curtis devised a scheme and artifice to defraud persons looking for dates or marriages by inducing them in the name of 'Computer Matching Institute' to pay substantial fees for computerized and psychologically tested matching, without the intent and capability of performance on his part. The scheme and artifice as devised by Curtis was also to obtain money by means of the following false and fraudulent pretenses, representations and promises, well knowing at the time that the pretenses, representations and promises would be false when made: That by the use of computers arranged for and used by the Computer Matching Institute, a successful and effective organization, and through testing by qualified psychologists, he could and would match by prompt computer processing and expert psychological testing the personal characteristics and preferences of those willing to pay the required fees with other persons similarly processed and tested and likely to prove compatible and willing companions or marriage partners; that references of such matched persons would be promptly made and communicated to the subscribers for their selection or rejection; ⁵ and that this program had been endorsed by Dr. Joyce Brothers, Dr. Billy Graham, Dr. Norman Vincent Peale, Dr. Crane, and other famous people. The true facts ⁶ were that the 'Computer Matching Institute' at the material times and places was largely a facade and pretense to permit the collection of large sums of money from the public; ⁷ that appellant at the time of devising such scheme or artifice to defraud, and making such pretenses, representations and promises, and at the time of the mailings in question, did not have the intent or capability of processing or matching applications by computer or testing applicants through the services of a psychologist; that no famous people had endorsed his program, and that any processing and matching to the extent completed and reported at all, unknown to the subscribers, were acomplished by hand by clerical help untrained for the purpose or by Curtis himself. ⁸ And for the purpose of executing such a scheme and artifice to defraud, and attempting to so do, Curtis mailed the letters as charged in the indictment.

These salient facts vital to the government's claim of an unlawful scheme or artifice are masked, if not concealed, by the conclusionary language of the indictment as framed. To render this readily apparent, and to demonstrate fatal departure from Form 3 of the Appendix of Forms annexed to the Federal Rules of Criminal Procedure, on the basis of which the government defends the indictment as meeting the requirements of the controlling rule ⁹ and the mandate of the Constitution, ¹⁰ we juxtaposition the two:

Form 3, Fed.R.Cr.P., is '. . . illustrative (of a sufficient indictment) and not mandatory,' Rule 58, Fed.R.Cr.P. In pertinent part it reads:

'The grand jury charges:

'1 . . . The defendants . . . devised and intended to devise a scheme and artifice to defraud purchasers of stock of XY Company, a California corporation, and to obtain money and property by means of the following false and fraudulent pretenses, representations and promises, well knowing at the time that the pretenses, representations and promises would be false when made: That the XY Company owned a mine at or near San Bernardino, California; that the mine was in actual operation; that gold ore was being obtained at the mine and sold at a profit; that the current earnings of the company would be sufficient to pay dividends on its stock at the rate of six per cent per annum.

'2 . . . The defendants for the purpose of executing the aforesaid scheme and artifice and attempting to do so, caused to be placed in an authorized depository for mail matter a letter addressed to Mrs. Mary Brown, 110 Main Street, Stockton, California, to be sent or delivered by the Post Office Establishment of the United States.'

Count 1 of the indictment in the present case, representative of the other three counts, alleges in pertinent part:

'The Grand Jury charges:

'1 . . . Louis Rex Curtis devised and intended to devise a scheme and artifice to defraud and to obtain money from a class of persons or persons to be defrauded, by means of false and fraudulent pretenses, representations and promises to the said class of persons, who could and would be induced by the said . . . Curtis at the times above referred, to pay and send or mail to him certain sums of money in response to false and fictitious representations about the services of a computer matching service for single persons, well knowing at the time that said pretenses and representations would be and were false when made, and which scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises, so devised by . . . Curtis, was in substance as follows:

'1. It was a part of such scheme and artifice to defraud, that . . . Curtis would cause and did prepare and cause to be placed in an authorized depository for mail matter false and fictitious Compatibility Questionnaires, addressed to the persons responding to advertisements about the computer matching service, to be sent and delivered by the Postal Service of the United States.

(Then in successive paragraphs following the same introductory conclusion contained in the last quoted paragraph the indictment specifies (2) The receipt through the mails of 'certain checks' in payment on alleged computer matching service, (3) that Curtis rented office space and a post office box to receive the checks 'and to lead the individuals to believe that the computer matching service was reputable,' (4) that he placed advertisements in various newspapers to solicit business, and (5) that he contracted 'for services he did not provide.' The next paragraph contains the most specific, but still excessively general reference to a scheme; but this obviously is a 'lulling scheme' and not the one relied upon to render other mailings unlawful.)

'6. And it was a further part of said scheme and artifice to defraud that . . . Curtis would and did falsely and fraudulently cause to be mailed letters . . . containing misrepresentations about the computer service, management, Investigating Department, and alleged invoices for computer service work, for the purpose of lulling or soothing the complaints of persons who had paid for services not provided by Computer Matching Institute.

'7 . . . Curtis, for the purpose of executing the aforesaid scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises willfully and knowingly did cause to be deposited in an authorized mail depository . . . mail matter containing a false and fraudulent Compatibility Questionnaire for Dating and Marriage addressed . . . all in violation of Section 1341, Title 18, United States Code.'

What the 'scheme and artifice to defraud', or the 'false and fraudulent pretenses, representations and promises' referred to in the indictment were, is left to speculation. And by the curious comminglement of references to the scheme with allegations of various means utilized to carry it out, the indictment is confusing as well as vague. Certainly the compatibility questionnaire, the post office box, the business office, the checks or their receipt, were not 'false or fictitious' per se. The enumeration of acts in implementation of some scheme or artifice, but under the allegations that they were themselves 'in substance' such a scheme and 'part of it' did more to mask what the misrepresentations, scheme or artifice were claimed to have been than to explain them. The indication and place provided in the official form for specification or identification of the claimed false pretenses, representations and promises were disregarded in the indictment before us.

For all the indictment shows the grand jury may have had a concept of...