United States v. Caine, No. 67 Cr. 432.

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Bass & Friend, New York City, for defendant
• Citation: 270 F. Supp. 801
• Decision Date: 13 July 1967
• Docket Number: No. 67 Cr. 432.
• Parties: UNITED STATES of America, v. Monroe CAINE, Defendant.

270 F. Supp. 801

UNITED STATES of America,
v.
Monroe CAINE, Defendant.

No. 67 Cr. 432.

United States District Court S. D. New York.

July 13, 1967.

270 F. Supp. 802

COPYRIGHT MATERIAL OMITTED

270 F. Supp. 803

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for the United States, by Douglas S. Liebhafsky, Asst. U. S. Atty., New York City

Bass & Friend, New York City, for defendant.

MANSFIELD, District Judge.

The defendant, who is charged in a 60-count indictment with use of the mails to defraud in violation of Title 18 U.S.C. § 1341, moves for (1) dismissal of Counts 25-60; (2) discovery and inspection pursuant to Rule 16, F.R.Crim. P.; and (3) a bill of particulars.

Counts 1-24 allege a scheme to defraud various newspapers in connection with the defendant's promotion of mail order sales of its talking fish lures, under which the defendant would order newspaper advertisements under the name of an advertising agency (Wortman, Barton & Russell, Inc.) without its authority, inducing the papers to print the advertisements without prepayment in reliance on the agency's credit. Each count alleges that for the purpose of executing the scheme the defendant caused a parcel to be sent and delivered by the United States Post Office Department to a certain newspaper, identified by name.

Counts 25-60, which are the subject of the motion to dismiss, involve a different scheme to defraud, as part of which the defendant would insert in newspapers advertisements offering "talking fish lures" for mail order sale by himself under the name of "Spalding (Fish & Game Div.)", which "would contain false and misleading representations as to the nature of the fish lures which would be supplied in response to the resulting mail orders". It is further alleged to be part of the scheme that when numerous persons would mail remittances to the defendant in response to such advertisements some "would receive no fish lures and that others would receive fish lures which were not as described in the said advertisements and which were worth substantially less than the amounts paid". Each count alleges that for the purpose of executing the scheme the defendant received from post offices and other mail depositories a letter from a sender, which is identified by name and a specified date.

MOTION TO DISMISS

Turning first to the motion to dismiss, the defendant contends that Counts 25-60 are fatally defective: (1) for failure to state in what respect the newspaper advertisement was false and misleading and how the lures to be received by some persons were worth substantially less than the amounts paid; and (2) ambiguity or inconsistency in the charge that under the scheme some persons would receive no fish lures and others would receive fish lures not as described in the advertisement and worth less than those advertised.

The purpose of an indictment is to furnish the defendant with a sufficient description of the charge against him to enable him to prepare and conduct his defense and to avail himself of his conviction or acquittal as a bar to a second prosecution for the same offense. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Lamont, 236 F.2d 312 (2d Cir. 1956). The essential facts claimed to constitute the offense must also be alleged in order to enable the Court to determine whether they are legally sufficient to charge the crime. United States v. Seeger, 303 F.2d 478 (2d Cir. 1962). On the other hand, if the essential elements are stated, evidentiary details need not be alleged, United States v. Shindler, 13 F.R.D. 292 (S.D.N.Y. 1952), and an indictment for mail fraud is not tested by rules applicable to indictments for obtaining money under

270 F. Supp. 804

false pretenses. Emanuel v. United States, 196 F. 317 (2d Cir. 1912); United States v. Crummer, 151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785, 66 S.Ct. 704, 90 L.Ed. 1012 (1946); Leche v. United States, 118 F.2d 246 (5th Cir.), cert. denied, 314 U.S. 617, 62 S.Ct. 73, 86 L.Ed. 496 (1941). The sufficiency of a mail fraud indictment must of necessity turn to a great extent on the nature of the scheme alleged

Applying these principles here the Court is of the view that while the indictment could well have alleged the scheme in greater detail, it meets the overall test laid down by the Supreme Court in Wong Tai, supra, of informing the defendant with sufficient particularity of the scheme to defraud to enable him to defend himself and preclude double jeopardy. It advises the defendant of the general nature of the alleged scheme to defraud, i. e., the use of an advertisement for the sale of "talking fish lures" under the name of "Spalding (Fish & Game Div.)" which contained false and misleading representations, with the intent that those responding to it would either receive no fish lures at all or receive lures that did not conform to the advertisement. The indictment further specifies the name of each sender responding by letter to the advertisement and the date when the response was made. Armed with these basic elements, and with a copy of the advertisement which the Government will be required to furnish in response to defendant's demand for particulars, the defendant is sufficiently acquainted with the elements of the charge against him to defend and preclude a second prosecution for the same offense.

Unlike the charges here, the indictments which were the subject of decisions cited by the defendant failed completely to...