United States v. Edwards

• Decision Date: 17 April 1972
• Docket Number: No. 71-1283.,71-1283.
• Citation: 458 F.2d 875
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. K. C. EDWARDS, a/k/a Kermit Edwards, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 875 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. K. C. EDWARDS, a/k/a Kermit Edwards, et al., Defendants-Appellants.

No. 71-1283.

United States Court of Appeals, Fifth Circuit.

On Suggestion for Hearing November 19, 1971.

Decided April 17, 1972.

Rehearings and Rehearing Denied June 5, 1972.

COPYRIGHT MATERIAL OMITTED

R. B. Jones, Birmingham, Ala., for Huie.

J. Carter McFerrin, McFerrin, Corley, Church & Garrett, Birmingham, Ala., for Edwards.

John S. Tucker, Jr., Birmingham, Ala., for Moore.

Fred Blanton, Jr., Birmingham, Ala., for Huie and Moore.

Wayman G. Sherrer, U. S. Atty., Melton L. Alexander, John S. Salter, Asst. U. S. Attys., Birmingham, Ala., for United States.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

On Suggestion for Hearing En Banc November 19, 1971.

Rehearings and Rehearing En Banc Denied June 5, 1972.

ON SUGGESTION FOR HEARING EN BANC

No Judge in regular active service on the Court having requested that the Court be polled on hearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Hearing En Banc is denied.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

Defendants appeal from their conviction and sentence on an indictment charging them with a conspiracy to defraud by use of the mails in violation of Title 18, U.S.C.A., Section 371, and six counts of mail fraud in violation of Title 18, U.S.C.A., Section 1341.¹ We affirm.

The several members of the conspiratorial cast involved in the instant case require a brief identification. Defendant Edwards is an ex-attorney, disbarred from the practice of law on May 2, 1969,² for violating an Alabama rule of ethics forbidding attorney involvement in securing Alabama divorces for known nonresidents. Defendant Huie is also an ex-attorney, disbarred for similar violations of the same rule of ethics on March 4, 1967.³ Defendant Moore was Circuit Judge for the Twenty-Fifth Judicial Circuit of Alabama during the time in question. Charges were brought against Judge Moore in 1964 for his activities in granting over 5,000 divorces to nonresidents. The proceedings were enjoined, however, because the rules of ethics were held inapplicable to a sitting judge. Lawanda Smith and Annette Cox were secretaries for Huie and Edwards during the period in which defendants were engaged in the activities in question. All these individuals were named as defendants in each of the seven counts except Judge Moore, who was named only as a conspirator in Count I. Before trial, Smith and Cox pleaded nolo contendere; the others were found guilty on each of the counts charged.

The tale of defendants' downfall must begin with a short history of Alabama "quickie" divorces, divorces granted by an Alabama circuit judge, sitting in equity, in reliance upon a proviso added to the Alabama divorce laws in 1945, known as the Hooten Amendment. The pertinent language of this statute is as follows:

When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.

Code of Ala., Tit. 34, § 29 (1959).

As a result of this amendment, many attorneys recognized the possibility of Alabama's rivaling Reno for the title of "Divorce Capital of the World." Names of famous nonresidents began to appear with increasing frequency on the Alabama divorce rolls, with attendant publicity emanating from the communications media. In 1961, after certain members of the Alabama State Bar and its Board of Commissioners expressed concern over sordid publicity depicting Alabama as harboring a "divorce mill," an attempt was made to rid the State of its undesirable reputation. This attempt took the form of Rule 25-A of the Rules Governing the Conduct of Attorneys in Alabama.⁴ Although the rule, promulgated by the Alabama Supreme Court and the State Bar Association, did not attempt to make, nor could it have made, any of the "quickie" divorces void, it did provide for the disbarment of any attorney thereafter securing a divorce for persons who he had reasonable cause to believe not to be bona fide residents of Alabama.

Several dissident attorneys, unwilling to give up a lucrative enterprise, continued their "quickie" practice in the face of the new ethics rule. One such attorney was defendant Huie, who with the help of Judge Moore had been quite successful in this particular line of work. The Alabama State Bar commenced a crackdown in 1964 to enforce compliance with Rule 25-A, and as a result Huie was disbarred for his activities on March 3, 1967.

Huie's disbarment caused a significant change in the business of Huie and Moore. Huie needed a front to continue his operations, and defendant Edwards soon evolved as his alter-ego pursuant to a handsome contingent fee arrangement. Huie now would procure the clients and Edwards would sign the papers as attorney. Edwards, however, soon ran afoul of the State Bar also and was disbarred in 1969. Proving beyond any doubt that greed is in reality the mother of invention, Huie and Edwards, at the suggestion of Judge Moore, did not allow their loss of attorney status to interfere with their activities. The ex-attorneys merely found a new means to the same end — pro se petitions, signed only by the parties to the proceeding and not by an attorney.

Though both Huie and Edwards were disbarred, they continued to pass themselves off to their out-of-state divorce prospects as licensed practicing attorneys. Thus far, however, no facts have been presented to indicate a violation of anything more serious than the Alabama ethics rules. Defendants' increased necessity to avoid public and judicial scrutiny by the Bar Committee, however, eventually created a fatal and inescapable defect in their operations which provided the basis for the instant indictments.

The testimony of the numerous witnesses at trial established that upon learning the name of either Huie or Edwards, usually from an out-of-state attorney, prospective divorcees would call or write the defendants for legal assistance in securing an Alabama divorce. This initial contact would result in a divorce "packet" being mailed to the customer. The packet contained the essential papers of a properly handled divorce — a bill of complaint, an answer and waiver of respondent, and an agreement of the parties. The customer would then bring these papers to Birmingham, Alabama for a short interview with one or more of the defendants.

In the defendants' offices were stockpiled all the necessary indicia of a valid divorce decree: thousands of blank decrees, court seals, the seal of the Register in Chancery of the Winston County Circuit Court, and rubber stamps bearing the names of Judge Moore and Lois Brewer, Register in Chancery. The prospective divorcee while in defendants' offices would choose a ground for divorce, give a bit of testimony before one of the secretaries, make the required payment, usually $465.00, and be sent home with assurances that he would be divorced soon thereafter. Upon returning home, the client would receive in the mail what purported to be a certified copy of his filed, recorded divorce decree, which was ordinarily dated the same day as his visit to Alabama.

After the client left the office, the "decree" was typed; Judge Moore's name stamped or typed thereon, the court seal embossed, and the certification made, via the rubber stamp and seal of Lois Brewer, Register in Chancery, which attested that the decree was on file and recorded in the records of the Winston County Circuit Court in Double Springs, Alabama. Approximately two or three times a month, the decrees were dispatched from Birmingham to Judge Moore's chamber by private courier. Of the approximately 2800 divorces purportedly granted during this period, at least 2700 never found their way to the Winston County Circuit Court and instead remained in Judge Moore's office.

Defendants primarily contend that the indictment charges them with activities which are solely the concern of the State of Alabama and beyond the jurisdiction of the federal district court. They argue that the indictment limits the functioning of an Alabama court of general jurisdiction on a subject squarely within that jurisdiction — domestic relations. The procedural, administrative, and ministerial functions of the Alabama courts were by this theory assaulted by necessary implication when the federal court was called on to instruct the Alabama judicial system in matters of jurisdiction, recordation, filing, reporting, and certification. Defendants' argument boils down to the contention that in order to prove fraud, the government had to prove and the jury had to find that the prospective divorcees did not receive what they bargained for. This would admittedly entail a finding that the numerous divorce decrees involved here were invalid, a matter alleged to be solely within the prerogative of the Alabama courts.

Statutes like the federal mail fraud statute involved here must be strictly construed in order to avoid extension beyond the limits intended by Congress. Kline v. Burke Construction Company, 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); United States v. Kelem, 9th Cir. 1969, 416 F.2d 346. A narrow, careful construction is especially appropriate where, as here, the federal statute threatens to reach criminal conduct in the field of domestic relations which the State can, and should, effectively and appropriately control. As the Supreme Court has repeatedly reiterated, Section 1341 is not designed to reach all frauds but only those in which the use of the mails is a part, leaving all other cases to be dealt with by appropriate State law. E. g., ...