United States v. Guest, 188.
| Citation | 74 F.2d 730 |
| Decision Date | 07 January 1935 |
| Docket Number | No. 188.,188. |
| Parties | UNITED STATES v. GUEST. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Louis Flato, of New York City, for appellant.
Martin Conboy, U. S. Atty., of New York City (Francis A. Mahony, J. Howard Carter, and Charles T. Murphy, Asst. U. S. Attys., all of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
There is ample evidence to support the jury's verdict that the defendant devised a fraudulent scheme and used the mails for the purpose of carrying it out. Under assumed names he hired the privilege of having mail delivered at an office on Fifth avenue, and later at 276 West Forty-Third street, New York City. To this address he invited his intended victims to send a deposit of money, accompanied by an order blank for garments to be worked on at home, promising to return the deposit and pay for the work when it should be completed. Having received their letters, he neither sent the garments nor returned their deposits.
The indictment charges that, for the purpose of executing this scheme, the defendant, on December 26, 1930, at the Southern district of New York, caused to be sent and delivered by the post office a letter inclosed in a postpaid envelope addressed to himself at 276 West Forty-Third street, New York City. It is earnestly argued that this indictment fails to charge a crime under section 215 (18 US CA § 338). That section defines three crimes; it forbids the deviser of a fraudulent scheme (1) to post or cause to be posted any letter to be sent or delivered by the post office establishment; (2) to take or receive any such letter therefrom; or (3) to "cause to be delivered by mail according to the direction thereon * * * any such letter." As to the first, it is urged that the crime was committed in Pennsylvania where the letter was posted. Whether a defendant who sets in motion in New York a train of events intended to cause and causing an innocent agent outside the state to post a letter there may not be prosecuted here as well as there for such posting we need not now decide. As to the second, it is said that there is no charge of taking or receiving the letter by the defendant. With this contention we could hardly agree were the question before us, for it is not necessary for an indictment to use the exact words of the statute (Olsen v. United States, 287 F. 85 C. C. A. 2), and a charge of delivery to the defendant would seem a sufficient allegation that he received it. However, as the trial judge expressly instructed the jury that the defendant was not on trial for taking or receiving a letter from the post office, this clause of the statute cannot be used to support the conviction. As to the third crime, it is argued that this clause relates only to a letter delivered to a third person, since to hold it to include a letter addressed to the defendant himself would make it to that extent a duplication of the clause defining the second crime. But the language literally covers delivery to any addressee, and no sound reason appears for reading into it a limitation not expressed. The purpose of the statute is to prohibit the use of the mails in furtherance of a scheme to defraud and...
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Marvin v. United States, 6330.
...1012; 27 Am.Jur., Indictments and Informations, § 177. 2 The court rejected the contrary view suggested by dicta in United States v. Guest, 2 Cir., 74 F.2d 730, 731. 3 The gist of a mail fraud case lies in the means used in executing the fraudulent scheme. Palmer v. United States, 10 Cir., ......
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Loonan v. Comm'r of Internal Revenue (In re Estate of Wood)
...161 F.2d 809 (10th Cir. 1947); Columbian National Life Insurance Co. v. Rodgers, 93 F.2d 740, 742 (10th Cir. 1937); United States v. Guest, 74 F.2d 730, 731 (2d Cir. 1935), cert. denied 295 U.S. 742 (1935); Haag v. Commissioner, 59 F.2d 516, 517 (7th Cir. 1932), affg. 19 B.T.A. 982 (1930); ......
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Linden v. United States, 7566.
...defendants, or by others induced by them, shall be in furtherance of the fraudulent scheme. 18 U.S.C.A. § 1341. See: United States v. Guest, 2 Cir., 1935, 74 F.2d 730, certiorari denied 295 U.S. 742, 55 S.Ct. 654, 79 L.Ed. 1688; United States v. Reese, D.C.E.D.Pa.1951, 96 F.Supp. 913, There......
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Holdsworth v. United States
...that the statutory provision covered three crimes, not one. We think there was too much emphasis on the dictum in United States v. Guest, 2 Cir., 1935, 74 F.2d 730, and too little emphasis upon the decision of the Supreme Court in the Hagner case. The case was properly transferable to Maine......