United States v. Richman, 15445.
| Decision Date | 04 January 1967 |
| Docket Number | No. 15445.,15445. |
| Parties | UNITED STATES of America, Appellee, v. Irving RICHMAN, Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George F. Callaghan, Chicago, Ill., for appellant.
Richard P. Stein, U. S. Atty., David W. Mernitz, Asst. U. S. Atty., Indianapolis, Ind., for appellee.
Before KNOCH, KILEY and CUMMINGS, Circuit Judges.
Richman has appealed from his conviction by a jury upon each of twenty-one counts charging his use of the mails in a scheme to defraud. 18 U.S.C. § 1341 (1964). He was sentenced to two years on each count, the sentences to run concurrently, and also fined $2,000 on Counts 1 and 2. We affirm.
Richman questions the sufficiency of the indictments and the sufficiency of proof of a fraudulent scheme. He also claims error in the instructions, in rulings on evidence and in limitation of cross-examination of government witnesses.
Count 1 charged generally Richman's scheme to defraud through solicitation of advertisements in the Labor Union Newspaper by wilful false representations. It charged that to induce persons to believe the newspaper was an Indiana union paper located and published in Indiana, Richman engaged an answering service in Indianapolis to remail solicitations prepared by him in Chicago and mailed in bulk to the answering service for deposit in the mails in Indianapolis, that he engaged the answering service to accept letters mailed to that address and forward them unopened to him in Chicago, that he listed the Labor Union Newspaper in the Indianapolis telephone directory with the address of the answering service, that he knowingly used deceptive and misleading solicitations designed to induce persons to believe that the ads solicited would be published in an Indiana union newspaper and were renewals of ads previously placed in the Labor Union Newspaper, and that the scheme began June 9, 1951, and continued until the return of the indictment on December 18, 1964. All of these charges in the first count are incorporated by reference in each of the remaining twenty counts involved in the conviction.
Count 1 specifically charges that "for the purpose of executing the aforesaid scheme" on April 20, 1964, Richman caused two parcels to be delivered by mail to the answering service. Counts 7 and 13 each charge that on other particular dates Richman used the mails in sending parcels of solicitations to the answering service. The remaining counts charge that "for the purpose of executing aforesaid scheme," Richman caused letters to various individuals "to be placed in * * * authorized depositories for mail matter at Indianapolis," which letters contained solicitations for advertisements in the Labor Union Newspaper.
Section 1341 provides that the offense is committed when "for the purpose of executing such scheme or artifice or attempting so to do" a person "1 places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or 2 takes or receives therefrom, any such matter or thing, or 3 knowingly causes to be delivered by mail * * * any such matter or thing * * *." (Emphasis added.)
The language of the indictment indicates that Counts 1, 7 and 13 charge the third of these offenses and that the remaining counts charge the first. The first issue in this case is whether the phrase "for the purpose of executing aforesaid scheme" in Counts 1, 7 and 13 is sufficient to charge the defendant with "knowingly" causing the items to be delivered by mail.
An indictment must contain all the elements of the offense charged but it is not insufficient for imperfections of form which are not prejudicial. Fed.R.Crim.P. 2, 7(c); United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953). The test of sufficiency is whether it informs the defendant of what charges he must meet and protects him against double jeopardy. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932). The exact statutory words need not be used. Glenn v. United States, 303 F.2d 536, 538 (5th Cir. 1962), cert. denied, Belvin v. United States, 372 U.S. 922, 83 S.Ct. 737, 9 L.Ed.2d 726 (1963).
We hold that the element of knowledge was sufficiently charged in Counts 1, 7 and 13 by the words "for the purpose of executing" the scheme. The scheme to which this phrase refers was charged in Count 1 and incorporated by reference in Counts 7 and 13. The scheme charged "reasonably contemplated" the use of the mails as the means of transporting the parcels named in Counts 1, 7 and 13. Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Hart v. United States, 112...
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