United States v. Rosenblum

• Decision Date: 16 December 1964
• Docket Number: No. 68,Docket 28839.,68
• Citation: 339 F.2d 473
• Parties: UNITED STATES of America, Appellee, v. Sidney ROSENBLUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

339 F.2d 473 (1964)

UNITED STATES of America, Appellee, v. Sidney ROSENBLUM, Defendant-Appellant.

No. 68, Docket 28839.

United States Court of Appeals Second Circuit.

Argued October 14, 1964.

Decided December 16, 1964.

David M. Dorsen, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and John W. Mills, Asst. U. S. Atty., on the brief), for appellee.

Milton M. Craner, New York City, for defendant-appellant.

Before WATERMAN, MOORE and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Sidney Rosenblum appeals from a judgment convicting and sentencing him on 13 counts for mail fraud in violation of 18 U.S.C. § 1341, entered after trial to the court, jury waived, in the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge. We find no error and affirm the judgment on all counts.

The fraudulent scheme consisted of first an advertisement, appearing in several national magazines, which offered free particulars on how to make $25-50 per week by clipping newspaper items for publishers. Those who gambled the postage then won the chance to purchase, for $3.00, a pamphlet entitled, "42 Concerns who pay cash for newspaper clippings." Contrary to the representations in this pamphlet, the clippers testified that there was absolutely no market for their clippings.

Rosenblum claims in his brief that the mail fraud statute does not cover the crime for which he was convicted, i. e., misleading advertising, and he cites Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), and Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), in support of this argument. However, both these decisions are inapplicable. The Supreme Court in Parr reversed the conviction because the indictment did not charge any use of the mails for executing the fraudulent scheme; that is hardly the case here. In Kann, the conviction was reversed because the mails were not used by the participants to execute any part of the dishonest plan which had been fully consummated before the mailings; but here the entire process for the sale of the pamphlet necessarily had to be conducted through the mails.

Another point raised by Rosenblum, which is equally without merit, is that the trial judge, who served as both judge and jury, deprived Rosenblum of his rights against self-incrimination under the Fifth Amendment by taking Rosenblum's failure to testify into consideration in reaching the verdict. Admittedly, the judge did state at the time of sentence some six weeks after the finding of guilty, that the defendant had not taken the stand, but that remark was merely made in response to an assertion by Rosenblum's counsel that defendant had been forthright. The judge was simply questioning the impression that counsel was attempting to convey in his plea for leniency in the sentence.

Rosenblum asserts several errors committed by the trial court in the admission of certain evidence. For one, it is claimed that the court improperly admitted into evidence original post office forms which defendant had personally filled out and submitted to the post office in connection with the C.O.D. mailings of his pamphlet to 133 prospective clippers in October 1959. Defendant contends that he was prejudiced because the 133 persons were not brought into court and subjected to cross-examination. It is claimed by the Government that these forms were business records of the United States under the Federal Business Records Act and were admissible to prove the events described therein. Korte v. New York, N. H. & H. R. Co., 191 F.2d 86 (2 Cir. 1961). Appellant questions whether the proof of record-keeping is sufficient to qualify under that Act....