United States v. States

• Citation: 488 F.2d 761
• Decision Date: 05 December 1973
• Docket Number: 73-1214,73-1244.,No. 73-1253,73-1253
• Parties: UNITED STATES of America, Appellee, v. Isaac STATES, Appellant. UNITED STATES of America, Appellee, v. Michael McCOY, Appellant. UNITED STATES of America, Appellee, v. Robert MORGAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

488 F.2d 761 (1973)

UNITED STATES of America, Appellee, v. Isaac STATES, Appellant.

UNITED STATES of America, Appellee, v. Michael McCOY, Appellant.

UNITED STATES of America, Appellee, v. Robert MORGAN, Appellant.

Nos. 73-1253, 73-1214, 73-1244.

United States Court of Appeals, Eighth Circuit.

Submitted September 13, 1973.

Decided December 5, 1973.

Murry L. Randall, St. Louis, Mo., for Isaac States.

James A. Bell, St. Louis, Mo., for Michael McCoy and Robert Morgan.

David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.

MATTHES, Senior Circuit Judge.

A multiple count indictment charged appellants with mail fraud in violation of 18 U.S.C. §§ 1341 and 1342, and with conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.¹ Their separate appeals have been consolidated for the purpose of argument and opinion.

Before trial appellants moved to dismiss the indictment asserting that it failed to allege that anyone had been defrauded of any money or property, and consequently failed to state an offense against the United States. The court denied the motions to dismiss and filed a memorandum opinion setting forth in detail the legal basis for sustaining the validity of the indictment. United States v. States, 362 F.Supp. 1293 (E. D.Mo.1973).

The appellants waived a jury and a bench trial resulted in their convictions. Their appeals challenge the court's action in entertaining the charge.

The indictment is lengthy. In addition to the conspiracy charge and the overt acts alleged in connection therewith, which is the subject of count one, there are 136 counts alleging substantive violations of either § 1341 or § 1342. Each substantive count was based upon the use of the mails for the purpose of executing the fraudulent scheme concocted by the parties to the conspiracy.²

Recognizing that the elements of the scheme or artifice to defraud are the heart of appellants' case, we review briefly the pertinent parts of the indictment and, in so doing, adopt the language of the district court set forth on page 1294 of 362 F.Supp.

The indictment charges that the defendants devised a scheme to defraud the voters and residents of the third and nineteenth wards of the City of St. Louis and the Board of Election Commissioners of the City of St. Louis by the use of fraudulent voter registrations and applications for absentee ballots. It is alleged that the purpose of the scheme to defraud was to influence the outcome of the election of the Republican Committeeman for the nineteenth ward and the Democratic Committeeman for the third ward "for the purpose of securing and controlling said political offices and the political influence and financial benefits of said offices * * *." It is further alleged that as part of the scheme to defraud, the defendants submitted false and fraudulent voter registration affidavits bearing the names of false and fictitious persons with false addresses and caused the St. Louis Board of Election Commissioners to place absentee ballots for the fictitious persons in an authorized depository for mail matter.

The evidence conclusively supported the fraudulent scheme as framed in the indictment. A summary of that evidence will serve to place the issue in controversy in proper perspective.

Appellant Isaac States was a candidate in 1972 for the office of Democratic Committeeman from the third ward in the City of St. Louis, and Robert Morgan was a candidate for Republican Committeeman from the nineteenth ward in the same city. Morgan entered into a scheme with his campaign manager to falsify voter registration affidavits in order to carry out an extensive write-in campaign for Morgan. Morgan obtained blank affidavits, and campaign workers began filling in the affidavits with fictitious names and addresses. A few days later, States was invited to join the operation in order to benefit his own campaign, and he agreed.

Appellants Morgan and States then devised a more elaborate aspect of the scheme, in which they applied for absentee ballots in the names of the phantom voters whose names appeared on the falsified voter registration affidavits. The absentee ballot operation eliminated the necessity of sending persons to the polls to vote under the fictitious names on the falsified registration affidavits, since the absentee ballots would be mailed by the Board of Election Commissioners to the nonexistent voters. A mailing address accessible to the appellants was listed on each absentee ballot application. The appellants planned to retrieve the ballots, mark them, and then return them to the election board for counting.

Appellant Michael McCoy was involved in filling out the applications for absentee ballots in the names of the non-existent voters, as well as preparing the falsified voter registration affidavits. Each application stated that it was a violation of state law to improperly complete an application, and advised the applicant that the absentee ballot would be sent to him by registered mail.

The Board of Election Commissioners mailed numerous absentee ballots to non-existent voters as a result of the appellants' scheme: twenty-one were actually delivered by the Postal Service, and others were held by the Service because the route mail carrier knew that the person named on the envelope containing the ballot did not live at the address indicated. The action of the Postal Service foiled the operation, and the appellants were subsequently indicted.

At the outset of their claim for reversal the appellants submit that the very language of 18 U.S.C. § 1341 mandates a holding that there is an offense under the statute only if money or property is involved in the scheme to defraud. Appellants argue that the first phrase of § 1341, dealing with "any scheme or artifice to defraud," must be read in conjunction with the second phrase, concerning "obtaining money or property by means of false or fraudulent pretenses, representations, or promises," which was added to the statute by a subsequent amendment.³ Appellants suggest that the second phrase was added to the predecessor of § 1341 because Congress believed that the "scheme to defraud" language included only frauds perpetrated without misrepresentations. They argue that the explicit "money or property" limitation in the added passage reveals that Congress believed that the first phrase in the original legislation dealt only with schemes to defraud of money or property.

But no case or legislative history is cited by the appellants supporting such an interpretation of legislative intent, nor does there appear to be any authority justifying such a construction of the statute. Moreover, not only does the appellants' conjunctive construction of the two phrases place a very strained and limited meaning on the broad wording of the first phrase, but a reading of the statute as a whole reveals that the two phrases in question are part of an uninterrupted listing of a series of obviously diverse schemes which result in criminal sanctions if the mails are used. The more natural construction of the wording in the statute is to view the two phrases independently, rather than complementary of one another. Indeed, numerous courts have construed the "scheme or artifice to defraud" language of § 1341 without reference to the "obtaining money or property" phrase. See United States v. Classic, 35 F.Supp. 457 (E.D.La.1940); cf. United States v. Regent Office Supply Co., 421 F.2d 1174 (2d Cir. 1970); Blachly v. United States, 380 F.2d 665 (5th Cir. 1967); Abbott v. United States, 239 F.2d 310 (5th Cir. 1956).

Consequently, we hold that the language of the statute on its face does not preclude a finding that a "scheme or artifice to defraud" need not concern money or property. Since the statutory wording itself does not conclusively resolve the issue presented by the appellants, and since the legislative history does not deal with the scope and meaning of the provision of the statute in issue, we examine judicial opinions construing § 1341 for assistance in definitely determining whether the statute should apply to the facts of this case.

Initially, it should be noted that the concept of fraud in § 1341 is to be construed very broadly. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896); Shushan v. United States, 117 F.2d 110, 115 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (1941); Gouled v. United States, 273 F. 506, 508 (2d Cir. 1921), where the court stated: "As it now stands, any kind or species of scheme or artifice to defraud is punishable in the national courts, if and whenever for the purpose of executing that scheme the postal establishment is used. * * *"; United States v. Procter & Gamble Co., 47 F.Supp. 676, 678 (D. Mass.1942). In Blachly v. United States, supra, the court observed:

The crime of mail fraud is broad in scope. * * * The fraudulent aspect of the scheme to "defraud" is measured by a nontechnical standard. * * * Law puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of the members of society." This is indeed broad. For as Judge Holmes once observed, "the law does not define fraud; it needs no definition. It is as old as falsehood and as versable as human ingenuity."

380 F.2d at 671.

Likewise, the definition of fraud in § 1341 is to be broadly and liberally construed to further the purpose of the statute; namely, to prohibit the misuse of the mails to further fraudulent enterprises. Cf. Durland v. United States, supra. Accordingly, many courts have construed the term "scheme or artifice to defraud" to include within its ambit widely diverse schemes. See United States v. Edwards, 458 F.2d 875 (5th Cir.), cert. denied, 409 U.S. 1029, 93 S. Ct. 459, ...