Petition for a Writ of Certiorari — Abraham v. United States

Supreme Court brief1948

Ask Donna

What actually matters in this document.

Text

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

- FOR THE SIXTH CIRCUIT AND BRIEF -

IN SUPPORT THEREOF

SUBJECT INDEX

Page

Petition for Writ of Certiorari.................... 1-7

Summary and Short Statement of the Matter In-

MUIR Vic ka wiv cee chbckubcuccacd duns’ nada 2-3

Jurisdiction to Review the Judgment.......... 3-4

OUI UII ogee 4

Reasons for Allowance of the Writ............ 5-6

AOE cundidsc dia cake Gcddud kacea ude sabes 7

Brief in Support of Petition for Writ of Certiorari.. 9-38

Opinions of the Courts Below. ................. 9-10

Grounds for Jurisdiction. .................... 10

SS OE ON ee ie ce wank ce 11-18

Specification of Assigned Errors.............. 19

Summary and Argument.................. 5

eeeteeeeeeeeeeeeeeeeeeeeseeevece

eerereee eee eee eeeeeeseses

INDEX TO AUTHORITIES CITED

Page

Barrett v. U.S., (8 Cir.) 33 F. (2) 115.............. 5, 27

Beck v. U. S., (8 Cir.) 33 F. (2) 107...........2.... 22

Brady v. U.S., (8 Cir.) 24 F. (2) 399............. 27, 28, 37

Estep v. U.S., (10 Cir.) 140 F. (2) 40.............. 27

Finnegan v. U.S., (6 Cir.) 231 Fed. 566............ 29, 30

Freeman v. U.S., (3 Cir.) 20 F. (2) 748............ 25, 28

Gargotta v. U.S., (8 Cir.) 77 F. (2) 977............ 37

Krotkiewiez v. U. S., (6 Cir.) 19 F. (2) 421......... 29, 31

Levinson v. U. S., (6 Cir.) 5 F. (2) 568........... 29, 30, 34

Mackett v. U.S., (7 Cir.) 90 F. (2) 462............. 37

McIntyre v. U.S., (6 Cir.) 49 F. (2) 769............ 29, 31

Rosenberg v. U.S., (10 Cir.) 120 F. (2) 935. .5, 27, 28, 29, 36

Ross v. U.S., (9 Cir.) 103 F. (2) 600............... 5

United States v. Baker, (2 Cir.) 50 F. (2) 122...... 5, 27, 28

United States v. Buckner, (2 Cir.) 108 F. (2) 921.... 22

United States v. Pike, (7 Cir.) 158 F. (2) 46........ 5

United States v. Ross, 92 U. S. 281............... 6, 34, 37

United States v. Russo, (3 Cir.) 123 F. (2) 420...... 37

Whealton v. U. S., (3 Cir.) 113 F. (2) 710... .5, 27, 28, 29, 34

Supreme Court of the United States

OCTOBER TERM, 1948

GEORGE ABRAHAM,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent

—

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

——— ee

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Petitioner, George Abraham, prays for issuance of a

writ of certiorari to review the decision of the United

States Court of Appeals for the Sixth Circuit, in affirming,

on October 13, 1948, the verdict of conviction of petitioner

of January 16, 1948, and sentence on J anuary 27, 1948, in

the United States District Court for the Eastern District

of Michigan, Southern Division.

SUMMARY AND SHORT STATEMENT OF THE

MATTER INVOLVED

This involves a petition for a writ of certiorari to review

a decision of the Court of Appeals for the Sixth Circuit,

affirming a judgment of the District Court in a prosecution

for using the mails to promote frauds under Title 18, sec-

tion 338, United States Code (now Title 18, United States

Code, section 1341), which reads:

‘*Whoever, having devised or intending to devise

any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent

pretenses, representations, or promises, * * * shall,

for the purpose of executing such scheme or artifice

or attempting to do so, place, or cause to be placed,

any letter, * * * in any post office, or station there-

of, or street or other letter box of the United States,

or authorized depository for mail matter, to be sent

or delivered by the post office establishment of the

United States, * * * shall be fined not more than

$1,000.00, or imprisoned not more than five years,

or both.”’

Notice of appeal and assignments of error were filed

(R. 53) claiming error in the triai in that (a) no scheme

to defraud and use of the mails therefor was established,

(b) there was a failure of proof of petitioner having any

relation to the alleged scheme and use of the mails, (c) use

of the mails was established solely by evidence of matter

having been received through the mails, without proof that

petitioner mailed or caused to be mailed the matter in

question, and, (d) the verdict was against the great weight

of the evidence.

The question was raised on the trial as to the sufficiency

of ‘he proofs by a motion for judgment of acquittal (R.

45-7), which was denied by the trial court (R. 47), and by

objections to the admissibility of certain evidence. The

objections fall into two classes. First, to evidence con-

cerning receipts of matter through the mails. And sec-

ondly, testimony regarding the publication of the Daily

Ad News and the operation of the A & L Advertising

Agency, from which the mailed matter purportedly came,

without first having established a scheme to defraud, and

the connection of petitioner therewith.

The petitioner on the trial relied upon the authority of

decisions in the Courts of Appeals for four Circuits. The

trial court adopted a contrary view of the law. The appel-

late court, in affirming the judgment of conviction without

opinion, leaves open the question of the applicability of

one or the other of two divergent rules, one of which peti-

tioner believes sustains his view of the proper applicable

law of the case. The rule relied on, that of the second,

third, eighth and tenth circuits, is the majority rule, as

opposed to the rule announced by the seventh and ninth

circuits. This petition is further grounded upon the ques-

tion of what constitutes sufficient proof of a scheme to

defraud and use of the mails in execution thereof within

the meaning of Title 18, United States Code, section 338

(now Title 18, United States Code, section 1341).

Il,

JURISDICTION TO REVIEW THE JUDGMENT

Jurisdiction to review the judgment and to issue a writ

of certiorari therefor to the United States Court of Ap-

peals for the Sixth Circuit is conferred on this Court by

Title 28, United States Code, section 1254, as follows:

“*Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

**(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal case,

before or after rendition of judgment or decree ;”’

This case involves a prosecution under Title 18, United

States Code, section 338 (now Title 18, United States Code,

section 1341), using mails to promote frauds, heretofore

cited in substance. Petitioner was convicted and sentenced

in the trial court (R. 47-9), which sentence was affirmed on

appeal by the United States Court of Appeals for the

Sixth Cireuit on October 13, 1948, without opinion (R. 55).

Ill.

QUESTIONS PRESENTED

1. Did the proofs fail to establish the existence of any

scheme to defraud and the use of the mails in execution

thereof, or the causing of the mails to be used for such

purposes?

Petitioner contends the answer is ‘‘yes.”’

Respondent contends the answer is ‘‘no.”’

Both courts below answered ‘‘no.”’

2. May proof of the use of the mail, or the causing of

the mails to be used, in furtherance of an alleged scheme to

defraud be established solely by an inference drawn from

the fact that an invoice was received through the mail by

another person, bearing no signature but purporting to

bear the printed name and street address of petitioner’s

trade name, without proof that petitioner ever conducted

any business under that name and with no proof of mailing

of the invoice by any person whatsoever, and without proof

of the custom and practice with respect to mailing by the

office of the alleged sender?

—_—

Petitioner contends that answer is "ae."

Respondent contends the answer is “‘yves.’’

Both courts below answered "9e08,””

3. Since the evidence on the essential element of the

offense charged was wholly circumstantial, did the prose-

cution sufficiently overcome the presumption as to peti-

tioner’s innocence so that there was no error in denying

his motion for judgment of acquittai?

Petitioner contends that answer is **no.”’

Respondent contends the answer is fo ad

Both courts below answered ““wne."”

IV.

REASONS FOR ALLOWANCE OF THE WRIT

1. A conflict exists between the rules of law as an-

nounced in the decisions of the Courts of Appeal of the

second, third, eighth and tenth Circuits, notably as laid

down in U. 8. v. Baker, (2 Cir.) 50 F. (2) 122, 123; Wheal-

ton v. U. S., (3 Cir.) 113 F. (2) 710, 713; Barrett v. U. S.,

(8 Cir.) 33 F. (2) 115-116; and Rosenberg v. U. S., (10

Cir.) 120 F. (2) 935, 937, and the opinion of the Court

below supported by some decisions of the seventh and

ninth Circuits as in U. S. v. Pike, (7 Cir.) 158 F. (2) 46,

and Ross v. U. 8., (9 Cir.) 103 F. (2) 600. This conflict

and divergency is impossible of reconciliation to such an

extent that there presently exists two diametrically op-

posed separate rules of law by which to determine what

constitutes proof of the use of the mails or the causing of

the mails to be used, as prohibited by Title 18, United

States Code, Section 338 (now Title 18, United States

Code, section 1341).

2. The conflict of authorities as to the applicable rules

to be utilized in determining the sufficiency of the proof

making out the use of the mails or the causing of their use

as forbidden by Title 18, United States Code, section 338

(now Title 18, United States Code, section 1341), has not

been settled by any decision of this Court upon the disputed

points and thus there are left open important questions

of the proper administration of the federal laws as to what

does or does not constitute a violation of the statute.

3. The Court of Appeals for the Sixth Circuit has mis-

applied the rules announced in U. S. v. Ross, 92 U. S. 381,

prohibiting the establishing of facts necessary to be proved

by indulging in the pyramiding of an inference upon an

inference, in lieu of requiring the proof of circumstances

or other facts which will meet the requirements of the

statute.

4. The final determination of the presently existing dif-

ferences of opinions of the Courts of Appeal of the seven

Circuits is a matter of vital importance to the proper ad-

ministration of federal criminal procedure, in order that

an equitable rule shall be applied in all cases involving

such questions irrespective of the circuit in which it may

arise.

PRAYER

Wherefore, petitioner prays that a writ of certiorari

issue under the seal of this Court, directed to the United

States Court of Appeals for the Sixth Circuit, command-

ing said court to certify and send to this Court a full anl

complete transcript of the record and proceedings of said

cause, numbered and entitled in its docket No. 10,637,

George Abraham v. United States of America, to the end

that said cause may be reviewed and determined by this

court, and that the judgment of the United States Court of

Appeals for the Sixth Cireuit be reversed, and for such

further relief as this court may deem proper.

FITZGERALD, WALKER, CONLEY

& HOPPING,

LOUIS M. HOPPING,

FRED R. WALKER,

PETER L. LaDUKE,

2256 Penobscot Building,

Detroit 26, Michigan,

Counsel for Petitioner.

Supreme Court of the United States

OCTOBER TERM, 1948

vs.

THE UNITED STATES OF AMERICA,

Respondent

eect

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

Subject Index appears on first page.

Il.

Index to Authorities cited appears on second page.

Ill.

OPINIONS OF THE COURTS BELOW

The proceedings in the District Court of the United

States for the Eastern District of Michigan, Southern Di-

vision were docketed as Criminal Case Number 29,562.

The verdict of the jury, filed January 16, 1948 (R. 47-8)

and the judgment and sentence, filed January 27, 1948 (R.

48-9), were not reported.

The appeal to the United States Court of Appeals for

the Sixth Cireuit was docketed as case number 10,637, and

the opinion affirming the conviction, filed October 13, 1948

(R. 55), has not been reported.

IV.

GROUNDS FOR JURISDICTION

Jurisdiction of this Court is invoked under Title 28,

United States Code, Section 1254, which provides as fol-

lows:

**Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

**(1) By writ of certiorari granted upon the pe-

tition of any party to any civil or criminal case,

before or after rendition of judgment or decree;”’

Petitioner was convicted under Title 18, United States

Code, section 338 (now Title 18, United States Code, sec-

tion 1341), using mails to promote frauds, the applicable

portions of which are set forth supra in the petition for

writ of certiorari. The conviction and sentence of the trial

court (R. 47-9) was affirmed on appeal to the United

States Court of Appeals for the Sixth Cireuit (R. 55).

STATEMENT OF THE CASE

Petitioner, George Abraham, together with his wife,

Loretta Abraham, was indicted (R. 1) on November 14,

1947, in the District Court of the United States for the

Eastern District of Michigan, Southern Division, for vio-

lation of Title 18, United States Code, section 338, (now

Title 18, United States Code, section 1341) using mails to

promote frauds, the applicable portions of which are set

forth swpra, in the petition for writ of certiorari.

Upon the arraignment the defendants plead not guilty

(R. 3). Trial was commenced on January 13, 1948, and the

jury on January 16, 1948, found the defendants guilty on

all counts (R. 47). A motion for judgment of acquittal

had previously been denied (R. 45-7). On January 27,

1948 petitioner was sentenced to imprisonment for a period

of four years by the Honorable Arthur F. Lederle, United

States District Judge (R. 48).

Notice of appeal was filed January 30, 1948 (R. 49), the

assignments of error (R. 53) being (a) that no scheme to

defraud and use of the mails therefor was established,

(b) that there was a failure of proof as to petitioner hav-

ing any relation to the alleged scheme and use of the mails,

be established solely by evidence of matter having been

received through the mails when there was no proof that

petitioner mailed or caused the same to be mailed, and

(d) that the verdict was against the great weight of the

evidence.

The issues presented to this Court under the headings

“Questions Presented’’ and ‘‘Specification of Assigned

Errors’’ are the same as those submitted to the Court of

Appeals for the Sixth Circuit, which affirmed the convic-

tion, without opinion, on October 13, 1948 (R. 55).

The indictment (R. 1), in four counts, charged the peti-

tioner and Loretta Abraham with having devised and in-

tended to devise a scheme to defraud business persons and

firms in and about the City of Detroit, Michigan, and to

obtain money and property by falsely and fraudulently

pretending and representing that the persons and firms

had contracted for advertising through the A & L Adver-

tising Agency, for insertion of want ads in a paper en-

titled the Daily Ad News. Further, that the petitioner and

Loretta Abraham knowingly caused various letters, con-

taining statements billing the addressees for advertising,

to be delivered by the United States mail to the several

named places of business for the purpose of executing the

alleged scheme and artifice.

The following is a resumé of the evidence pertaining to

petitioner.

Petitioner registered with the Wayne County Clerk, De-

troit, Michigan for the purpose of conducting business un-

der the assumed names of Daily Ad News and A & L Ad-

vertising Agency (R. 4).

He, accompanied by his wife, Loretta Abraham, inquired

as to the availability of space in the Lawyers Building,

139 Cadillac Square; Detroit, Michigan, and subsequently

petitioner leased one of the offices (R. 4-6). Petitioner

stated that he was going to operate an advertising agency.

Petitioner and his wife were seen on the premises by the

building manager on only a couple of occasions (R. 5-6).

An unidentified party was seen there more often (R. 6).

Tenancy was terminated December 31, 1947.

An employee of the telephone company testified concern-

ing the installation of phones at the office and the records

of long distance calls (R. 7-10). Objection was made to the

introduction of the telephone company records (R. 7), on

the ground that they had not been connected with the de-

fendants, which was overruled. Six phones were installed,

and the application recited that they were for the business

of the A & L Advertising Agency and the Daily Ad News

(R. 8). A number of long distance calls were made to

Cleveland, but there were no toll calls to any of the busi-

ness places who received bills for advertising (R. 8).

Two bank accounts were opened by petitioner and his

wife in the names of the A & L Advertising Agency and the

Daily Ad News (R. 11-13). Only Loretta Abraham was

authorized to sign. Objection to introduction of this evi-

dence was overruled (R. 11-12).

Petitioner, in August, 1947, contacted the Abbe Press,

Ine., Detroit, and ordered printed about one thousand

copies of the Daily Ad News (R. 13-17 and 34-36). He fur-

nished the copy in the usual manner (R. 14 and 36). The

paper contained only ads and was of the tabloid type (R.

15 and 35). An ad was identified as being for one of the

companies whose employee testified to having received bills

for advertising which they did not order (R. 17). The

papers bore no dates but had the days of the week thereon,

and the same number of copies were ordered for each of

seven days of the week (R. 14-15). The bill was sent to the

A & L Advertising Company; and the printers were paid

by check, but the check was not produced (R. 17). There

was no other testimony concerning publication of the Daily

Ad News at any other times.

A mail carrier saw Mrs. Abraham almost daily in the

offices in the Lawyers Building and also saw Kenneth Abra-

ham, but never saw petitioner on the premises (R. 42-44).

With respect to Count I, neither of the representatives

of Thompson Products Co., usually placing advertising

claimed to have authorized any ads in the Daily Ad News,

for which they were billed (R. 18 and 33). The invoice in-

dicated that the advertising had been sold to Thompson

Products by Mr. King and that the personnel manager of

Thompson Products had ordered the advertising run by

the Daily Ad News. Through a stamp on the invoice, the

witness claimed to know that the invoice had been received

through the mail on or about August 28, 1947. The stamp

was the one Thompson Products usually placed on incom-

ing mail. The invoice bore no signature and no proof was

offered as to the identity of the sender of the invoice (R.

18). The witness also identified two other invoices pur-

porting to be from the A & L Advertising Agency. They

were the same in all respects as the so-called indictment

letter (R. 19).

As to Count II, the testimony was that Northern Engi-

neering Works received through the mails, on or about

August 28, 1947, an invoice for advertising bearing the

printed name ‘‘A & L Advertising Agency’’ (R. 22-24).

This invoice indicated that the advertising had been or-

dered by Miss Cuney, whose name appeared on the invoice,

and that a salesman by the name of Gregg had sold the ad-

vertising. The witness denied knowing Mr. Gregg or hav-

ing placed an order for the advertising. She further

claimed that the stamp placed 1n the back of the invoice

indicated to her that it had been received by the Northern

Engineering Works through the United States mail (R.

22). She did not know petitioner and had never seen him.

Regarding Count III (R. 25-9), it was shown that the

Allied Plumbing and Heating Supply Company of Wayne,

Michigan, was the recipient of an invoice bearing the name

‘“‘A & L Advertising Agency’’ on or about September 5,

1947. Their business manager identified the indictment

letter as having been received through the mail (R. 25).

It was a statement for advertising bearing the legend ‘‘A

& L Advertising Agency,’’ and recited that the advertising

had been ordered by Mr. Gautreaux, who was the witness

for the Government, and that it had been sold to the wit-

ness by Mr. Clark. The witness denied placing that par-

ticular advertising. He subsequently stated that while he

did not place that advertising, he was not in a position to

state that he had not authorized it, and therefore, he had

paid the invoice with the company’s check. The check bore

on the back a rubber stamp endorsement of the A & L

Advertising Agency, which was not identified. Objection

to its admission was overruled (R. 26). Two additional in-

voices, not referred to in the indictment, were received by

the Allied Plumbing and Heating Supply Company, one of

which was paid, and one was not. The witness admitted

that advertising had been solicited from him over the tele-

phone by other agencies whose names he did not remember

(R. 26 and 27). He was not acquainted with the petitioner.

With respect to Count IV, the so-called indictment

letter was likewise an invoice bearing the name of the

A & L Advertising Agency and was received by the

Horst Manufacturing Company of Belleville, Michigan

(R. 29-31). It was identified as having been received

through the mail. The witness denied that he had placed

the advertising covered by the invoice (R. 30). The in-

voice itself indicated that the advertising had been

ordered by the witness, who was Mr. Underdown, then

testifying. The invoice further indicated that the adver-

tising had been sold to Mr. Underdown by a Mr. Hall.

Mr. Underdown admitted that his name was correctly

spelled on the invoice and that he was unable to remem-

ber the name and the identity of every person that called

him on the telephone (R. 31). He did not know petitioner.

(R. 30).

In addition to the several indictment letters other tes-

timony was offered of so-called similar acts. First, that

of a restaurant owner of Howell, Michigan, who produced

an invoice bearing the legend “A & L Advertising Agen-

cy’’ (R. 31-3). The witness testified that it had been

received by him in the mail and requested payment for

advertising run on behalf of the restaurant. The witness

denied placing the advertising (R. 32). He admitted that

during the period covered by the invoice his wife had

placed advertising for the restaurant but he did not know

where (R, 33).

Testimony was offered with respect to receipt of a

similar invoice by the Huron Grey Iron Foundry in Ypsi-

lanti (R. 37-9). They too had received an invoice pur-

portedly from the A & L Advertising Agency requesting

payment for advertising run on behalf of the company.

It was identified also as having been received through the

mails. The witness was unable to recall placing the ad-

vertising but admitted that he had been contacted by

various people seeking business (R. 37). Further that

he had been advertising, on or about the time covered by

the invoice, that he was desperate for help, and had ad-

vertised extensively (R. 38). He also admitted that he

had paid the invoice even though he did not remember

placing the advertisement. He paid it because there was

a doubt in his mind whether or not he had ordered the

advertising (R. 39}. The invoice was paid by their check

which bore the rubber stamp endorsement of the A & L

Advertising Agency. The stamp was not identified. An

objection to the admission thereof was overruled (R. 39).

The next testimony of so-called similar acts was that

offered by Motor State Products Company of Ypsilanti,

who also had received an invoice requesting payment for

advertising which invoice bore the legend ‘‘A & L Ad-

vertising Agency’’. The witness on behalf of the com-

pany denied placing such advertising (R. 40).

No proofs were offered to show that petitioner had

ever spent one day in the operation of the business or

had ever solicited any advertising or prepared or caused

the preparation of any of the statements or bills in ques-

tion, or had mailed or caused the mailing thereof. No

showing was made that such invoices were ever used or

possessed by petitioner nor did they bear his signature

or writing. No attempt was made to show that petitioner

knew or should have known that the advertising was not

authorized. In fact the proofs showed his absence from

the City of Detroit during most of the period involved

(R. 10), and that an unidentified man was frequently

seen at the office during the time it was rented by the

Agency (R. 6). No effort was made to establish the cus-

tom and practice of the handling of the mail at the office

of the company or even of the conduct of the general

business at the office of either the Daily Ad News or the

A & L Advertising Agency.

It is the contention of petitioner that the essential

elements of the statute were not proven, and that his

conviction is based upon the predication of inferences

upon inferences which themselves are not supported by

the facts.

In regard to the alleged scheme to defraud, there was

inferred from the evidence concerning the receipt through

the mails of the bills for advertising and the relation of

petitioner to the A & L Advertising Agency and the

Daily Ad News, that a scheme to defraud existed to which

petitioner was a party. That inference is superimposed

upon a series of three others: (1) that the purpose of

the business was fraudulent, (2) that petitioner domi-

nated the affairs of the Agency, from which it was fur-

ther inferred (3) that therefore he must have known that

the ads for which the bills were sent were not authorized,

Thus there is a series of four superimposed inferences,

none of which the facts support.

Concerning the use of the mails, the sole evidence was

that the bills for advertising, as described above, were

received through the mails. The jury must have com-

bined that evidence with the testimony concerning the

relation of petitioner to the A & L Advertising Agency

and the Daily Ad News, and drawn the inference that

petitioner used, or caused the use of, the mails.

It is the contention of petitioner that a conviction

under this statute cannot, as a matter of elementary and

fair criminal procedure, or under the authorities, be based

upon inferences drawn from such disconnected facts and

tenuous proofs. There were insufficient acts shown or

facts proven concerning the use or causing the use of the

mails to justify the inference.

The ultimate conclusion on this element of the offense

is likewise based upon a series of dependent inferences

which are unsupported by the facts. It was first assumed

that the statements received through the mails came

from the A & L Advertising Agency, from which the

further inference was drawn that petitioner mailed or

caused the mailing of the statements, and that presump-

tion is in turn dependent on another: that he dominated

the affairs of the agency.

Finally this series of inferences was combined with the

series concerning the scheme to defraud element to ar-

rive at the ultimate conclusion that the mails were used

or caused to be used by petitioner in furtherance of a

scheme to defraud.

It is the contention of petitioner that his conviction is

founded upon those unsupported inferences and their

pyramiding in the described fashion, and that the judg-

ments of the courts below should be reversed.

VI.

SPECIFICATION OF ASSIGNED ERRORS

1. Did the proofs fail to establish the existence of

any scheme to defraud and the use of the mails in execu-

tion thereof, or the causing of the mails to be used for

such purposes?

Petitioner contends the answer is ‘‘yes.’’

Respondent contends the answer is, ‘‘no.’’

Both courts below answered, ‘‘no.’’

2. May proof of the use of the mails, or the causing

of the mails to be used, in furtherance of an alleged

scheme to defraud be established solely by an inference

drawn from the fact that an invoice was received through

the mail by another person, bearing no signature but pur-

porting to bear the printed name and street address of

petitioner’s trade name, without proof that petitioner

ever conducted any business under that name and with

no proof of mailing of the invoice by any person what-

soever, and without proof of the custom and practice with

respect to mailing by the office of the alleged sender?

Petitioner contends the answer is, ‘‘no.’’

Respondent contends the answer is, ‘‘yes.’’

Both courts below answered, ‘‘yes.”’

3. Since the evidence on the essential element of the

offense charged was wholly circumstantial, did the prose-

cution sufficiently overcome the presumption as to peti-

tioner’s innoceuce so that there was no error in denying

petitioner’s motion for judgment of acquittal?

Petitioner contends that answer is, ‘‘no,’’

Respondent contends the answer is, ‘‘yes,’’

Both courts below answered, ‘‘yes.’’

Vil.

SUMMARY AND ARGUMENT

_—_——_——

A. SUMMARY

Petitioner was convicted under Title 18, United States

Code, section 338 (now Title 18, United States Code, sec-

tion 1341) using the mails to promote frauds, the appli-

cable portions of which are set forth supra, in the peti-

tion for writ of certiorari.

Petitioner contends that proof of the two basic ele-

ments of the case against him, (a) a scheme to defraud,

and (b) use or causing the use of the mails in further-

ance thereof, was only made out in the trial court, and

subsequently affirmed in the Court of Appeals, by confus-

ing or ignoring the rule against the predication of infer-

ence upon inference.

It must be, and is, admitted that no direct proof was

offered tending to or establishing that the petitioner was

ever connected with the actual operation of either the A

& L Advertising Agency or the Daily Ad News, other

than that he originally made plans to open such business

and that he ordered one publication of the paper. An

assumption that he was dominant in the affairs of the

Agency can be based only on those meager facts.

We are next required to predicate thereupon, or to

indulge in a second inference or presumption, that he used

or caused the use of the mails to transmit the invoices,

statements or bills in question. (This indulgence is re-

quired because the record is barren of any testimony as

to who mailed or caused the mailing of the items in ques-

tion.) The only proof of the mailing was that of receipt

of such items by several persons,

Even this reasoning is only to be tolerated by includ-

ing in the first inference, a further unwarranted assump-

tion that the business of the A & L Agency and the Daily

Ad News were nefarious or fraudulent at their concep-

tion; otherwise no scheme to defraud can be shown.

Further, that the courts below followed the minority

rule among the Courts of Appeals regarding the degree

of proof and type of evidence required to sustain a con-

viction for using the mails to promote frauds. There was

no evidence in the case regarding acts or of custom and

practice of mailing or of any other nature from which it

could be inferred that petitioner used the mails or caused

their use.

This Court is requested to resolve that conflict among

the circuits, to establish the nature and degree of proofs

required to sustain a conviction under the statute, and

to determine whether or not the courts below misapplied

the rule forbidding convictions to be based upon pyra-

mided inferences drawn from circumstantial evidence.

B. ARGUMENT

Assigned Error Number One

The proofs did not establish that petitioner was a

party to the alleged scheme to defraud and used or caused

the use of the mails in furtherance thereof.

Assigned Error Number Three

Since the evidence on the essential elements of the

offense was wholly circumstantial, the presumption of

petitioner’s innocence was not overcome, and it was error

to deny the motion for judgment of acquittal.

Since the discussion of these two questions involves

the same set of facts, they are considered together in

this argument.

It is axiomatic that to sustain a conviction under Title

18, United States Code, section 338 (now Title 18, United

States Code, section 1341), using mails to promote frauds,

there must first be established that a scheme to defraud

had been devised and existed at the time the mails were

used or caused to be used. Beck v. U. S., (8 Cir.) 33 F.

(2) 107; U. 8S. v. Buckner, (2 Cir.) 108 F. (2) 921.

Analysis should be first directed to the evidence that

was presented and relied upon as proof of the existence

of a scheme. Next, that evidence should be considered

together with the testimony relied upon as establishing

the use of the mails or causing of their use in execution

of the alleged scheme.

(a) Evidence relied on as proof of a scheme.

Out of 300 different advertisements for help wanted,

that appeared in the paper, Daily Ad News, (Government

Exhibit 14 (R. 17)), only seven places of business dis-

puted or denied placing advertising for which they were

subsequently billed. No claim is made that the ads were

not published. The business is one in which anyone is

entitled to engage.

Of the seven firms allegedly billed or receiving invoices

for unauthorized advertising, the representatives of but

three, Thompson Products Co., Eager Restaurant and

Motor State Products, were positive in their testimony

that they had not ordered the advertising (R. 19, 31, 41).

Only one of these (Thompson Products Company), was

named in the indictment.

The representatives of two others, Allied Plumbing and

Heating Supply Co. and Huron Grey Iron Company, were

so uncertain in their recollection of the events surround-

ing the advertising or as to their having authorized such

advertising that upon receipt of the statements or in-

voices they were ordered to be paid (R. 26 and 39).

The representatives of the remaining two, Northern

Engineering Works and Horst Manufacturing Co., denied

placing the ads but the witnesses admitted that they

were the persons who normally placed advertising, and

that the invoices for advertising which they received

bore their names as the persons who had ordered the ad-

vertising (R. 24 and 31).

All of the statements or invoices received by the several

representatives showed the names of the salesmen who

allegedly sold the advertising in question.

None of the witnesses identified petitioner as having

ever approached them either in solicitation of the busi-

ness or to demand or request payment therefor.

The Government's own exhibits, the telephone toll tick-

ets, established that during August to October of 1947

petitioner was either called at Cleveland, Ohio or called

therefrom. These are the months during which the alleged

mailings took place (R. 9-10).

Not one dollar of the proceeds of the several checks sent

in payment of the invoices (R. 27 and 37) which were re-

ceived in evidence over objection of the petitioner, al-

though deposited in the account of the A & L Advertis-

ing Agency, was shown ever to have been received by

petitioner or to have been used by him in any way what-

soever.

The claims of the Government in the courts below that

the A & L Advertising Agency existed only as the as-

sumed name of petitioner and that no office personnel or

salesmen were employed is refuted by the proofs. The

office was occupied daily by two known persons, Kenneth

Abraham (R. 6 and 43) and Mrs. Loretta Abraham (R.

43). Six telephones were installed and used (R. 7). The

space rented was 750 square feet (R. 5). It seems quite

apparent from the last two facts that just two persons

would hardly need three phones or 375 square feet of

floor space apiece. In addition thereto, petitioner himself

was never seen at the office by the mail carrier who called

there four times daily (R. 44).

Obviously, the claim of the Government is without any

foundation in fact whatsoever, and its falsity is clearly

established by the facts.

Another inference was sought to be drawn by the Gov-

ernment from the fact that petitioner requested the inser-

tion of the disputed ads, together with approximately 300

others, at the time the printing of the paper was ordered

(R. 13), from which it was inferred that he therefore

knew they were not authorized. Even this claim is re-

futed by the testimony, for the advertisements, as has

been hereinbefore shown, carried the names of the proper

persons to be contacted at the several places of business.

The orders themselves bore the names of the persons au-

thorizing their insertion (R. 24, 26, 31). These were not

common names, easily spelled. To all intents and pur-

poses, their appearance was wholly regular. Not a single

fact can be pointed out which shows that petitioner knew

the orders were not authorized.

From the foregoing, the only conclusion to be drawn

from the facts relied upon as proof of an alleged scheme

to defraud is unquestionably:

(a) That a scheme to defraud is not made out,

(b) That the petitioner is not shown to have been

connected with the operation of the alleged

scheme.

(b) Evidence c »ncerning the use of the mails.

It is conceded that the Government is not required to

produce eye witnesses to establish mailing or the use of

the mails and that this element of the offense may be

shown by either direct or circumstantial evidence.

The foregoing concession, however, is circumscribed

by the decisions upon the subject which are reviewed and

succinetly stated in Freeman v. U. S., (3 Cir.) 20 F. (2)

748, 750, as follows:

‘The evidence need not be direct; that is, it need

not be that the defendants were seen mailing the

letter; it may be circumstantial, that is, evidence of

acts or doings, or business custom of the defend-

ants, from which their act of mailing or their act

which caused the letter to be mailed may reasonably

and lawfully be inferred. There are many cases of

this kind, United States v. Bebout, (D. C.) 28 F.

522; Demolli v. United States, (C. C. A.) 144 FP,

363, 6 L. R. A. (N. S.) 424, 7 Ann. Cas. 121; Bett-

man v. United States, (C. C. A.) 224 F. 819; Under-

wood v. United States, (C. C. A.) 267 F. 412; Dysart

v. United States, (C. C. A.) 4 F. (2d) 765; Levinson

v. United States, (C. C. A.) 5 F. (2d) 567; Baker v.

United States, (C. C. A.) 10 F. (2d) 60; but in each

case there is some act or group of acts on which the

fact that the accused mailed the letter or caused it

be mailed can be hinged.’’ (Emphasis ours.)

In this case no witness receiving the invoices through

the mail was produced who was acquainted with the peti-

tioner or for that matter, had ever heard of him.

The invoices, while bearing the legend ‘‘A & L Adver-

tising Agency’’ and one of the six telephone numbers

assigned to that agency, did not list the office address

registered by petitioner but carried instead the street

address of the building.

No evidence was produced that these invoices were

ever used by anyone at the registered office of the A whe L

Advertising Agency.

Petitioner was not shown to have ordered or possessed

such invoices.

The invoices were not signed by petitioner nor did they

bear his name.

No proof was offered or adduced showing the custom or

practice of handling mail at the office of the A & L Ad-

vertising Agency or of petitioner’s knowledge thereof

or connection therewith.

Even the bank account of the A & L Agency was not

subject to control or domination of petitioner.

The sole proof as to the use of the mails or the causing

of their use must rest upon the claim of the several wit-

nesses that invoices were received through the mails.

No direct proof of any kind was offered as to peti-

tioner’s causing the mails to be used, and from the proofs

which the Government designates as circumstantial evi-~

dence of the causing of the use of the mails, it must be

conceded that they wholly fail to show any connection be-

tween the mailing of the invoices either by petitioner or

by any person whatsoever at his direction.

mailing together. .

The petitioner registered as doing business as the A &

L Advertising Agency and the Daily Ad News. He origi-

nally rented the office occupied by these businesses. Tele-

phones were authorized in his name. On one occasion, he

ordered the printing of several hundred copies of the

Daily Ad News. He gave his wife complete control of

the bank account of the A & L Agency. From some

source, several persons received statements or invoices

for advertising which bore in part one of the assumed

names and address of the same. That is all the Govern-

ment has established.

The decisions from the majority of the Courts of Ap-

peals in passing upon the rules to be applied in determin-

ing what constitutes sufficient proof of the use of the

mails in a manner forbidden by the statute here in ques-

tion, where direct proof thereof is lacking, have con-

sistently laid down substantially this general rule:

When circumstantial evidence alone is relied upon, to

prove the causing of the use of the mails, it must be such

as will establish either the defendant’s participation in

the acts themselves or be of such a nature as will sup-

port that inference. Whealton v. U. S., (3 Cir.) 113 F, (2)

710; Rosenberg v. U. S8., (10 Cir.) 120 F. (2) 985; Estep

v. U. S., (10 Cir.) 140 F. (2) 40; Barrett v. U. S., (8 Cir.)

33 F. (2) 115; U. 8. v. Baker, (2 Cir.) 50 F. (2) 122; and

Brady v. U. S., (8 Cir.) 24 F. (2) 399.

A further analysis of the individual cases establishes

more specific tests, or rules, which such evidence (cir-

cumstantial) must pass or possess before being capable

of supporting an inference strong enough to amount to

proof of a substantive fact required by the statute to be

proven or established.

A letter with an incoming mail stamp thereon estab-

lishes only that when a letter was received through the

mails in the ordinary course of business, it was so

stamped. From this it cannot be concluded that every

letter so stamped came through the mail and that this one

did. U. S. v. Baker, supra.

Because a letter purports to have traveled from

another town is not proof that it was mailed by the de-

fendant. Rosenberg v. U. S., supra.

The inclosure of a copy of a letter in an envelope

with another, reciting that the original was sent to

another town, at which it was received, does not permit

the predication of an inference upon inference to supply

the proof required by the statute. Rosenberg v. U. S.,

supra.

Receipt of a letter bearing the signature of a defend-

ant is insufficient to sustain an inference that he mailed

or caused the mailing of the letter. Freeman v. U. S.;

U. 8S. v. Baker; and Brady v. U. S., supra.

Receipt of a letter bearing the letterhead of the defend-

ant, with his signature thereon, and indicating it was in

reply to previous correspondence, is insufficient to over-

come the rule against pyramiding inferences. Whealton

v. U. S8., supra.

Proof of the custom or practice of the handling of

mail at an office together with proof that a person was

dominant in handling the affairs of such office, will sup-

port an inference that the mails were used.

From the foregoing it may be deduced that the manner

and quantum of proofs referred to in the general rule

aforestated which will either establish the defendant’s

participation in the act of mailing or support an infer-

ence to that effect are not made out or established by

showing either (a) that a letter was received through the

mails, or (b) that it traveled from one town to another,

or (c) that the letter is on his letterhead and bears the

signature of the defendant, and indicates by the content

to be in reply to another letter or (d) the custom and prac-

tice of handling mail, without at the same time showing

that the person sought to be charged was dominant in the

affairs of that office.

The only proof as to the use of the mails was testi-

mony of the receipt by various persons of invoices for

advertising upon stationery bearing the legend ‘“‘A & L

Advertising Agency.”’

It was not shown that the invoices were ever used by

anyone at the office of the Agency nor that petitioner

erdered or possessed them. They were not signed by

him. There was no evidence concerning the custom and

practice of mailing at the office, and none from which it

could be inferred that petitioner caused the use of the

mails.

Under the authority of the above cases, it is clear that

the evidence does not sustain the conviction.

Where circumstantial evidence is relied upon to prove

the use of the mails, it must establish the defendant’s

participation in the act of mailing or support an infer-

ence to that effect. Whealton v. U. S., and Rosenberg v.

U. 8., supra.

In the courts below, the Government in answer to some

of the authorities hereinbefore cited took the position that

the rules enunciated in those cases were peculiar to those

cireuits, and relied upon Finnegan v. U. S., 231 Fed. 566;

Levinson v. U. 8., 5 Fed. (2), 568; Krotkiewice v. U. S.,

19 F. (2), 421 and McIntyre v. U. S., 49 Fed. (2), 769, all

decided in the Sixth Cireuit, and certain cases from the

Seventh and Ninth Circuits.

In Finnegan v. U. S., supra, there was no question but

what the defendant had personally contacted the person

charged to be defrauded; had personally made represen-

tations which were admittedly untrue and had personally

requested the person to be defrauded to use the United

States mail in making remittance to him, the defendant.

Likewise, the evidence was undisputed that the person

transmitting the letter to the defendant had personally

prepared and caused the letter to be deposited in the

United States mail and its contents were personally re-

ceived by the defendant the following day. Obviously, this

case does not even remotely resemble the instant case.

In Levinson v. U. S., supra, the established facts are

impossible of comparison with the facts of the present

case. In that case, the defendant had admittedly pre-

pared the financial statement that was false and fraudu-

lent. The proof showed further that he not only had or-

ganized the company, but was thereafter active through-

out its brief existence, dominated its affairs and carried

on all of its correspondence, and exercised such further

control that precluded others from purchases, or con-

tracting indebtedness, and the letters involved, although

denied by the defendant, were letters that fell within that

phase of the company’s business involving the purchase

of goods and the contracting of indebtedness. There the

Government not only proved custom and practice, but

backed up and fortified the circumstantial proof by es-

tablishing that no one but the defendant involved could

have authorized or caused the mailing of the letters.

These facts present a vastly different picture than that

established by the proven facts in the instant case.

In Krotkiewice v. U. S., supra, the defendant was the

president of the Polonia Department Store and had been

for 26 years. The fraud involved the submission of a

false financial statement which admittedly bore the signa-

ture of the defendant. The falsity of the statement laid

in the fact that it represented that the corporation was

the owner of real estate of the value of $41,100.00. Where-

as, on the same date the statement was prepared, the

defendant had personally arranged the sale of that real

estate at a figure far less than that shown on the state-

ment. The record further showed that not only was the

defendant the president, he was the manager and the chief

stockholder, and he admitted that he ran the business of

the Polonia Department Store.

In McIntyre v. U. 8., supra, the precise question here

involved was not raised. The opinion is brief. However,

it does appear that unquestionably it was established that

the letters were received by mail; that they were dated at

Cleveland, which was the place of business of the com-

pany, and that the defendant was conducting the cor-

respondence. Here again a most important element lack-

ing in the instant case was established, e.g., that the de-

fendant was the person conducting the correspondence.

A like analysis of cases from the Seventh and Ninth

Circuits will reveal that in every instance there were

facts directly connecting the defendants to the acts of

mailing; or at least furnishing a logical basis for an

inference to that effect.

Petitioner contends that no case has affirmed & con-

viction where the proofs on the essential elements of

the offense were so lacking as here.

If, howover, the circuits differ in their approach to the

problem of analysis of the evidence and in their con-

clusion as to necessary types and degree of proof re-

quired to sustain a conviction, then that conflict should

be resolved by this Court.

Assigned Error Number 2

The conviction is founded upon pyramided inferences,

none of which the facts support.

Petitioner registered as intending to do business under

the assumed names of the A & L Advertising Agency and

the Daily Ad News (R. 4); an office was rented (R. 5);

telephones were installed (R. 7); and bank accounts were

opened (R. 12). From these facts, it may be fairly in-

ferred that he intended either to enter into and operate

the business or to set up others in business.

Certain business firms received statements for adver-

tising which they denied requesting, but in several in-

stances paid, because of uncertainty as to the accuracy of

their recollections (R. 25 and 39). The checks issued in

payment bore the unidentified stamp of the A & L Ad-

vertising Agency (R. 25 and 37). These facts might jus-

tify an inference that someone connected with the A & L

Advertising Agency office had sent or caused the in-

voices to be sent out.

It is possible to draw two inferences from those facts,

i.e., that petitioner had either gone into business himself

or opened an advertising business for others, and that

thereafter someone connected with the A & L Advertis-

ing Agency had caused invoices to be mailed requesting

payment for advertising that was not authorized.

To justify the first inference, that petitioner conducted

the advertising business, requires overlooking entirely the

fact that no bit of proof whotsoever connects petitioner

with the solicitation of advertising, and that the entire

record is barren of one single statement, word, or even

a suggestion that petitioner knew or should have known

that any of the four firms named as addressees in the in-

dictment had never ordered advertising. Further, to sus-

tain the inference requires ignoring completely that al-

though the mail carrier called at the office of the A & L

Advertising Agency four times daily during the time that

the offices at 911 Lawyer’s Building was occupied, he

never once saw petitioner (R. 44). On the contrary, he

always saw another man in the office and most of the time

Mrs. Loretta Abraham. We must ignore too the proofs

of petitioner’s presence in Cleveland, Ohio during the

period in which these letters were mailed, as attested by

the Government’s exhibits, the telephone slips (R. 9, 10).

As to the second inference, no attempt whatsoever was

made by the Government to connect petitioner with caus-

ing the use of the mails, even to the extent of attempting

to show the custom and practice of the A & L Advertising

Agency with respect to mailing or in lieu thereof, show-

ing such proof was not available.

Making these inferences sufficiently broad to support

the claim in the indictment that petitioner was a party

to a scheme to defraud, requires ignoring completely the

proofs to the contrary, just enumerated, and, in addition

thereto to infer:

(a) That petitioner must have operated this business,

which assumption is dependent on another, e.g.,

that his purpose was fraudulent, and

(b) Predicate thereupon a second inference, that

having operated the business he must have known

that no valid orders for advertising had ever

been received from the firms named in the indict-

ment, and thereafter indulge in a still further

presumption or inference that

invoices or caused the mails to be used to send

out the invoices, or

(d) That he so dominated and controlled the efforts

of the others that he, in effect, caused the mail-

ing if it was done by others.

The rule forbidding predication of inferences upon

inferences was long ago announced by this Court in U. 8.

v. Ross, 92 U. S. 281.

As has been hereinbefore pointed out, the testimony

may possibly support two legitimate inferences but to pre-

vail in the proofs necessary to sustain the charge as laid

in the indictment, requires the predication of at least two

additional other inferences upon inferences already

drawn.

Several authorities upon analogous facts support the

reasoning hereinbefore presented. One of these, Levinson

v. U. S., supra, (the decision relied upon most strongly

by the Government in the courts below), is distinguished

upon the same grounds herein urged, in Whealton v. U. S.,

supra. Whealton was the president of Whealton Co., Inc.

and the company had participated in a fraudulent issue

of oil royalty certificates; one Levy had purchased from

the brother of Whealton some of these certificates; there-

after Levy had received from Whealton Co. a letter

containing a report on those particular series certificates;

and the letter of transmittal bore as a signature the name

of Whealton but whether it was his actual signature was

disputed. Upon these facts, the court said, page 714:

‘‘In an effort to supply circumstances which

would support an inference that Whealton had

mailed the letter to Levy, the government offered

proof to show the practice or custom in the office

of the Whealton Company with respect to mailing

letters originating therein and that Whealton was

dominant in the direction of the affairs of the com-

pany. The government contends that these facts,

together with the fact that the letter was on the

letterhead of the Whealton Company, that the let-

erhead showed Philadelphia as the company’s place

of business, and that the exhibit itself indicated that

it was in response to a letter then recently received

by Whealton from Levy, justified an inference that

Whealton had mailed the letter or caused it to be

mailed. But, the proofs offered to show the prac-

tice or custom of the office with respect to mailing

outgoing letters fell far short of proving any cus-

tom, and the attempt was finally abandoned by the

government. Moreover, the remaining facts relied

upon by the government do not preclude the neces-

sity of drawing an essential inference from other

inferences, which is not permissible. Brady v. U.

S., supra; U. 8S. v. Ross, supra. In the case of

Levinson v. U. S., (6 Cir.), 5 F. (2), 567, 569, cited

by the government, it was not only shown that the

one charged with having m iled the letter was domi-

nant in the affairs of the company but that he ‘car-

ried on all of its correspondence.’ The proofs did

not so disclose in the instant case. In Greenbaum

v. U. S., (9 Cir.) 80 F. (2) 113, it was said, at page

125, that: ‘A signature of an employee plus the

company’s letterhead, together with proof that the

letter was mailed by some one, is sufficient in this

respect,’ that is, as to the evidence necessary to

show ‘a mailing of the indictment letter by the de-

fendants or their agents to warrant consideration

by the jury.’ Here there was no evidence of the

mailing of Exhibit G-408 by anyone nor were cir-

cumstances directly proven from which such an in-

ference might be drawn. We are therefore of the

opinion that the evidence in the record is insuffi-

cient to support a finding of the mailing of the letter

(Ex. G-408) and that the defendant Whealton’s con-

viction on count 13 of the indictment cannot be sus-

tained.”’

And again in Rosenberg v. U. S., supra, there was a

situation analogous to the present circumstances. Rosen-

berg and one Uphoff had engaged in an oil lease fraud.

Uphoff sold certain oil leases to one Harber in Streater,

Illinois. Thereafter, Uphoff and Rosenberg, pretending to

be strangers induced Harber to advance $1,800.00 toward

drilling a well. Harber received from Uphoff a letter

containing a copy of a letter to the Commissioner of Pub-

lic Lands requesting that the assignment of an oil and

gas lease be recorded. The indictment letter was charged

to be the original mailed to the Commissioner. The

facts disclosed that the lease was received and recorded.

There was no proof of the mailing of the letter or the

lease by anyone to the Commissioner.

In reversing and remanding this case, the court said,

page 937:

‘“‘The crime charged in the indictment has its

genesis in the scheme to defraud, but the very gist

and crux of the offense is the use of the mails in

furtherance of the scheme. It is the use of the

mails for that purpose which vests a federal court

with jurisdiction of the offense. Direct proof that

the letter or other matter described in the indict-

ment in a case of this kind was transmitted through

the mails is not necessary. That fact, like many

others, may be established by circumstantial evi-

dence. Freeman v. U. S., (3 Cir.), 20 F. (2) 748;

* * * But an inference of fact which is essential to

the establishment of the offense cannot be rested

upon another inference. Conviction cannot be

predicated upon one inference pyramided upon an-

other. Presumption cannot be superimposed upon

presumption and thus reach the ultimate conclusion

of guilt. U. S. v. Ross, 92 U. S. 281, 23 L. Ed. 707;

Vernon v. U. S., (8 Cir.), 146 Fed. 121; Brady v. U.

S., supra; Mackett v. U. §., supra.’’ (Emphasis

ours.)

Similar facts and a like ruling are also to be found in

Brady v. U. 8., supra.

To the same effect are U. S. v. Russo, (3 Cir.) 123 F,

(2) 420; Mackett v. U. S., (7 Cir.) 90 F. (2) 462; and

Gargotta v. U. S., (8 Cir.) 77 F. (2d) 977.

The conviction is based upon the combination of two

series of dependent inferences, one regarding the scheme

to defraud, and one concerning the use of the mails. The

facts sustain none of the individual inferences, and the

drawing of inferences from inferences violates the rule of

U. S. v. Ross, swpra, and that of the majority of Courts

of Appeals.

It appears that there is a conflict in the application of

the rule between the Courts of the Second, Third, Eighth

and Tenth Circuits and those of the Sixth, Seventh and

Ninth Circuits.

CONCLUSION AND PRAYER

The decision of the court below conflicts with decisions

of other Courts of Appeals on the matters of the manner

and degree of proof required for a conviction under

the statute, and regarding the drawing of inferences from

circumstantial evidence. The conflict should be resolved

by this Court.

The matters of degree of proof and drawing of in-

ferences from circumstantial evidence are important ques-

tions of federal law which have not been, but should be,

settled by this Court.

The practice here of predicating inferences upon in-

ferences drawn from circumstantial evidence is in con-

flict with applicable decisions of this Court.

The resolution of those *onflicts, and the enunciation

of the required degree of proof to sustain a conviction

under Title 18, United States Code, section 338 (now Title

18, United States Code, section 1341), using the mails

to promote frauds, is of vital importance to the proper

administration of federal criminal procedure.

Therefore, a writ of certiorari should issue as prayed.

Respectfully submitted,