Opposition Brief — Bowcott v. United States

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CITATIONS

Cases:

Barnard v. United £2ctes, 16 F. 2d 451, certiorari denied,

EES NRPS et PERSE Spake Se Ca ey Se

Bell v. United States, 100 F. 2d 474....... 2... 2200.6...

Blitz v. United States, 153 U. S. 308...................

Burroughs and Cannon v. United States, 290 U. S. 534. .

Crain v. United States, 162 U.S 625..................

Touhy v. United States, 88 F. 2d 930...................

Wheeler v. United States, 77 F. 2d 216.................

. Statute:

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Yuthe Supreme Court of the Waited States

OcroBER TERM, 1948

No. 451

CATHERINE Bowcott anD Epna Woopcock,

PETITIONERS

Vv.

UNITED STATES OF AMERICA.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 400-

406) is reported at 170 F. 2d 173.

JURISDICTION

The judgment of the Court of Appeals was en-

tered October 29, 1948 (R. 399, 406), and a petition

for rehearing (R. 407-412) was denied November

10, 1948 (R. 413). The petition for a writ of certi-

orari was filed December 6, 1948. The jurisdiction

(1)

of this Court is invoked under 28 U.S.C. 1254(1).

2

See also Rules 37(b)(2) and 45(a), F.R.Crim.P.

QUESTION PRESENTED

Whether, where the first count of an indictment

for mail fraud describes the scheme to defraud,

and the succeeding counts incorporate this descrip-

tion by reference, the succeeding counts are ren-

dered invalid because of the dismissal of the first

count or because of a defect in that count regarding

the allegation of the use of the mails.

STATUTE INVOLVED

The mail fraud statute, 18 U.S.C. (1940 ed.) 338,

provided as of the dates involved in this case:

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

so to do, place, or cause to be placed, any letter,

postal card, package, writing, circular, pam-

phlet, or advertisement, whether addressed to

any person residing within or outside the

United States, in any post office, or station

thereof, 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,

or shall take or receive any such therefrom,

whether mailed within or without the United

States, or shall knowingly cause to be delivered

by mail according to the direction thereon, or

—7"_"

3

at the place at which it is directed to be deliv-

ered by the person to whom it is’ addressed,

any such letter, postal card, package, writing,

circular, pamphlet, or advertisement, shall be

fined not more than $1,000, or imprisoned not

more than five years, or both.

STATEMENT

On June 22, 1944, petitioners were indicted in

the District Court for the Southern District of

Illinois in ten counts, each charging a violation of

the mail fraud statute, supra (R. 2). The first

count (R. 2-11) charged generally in the opening

paragraph that during a period beginning a long

time prior to July 1, 1941, and continuing down to

the date of the indictment, petitioners devised a

scheme and artifice to defraud certain named vic-

tims, including one Earl Woody, and other persons

unknown to the grand jury (R. 3). The details of

the scheme were then set forth with great par-

ticularity (R. 3-10), and the count closed with an

allegation that on or about April 7, 1943, petitioners

did ‘unlawfully, knowingly, wilfully, fraudulently

and feloniously place, and cause to be placed in a

Post Office of the United States of America, * * *

to be sent and delivered by the Post Office Estab-

lishment of the United States of America,’’ a let-

ter, set forth in haec verba, addressed to Mr. and

Mrs. Earl Woody, Smithfield, Illinois, “‘contrary

to the form of the statute in such case made and

provided, and against the peace and dignity of the

United States of America”? (R. 10-11). There was

~

4

no allegation in this count that the mailing was for

the purpose of executing the scheme to defraud.

Each of the succeeding counts, 2-10, incorporated

by reference the allegations of count 1 describing

the scheme to defraud and each alleged that, ‘‘for

the purpose of executing the said scheme and arti-

fice, and in attempting so to do,’’ petitioners mailed

a separate letter or post card (R. 11-24).

Petitioners demurred to the indictment on the

ground, inter alia, that the first count failed to

allege that they used or intended to use the mails

‘tin the furtherance, or in the execution of the al-

leged scheme to defraud”’ and on the further gen-

eral ground that each count failed ‘‘to charge the

commission of illegal acts by the defendants which

constitute an offense against the United States’’

(R. 25-26). The demurrer was overruled (R. 26).

At the close of all the evidence, counts 1 and 10

were dismissed on motion of the Government (R.

341). Petitioners were convicted on counts 2 to 9,

inclusive (R. 365, 366), and they were each sen-

tenced to five years’ imprisonment on each of

counts 2, 3 and 4, to run concurrently, and fined

$1,000 on each of counts 5, 6, 7, 8 and 9 (R. 373-

375). Their convictions were affirmed on appeal

(R. 406).

ARGUMENT

Petitioners’ sole contention is that since the first

count was bad for failure to allege that the mailing

charged therein was for the purpose of executing

the scheme to defraud, as required by the statute,

——7_"

5

the remaining counts were also invalid because they

were dependent upon count 1 by virtue of the fact

that they expressly incorporated by reference the

allegations of that count describing the scheme. In

support of this contention, petitioners cite ex-

cerpts from cases stating that each count of an in-

dictment is regarded as a separate charge of crime

and must be sufficient in itself, and they also invoke

the requirements of the Fifth and Sixth Amend-

ments that the accused be informed of the nature

and cause of the accusation against him by an in-

dictment returned by a grand jury (Pet. 6-7).

Even if it be conceded that the first count Was in-

effective to charge an offense under the mail fraud

statute, petitioners have no basis for complaint.

The succeeding counts incorporated by reference

only those parts of the first count which set forth

and described the scheme and artifice to defraud.

The use of the device of incorporation by reference

in.a multiple-count indictment to avoid repetition

is familiar. This and other courts have repeatedly

held that if a count to which reference is made is

defective or if prosecution under it is dismissed,’

such circumstance will not in itself vitiate the re-

maining counts. Burroughs and Cannon v. United

States, 290 U.S. 534, 544; Crain v. United States,

162 U.S. 625; Blitz v. United States, 153 U. S. 308,

317; Bell v. United States, 100 F. 2a 474, 477 (C.A.

———.

*The Court of Appeals considered the question of the suffi-

ciency of counts 2-9 only in relation to the dismissal of count

1 at the close of the evidence (R. 404-405).

6

5); Touhy v. United States, 88 F. 2d 930, 933

(C.A. 8); Wheeler v. United States, 77 F. 2d 216,

218 (C.A. 9); Barnard v. United States, 16 F. 2d

451, 453 (C.A. 9), certiorari denied, 274 U. 8S. 736.

Petitioners’ contention would have more merit if

the allegations in the first count, incorporated by

reference, failed to describe a criminal scheme or

artifice to defraud. But no such contention is

made; and it is clear that the first count sets out

with particularity a scheme and artifice to defraud

the persons named in the count (R. 2-10). Stripped

of details, the count alleged that petitioners devised

a scheme to defraud various persons by inducing

them to give petitioners various sums of money

upon false representations that it was to be in-

vested in commercial enterprises to be established

at Canton, Illinois, by Henry Ford and the Ford

Motor Company, and that Ford and the company

had accumulated huge profits which would be dis-

tributed as bonuses to investors under the guise of

charitable contributions in order that the Fords

might obtain deductions for income tax purposes.

Other false and fraudulent promises and repre-

sentations made in carrying out the scheme were

alleged.

Nor is there any doubt that the eight counts on

which petitioners were convicted made apt refer-

ence to the scheme and artifice to defraud described

in count one. Each of these counts alleged that

petitioners, ‘‘having under the circumstances and

7

conditions in the first count of this indictment men-

tioned, devised the scheme and artifice in that

count described for obtaining money and property

from the persons in that count named and referred

to, by the means therein set forth, the allegations

of which said first count descriptive of said cir-

cumstances and conditions, scheme and artifice,

money and property, and of such persons and

means, are incorporated in this count by this ref-

erence to said first count as fully as if they were

here repeated,”’ mailed a certain described letter

‘‘for the purpose of executing the said scheme and

artifice’? (R. 12, 13, 14, 15-16, 17, 18-19, 20, 21-22).

CONCLUSION

The petition should be denied.

Respectfully submitted.

{ Pur B. Pertman,

Solicitor General.

ALEXANDER M. CAMPBELL,

Assistant Attorney General.

Rosert S. Erpaxt,

JAMES W. Knapp,

Attorneys.

JANUARY 1949,

tou.s. GOVERNMENT PRINTING OFFICE: 1949 e19038 322