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

| Supreme Court of the United States

:

OCTOBER TERM, 1955

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No...... O05 ies

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LEONARD J. SHAFITZ,

Petitioner,

vs.

UNITED STATES OF AMERICA.

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PETITION FOR A WRIT OF CERTIORARI

| TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

—~——

G. LESLIE FIELD,

415 Dime Building,

Detroit 26, Michigan,

Attorney for Petitioner.

Interstate Brief & Record Co., 642 Beaubien St., Detroit 26, Michigan

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Statement of Grounds of Jurisdiction.............. 2

Questions Presented for Review................... 2-3

Constitutional Provision, Statute and Court Rule In-

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Reasons for Granting the Writ.................... 8-13

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Appendix A—Order affirming judgment........... la

Appendix B—Full text of 18 U. S. C. Sec. 1341...... 2a

TABLE OF CASES CITED

Anderson v. United States, 6 Cir., 215 F. 2d 84...... 9

Berger v. United States, 295 U. S. 78.............. 13

Dennis v. United States, 341 U.S. 494.............. 11

Griffin v. United States, 6 Cir., 173 F. 24 909........ 10

Kann v. United States, 323 U.S. 88................ 11

New York Central v. Johnson, 279 U. S. 310........ 13

Pereira v. United States, 347 U.S.1............... 7,10

Pullen v. United States, 5 Cir., 164 F. 2d 756........ 10

Schultz v. United States, 9 Cir., 155 F. 24 721....... 9

Spillers v. United States, 5 Cir., 47 F. 2d 893........ 11

Spurr v. United States, 174 U.S. 728............... 11

Sutton v. United States, 5 Cir., 157 F. 2d 661....... 10

United States v. Amorosa, 3 Cir., 167 F. 2d 596..... 9

United States v. Max, 3 Cir., 156 F. 24. 13........... 8

United States v. Taylor, 2 Cir., 217 F. 2d 397........ 11

United States v. Trypue, 2 Cir., 136 F. 2d 900....... 8

Vierick v. United States, 318 U. S. 236............. 13

CONSTITUTIONAL PROVISION, STATUTES,

COURT RULE AND MISCELLANEOUS

Constitution of the United States:

Fifth Amendment, Due Process Clause.........

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Rule 7 (c), Federal Rules of Criminal Procedure... .

Department of Justice, Bulletin, Vol. I, May 27, 1946,

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Form 3—Indictment for Mail Fraud, 18 U.S. C., pp.

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Supreme Court of the United States

OCTOBER TERM, 1955

————

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LEONARD J. SHAFITZ,

Petitioner,

vs,

UNITED STATES OF AMERICA.

———

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

——4

To the Chief Justice of the United States and the Associate

Justices of the United States Supreme Court:

Petitioner respectfully asks this Court to issue a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Sixth Cireuit affirming a judg-

ment of the District Court of the United States for the

Western District of Kentucky at Louisville upon a jury

verdict finding petitioner guilty upon a ten count indict-

ment charging use of the mails to defraud in violation of

18 U. S. C. §1341.

OPINION BELOW

Affirmance of petitioner’s conviction was by order. No

printed opinion was filed. A copy of the order of affirm-

ance is hereto attached as Appendix A.

STATEMENT OF GROUNDS OF JURISDICTION

1. The judgment of the Court of Appeals was rendered

February 28, 1956.

8. Timely application for rehearing was made, which

was denied March 30, 1956.

3. The jurisdiction of this Court is invoked pursuant

to the provisions of 28 U.S. C. §1254.

QUESTIONS PRESENTED FOR REVIEW

1. The indictment charged that petitioner and another

‘*placed or caused to be placed in an authorized deposi-

tory for mail matter’’ certain allegedly fraudulent invoices.

There was no proof either defendant placed the invoices

in any authorized depository. Conviction was sustained on

the ground that defendants caused the invoices to be de-

livered by mail, and that it was not necessary for the in-

dictment to charge that they did so ‘‘knowingly.”’

Under the circumstances, was the indictment fatally de-

fective in failing to charge an essential element of the statu-

tory offense: viz., that defendant ‘‘knowingly’’ caused the

invoices to be delivered by mail?

3

2. The indictment charged use of the mails between

Louisville, Kentucky and Richmond, Virginia. The trial

court permitted the jury to consider testimony concerning

the mailing of checks from Richmond to New York City,

stating in the presence of the jury on objection thereto:

“I don’t think that’s a fatal variance.’ The trial court

refused to charge that the jury must find use of the mails

between Louisville and Richmond as charged in the indict-

ment, holding that ‘‘the words of the indictment charging

only the use of the mail between Louisville and Richmond

is superfluous and not an essential part of the charge.’’

Did the foregoing rulings deprive petitioner of his con-

stitutional right to a fair trial upon the specific charges in

the indictment?

3. In his closing argument to the jury, the United

States Attorney advised the jury that there was no doubt

in his mind about the guilt of defendants, and implored the

jury ‘‘from the bottom of my heart and with all my sin-

cerity and honesty that I ever had, to render a verdict

quickly and swiftly of guilty.’’

Did this conduct on the part of the United States Attor-

ney deprive petitioner of a fair trial?

CONSTITUTIONAL PROVISION, STATUTE AND

COURT RULE INVOLVED

The constitutional provision involved is the due process

clause of the Fifth Amendment: ‘‘No person shall * ° °

be deprived of life, liberty, or property, without due pro-

cess of law.’’

The statute is the mail fraud statute (18 U. S. C. $1341)

which, in pertinent part, provides:

‘*Whoever, having devised * * * any scheme * ° ®

to defraud, or for obtaining money * * * by means

of false * * * pretenses * * * for the purpose of

executing such scheme * * * 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 knowingly

causes to be delivered by mail according to the di-

rection thereon * * * any such matter or thing, shall

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

more than 5 years, or both.”

The court rule involved is Rule 7 (c), Federal Rules of

Criminal Procedure (18 U. S. C. foll. §3771) : ‘The indict-

ment * * * shall be a plain, concise and definite written

statement of the essential facts constituting the offense

charged.”’

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked pur-

suant to the mail fraud statute (18 U. S. C. §1341) under

which petitioner and another were indicted, tried and con-

victed after trial by jury on all counts of a ten count in-

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5

dictment charging use of the mails to defraud (la, 3a-8a*).

Petitioner was sentenced to serve a year and a day on each

count, the sentences to run concurrently, and fined $100 on

each count (la). Sentence was stayed pending appeal

(2a).

Petitioner was employed as director of the moving pic-

ture department of Reynolds Metals Company (hereafter

sometimes referred to as Reynolds) at its Louisville, Ken-

tucky plant during the indictment period (10a). His duties

were to produce films for promotional and public rela-

tions purposes (10a). In that connection he was authorized

to requisition material and services through Reynolds’ pur-

chasing department.

The fraud charged was that petitioner and his co-defend-

ant created an alleged musical scoring company (Cinema

Seores Company) which invoiced Reynolds for musical

scoring alleged to have been performed by Cinema Scores

Company on films produced by petitioner, but which had

actually been performed by other musical scoring com-

panies under the direction of petitioner for amounts

considerably less than the invoiced amounts (3a-9a). All

invoices were prepared in Detroit, Michigan by petitioner

who personally took them to Louisville (71a). All invoices

were addressed to Reynolds at its Louisville, Kentucky

plant (lla, 15a, 22a, 26a, 29a, 30a, 33a, 35a, 38a, 72a, 74a).

Each count of the indictment charged that petitioner and

his co-defendant ‘‘for the purpose of executing the afore-

said scheme * * * placed or caused to be placed in an au-

thorized depository for mail matter at Louisville, Ken-

tucky, a letter addressed to Reynolds Metals Company,

Richmond, Virginia, containing the aforesaid invoice * * *

*References are to pages of appendix to petitioner’s brief in the

Court of Appeals,

to be sent or delivered by the Post Office Establishment of

the United States’’ (3a-9a). There was no proof that

either defendant placed the invoices in the post office or an

authorized depository for mail (7la-73a). During the

cross-examination of petitioner at the trial he was inter-

rogated concerning his knowledge of whether checks in

payment of the invoices were mailed from Richmond to

Cinema Scores Company in New York City. An objection

that the indictment charged mailings only from Louisville

to Richmond was overruled by the trial judge who stated in

the presence of the jury ‘‘I don’t think that’s a fatal var-

iance’’ (76a).

At the conclusion of the Government’s proofs and again

at the conclusion of the trial, petitioner moved for judg-

ment of acquittal under Rule 29, Federal Rules of Criminal

Procedure, asserting, among other grounds, that since

there was no evidence that either defendant placed the

invoices in any post office or authorized depository, and

since the indictment failed to charge that they had ‘‘know-

ingly’’ caused them to be delivered by mail, the indictment

was fatally defective, and, under the proofs made, would

not support a conviction (la, 70a).

On the issue of mailing, the trial court charged the jury

that ‘‘you must ask yourself * * * did these defendants

use or cause the mails of the United States to be used in

the furtherance of this scheme to defraud”’ (8la). After

reading the second paragraph of the first charge (charging

use of the mails), the trial court continued: **Now, it is

not necessary * * * that the scheme to defraud was intended

to be executed by the use of the mails. It is enough that

the use of the mails could reasonably be contemplated and

would follow in the ordinary course of business. Also, if

the scheme is one which reasonably contemplated the use

of the mails it is not necessary for the defendants to do

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7

the mailing. It is sufficient if their acts caused the use

of the mails by others in the usual course of business’’

(82a, 83a).

At the conclusion of the charge, the trial court asked

counsel if there were any motions. Counsel for defendants

requested the court to instruct the jury that they must find

that the defendants actually mailed or caused the invoices

to be mailed from Louisville to Richmond (as charged in

the indictment) or acquit them. The trial court declined

to so instruct, stating that “the words of the indictment

charging only the use of the mail between Louisville and

Richmond (are) superfluous and not an essential part of

the charge”’ (84a). The trial court was also requested to

instruct that defendants must have ‘‘knowingly” caused

the mail to be used, but declined, stating ‘‘Well, I think

my instructions regarding the mailing or causing to be

mailed is from the most recent case of the United States

Supreme Court, so I am going to adhere to that’’ (85a).°

The following occurred during the closing argument to

the jury of the United States Attorney (79a):

“Mr. Walker: * * * There’s no question in my

mind about the guilt of either one of these men. I

say to you that they are guilty beyond all doubt.

There’s no guilt beyond a reasonable doubt; they

are guilty beyond all doubt, All doubt. All doubt.

“*Mr. Field: If the Court please, I'd like to record

an objection to the statement just made by the Gov-

ernment attorney.

“*The Court: All right.

“Mr. Walker: And I say from the evidence that

was presented here that was my deduction, and I do

not believe that twelve intelligent women and men

will be so gullible that they will believe what these

*The case referred to was Pereira v. United States, 347 U. 8. a,

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defendants have said. I do not believe that you, in

your own good conscience, could say these men were

not guilty.

‘*Now, I could talk about more evidence in this

case; more of my own deductions; but I feel that you

now know as much about this case as anyone knows,

and I ask you in good conscience, and from the bot-

tom of my heart, with all my sincerity and honesty

that I ever had to render a verdict quickly and swift-

ly of guilty as to both these defendants.

**Thank you.”’

REASONS FOR GRANTING THE WRIT

Petitioner contends (a) that the Court of Appeals has

rendered a decision herein in conflict with the decisions of

other Courts of Appeal on the same matter; (b) that the

Court of Appeals has decided an important question of

federal law which has not been, but should be settled

by this Court; and (c) that the Court of Appeals has so

far sanctioned a departure from the accepted and usual

course of judicial proceedings, as to call for an exercise

of this Court’s power of supervision.

(a) In permitting the indictment to stand without the statu-

tory word “knowingly” where there was no proof that either

petitioner or his co-defendant placed the invoices in question in

the post office or any authorized depository for mail matter, the

Court of Appeals has rendered a decision in conflict with the de-

cisions of other Courts of Appeal on the same matter, viz.: the

validity of an indictment failing to charge knowledge where the

statute makes knowledge an element of the offense. United

States v. Mar, 3 Cir., 156 F. 2d 13; United States v. Trypuc,

2 Cir., 136 F. 2d 900.

9

Anderson v. United States, 6 Cir., 215 F. 2d 84, cited by

the Court of Appeals in the order affirming the judgment

of conviction herein (Appendix A) does not support the

holding that the indictment was sufficient without the

word ‘‘knowingly.’’ In Anderson the defendants were

charged with corruptly endeavoring to impede the admin-

istration of justice in a pending criminal ease. The in-

dictment followed the language of the statute (18 U.S. C.

§1503) and was held sufficient, the court stating: ‘‘(t)he

language of the indictment charging the offense is in strict

conformity with the definition of the offense in the stat-

ute.’” Had the word ‘‘eorruptly” been omitted from the

indictment, the situation would have been analogous and

in point. In that event the question would have been, as in

the case at bar, whether the indictment charged the essen-

tial elements of a crime. Rule 7(c) Federal Rules of

Criminal Procedure, requires that “ (t)he indictment * * *

shall be a plain, concise and definite written statement of

the essential facts constituting the offense charged.’’

The controlling question in Anderson was not whether

the indictment charged the essential elements of the crime

as defined in the statute, but rather whether the par-

ticulars of the violation were sufficiently stated and

scienter charged. The applicable statute did not make

knowledge an element of the offense.* The Court of Ap-

peals had no difficulty in finding that the indictment suffi-

ciently apprised defendants of the particulars of their

*Where a statute does not make intent or knowledge an element of a

crime, it is clear that the indictment need not charge knowledge or intent.

Schultz v. United States, 9 Cir., 155 F. 2d 721; United States v. Amorosa,

3 Cir., 167 F. 2d 596; see also bulletin published by the Department of

Justice (Vol. I, May 27, 1946, No. 14) which states: “* * * Where the

statute upon which the particular count is predicated makes wilfulness

or knowledge an element of the offense, it is, of course, necessary to use

the words ‘wilfully’ or ‘knowingly.’ ”

10

offense and by fair implication imputed scienter. That

was the controlling question in Anderson. It is not the

question in the case at bar. The applicable rule is to be

found in Griffin v. United States, 6 Cir., 173 F. 2d 909.

There defendant had been convicted under a statute mak-

ing it an offense for one knowingly to fail to possess a

selective service registration certificate. The indictment

under which defendant was convicted did not use the word

‘*knowingly.”’ The omission was held fatal.

(b) The Court of Appeals has decided an important question

of federal law which has not been, but should be settled by this

Court.

By its decision, the Court of Appeals has in effect read

the word ‘‘knowingly”’ out of the mail fraud statute. In

reaching this result, the Court of Appeals has, it is sub-

mitted, misconceived the decision of this Court in Pereira

v. United States, 347 U. S.1. It is respectfully contended

that the mail fraud statute may not be so construed as to

eliminate therefrom the very element which creates the

federal offense, to-wit: ‘‘knowingly”’ causing the mails to

be used in furtherance of a scheme to defraud. Since

knowledge is the gravamen of the federal offense, the in-

dictment should have alleged knowledge, and the jury

should have been charged, under the proofs, to find a

knowing use of the mails or acquit.*

The point is by no means semantic, since the existence or

absence of knowledge may spell the difference between a

crime and an innocent act. For example, passing coun-

terfeit money only becomes an offense where the person

*It is doubtful, however, whether a good charge could have rescued

the defective indictment. Pullen v. United States, 5 Cir., 164 F. 2d 756;

Sutton v. United States, 5 Cir., 157 F. 2d 661.

Mw

11

passing it has knowledge that it is spurious (18 U. S. C.

§472). In Spurr v. United States, 174 U. S. 728, this Court

announced the rule that ‘‘an evil motive to accomplish that

which the statute condemns becomes a constituent element

of the crime.’’ Existence of a mens rea is the rule rather

than the exception to the principles of Anglo-American

criminal jurisprudence. Dennis v. United States, 341 U. S.

494, 499, 500. This is particularly true under the mail

fraud statute where it is the use of the mails that makes

the offense a federal crime. Kann v. United States, 323

U. S. 88. Even before the 1948 amendment of the statute,

it was held that a letter must have been knowingly mailed

or caused to be mailed to constitute a violation of the

statute. Spillers v. United States, 5 Cir., 47 F. 2d 893.

Reliance on Pereira is unwarranted. In that case

Pereira deposited for collection checks drawn on a bank

in California. The only question raised and passed upon

was whether Pereira ‘‘caused’’ the checks to be mailed.

This Court held that in depositing the checks for collection

Pereira knew or could reasonably have foreseen that use

of the mails would follow in the ordinary course of busi-

ness. Whether it was necessary to charge and prove that

he ‘‘knowingly”’ caused the mails to be used was not, as

stated above, raised or passed on. See United States v.

Taylor, 2 Cir., 217 F. 2d 397 at 399.

The question raised is one which has not been settled

by this Court. It is submitted that it is an important one

involving an essential provision of the mail fraud statute,

the construction of which is necessary to a proper adminis-

tration of the Act. Also involved is the sufficiency of the

Official Form of indictment under the statute (18 U. S. C.

Pp. 2560, 2561, Form 3—Indictment for Mail Fraud).

12

18 U. S. C. §2 is not applicable as neither petitioner nor

his co-defendant was shown to have placed the questioned

invoices in any authorized depository for mail matter.

Moreover, subparagraph (b) of this section of the statute

was amended in 1951 by the addition of the word ‘‘wil-

fully’’ so as to read ‘‘(w)hoever wilfully causes an act to

be done’”’ ete.*

(c) The Court of Appeals has so far sanctioned a departure

from the accepted and usual course of judicial proceedings, as to

call for an exercise of this Court’s power of supervision.

Although the conduct of the United States Attorney in

his closing argument to the jury was brought to the at-

tention of the Court of Appeals at the oral argument and

in the petition for rehearing, the matter was passed with-

out mention in the order of affirmance.

It is submitted that the type of argument employed by

the United States Attorney in the particulars mentioned

was highly improper and prejudicial. For him to give the

jury his personal opinion on the vital question of guilt or

innocence, and in effect to exhort the jury to disregard

the evidence, to waste no time on deliberation, and to

render a verdict ‘‘quickly and swiftly’’ was incompatible

with his responsibilities and duties as an official of the

United States Government, and his obligation to discharge

*As amended, the mail fraud statute appears to cover three situa-

tions so far as use of the mails is concerned: (1) Where an individual

places a letter in the post office or in an authorized depository for mail

matter. In this situation the statute does not require that knowledge be

charged; (2) Where one of several individuals places such letter in the

post office or authorized depository. Here all become principals and

equally responsible for the mailing under 18 U. S. C. Sec. 2 (b); (3)

Where there is no direct mailing but the individual causes such letter to

be delivered by mail according to the direction thereon. Here knowledge

is an essential element of the offense.

13

his duties fairly and impartially. Assuring the jury of

his personal conviction of the guilt of defendants, and

pleading with the jury ‘‘from the bottom of my heart and

with all my sincerity and honesty that I ever had, to render

a verdict quickly and swiftly of guilty” may well have tip-

ped the scales unfairly against petitioner and deprived

him of that serious consideration of the factual issues by

the jury which was his right under the due process clause

of the Fifth Amendment.

It is therefore submitted that this permitted departure

from the accepted and usual course of judicial proceedings

calls for an exercise of this Court’s power of supervision.

Berger v. United States, 295 U. S. 78, 88; Viereck v. United

States, 318 U. S. 236, 248: New York Central v. Johnson,

279 U.S. 310, 316.

CONCLUSION

It is respectfully submitted, therefore, that a writ of cer-

tiorari should be granted to review the judgment of the

Court of Appeals for the Sixth Circuit.

Respectfully submited,

G. LESLIE FIELD,

415 Dime Building,

Detroit Michigan,

Attorney for Petitioner.

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Judgment la

APPENDIX A

JUDGMENT

(Filed February 28, 1956)

This appeal from the district court’s judgment entered

upon a jury verdict finding appellant guilty upon a ten

count indictment of using the mails to defraud in violation

of 18 U.S.C. A,, §1341, was heard on the record, briefs,

and oral argument of counsel.

And it appearing that the essential facts constituting the

offenses charged were sufficiently set out in the indict-

ment, Anderson v. United States, 215 F. (2d) 84 (6 Cir.,

1954) ; that there was substantial credible evidence to sup-

port the jury’s verdict as to all elements of the offenses

prohibited by the statute; and that in instructing the jury

the district judge committed no error prejudicial to the

appellant, Pereira v. United States, 347 U.S. 1 ( 1954);

It Is Ordered that the judgment of the district court be

and it hereby is affirmed.

LLL ET RPI BODG LON, LLL GEE LLL AE, BSE ERB ty LANE Ore ae

2a Title 18 U.S. C., Section 1341

APPENDIX B

TITLE 18, U. S. C., SECTION 1341~—

FRAUDS AND SWINDLES

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, repre-

sentations, or promises, or to sell, dispose of, loan, ex-

change, alter, give away, distribute, supply, or furnish or

procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything repre-

sented to be or intimated or held out to be such counter-

feit or spurious article, for the purpose of executing such

scheme or artifice or attempting so to do, 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 takes or receives therefrom,

any such matter or thing or knowingly causes to be de-

livered by mail according to the direction thereon, or at

the place at which it is directed to be delivered by the per-

son to whom it is addressed, any such matter or thing,

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

than five years, or both. (June 25, 1948, ch. 645, §1, 62 Stat.

763; May 24, 1949, ch. 139, §34, 63 Stat. 94.)

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CITATIONS

Cases:

Gridley v. United States, 44 F. 2d 716 (C.A. 6),

certiorari denied, 283 U.S. 827................ 10

Griffin v. United States, 173 F. 2d 909........... ~

Henderson vy. United States, 218 F. 2d 14........ 10

Kann v. United States, 323 US. 88.............. s

Krueter v. United States, 218 F. 2d 532, 533-534

(C.A. 5), certiorari denied, 349 U.S. 932........ oe)

Pereira v. United States, 347 US.1.............. 8

United States v. Battiato, 204 F. 2d 717, 719 (C.A.

7), certiorari denied, 346 U.S. 871............. 10

United States v. Crummer, 151 F. 2d 958, 963 (C.A.

10), certiorari denied, 327 U.S. 785............ 9

United States v. Debrow, 346 US. 374............ i)

United States v. Holt, 108 F. 2d 365, 370 (C.A. 7),

certiorari denied, 309 US. 672................ 10

United States v. Maz, 156 F. 2d 13.............. 9

Webb v. United States, 191 F. 2d 512............ & 9

Statute and Rule Involved:

LS EE ae ae eee 2,3

Federal Rules of Criminal Procedure, Rule 7(c).. 2-3,9

(1)