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July 13, 1967

Monroe CAINE, Defendant

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 The defendant, who is charged in a 60-count indictment with use of the mails to defraud in violation of Title 18 U.S.C. ยง 1341, moves for (1) dismissal of Counts 25-60; (2) discovery and inspection pursuant to Rule 16, F.R.Crim. P.; and (3) a bill of particulars.

 Counts 1-24 allege a scheme to defraud various newspapers in connection with the defendant's promotion of mail order sales of its talking fish lures, under which the defendant would order newspaper advertisements under the name of an advertising agency (Wortman, Barton & Russell, Inc.) without its authority, inducing the papers to print the advertisements without prepayment in reliance on the agency's credit. Each count alleges that for the purpose of executing the scheme the defendant caused a parcel to be sent and delivered by the United States Post Office Department to a certain newspaper, identified by name.

 Counts 25-60, which are the subject of the motion to dismiss, involve a different scheme to defraud, as part of which the defendant would insert in newspapers advertisements offering "talking fish lures" for mail order sale by himself under the name of "Spalding (Fish & Game Div.)", which "would contain false and misleading representations as to the nature of the fish lures which would be supplied in response to the resulting mail orders". It is further alleged to be part of the scheme that when numerous persons would mail remittances to the defendant in response to such advertisements some "would receive no fish lures and that others would receive fish lures which were not as described in the said advertisements and which were worth substantially less than the amounts paid". Each count alleges that for the purpose of executing the scheme the defendant received from post offices and other mail depositories a letter from a sender, which is identified by name and a specified date.


 Turning first to the motion to dismiss, the defendant contends that Counts 25-60 are fatally defective: (1) for failure to state in what respect the newspaper advertisement was false and misleading and how the lures to be received by some persons were worth substantially less than the amounts paid; and (2) ambiguity or inconsistency in the charge that under the scheme some persons would receive no fish lures and others would receive fish lures not as described in the advertisement and worth less than those advertised.

 The purpose of an indictment is to furnish the defendant with a sufficient description of the charge against him to enable him to prepare and conduct his defense and to avail himself of his conviction or acquittal as a bar to a second prosecution for the same offense. Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545 (1927); United States v. Lamont, 236 F.2d 312 (2d Cir. 1956). The essential facts claimed to constitute the offense must also be alleged in order to enable the Court to determine whether they are legally sufficient to charge the crime. United States v. Seeger, 303 F.2d 478 (2d Cir. 1962). On the other hand, if the essential elements are stated, evidentiary details need not be alleged, United States v. Shindler, 13 F.R.D. 292 (S.D.N.Y.1952), and an indictment for mail fraud is not tested by rules applicable to indictments for obtaining money under false pretenses. Emanuel v. United States, 196 F. 317 (2d Cir. 1912); United States v. Crummer, 151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785, 66 S. Ct. 704, 90 L. Ed. 1012 (1946); Leche v. United States, 118 F.2d 246 (5th Cir.), cert. denied, 314 U.S. 617, 62 S. Ct. 73, 86 L. Ed. 496 (1941). The sufficiency of a mail fraud indictment must of necessity turn to a great extent on the nature of the scheme alleged.

 Applying these principles here the Court is of the view that while the indictment could well have alleged the scheme in greater detail, it meets the overall test laid down by the Supreme Court in Wong Tai, supra, of informing the defendant with sufficient particularity of the scheme to defraud to enable him to defend himself and preclude double jeopardy. It advises the defendant of the general nature of the alleged scheme to defraud, i.e., the use of an advertisement for the sale of "talking fish lures" under the name of "Spalding (Fish & Game Div.)" which contained false and misleading representations, with the intent that those responding to it would either receive no fish lures at all or receive lures that did not conform to the advertisement. The indictment further specifies the name of each sender responding by letter to the advertisement and the date when the response was made. Armed with these basic elements, and with a copy of the advertisement which the Government will be required to furnish in response to defendant's demand for particulars, the defendant is sufficiently acquainted with the elements of the charge against him to defend and preclude a second prosecution for the same offense.

 Unlike the charges here, the indictments which were the subject of decisions cited by the defendant failed completely to acquaint the defendants there with the essential elements of the charge, and hence were dismissed. For instance, in United States v. Hess, 124 U.S. 483, 8 S. Ct. 571, 31 L. Ed. 516 (1888), the indictment merely alleged that the defendant had "devised a scheme to defraud diverse other persons to the jurors aforesaid as yet unknown " and set forth a letter alleged to have been received by defendant pursuant to this scheme which read: "If there is any money to be made at it, then count me in. Send on all the confidential terms you have, and you will never be betrayed." The instant case is clearly distinguishable, for here the defendant knows that he is charged with selling fish lures that allegedly did not fulfill the representations of a specific advertisement placed by the defendant for such lures, which furnishes much more information than was supplied in the Hess case. Similarly, the indictment which was dismissed in United States v. Mercer, 133 F. Supp. 288 (N.D.Cal.1956), also relied upon by defendant, read as follows:

"Said defendants, and each of them, did, on or about the 17th day of February, 1955, in the City and County of San Francisco, State and Northern District of California, having devised a scheme for obtaining money by means of false and fraudulent pretenses, representations and promises, transmit sounds by means of interstate wire from Phoenix, Arizona to San Francisco, California, for the purpose of executing such scheme."

 The present indictment is much more informative than the above. Furthermore, as the Court stated in United States v. Crummer, supra, in reversing the dismissal of an indictment charging mail fraud:

"While the particulars of the scheme are matters of substance and therefore must be described with a degree of certainty sufficient to show its existence and character, and fairly to acquaint the defendant with the particular fraudulent scheme charged against him, still the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter." (151 F.2d at p. 963)

 Equally appropriate is the language of the Court of Appeals in United States v. Shavin, 287 F.2d 647, 90 A.L.R.2d 888 (7th Cir. 1961):

"The indictment here definitely charges the defendant, as a practicing attorney, with a continuing scheme to defraud insurance companies by falsely representing the amount of the medical bills to the insurance carriers against whom the defendant's clients had claims. It includes certain named companies. We are of the opinion that the indictment sufficiently charges the two necessary elements of the offense and by specifically describing the mailing, the gist of the offense, the defendant is protected ...

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