Jack A. Lemon and Martin De Bruin v. United States

278 F.2d 369 Jack A. LEMON and Martin de Bruin, Appellants, v. UNITED STATES of America, Appellee. No. 16468. United States Court of Appeals Ninth Circuit. March 30, 1960. Hyman M. Greenstein, Greenstein & Franklin, Honolulu, Hawaii, for appellants. Louis B. Blissard, U. S. Atty., Harry W. Dudley, Asst. U. S. Atty., Honolulu, Hawaii, for appellee. Before MATHEWS, HAMLEY and MERRILL, Circuit Judges. HAMLEY, Circuit Judge. 1 Jack A. Lemon and Martin de Bruin were jointly tried and convicted on all counts of a five-count indictment charging use of the mails to defraud, in violation of 18 U.S.C.A. § 1341 . 1 The activity in connection with which they were convicted involved the sale of booklets entitling the purchaser to receive certain articles and services from Honolulu merchants. The sales were made over the telephone, and the orders were filled and payments obtained by means of C.O.D. mailings. 2 Appealing to this court, defendants contend that the evidence is insufficient to support the jury verdict. They concede that the mails were used in filling the orders and obtaining payments. Appellants assert, however, that the evidence was insufficient to warrant a finding that…

Jack A. Lemon and Martin de Bruin were jointly tried and convicted on all counts of a five-count indictment charging use of the mails to defraud, in violation of 18 U.S.C.A. § 1341 . 1 The activity in connection with which they were convicted involved the sale of booklets entitling the purchaser to receive certain articles and services from Honolulu merchants. The sales were made over the telephone, and the orders were filled and payments obtained by means of C.O.D. mailings.

Appealing to this court, defendants contend that the evidence is insufficient to support the jury verdict. They concede that the mails were used in filling the orders and obtaining payments. Ap *371 pellants assert, however, that the evidence was insufficient to warrant a finding that there was involved any scheme to defraud residents of Honolulu, or to obtain money therefrom by means of false or fraudulent pretenses, representations, or promises, as charged in the indictment.

All counts of the indictment charged the same scheme, but each named a different person as addressee of a booklet mailed C.O.D. Each appellant was sentenced on each count to imprisonment for three months and to pay a fine of five…

(concurring in the result).

On October 3, 1958, in the United States District Court for the District of Hawaii, appellants (Jack A. Lemon and Martin de Bruin) 1 were indicted for violating 18 U.S.C.A. § 1341 . The indictment was in five counts.

Count 1 alleged, in substance, that, having devised and intending to devise a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations and promises, appellants, for the purpose of executing said scheme and artifice, and attempting to do so, did, on or about June 10, 1958, in the City and County of Honolulu, in the District of Hawaii, place in an authorized depository for mail matter a letter addressed to Clayton C. Holloway, to be sent and delivered by the Post Office Department.

Counts 2-5 were similar to count 1, except that, instead of referring to a letter placed in an authorized depository on or about June 10, 1958, addressed to Clayton C. Holloway, count 2 referred to a letter placed in an authorized depository on or about June 14, 1958, addressed to Mrs. William K. Kahookele; count 3 referred to a letter placed in an authorized depository on or about June 16,…