Bernarr Frank Hayden v. United States

Appellant appeals from his conviction on four counts, two charging mail fraud ( 18 U.S.C. § 1341 ) and two charging wire fraud ( 18 U.S.C. § 1343 ). Appellant was sentenced to two years on each count, to run concurrently.

Jurisdiction existed below pursuant to 18 U.S.C. § 3231 , and here pursuant to 28 U.S.C. § 1291 .

We hold there is no merit in the appeal. The sole error alleged is the failure of the district court to dismiss the indictment for lack of jurisdiction, based on the theory that the means (telegram, telephone and mail) were used in June 1963, while the money was delivered in May 1963. The superseding indictment charged the scheme to defraud began May 23, 1963 and continued to June 30th, 1963.

Thus, urges appellant, the means used were not for the purpose of executing a scheme to defraud, relying on Kann v. United States, 323 U.S. 88 , 65 S.Ct. 148 , 89 L.Ed. 88 (1944) and Parr v. United States, 363 U.S. 370 , 80 S.Ct. 1171 , 4 L. Ed.2d 1277 (1959), nor for “lulling” the victim. United States v. Sampson, 371 U.S. 75 , 83 S.Ct. 173 , 9 L.Ed.2d 136 (1962).

The government’s answer is that the calls and wires occurred before the scheme to defraud had been completed.…