Fasulo

Fasulo and Lupipparu were convicted of a conspiracy to devise a scheme or artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations, and -promises, and using the mails for the purpose of executing the scheme. Sections 37 and 215, P. C. (Comp. St. §§ 10201, 10385).

The charge is described in Lupipparu v. United States (C. C. A.) 5 Fed. (2d) 504, wherein the indictment was considered and sustained as containing all the essential elements of a scheme or artifice to defraud.

Upon the trial, after the government rested its ease on direct evidence counsel for the defendant moved for a dismissal, conceding that the proof showed a scheme to extort money by means of threatening letters, hut contending that it failed to show a scheme to defraud within the statute above cited. The motion was denied, and defendant testified in his own behalf and introduced other witnesses, but at the close of all the evidence failed to renew his motion for a directed verdict. He therefore waived the question of the sufficiency of the evidence. Paine v. United States (C. C. A.) 7 F.(2d) 263 , Aug. 3, 1925.

But, in order that no possible injustice…