Defendant contends that it was prejudicial error to admit this testimony over his objection, for the reason that such was opinion evidence. The evidence was offered, however, to show the effect that the packet and its contents had on the minds of some of the recipients at the time they received it, viz.: that they believed the mailed matter was a religious or charitable solicitation.
We think the testimony was admissible. The state of mind of these witnesses and their act in responding to the solicitation were facts and not opinions.
The relevant purpose of the testimony was to prove the very heart of the government's case as alleged in the indictment, viz.: that the solicitation was not only intentionally 'drawn in such a manner as to mislead the victims into thinking that it was a solicitation from a religious organization' but that it did cause some of them to so believe and 'return to the defendant the sum of $ 1.00 by mailing same to the Religious Distributing Co.' Similar testimony was admitted in Silverman v. United States, 5 Cir., 1954, 213 F.2d 405.
Defendant further contends that the mailed matter did not contain any misrepresentations; that there was no fraud aliunde the mailed matter; that there was no showing that the scheme was sufficient to deceive persons of ordinary prudence and comprehension; and hence judgment of acquittal should be entered.
The court does not agree. It has been held that proof of misrepresentations is unnecessary. As stated in Kaufmann v. United States, 3 Cir., 1922, 282 F. 776, 779:
'However impractical and visionary a scheme may be, the use of the mails to execute it does not constitute a crime, if it was devised in good faith. On the other hand, if a scheme is devised with the intention of defrauding, and the mails are used in executing it, it makes no difference that there is not a misrepresentation of a single existing fact.' (Emphasis supplied.)
No case has been cited for the principle that in the absence of misrepresentations it is necessary to prove fraud aliunde the mailed matter. On the contrary it would seem that such proof is not required. Cf. Silverman v. United States, supra; Hughes v. United States, 5 Cir., 1916, 231 F. 50. It is necessary, however, to show, first, that defendant intentionally devised a scheme to defraud, and, second, that he used the mails as an essential part of that scheme, otherwise the prosecution does not make out a case. Kann v. United States, 1944, 323 U.S. 88, 65 S. Ct. 148, 89 L. Ed. 88. The jury had sufficient evidence before it to find affirmatively in both these respects. The scheme itself need not be effective to defraud any one. Durland v. United States, supra; Henderson v. United States, supra. Of course, the scheme proved in this case was effective as shown by the testimony of the witnesses previously mentioned.
Defendant argued that in the absence of misrepresentations in the mailed matter, the test of defendant's guilty intent is whether the scheme was sufficient to deceive persons of ordinary comprehension and prudence, and that before defendant could be found guilty, the court preliminarily, and ultimately the jury, should have so found. He submitted a point for charge to this effect which was refused.
As heretofore stated, the fraudulent scheme need not be effective to defraud any one, and the mailed matter may be 'absolutely ineffective' for carrying it out. Durland v. United States, supra. Hence, if no one need be defrauded, whether the recipient is gullible, ignorant or overcredulous,
or whether he is skeptical, intelligent or of ordinary prudence and comprehension, we think, is immaterial.
In the Durland case, it was said, 161 U.S. at page 314, 16 S. Ct. at page 511:
'It was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed'.
Thus it seems to the court that, despite an apparently contrary view expressed in the Silverman case and the ingenious argument and skillful analysis of the cases in defendant's brief, that portion of the public who are particularly susceptible to fraudulent schemes because imbued with religious, sympathetic or generous impulses which to some extent cloud their discernment are within the protection of the statute. For to hold that Congress intended to protect only the person of ordinary prudence and comprehension from schemes or artifices to defraud would tend to reward subtle and ingenious artifices, perhaps truthful in fact, but deliberately and intentionally designed to mislead and deceive in order to prey upon the devout, sympathetic and generous.
The defendant also complains that the court refused to affirm his second point. This point was refused because the substance thereof was fully covered in different language in the charge. See United States v. Smith, 3 Cir., 1953, 206 F.2d 905, 911.
An order will be entered refusing arrest of judgment, judgment of acquittal and a new trial.