The opinion of the court was delivered by: MARSH
The defendant, Murray Kram, was found guilty on ten counts of mail fraud
and moved for judgment of acquittal and in the alternative for a new trial. We are of the opinion that the verdict should stand.
A motion to quash this indictment was overruled in a scholarly opinion written by our associate, the Honorable John L. Miller. Defendant moved to arrest judgment, but the additional attack he now makes on the indictment is not convincing and that motion will be denied.
In passing on the defendant's reasons for judgment of acquittal, we take that view of the evidence, with inferences reasonably and justifiably to be drawn therefrom, most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; Henderson v. United States, 6 Cir., 1953, 202 F.2d 400.
In 1950 defendant started a mail-order business in Pittsburgh under the name 'Religious Culture Society'. From an extensive collection of telephone directories, he compiled mailing lists principally of Italian an Slavish names. To these people he mailed a card bearing the trade name at the top, a prayer on the left side, and attached to the card was a small religious statuette. The card stated that it was being sent to the addressee in the hope that it would please; if it did, 25 cents (50 cents in a later card) was to be remitted; it not, there was no obligation. An enclosed leaflet requested recipient to forward the names of good Catholics.
Defendant thought the names he selected from the telephone directories would likely include persons who were of the Catholic faith. It seems that he did not consider Irish Catholics potential remitters.
After several months, this mailing matter was disapproved by the Fraud Division of the United States Post Office because it was thought that the matter tended to deceive the recipients into believing that they were being solicited by a religious organization. In May, 1951, the defendant voluntarily signed an affidavit of discontinuance
and agreed, inter alia, that future mailed cards would clearly show that this enterprise was not conducted by a religious organization, but that 'it is the sole effort of and for the sole benefit of an individual' and 'that affiant will also cause his name to appear on this card as sole owner'.
Thereafter, defendant continued to operate, making certain changes from time to time in the details of the mailing matter in order to conciliate the postal authorities. In this he did not succeed for he was advised on two occasions that he was not complying with the spirit of his affidavit of discontinuance and was threatened with formal action on continued non-compliance.
Finally, on February 15, 1952, defendant signed a second affidavit of discontinuance, which stated, inter alia, 'that the enterprise described in the complaint has been discontinued and abandoned and will not be resumed by the undersigned under the above name (Religious Culture Co.) or any other name'.
Notwithstanding, the defendant continued to operate substantially the same enterprise under a new name, Religious Distributing Co., until indicted in December, 1955. During this period, the material mailed differed in some particulars, but the prosecution rests its case on packets mailed by defendant during the period from July, 1954 through August, 1955.
On the face of the packet appeared 'Religious Distributing Co., Post Office Box, 8770, Pittsburgh 21, Pa. -- Merchandise of Value -- Return Postage Guaranteed', the postage paid permit number, and through the envelope window the address of the recipient. The packet contained a return envelope addressed to 'RELIGIOUS DISTRIBUTING CO., Post Office Box 8770, Pittsburgh 21, Pa.', a leaflet and a religious trinket, either a metal crucifix and chain or a rosary bracelet, both made in Italy.
The design and contents of the leaflet, accompanying the crucifix and chain, is as follows:
'THIS CRUCIFIX AND CHAIN which is made in Italy is being sent to you in hope you find it worth keeping. If so, please insert $ 1.00 and mail in the enclosed envelope. If you do not wish to keep ...