United States v. Curtis Court Opinion

    C\"'I
IINITDD STATIIS of Amcrie:r,

I'ltint if f-A pptlk'e.
v.

Louis Rex CURTIS,
Defendant-Appellant.

No. 74-1098.

Lrnihd States Court of Appeals,
Tenth Circuit.

Argued Sept. 10, 1974.

Decided Dec. 10, 19?4.

The United States District Court for
the Wcstern District of Oklahoma, Lu-
ther B. Eubanks, J., found defendant
guilty of mail fraud, in connection with
the oper:rtion of an alleged computcr
matching service for single persons, anrl
,lcfcn<lant allpcitlctl. The Court of Ap-
peals, Chrisle nse n, Scnior District Jutlge,
hell that although thc cvirlencc was sul-
ficient to support the verdict, the indicl-
ment lacked suf ficient averments to
satisfy constitutional , requirements,
where thc indictment, in sum, pled little
more than the statutory language with-
out any fair indication of the nature or
characler of the scheme or artifice relied
upon, or the false pretenses, misrepre-
sentations <lr promises forming a part of
ir.

Reversed antl remanrled with di-
rections 1"o tlismiss the indictment.

l. Indictnrent tnd Information el9l]
Instrut'tions citnnot silvc zI batl in-

dictment, although in some cases they
may ameliorate the prejudice.

2. post Office e48(4)
Mere evidential matters or detail

more appropriate in bills of particular
neerl not be ple:rrled in an indictment
baserl on thc m:ril fraurl stzrtute, but
sonrc subst:rntial inrlication of thc naturc
or charirc[cr ol a schomc or iLrtifice trl

'OI thc I)istrrct of Utah, sittlng by <-k'signaiirrn.

l. "$ l31l Whoever, having devised
or intending to devise any scheme or artilice
trr tlr.frarrrl, or for ohtaining m()ne]- or pr()[)('r-
t), l)! meirns ol falsc or Iraudttltnt l)r{'t('ns('s,
rt.llres(ntltliolts, ()r pr()nliscs firr
tlrr, Jrrrrlrrst' ol t'xt'cttttttg stlch s(:h('rtl(' or ilrti'

' i,1,, i,,'rr

gNt'IIrI) S't'A.rDS r.. (IIIiTIS
(lilo ils.-)lr(i lr.:11 !)s; ( Il)it)

rlefriLurl, or olrtain moncy or prollcrty by
mcrlns of fllsc yrrctcnscs, rcprcscntittions
or protnisr:s, is rrrrlrrirt'rl. lt{ tl.S.C.A,
r\ lil41.

l|. Post Office o-48(4)
In a mail frau<l prosecution, it is not

sufficient to merely plead the statuLory

Edward L. Ray, Oklahoma City, Okl.
(Stephen Jones and Jones, Williams,
Bane, Ray & Klingenberg, Oklahoma
City, Okl., with him on the brief), for
defcndant-appellant.

John E. Green, Asst. U. S. Atty., Okla-
homa City, Okl. (William R. Burkett, U.
S. AtLy., with him on the brief), for
plai ntiff-appellee.

Before LEWIS, Chief Jurtge, HILL,
Circuit Judge, an<l CHRISTENSEN,
Scnior District Judgc.*

CHRISTENSEN,
Judge.

Senior District

Charge<l in four counts of an indict-
ment, an<l convictcd on each by jur.y tri-
al, for violating thc Mail Fraud Statute,
18 U.S.C. S 1341,1 appellant ,Louis Rex
Curtis questions on this alrpcal thc suffi-
<'iency of Lhe evidcnce to sustain the ver-
rlict anrl thc sufficiency oI the in<lict-
rncnt to s1ryiv9 his molion to rlismiss.z

lico or att(.n)pting so to do, places in any post
office or ar"rthorized depository for mail mat-
ter, any matt(,r or thing whatever to be senf

9Ul-)

4. Post Office e48(4%)
Mail fr:rud indictment lacked suffi:

cient averments to satisfy constitutional
requirements, where the indictment, in
sum, pled little more than the statutory
language without any fair in<lication of
the nature or charactcr of the scheme or
artifice relied upon, or thc false pre-
tenses, misrepresentations or promises
forming a part of it. 18 U.S.C.A.
S 1341; Fctl.Ilulel Crim.l'roc. rulc
?(cX1), 18 U.S.C.A.

I

or delivcrc'd
1r rovidt,tl l. "

2. 'l'he issrrt's
brilf onlv lrit

shall lre Ipunished as

lr.ndt'red in at)pollant's initial
;.t or arourtd l.hr'sc issrrr,.;, Ilut

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986 ;0(i l. l,ll)1,)lt,\1, ltl,ll'()ll'l'l'llt, :.ltl Sl'lltllls

At thc closc of thc govertrrncnL's casrr
:r motion for .jrrrlgnre nt ol :xrrluitttl lor
cl:tirnctl insufficicncy ol the e virlcncc wirs
submittc<l to, and rulcrl upon by, the
court a(lversely to appellant. Hc therc-
irfter Lcstiliul in his own lrchalf an<l'in-
trorluccrl other evirlcncc. Ilockct <:ntrics
forming pzrrt ol thc rccorrl l)cf(/re us
suggest Lhat a similar motion was filecl
after thc close of Lhe trial wiLhin the
time permitted by Rule 29(c), Fed.R.
Cr.P., and denied. A copy of thc latter
motion has not bccn lrrought un. As-
suming that it assigned insufficiency of
the evidence as ir groun<1,3 we have care-
fully studied thc transcript and havc
concluderl that thc cvirlcnce was suffi-
cient to sul)port the vcrtlict.

More to the point of the insufficiency
of the indictment, we note somc facts
which the record tends to support when
construed favorably to the verdict and
which we gather from the argumcnt the
government intcnded to covcr in its
charges, or now wishes that it had. r

Prior Lo the date of the first mailing
mentioncd in the indictment, and contin-
uing unLil after the last, Curtis devised a

scheme and artifice to defraud pcrsons
Irxrking for <lates or marriages by in<luc-

they are stated succinctly and rclicd upon
exclusively in his reply brief. We find no
need to discuss fragmented or peripheral con-
tentions which have no merit beyond the ba-

sic contentions encompassing them.

3. lf not. the record motion interposed at the
close of the government's case in chief would
have been waived and our consideration of
any insufficiency of the evidence normally
would have been foreclosed' Lucas v. United
States, 355 F.2d 245 (l0th Cir.), cert. denied,
384 U.S. 977, 86 S.Ct. 1873, 16 L.Ed.2d 687

(1966); Brooks v. United States, 330 F.2d 757

(lOth Cir.), cert. denied, 379 U.S. 852' 85 S'Ct'
lo0, 13 LEd2d 56 (196a); Hughes v' United
states, 320 F.2d 459 (loth cir. 1963)' cert.
denied, 3?5 U.S. 966, 84 S.Ct 483' I I L Ed'2d

415 (1964). Cf. Holmes v. Wack, 464 F.2d 86
(loth Cir. 1972).

4. Ordinlrrilv tltt' cttttclttsiolt wrt rt':tt'lt its ttt tltr'
indictrttettl wtlttld dislx'nsc with ttrc ttt'ccssity
of consi<lt'rtIrg tlre cvi<.lcncc. Yet this rel't'r-

ence to the latter is designcd to liUht up the

deficiencies of the indictment.

ing thenr in thc name of "Comnutcr
NI:rtching InstiLute" to lray suhsLitnti:"rl
fces for computcriz,ctl and lrsychologital-
ly tcsted matching, without the intcnt
an<l capability of performance on his
p:rrt.. Thc schcme and artili<:c as rlcviscrl
by Curtis was also tr.r olrlain moncy by
rncans ol thc following falsc anrl fraudu-
lcnt pretcnses, represcntations and prom-
ises, wcll knowing at thc time that the
pretenses, representations and promises
would be false when made: That by the
use of computers arranged for and used
by the Computer Matching Institute, a
successful and effective organization,
and through testing by qualified psychol-
ogists, he coul<l and woukl mntch by
prompt com[)utcr proccssing an(l expert
llsychological tcsting the personal char-
acteristics and preferences of those will-
ing to pay the required fees with other
pcrsons similarly processed and tested
and likely Lo prove compatible and will-
ing companions or marriage partners;
that rcferences of such malched persons
woul<i be promptly madc and communi-
cated to the subscribors for their selec-
tion or rejeclion;5 and that this pro-
gram had been endorsed by f)r. Joyce
Brothers, Dr. Billy Graham, Dr. Norman
Vincent Peale, Dr. Crane, and other fa-
mous pcople. Thc truc facts 6 were that

5. We rejected appellant's argument that sinct
the written contract provided "That you wrll
process my application every 60 days after

the first submission of my data to the com'
puter" and the data was not in fact submitted
io the computer, there was no breach of the

express agreement between the parties' 'such
"fine print" provisions, exculpatory in nature

and here so patently deceptive in view of the

evidence of oral representations, are unavail'

ing against the other proof of a scheme t'o

defraud, and do not convert such a scheme

into a legitinlate business venture. See Gu-

sow v. United States, 347 F.2d 755 (I0th Cir')'
cert. denied, 382 U.s. 906, 86 S.Ct. 243' 15

L.Ed.2d 159 (1965).

6. We do not mean to indicate necessarily that

as a nratter of atlegations beyond a preceding

specification of falsity the true facts would

lri,rc r,, bo affirntativcly allcged: Fornt 3 of

tho ttpltcttrlix to tltc l'r:tl lt'Cr'l)' (lo(:s not 30

irrdicatc. But lor ad<.litional clarity they tltay

well be.

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UNITITD STATI'IS \'. (lllRTIS 987
(iilI rts ill(i t'.1(l l)\; (llri{)

the "Computer N{atching Institute" at the purpose of executing such a scheme
the matcrial times and places was largc- and artifice to defr:rud, and attempting
ly a f:rcarle anrl prctense to pcrmit thc to so do, Curtis mailc<l thc lcttcrs :rs
collection of l:trgc sums of moncy lrom chl:"gtxl in thc in<lictmcnt.
thc public; 7 th:rt alrpcllant at thc tinrc of
devising such scheme or artifice to <lc-,
fraud, and making such pretenses, repre-
sentations and promises, and at the time
of the mailings in question, did not have
thc intent or capability of processing or
matching applications by computer or
testing alrplicants through thc serviccs oI
a psyr:hologist; lh:rt no f:rmous pcoJllc
had enrlorscd his Jrrogram, antl that :rny
proccssing an<l matching to thc cxtcnt
complctcrl irnrl rclxrrtc<l at all, unknown
to thc sulrscribcrs, wcrc zrc()ml)lishctl b.y

hand by clerical hclp untraincrl for thc
purpose or by ,Curtis himsclf.8 Anrl for

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Form 3, F'crl.R.Cr.P., is il-
lustrativc [nf a sufficienL in<lictment]
anrl not man<latory," Rulc 58, Fcrl.R.
Cr.P. In 1>crLincnt llart it rearls:

"The gran<l jury charges:
"1 [T]he defendants

. rlcviscd and intended to de-
visc a schemc and artiiice to defraud
purchascrs of stock of XY Company, a

?. While mailings to only alleged victims were
involved in the indictment, the magnitude of
Curtis' other operations, legal or otherwise, is
indicated by his testimony that he had con-
ducted a $2,000,000 program in various parts
of the country.

8, In his brief appellant states: "There can be
no doubt that two things accomplished by
Rex Crlrtis wcre in fact not in conformity to
the genr.ral org.rnizational plan he had devel-
oped. E,ssentially in a period of time, Com-
puter Matching Institute did not employ the
ust of computers nor did they employ the use
<.rr knowk.dge ol a psychologist." Appcllant's
brief got.s on to state: "However, the facts
are unquestionable that he anticipated Dr.
Adrean Freyling's coming to Oklahoma City
which in essence would have establishecl a
computer center arld likewise had a psycholo-
gist involved in the organization. When this
fell through, tht' evidence is uncontra(ltcted
th:rl Rr.x Crrrtis institrrtecl a hectic and rir.ier-
rnrilt:d ef[ort t() contact antl employc<)n]l)uter
programmers, computcr time and psycholo-
gists." In vrew of appropriate instnl( t ions
deirling wittr the clcfense of good laith and
"nrt.re unsrr<'cessfrrl lltrsirtt'ss opr.ratiorrs," tlrc
jury obviouslv determined that the abst'nce of

Thesc salient facts vital to thc govern-
mcnt's claim of an unlawful scheme or
artilice are maskc(i, if not conccaled, by
the conclusionary languagc of thc indict-
menL as framerl. To rcnrler this rcadily
al)l):rrcnt, anrl to rlcmonstratc lat:rl dc-
p:irturc from Form l] of thc Appcnrlix ol
Ir<lrrns irnncxc(l to the Fcrlcral Itules of
Crinrinal Proccdurc, on thc basis of
which thc govcrnmcnt rlcfen<ls Lhc in-
<lictmcnt 2rs mccting the rotluircmcnts ol
the controlling rule e an<l thc mantlatc <lf
thc Constitution,t0 ililffiliosition the
two:

C<>unt 1 of thc intlictmcnt in the
prcscnt casc, rcprescntative <lf the othcr
thrce counts, allcgcs in pertincnt p:rt:

"The Granrl Jury chargcs:
"1 Louis Rex Curtis de-

vised and intended Lo devise a scheme
and artifice to rlcfraud and to olltain
money from a clzrss of pcrsons or per-

means to make good on the pretenses, repre-
sentations and promises of appellant was an
inherent part of a scheme or artifice to de-
fraud. The evidence tended to show that it
was not unavoidable, but intentionally decep-
tive for the appellant to have failed to reveal
any such lack of capability to the subscribers
from whom he rvas soliciting money. As was
said irr Beck v. United Statcs, 305 F.2d 595
(loth Cir.), cert. denied, 371 U.S. 890, 83 S.Ct.
186, I L.Ed.2d 123 (1962), whether a legiti-
mate business venture was involved notwith-
stirnding "was a question of fact, to be deter-
mint'cl by the jury after considt,ring all of the
evidence and the inferences to be drawn
therefrom. "

9. "ln General. The indictment or the infor-
mation shall be a plain, concise and definite
writt(ln statem(,nt of th(, osscntial lacts oonsti-
tuting the otfensc' charged." Ilule 7(cXl),
Fed.l{-.r.P,

10. "ln all criminal pr()s('Cutions, the accused
shell enlov the right to b'e in-
fornrt.<i ol the natrrre ancl catrse of tlro acctrsa-
tron. Arrrr.rrrlrnt nt VI, (:onstitu-
tion ol the United Sturts. ; Pl''rqi

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988

California corpor:rlion, antl to olrlain
money and propcrLy by means of the

-following false an(l f rautlulcnt l)rt:-
tenses, reprcsenLations anrl llromises,
well knowing at thc time Lhat the'prc-
tenses, rel)resentaLions an(l promises
woukl bc falsc whcn marle: That the
XY Comllany <lwnc<l a mine aL or ncar
Szrn Bernardino, California; that thc
mine was in actual operation; th:rL
gold ore was being obtained aL the
mine and sol<l zrt a prof it; that the
currcnt carnings of Lhe coml)any
would be sufficient to pay tlivirlends
on ils stock at thtl rate of six per ccnt
per annunl.

"2 [T]he defcndants for
the purpose of cxccuting the aforcsaid
scheme and artificc and attempting to
do so, caused to be placed in an autho-
rized dellository for mail matter a le!-
tcr addrcssed to lvlrs. Mary Brorvn, 110

Main Street, Stockton, California, to
be senl or delivcred by thc Post Olficc
Estzrblishment of Lhe Unitc<l Statcs."

sons Lo lre rlcfrau<le<I, by mcans of
falsc an<l fraudulcnL pretenses, rel)re-
scntzrtions and llromises to Lhe said
class of l)ersons, who could and would
l>c induce<l by the said . Cur-
tis at thc times ab<lve referred, to pay
an<l scnrl or mail Lo him cerLain sums
of moncy in rcsponse to falsc and ficti-
tious lcprescntations about Lhc scrv-
ices of a computer matching service
for single persons, well knorving at the
timc that saicl pretcnses antl rel)resen-
tations would bc and were false whcn
ma<lc, an<l which scheme an<l artifice
to rlcf rturl anrl to oblain moncy by
mcirns of I'alsc an<l frautlulent pre-
te nscs, re llresenLati<lns and promises,
so devised by Curtis, was in
substance as follows:

"1. It was a part of such scheme

el, I .ar!i!re-+q-!c f rggl,-tlrt
Curtis woul<l cau-sc antl rlid l)rel)are
an<l cause Lo bc placetl in an authoriz-
c<l <lcuosiLorv lor m:ril mallcr false
anrl f ictitious Comrratibility Question-

s rc-
sponding to advertisemcnts about the
c<>mputcr lnaLching service, to be sent
anrl tlclivcre<l by thc Postal Service of
the Unitcd Slales.

fThcn in successive paragraphs fol-
lowing Lhe same introrluctory conclu-
sion contained in the last <;uoted para-
gr:rph the indictment specifies (2) The
receipt through the mails of "certain
chccks" in llayment on alleged comput-
er matching service, (3) that Curtis
rcnte<l officc spacc and a post office
box to receive the checks "and to lead

the individuals to believe that the
computer matching service was repu-
tablc," (4) that he placed advertise-
ments in various newspapers to solicit
business, and (5) that he contracted
"for services he did not provide." The

ncxt paragraph contains the most spe-

cific, but sLill excessively general ref-
crcncc to it s<:hemc; but this obviously
is a "lulling schcme" an<l not thc onc

rclic<l upxrn to rcn<lcr othcr mailings
unlawful.l

"6. And it was a furthcr Part of
said schemc and artifice to defraud

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IINITITD 51',\TliS 1'. (lllltTIS
('il(, r\;lrri t .:.:rl lt\i ( Il)il,

989

th:rt Curtis w<lul<l anrl di<l
frrlst:ly:rnrl fr:rurlulcnl.ly c;rusc to bc
m:rilcrl le Itt:rs . con t:ri n i ng
misrcllrcscntations alnut thc comlluLcr
scrvicc, miLnagcmcnL, InvcstigaLing
Department, and alleged invoices for
computer service work, for the purposc
of lulling or soothing the complaints of
pcrsons who had paid for services not
Jrrovided by Computer Matching Insti-
tute.

"7 Curtis, for the purpose
of executing the aforesaid scheme and
artificc to defraud and to obtain mon-
cy by means of false and fraudulent
pretenses, rcpresentations and prom-
iscs willfully and knowingly did cause
to be deposite<l in an authorized mail
depository mail matter con-
taining a false and fraudulent Com-
patibility Questionnaire for Dating and
Marriagc a<ldrcsscrl all in
violation of Section 1341, Title 18,
United Stales Codr

+Li{;r; "fnAr4"6} t'o!.Wr

tenT6s-fc{IrascnrEf,ions and prom iscs" rc-
ferred to in the indictmcnl were, is lcft
to speculation. An<l by the curious com-
minglement of references to the schcme
wit.h allegations of various means uti-
lized to carry it out, the indictment is

confusing :rs well as vaguc. Cert:tinly
the compatibility questionnaire, thc llost
office box, thc llusiness office, thc chccks
or their rcccipL, rvcrc not "falsc or ficti-
tious" per sc. The enumcration of acts
in implemcntation of some schemc or ztr-

tifice, but under the allegations that
they wcre thcmselves "in substzrncc"
such a scheme anrl "part of it" dirl more
to mask what the misrepresent:ttions,
schcmc or artifice wcrc claimctl to hrrvtr
hccn than to cxlrl:rin thcm. Thc inrlicrt-
tion anrl lllacc provitlcrl in thc olf ici:rl
form lor spccifi<:ation or identification of
the claime<l flalse pretcnses, represcntrt:
tions and promiscs were tlisregarrlc<l in
the indictmt:nt before us.

tll For all thc inrlictment shou's Lhc
grand jury may have hatl a conceyrt ol

I..
the scheme csscntially diffcrent from
that relied upon by the government be-
fore Lhe trial jury. And under the gcn-
cral and confusing allegations of the in-
dictmcnt the trial jury coul<l have con-
ccived the scheme as somethinfa essen-
tially different from that upon which the
gove rnment now rclies. Instructions
crrnnot savc a bad indictment, although
in some cases they may ameliorate the
prcjudice. Here thc case was submitted,
anrl yrcrhzrlls neccssarily so, in the llroad
l:rnguagc ol tho indictmcnt. The trial
court a.ccuratcly and fairly enumcraterl
t\,: issues, dcfincd the tcrms employed in
the staLutc an<l chargcs, and stated the
govcrning rulcs in the abstract. It did
not unrlcrtake to limit the scope of the
schcrmc or artilicc in rlucstion short of
l.hc vaguc languagc oI Lhc indictmcnL,
which it rca<l to Lhc jury in full.

[2J -Merc eviricnti:rl mzrtters or det:ril
more al)l)royrriate in bills of particular
neerl not bc plcatlctl in an indictrye.!!.
basc<l upon \ 1341. Stokes v. Uniterl
St:t[cs, 1l-r7 U.S. 18?, 15 S.Ct. 617, 39

1,.1,}1.66? (189i-r); Sullivan v. Unitc<l

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990 l-r06 I"lll)EIi \1. ltlrl'OItTIrlt, 2d SLITILS

Statcs,41l t'.z(l 556 (10th Cir.1969);
Martin v. United Statcs, 285 F.?l 150

(10th Cir. 1960), cert. denied, 365 U'S'

-853, .8L s.ct. 818, 5 L.Ed.2d 816 (1961);

Webb v. UniLed Statcs, 191 F.Zl 512

(10th Cir. 1951); United Statcs v. Qqum-
mer, 151 F.zd 958 (10th Cir. 1945),'cert'
denie<I, 32? U.S. ?85, 66 S.Ct. 704, 90

L.Ed.2d 1012 (1946); Rude v. United
Statcs, 74 F.Z<16?3 (10th Cir. 1935); Ha-
vener v. United States, 49 F.zd 196 (10th

Cir.), cert. denied, %4 U.S. 644, 52 S'Ct'
2i4, 76 L.Ed.54? (1931). See also Unitcd
States v. Anderson, M7 P.zd 833 (8th

Cir. 19?1), cert. denied, 405 U.S' 918, 92

S.Ct. 943, 30 L.Ed.Zl 788 (1972); Wolpa
v. Unilc<l SLaLcs, 86 F.% 35 (8th Cir'
1936), ccrt. <lenied, 299 U.S. 611, 57 S'Ct'
317, 81 L.Ed. 451 (193?); Giles v. Unitcd
Statcs, 34 F.zd 110 (8th Cir. 1929); Br:r-
<ly v. United States, 24, F.z<l 397 (8th

Cir.), cert. denied, 2?8 U.S. 603, 49 S'Ct'
10, ?3 L.Ed. 531 (1928); Savage v' Unit-
ed States, 270 F.14 (8th Cir. 1920), cert'
denied, 25? U.S. 642, 42 S.Ct. 52, 66

or intcntlcrl lo l.rc tlcvisc<l to <lcfraud,

or for olrtaining money or property by

false or frautlulenL prctenscs, rcpre-

scnLations, or promiscs, and the usc of
thc mails for the Purl)osc of executing
the schemc or attempling to do so' In
olhci words, to constitute the offense

a scheme to defraud must be deviserl

ancl thcreafter a letter, postal card,

llack:rge, writing, circular, pamphleL,

or advcrLiscment must be placed in thc

mails for the purpose of executing the

scheme, or attempting to <lo so' [Cita-
tions omitted.]

. While the ParLiculars of
thc schcmc are mattcrs of suirsLance

anrl thcreforc nrusL bc <lcscrilrcxl wiLh

a tlcgrcc of crcrlainty sufficicnl ttl

show iLs existcnce of characLcr, and

fairly to actluaint lhc dcfcndant wilh
thc particular fraur.lulcnt scheme

chargerl against him, still the scheme

itself need not be pleaded with all the

certainty in respect of time, placc, and

circumsiance requisite in charging the

mailing of the letter or other rnatter'

fCitations omitted.]
It was stated in Smith v' United

States, 360 U.S. 1, 79 S'Ct' 991, 3

L.E(1.2d 1041 (1959), and reiterated with
terminal effect upon the indictment in

Russell v. United States, 369 U'S' 749,82

S.Ct. 1038, 8 L.Ed.2tl 240 (1962), supra:
This Courl has, in reccnt years' up-

heltl many conviclions in the face of
queslions conccrning thc sufficiency of

the charging papers. Convictions are

no longer reversed because of minor

and technical tlef iciencies which did

not prejudice the accused' [Citing
.r."..1 But the substantial
safeguarcls to those charged with seri-

ous crimes cannot be eradicated under

the guise of technical departures from

the rules.
Russel,l involve<i a violation of a stat'

ute making it a misdemcanor for any

pcrson summone<l to testify lrefore a

committec of Congrcss to rcfusc to an-
'.*.,, "itny rltlt:stirln llcrtincnt to thc

rpestiott untlcr itl<1rriry."'l'hc in<licLmcnt

thcre ullcgcr<l in thc wor<ls of Lhc st:itutc
that the <lucstions askc<l "wcrc llcrtinent
to the questions then urlder inquiry'"

gU Sut as these cases demonstrate,
il6e substantiai indication of thc nature
or charff&ilany scheme or artifice to
defraud, or to obtain money or pr<lperty

means of false pretenscs, representa-
uisite. And it is

to merely

)romlses

llleatl Lhc sLatutory language. Cf. Rus-

sell v. Unitcrl Statcs, 369 U.S. 749, 82

S.Ct. 1038, 8 L.Ed.2(l 240 (1962); Lowcn-
burg v. United States, 156 F.2d 22 (10th

Cir. 1946). A reference to the cases cit-
ed first above will disciose that in each

instance the nature of the schemes or

*m1", supra, the allegations of the
scheme hekl to be sufficient had been in
such detail as to rec{uirc i.rlmost two
prinLeri p:rges of the opinion to allstract.
Yet the court carcfully examincd the

prolrlctrt ol strllicicrrcy of allcgrrtirlns irt

mail fraurl cascs :rnrl obscrvc<l:

'l'he of[ensc c]rargerl in thc inrlicL-
ment is cotnposcti of tw<l consLi[uent
elements. Thcy are a schcme devised

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tlNI'tllI) STATItS 1" CIIIiTIS
cil(' rts ;illi l'.:]'l l'|\:' (llriI)

991

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While the facts were different, principles

explicatetl an<l :rpplie<l hy Ru's'sr:// havc

controlling applicaLion hcrc. 'Ihc olrinion
quoLcs from Unitctl Statcs v. Cruik-
shank, 92 I.J.$. l-r42, 558, Z} l''I'}l' 5813:

"It is an e lemcntary principlc of
criminal pleading, that where the <lefi-

nition of an offcnce, u'hether it be at
common law or by statute, 'inclu<les

generic terms, it is not sufficienL that
[h. in,li.t*ont shzrll chargc the of-
fence in the s:rme gcneric tcrms as in

the definition; but it must statc thc
spccies,-it must tlcsccnrl to particu-
lars.' "
It then continues:

An in<lictment not framed to apprise

the rlelen<lant "with rcasonable ccr-

tainty, of Lhe naturc of thc :rccusation

against him is dcfcctive, zrl-

though it may follow thc languagc ol
the statutc." United Statcs v' Sim-

mons, 96 U.S. 360, 3621,?1L'E(l' 819]'

"In an inrlictmcnl upon a statute, it is

noL sufficicnt to sct forth thc ollencc
in the wonls of the statuLe, unless

those words of themselves f ully, tli-
rectly, and exllressly, without-any un-

certainty or ambiguity, set forth all

the elements necessary to constitute

the offence intended to be punished;

.." Unitcd States v' Carll, 105

u.s. 611, 612 l, 26 L.Ed. 11351' "lJn-
doubte<lly the language of the statutc
may be usc<l in the general dcscription

of an offence, but it must be accoml)a-

nied with such a statcment of the

facts antl circumstances as will inform
the accused of the spccific olfencc'
coming un<ler the general description'
with which he is charged'" Unitcrl
States v. Hess, 124 U'S' 483, 487 [' 8

S.Ct. 5?1, 31 L.Ed. 5161' See also Pct-

tibonc v. Unitc<l States, 14fl U'S' f9?'

ll. If not of much significance to the reader' it
is at least interesting to the writer to recall

that of thc slx cases cited by the Supreme

Court on this point he has been connected

with two of them and that the lesson learncd
from his reversal by this court in the first,
holding that an indictment was invalid, was

appliecl by him in the second with similar
effect upon the indictment there'

12. "4. Each count of the indictment alleges-

conclusions distinguished from statcments of

uiiitn",u fact and thcrefore does not state

202 204 [, 13 S.Ct. 542, tt45, 3? L'Etl'
4191; Blitz v. Ilnited Statcs, 153 U'S'
rOa, ltrr [, 14 S.Ct. 9D1,927,38 L'Erl'
?251; Keck v. United Statcs, 172 U'S'
434, 437 [, 19 s.ct. ?54, 255,43 L.E(I.

5051; Morissette v. United States, 342

u.s. %6, 270, n. 30 1,72 s.ct. ?lo, 253'

96 L.Ird. 2881. Cf' United States v'

Petrillo, 332 U.S. 1, 10-11 [, 6? S'Ct'
1538, 1543, 91 L.Ed. 18?71 [distinguish-
ing in footnote 12 Rosen v' United

Statcs, 161 U.S. 29, 16 S.Ct' 434, 40

L.Ed. 606, on the ground that details

omitte<l there were too obscene to be

sprearl upon lhe minutes of the court']
That these basic principles of funda-

mental fairness retain their full vitali-
ty under modern concepts of pleading,

antl specifically under Rule 7(c) of the

F e<le ral llules of Criminal Procetlurc,

is illustratctl by many recent fcderal

rlecisions [citing in footnote 13 Unitcd
States v. Lamont [2 Cir.] BG F'2d 312:.

Mcer v. United Statcs [10 Cir'] 235

l'.2r1 65; rl Babl, v' UniLcrl Statcs [5
Cir.l 218 F.2<l 5lltt; UniLc<l StaLcs v.

Simplot LD.C.I 192 F.Supp. ?34; rr Unit-
cd Statcs v. Devine's Milk Laborato-
ries, Inc. [D.C.] 1?9 F.Supp. ?99; Unit-
ed States v. APex Distributing Co'

lD.C.l 148 F.SuPP. 365.1

This is not a case where a trial has

been hatl without any claim being made

concerning the insufficiency of the in-

dictmcnt, in which event a view is some-

timcs takcn more generous to a ques-

tionallle indictment than has been ap-

plietl where the attack on the indictment
iras l,ecn timely. Almost a month prior
to trial appcllant interposed and sub-

mitLcrl :rrguments in suplxrrt of a motion
for jurlgment of acquittal setting out
valirl reasons why the inclictment rvas

insu f f icient.12

facts with sufficient certainty to apprise the

Defendant of the nature of the accusations

required by the Sixth Amendment of the

Urited States Constitution, to enable him to
prepare his defense thereto'" Failure to com-

ply wrth the requirements of Rule 7(c)(l) was

not assigned in the motion, but in !h9 q'p-
porting irief it was asserted and argued that
;'1a1s the indictment t:learly does not comport

to itut.' 7(c) of the Iederal Rules of Criminal

Procedure. it cannot stand, and a judgment of

a<'quitt,rl should be granted Irt'rein'"

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992 ;()t; Irt.:l)l';l(Al, Itl,ll,()ft'l'lili, :trl st,llill';s

iharacter of the schcme or artifice relicrl C. Dawkins, Jr., J., aftcr granting tem-
l)or:Iry rcstr:rining or<lcr pen<ling hcar-
ings before collcgc disciplinary hezrring
board, denied injunctive and sulr1;lemen-
tal relief, and students appezrlerl. The
Court of Appeals, Roney, Circuit Judgc,
held that documents zrdvising carch of thc
suspended students lhat he or she was
chargcd wiLh violating college regula-
tions and Slate Board of Education reg-
ulations provided a(le(luate noticc to stu-
dents of conspiracy charge to fairly en-
able Lhem to prescnL a dcfense aL tlisci-
plinary boar<l hcarirtgs; that cviticncc us
to onc studcnt did not susLain finding
that such student had become a "loiter-
er" in violation of college rcgulation;
that organizers u,ho actually provoked
group action which led to disortlcr and
disturbances involving prol)crty destruc-
tion and material disruption of campus
were engaging in behavior not protected
by the First Amen<lment; that fact Lh:rt
disciplinary board had already held onc
hearing on students' activities and that
board's members were ayrpointed by col-
lege president who also employed many
of them did not require finding that stu-
dents wcre r-lenied a fair and imltartial
hearing; and th:rt college regulations
dealing with inter alia disorderly sturlcnt
zrssemblies wcre not unconstitutionally
vague or ovcrbroad.

Affirmed in part and reversed in
part.

Tuttle, Circuil Judge, concurre<l in
pzrrt and disscntcd in part and filed a
separate opinion.

l' courts 6406'5(l)
Whcrc a case is <lcci<,lcrl lly a rlistrict

cr.rurt judgc without a jury ulxrn an a<l-

ministrative record which constitutes
only documenlary evidcncc, bur<lcn of
prool on partics a1r1rc:rling such rlecision
to sltow Lhrrt fin<lings ol facl" :rr<: clcarly
crr()ncous is not as hcauvy :rs thc bunlcn
woultl lrc if casc hatl Lurnc<l on cr.e<libili-
Ly of witncsses appearing beforc [he tri-
al ju<lgc. li'e<l.Ilulcs Civ.Pr<.,c. rule 52(a),
28 U.S.C.A.

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r.lJ)on, ()r thc f4lse prctenscs,- misrcJrrc-
senLations or 1>romises formilg a part of
it. To the contrary, the surplusagc sct
out in connection with allegations of
mailing, anrl the masking of acts, docu-
ments or conduct innocuous in thcm-
selves lly aplrcllations of "falsity" did
more to confuse than to clarify. The
trial court's instructions, howevcr accu-
rate, could not have resuscit:rted these
fatally defcctive charges, but the diffi-
culty was nr>t amclioratcd if, indcctl, iL
was not compoundc<l by their gencrality.
Under the circumstanccs indicated we
can see no alternative to the reverrial of
the judgment below for lack of suffi-
cient averments in the indictmcnt to
satisfy constitutional requirements;
manifestly it did not comJrort with Rulc
7(c)( 1 ).

Reversed and remanded with di-
rections to dismiss the prese nL ;ndict-
ment.

-t-fo i ri wi7.r-ii)
\7*--"-'-"

\

I-arry JENKINS et al.,
Plaintiffs-Appel lants,

Y.

LOUISIANA STATE I}OAITD O}'
EDUCATION et al.,
Defendants-Appellees,

v.

Elmer Glynn PITRE et al.,
I ntervenors-Appel lants,

No. 7l|-21-r94.

United States Court of AJrpcals,
Fifth Circuit.

Jrn. 20, 7971>.

Itchr:rrring rrrr<l Ilchc:rring I,)n Ilrrnt:
I)cnicrl March 6, l\)71).

Stu<lcnLs brought acti<>n irllcging
th:rt thcir suspcnsion lronr sttrlc <.,rllcgt:

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