Waterman, Moore and Kaufman, Circuit Judges.
Regent Office Supply, Inc. (Regent) and Oxford Office Systems, Inc. (Oxford) were indicted and tried under a somewhat unusual procedure whereby the accused corporations, through their officers and their attorney, in effect agreed to be indicted and expeditiously tried upon certain "admissions and stipulations" of fact constituting the alleged crime. Through the indictment and the one-day trial, both defendants and the government were interested primarily in ascertaining whether or not the admitted conduct fell within the prohibition of 18 U.S.C. § 1341, the federal mail fraud statute.
Having been convicted -- much to their chagrin -- by the District Court, defendants sought to challenge the jurisdiction of the court by a post-verdict, pre-sentence motion to dismiss the indictment, protesting the irregularity of the pre-indictment procedure in which originally they had cooperated so enthusiastically with the government.
On this appeal from conviction and sentence, appellants renew their challenge to the justiciability of the issue as presented by the (at least cooperative) indictment. They further protest their own stipulation as to the presence of the jurisdictional element of the crime -- use of the mails -- and they continue to challenge the applicability of the mail fraud statute to their admittedly deceitful operation. Rounding out their attack on the conviction, they register broad assertions of due process violations in the present application of an otherwise constitutional statute and, for the finale, suggest that the statute itself is unconstitutionally vague.
The appellants are in the business of selling stationery supplies through salesmen (called "agents") who solicit orders for their merchandise by telephone. Worried by the dubious propriety of a "sales pitch," which according to their formal admission included "false pretenses and representations to customers," and probably even more worried by an investigation into their practices by the Post Office Department and the possibility of governmental prosecution, they adopted (obviously with the cooperation of the federal government) a procedure which they hoped would obtain for them (and the "sales pitch") the blessing of the courts. Accordingly they stipulated in writing that their agents "secured sales" by making false representations to potential customers that:
(a) the agent had been referred to the customer by a friend of the customer.
(b) the agent had been referred to customer firms by officers of such firms.
(c) the agent was a doctor, or other professional person, who had stationery to be disposed of.
(d) stationery of friends of the agent had to be disposed of because of a death and that the customer would help to relieve this difficult situation by purchasing it.
So anxious were the accused parties to have judicially approved -- or disapproved -- their salesmen's customer approach that they sought an immediate trial even to the extent of waiving "trial by jury if indicted for mail fraud in violation of 18 U.S.C. sec. 1341" and agreeing "to stand trial on the basis of these admissions * * * and stipulations, reserving, however, the right to offer testimony to amplify, but not to contradict, the facts contained in these admissions and stipulations." They quite candidly stipulated that they wished "to submit to the court the issue whether a procedure or plan to sell stationery [as described above] constitutes a scheme to defraud or to obtain money by false or fraudulent representations or [promises] within the meaning of 18 U.S.C. Sec. 1341." If the court should so find against them they stipulated that "judgment may be entered against the corporations."
The indictment (undated) was filed on October 3, 1968. Since the grand jury minutes were not transcribed (delivery and transcription were waived by the defendants), this Court is not aware of what, if anything, was presented to the grand jury.*fn1 The only description of any false and fraudulent pretenses is the enumeration, in substance, of the (a), (b), (c) and (d) of the stipulation.
With lightning speed Regent and Oxford pleaded not guilty and waived jury trial. The trial commenced and concluded on October 16, 1968. The government's case consisted entirely of the defendants' stipulation. The reaction, if any, of any customers to the representations or the effect, if any, of such reaction on the commercial transactions was not revealed. On the ...