ERBAUGH v. UNITED STATES, 173 F. 433

SANBORN, Circuit Judge. The complaint in this case is that the defendant below was convicted and sentenced for using the mails to defraud, in violation of

section 5480 of the Revised Statutes (3 U. S. Comp. St. 1901, p. 3696, Act June 8, 1812, c. 335, 11 Stat. 323, as. amended by Act March 2, 1889, c. 393, § 1, 25 Stat. 813).

There are many specifications of error, but the most serious one is that the defendant’s motion for arrest of judgment upon the ground that the indictment charged no offense was denied, and he was sentenced for devising a fraudulent scheme to be effected by intending to. open and opening a correspondence with himself by means of the post office establishment, when the only offense denounced by the statute is devising a fraudulent scheme to be effected, either by opening or intending- to open correspondence with some other person by means of the post office establishment, or inciting such other person to open communication with him.

The statute, so far as material here, reads: “If any person having devised or intending to devise any scheme or artifice to defraud, * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States,-by means of the post office establishment of the United States, or by inciting such other person or any person- to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do," mail any letter or receive any letter from the mail, he shall, upon conviction, be punishable by a fine or imprisonment, or both.

The gravamen of this offense is not the intended or perpetrated fraud, but the intended use of the post office establishment of the United States to perpetrate the fraud.

The charge in the indictment was that the defendant had devised a scheme to defraud which he “intended to effect by opening correspondence with himself under an assumed and fictitious name by means of the post office establishment of the United States,” and that he assumed a false name and caused letters to be written, to be signed by that name, to be sent to and received by himself through the post office establishment for the purpose of carrying out his scheme to defraud.

The act forbidden by the statute is not the deposit in or the receipt from the Post Office Department of the United States of a letter or circular for the purpose of executing a fraudulent scheme, as in

section 215 of the Criminal Code (Act March é, 1909, c. 321, § 215, 35 Stat. 1130). It is the intent to effect the scheme to defraud by either opening or intending to open correspondence or communication with any person by means of the mails, or by inciting such other person or any person to open communication with the schemer.

The obvious and common meaning of opening or intending to open correspondence with a person imports distance between him who opens or intends to open it and his intended correspondent, which renders the use of the mails convenient or necessary, and that his correspondent is some other person than himself, for one cannot open communication with himself by means of the post office establishment by writing and sending- letters to himself through the mails, because the communication with himself- in-such a case must necessarily be opened and intended to be opened when the letter is written and before it is mailed.

The clause in this

section of the statute, “or by inciting such other person or any person to open communication with the persons so devising or intending,” clearly indicates that the person mentioned in the preceding clause, with whom the deviser opens or intends to open correspondence, is to be such “other person” and not himself. In 1894 in Stokes v. United States, 157 U. S. 187, 188, 15 Sup. Ct. 617, 618, 39 L.

Ed. 667, the Supreme Court declared that there were three matters of fact which must be charged in the indictment and established by the evidence under this statute, and that the second of these was that the persons charged “must have intended to effect this scheme by opening' or intending to open correspondence with some other persons through the post office establishment, or by inciting such other persons to open communication with them,” and this proposition has been sustained without dissent by the opinions and the practice of the courts. United States v. Long (D. C.) 68 Fed. 348, 349; Milby v.

United States, 109 Fed. 638, 640, 641, 48 C. C. A. 574; United States v. Post (D. C.) 113 Fed. 852, 853; Horman v. United States, 116 Fed. 350, 351, 53 C. C. A. 570; Stewart v. United States, 119 Fed. 89, 93, 55 C. C. A. 641; Ewing v. United States, 136 Fed. 53, 54, 69 C. C. A. 61, 62; Brown v. United States, 74 C. C. A. 214, 216, 219, 143 Fed. 60, 62, 65; Rumble v. United States, 143 Fed. 772, 776, 75 C. C. A. 30; United States v. Smith (D. C.) 166 Fed. 958, 960.

Counsel for the United States, in support of their contention that the intent to effect the scheme by opening correspondence with one’s self constitutes an offense within the meaning of this statufe, cite Weeber v. United States (C. C.) 62 Fed. 740, 741, and United States v. Ryan (D. C.) 123 Fed. 634.

The opinion in the latter case is founded upon th'e decision in the Weeber Case, and a perusal of the indictment in the Weeber Case, which does not appear in the report, has disclosed the fact that it expressl)' charged that the defendant intended to effect his scheme by opening correspondence and communication by means of the post office establishment with another person, and the opinion of Mr. Justice Brewer shows that the defendant was charged with using the post office establishment to open a correspondence with one Stevens, or to incite the latter to open a correspondence with him.

The question presented in this case was not at issue in the Weeber Case, was not presented to the court that decided that case, and it was not suggested to the minds of the judges who participated in its consideration. The decision in that case neither rules nor purports to rule the question under consideration here. The offense denounced by

section 5480 was created by that statute, the punishment it prescribes is severe, and a penal statute which creates and denounces' a new offense should be strictly construed. The definition of the offense and the classification of the offenders are legislative, not judicial, fitnctions, and one who was not beyond reasonable doubt within the class declared punishable by the expressed will of Congress may not be brought within that class after the event by

interpretation. Ex post facto law by judicial construction is as pernicious as ex post facto legislation. United States v. Wiltberger, 5 Wheat. 77, 96, 5 L. Ed. 37; United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482; Martin v. United States (C. C. A.) 168 Fed. 198, 202, 203; Field v. United States, 137 Fed. 6, 8, 69 C. C. A. 568, 570; United States v. Clayton, Fed. Cas. No. 14,814; In re McDonough (D. C.) 49 Fed. 360; United States v. Lake (D. C.) 129 Fed. 499. At the time when the defendant is alleged to have committed the acts for which he was sentenced, the common and natural meaning of the terms of this

section 5480, and the uniform judicial

interpretation of it for many years, limited the class punishable under it to those who intended to effect their fraudulent schemes either by opening or by intending to open correspondence or communication with some other person or persons by means of the post office establishment of the United States, or by inciting such other person or persons to open communication with them. This was the true

interpretation of this law, and the averments in the indictment that the defendant intended to effect his scheme by opening correspondence or communication with himself by means of the post office establishment failed to bring his case within this statute and charged no offense against him. The judgment below must accordingly be reversed, and the case must be remanded to the District Court, with directions to grant the motion in arrest of judgment, to set aside the verdict, to quash the indictment, and to discharge the defendant; and it is so ordered.