United States v. Sampson (371 U.S. 75)/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I think that today the Court materially qualifies Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277. There, in the face of the jury's verdict, we held that a check on a third party's funds, mailed to pay for property after the property had been fraudulently 'obtained,' could not be 'for the purpose of executing' a scheme to obtain the property. As the statute makes clear, there is only one foundation for prosecution under the statute and that is using the mails 'for the purpose of executing' the various schemes described in the Act. So far as is relevant here, those schemes are either to defraud or to obtain money by false or fraudulent representations.

It is possible that in this case indictments could be drawn which charge the use of mails to lull existing victims into a feeling of security so that a scheme to obtain money from other victims could be successfully consummated. The opinion does not so construe the indictment but concludes, as I read it, that the mere lulling of existing victims into a sense of security is enough. If that is enough, then in the Parr case it would seem that we should have sustained the conviction because the defendants there may well have wanted the third party to pay for the property that had been fraudulently obtained so that they would not be apprehended. In the Parr case, as here, there was 'a continuing course of conduct' (to borrow a phrase from the dissent, 363 U.S., at 402, 80 S.Ct. at 1189) not only to obtain money fraudulently but also to conceal the fraud so that future peculations might be possible. In Parr, future peculations from the same taxpayers were part of the scheme. Here there is no suggestion that those previously defrauded were to be defrauded a second time. The mails were used only to tranquilize those already defrauded. Or at least that is the only way I can read this indictment. It is therefore a much weaker case than Parr.

We should not struggle to uphold poorly drawn counts. To do so only encourages more federal prosecution in fields that are essentially local.