443 F2d 912 United States v. D Burton
443 F.2d 912
UNITED STATES of America, Appellee,
John D. BURTON, Appellant.
United States Court of Appeals, Fourth Circuit.
Argued May 6, 1971.
Decided May 28, 1971.
Robert Eugene Smith, Towson, Md. (Edwin D. Apell, Browns Mill, N.J., on brief), for appellant.
Nevette Steele, Jr., Asst. U.S. Atty. (George Beall, U.S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and BUTZNER, Circuit Judges.
Appeal is taken from a mail fraud conviction under 18 U.S.C. 1341. The government's case was based upon the striking similarity between the defendant's 'solicitation' for advertising and an ordinary invoice from the telephone company billing for space in its classified directory. The defendant did publish a national directory. Fault may be found only in the manner in which he attacted participants. The testimony of these unwary contributors to the defendant's finances was that after only a cursory examination they believed that they were paying for the telephone directory advertising, and that they would not have knowingly subscribed to the defendant's directory.
We note that the solicitation mailed by the appellant was not identical to a bill for a 'yellow pages' listing and that it disclosed on its face that it was merely a solicitation. But we conclude that there was sufficient evidence to support a jury's finding that the appellant's notices were calculated to mislead the unwary and that their mailing was punishable as mail fraud. Linden v. United States, 4 Cir., 254 F.2d 560.
Earlier he had suspended a similar enterprise based in Florida after warnings by a postal inspector. He moved to California, however, and resumed the business there. It was from California that he caused the mailings upon which this indictment is based.