United States v. Kenofskey , 235 F. 1019 ( 1916 )

FOSTER, District Judge.

In this case the indictment sets up a scheme to defraud by use of the mail, in violation of section 215 of the Penal Code. The facts charged upon which the overt act is predicated are as follows: Kenofskey was an agent and assistant superintendent of the Life Insurance Company of Virginia at New Orleans, and it was part of his duty to view and identify the remains and obtain certificates of deaths of the persons insured. He devised a scheme to defraud the insurance company by presenting to it fraudulent death claims supported by false certificates. Pie knew all such claims required approval by the home office of the company at Richmond, Va., before payment, and were sent by mail from the local office to the home office. In pursuance of the scheme he handed certain false documents to the local superintendent at New Orleans, and he in turn approved them without knowledge of their fraudulent character, and deposited them in the mail for transmission to the home office in Richmond.

It is alleged the defendant knew the documents would be sent by mail, and intended that they should be. The depositing of the letter in the mail for the purpose of executing the scheme is the crime. The defendant did not mail the letter, and the local superintendent of the insurance company was not his agent. It is not charged it was the duty of the defendant either to prepare for mailing or to actually mail the papers. Pie is sought to be held on the theory that as he knew the claim would be mailed to the home office, in the usual course of the business, for approval before payment, he knowingly caused it to be deposited. This theory is too far-fetched to be tenable. Furthermore, in order to constitute a crime, the mailing of the letter must have been a step in the execution of the fraudulent scheme. The scheme devised by defendant was completely executed when he handed the false claim to the local agent at New Orleans.

However desirable it may be from the viewpoint of the victim to try all perpetrators of fraudulent schemes in the federal courts, this court cannot assume jurisdiction, except in clear cases.

The demurrer will be sustained.