(B) STATUTES OF THE STATES AND TERRITORIES.

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1953.

PEREIRA ET AL. v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 50. Argued October 20, 1953. Decided February 1, 1954.

Petitioners were convicted in a federal court of (1) violating the mail fraud statute, 18 U. S. C. § 1341, by causing a letter to be mailed by a bank pursuant to a scheme to defraud, (2) violating the National Stolen Property Act, 18 U. S. C. § 2314, by causing a check obtained by fraud to be transported by a bank in Texas to a bank in California for collection, and (3) a conspiracy to commit the two substantive offenses in violation of 18 U. S. C. § 371. The charges arose out of a scheme to defraud a wealthy widow of her property. Petitioner Pereira married her and absconded shortly thereafter. She divorced him before the trial and was permitted to testify against both petitioners over their objections. Held: The convictions are affirmed. Pp. 3-13.

1. There was no error in the admission of the victim's testimony over the objection that it violated the privilege for confidential marital communications; because it related primarily to statements made before the marriage or in the presence of third persons or acts which did not amount to confidential marital communications, and any residuum which may have been intended to be confidential was so slight as to be immaterial. Pp. 6-7.

2. Evidence that, pursuant to a scheme to defraud, Pereira delivered to a bank in one city for collection a check drawn on a bank in another city and that it was mailed to the drawee bank in the ordinary course of business was sufficient to sustain his

conviction of the substantive offense of using the mails to defraud, in violation of 18 U. S. C. § 1341. Pp. 7-9.

(a) In view of 18 U. S. C. § 2 (b), it was not necessary to show that petitioner actually mailed or transported anything himself; it was sufficient to show that he caused it to be done. P. 8. (b) Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. Pp. 8-9.

3. Evidence that Pereira delivered to a Texas bank for collection a check obtained by fraud and drawn on a bank in California and that it was sent to the drawee bank was sufficient to sustain his conviction of the substantive offense of causing property obtained by fraud to be transported in interstate commerce in violation of 18 U.S. C. § 2314. P. 9.

4. Sections 1341 and 2314 constitute two separate offenses, and a defendant may be convicted of both, even though the charges arise from a single act or series of acts, since each requires proof of a fact not essential to the other. P. 9.

5. In view of 18 U. S. C. § 2 (a) and the trial court's charge to the jury, the evidence presented by the Government that petitioner Brading was a participant in the fraud from beginning to end and actively aided and abetted Pereira in its perpetration was sufficient to sustain Brading's conviction of the substantive offenses. Pp. 9-11.

6. Petitioners' convictions on both the substantive counts and of a conspiracy to commit the crimes charged in the substantive counts did not constitute double jeopardy. Pp. 11-12.

7. The evidence was sufficient to sustain petitioners' convictions on the charge of conspiracy. Pp. 12-13.

202 F. 2d 830, affirmed.

Charles L. Sylvester argued the cause for petitioners. With him on the brief was William H. Fryer.

John R. Wilkins argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Beatrice Rosenberg.