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.
The convictions are affirmed. Pp. 347 U. S.
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. 347 U. S. 6
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
Page 347 U. S. 2
conviction of the substantive offense of using the mails to
defraud, in violation of 18 U.S.C. § 1341. Pp. 347 U. S. 7
(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.
347 U. S. 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. 347 U. S. 8
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. 347 U. S. 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. 347 U. S. 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. 347 U. S.
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. 347 U. S.
7. The evidence was sufficient to sustain petitioners'
convictions on the charge of conspiracy. Pp. 347 U. S.
202 F.2d 830 affirmed.
Page 347 U. S. 3
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The petitioners, Pereira and Brading, were convicted in the
District Court for the Western District of Texas under three counts
of an indictment charging violation of the mail fraud statute, 18
U.S.C. (Supp. V) § 1341, violation of the National Stolen Property
Act, 18 U.S.C. (Supp. V) § 2314, and a conspiracy to commit the
aforesaid substantive offenses, 18 U.S.C. (Supp. V) § 371. The
Court of Appeals for the Fifth Circuit affirmed. 202 F.2d 830. This
Court granted certiorari to consider questions which are important
to the proper administration of criminal justice in the federal
courts. 345 U.S. 990.
On April 19, 1951, Mrs. Gertrude Joyce, a wealthy widow,
fifty-six years old, and her younger half-sister, Miss Katherine
Joyner, were accosted by the petitioner Brading as they were about
to enter a hotel in El Paso, Texas. Mrs. Joyce and her sister had
just arrived from their home in Roswell, New Mexico, and were
preparing to register at the hotel. Brading identified himself,
assisted them in parking their car, and invited them into the hotel
bar to meet a friend of his. They accepted. The friend was
petitioner Pereira, thirty-three years of age. After a few drinks,
the men suggested that they all go to Juarez for dinner. The women
accepted, and, after dinner, visited some night clubs with the
petitioners. Pereira devoted himself to Mrs. Joyce, telling her
that their meeting was an "epoch" in his life. He mentioned that he
was getting a divorce. This same performance was repeated the
following night. When Pereira said that he would like to return to
Roswell with the women, Mrs. Joyce invited the two men to be her
house guests, and they accepted. Pereira commenced to make love to
Mrs. Joyce, and she responded to his attentions. On May 3, Pereira
exhibited a telegram to Mrs. Joyce, in the presence
Page 347 U. S. 4
of Brading and Miss Joyner, stating that his divorce would be
granted on May 27, but that he would not receive his share of the
property settlement, some $48,000, for a month.
Brading represented himself as a prosperous oil man, dealing in
leases, and Pereira as the owner and operator of several profitable
hotels. Brading then told Mrs. Joyce that Pereira was about to lose
an opportunity to share in the profits of some excellent oil leases
because of the delay in the divorce property settlement, and
persuaded her to lend Pereira $5,000.
Pereira suggested that he and Mrs. Joyce take a trip together to
"become better acquainted." He borrowed $1,000 from her to finance
the trip. Brading joined them at Wichita Falls, and the three of
them continued the trip together as far as Dallas. Pereira
discussed his purported hotel business in Denver during this part
of the trip. He stated that he was giving two hotels to his
divorced wife, but intended to reenter the hotel business in the
fall. In the meantime, he was going to "play a little oil" with
Brading. In Hot Springs, Arkansas, Pereira proposed marriage and
was accepted. Brading reappeared on the scene, expressing great joy
at the impending marriage. Pereira then told Brading, in the
presence of Mrs. Joyce, that he would have to withdraw from further
oil deals and get a hotel to assure himself of a steady income.
Pereira and Mrs. Joyce were married May 25, 1951, in Kansas
City, Missouri. While there, Pereira persuaded Mrs. Joyce to
procure funds to enable him to complete an arrangement to purchase
a Cadillac through a friend. She secured a check for $6,956.55 from
her Los Angeles broker, and drawn on a California bank, which she
endorsed over to Pereira. The price of the car was $4,750, and she
instructed Pereira to return the balance of the proceeds of the
check to her. He kept the change.
Page 347 U. S. 5
From that time on, Pereira and Brading, in the presence of Mrs.
Joyce, discussed a hotel which by words and conduct they
represented that Pereira was to buy in Greenville, Texas. They took
Mrs. Joyce -- by this time, Mrs. Pereira -- to see it, and
exhibited an option for its purchase for $78,000 through a supposed
broker, "E. J. Wilson." Pereira asked his then wife if she would
join him in the hotel venture and advance $35,000 toward the
purchase price of $78,000. She agreed. It was then agreed, between
her and Pereira, that she would sell some securities that she
possessed in Los Angeles, and bank the money in a bank of his
choosing in El Paso. On June 15, she received the check for $35,000
on the Citizens National Bank of Los Angeles from her brokers in
Los Angeles, and gave it to Pereira, who endorsed it for collection
to the State National Bank of El Paso. The check cleared, and, on
June 18, a cashier's check for $35,000 was drawn in favor of
At five o'clock in the morning of June 19, Pereira and Brading,
after telling their victim that they were driving the Cadillac to a
neighboring town to sign some oil leases, left her at home in
Roswell, New Mexico, promising to return by noon. Instead, Pereira
picked up the check for $35,000 at the El Paso Bank, cashed it
there, and, with Brading left with the money and the Cadillac.
That was the last Mrs. Joyce saw of either petitioner, or of her
money, until the trial some seven months later. She divorced
Pereira on November 16, 1951.
The record clearly shows that Brading was not an oil man; that
Pereira was not a hotel owner; that there was no divorce or
property settlement pending in Denver; that Pereira arranged to
have the telegram concerning the divorce sent to him by a friend in
Denver; that there were no oil leases; that the hotel deal was
wholly fictitious; and that "E. J. Wilson" was the petitioner
Brading. The only true statements which the petitioners
Page 347 U. S. 6
made concerned the purchase of the Cadillac, and they took that
with them. Pereira and Brading contrived all of the papers used to
lend an air of authenticity to their deals. In short, their
activities followed the familiar pattern of the "confidence
The petitioners challenge the admissibility of Mrs. Joyce's
testimony as being based on confidential communications between
Mrs. Joyce and Pereira during the marriage. Petitioners do not now
contend that Mrs. Joyce was not a competent witness against her
ex-husband. They concede that the divorce removed any bar of
incompetency. That is the generally accepted rule. Wigmore,
Evidence, § 2237; 58 Am.Jur., Witnesses, § 204. Petitioners rely on
the proposition that, while divorce removes the bar of
incompetency, it does not terminate the privilege for confidential
marital communications. Wigmore, Evidence, § 2341(2); 58 Am.Jur.,
Witnesses, § 379. This is a correct statement of the rule, but it
is inapplicable to bar the communications involved in this case,
since, under the facts of the case, it cannot be said that these
communications were confidential. Although marital communications
are presumed to be confidential, that presumption may be overcome
by proof of facts showing that they were not intended to be
private. Blau v. United States, 340 U.
; Wolfle v. United States, 291 U. S.
. The presence of a third party negatives the
presumption of privacy. Wigmore, Evidence, § 2336. So too, the
intention that the information conveyed be transmitted to a third
§ 2336. The privilege generally extends only
to utterances, and not to acts. Id.,
§ 2337. A review of
Mrs. Joyce's testimony reveals that it involved primarily
statements made in the presence of Brading or Miss Joyner, or both,
acts of Pereira which did not amount to communications, trips taken
with third parties, and her own acts. Much of her
Page 347 U. S. 7
testimony related to matters occurring prior to the marriage.
Any residuum which may have been intended to be confidential was so
slight as to be immaterial. Cf. United States v. Mitchell,
137 F.2d 1006, 1009.
The court below was not in error in admitting Mrs. Joyce's
The petitioners challenge their conviction on the substantive
counts on the ground that there was no evidence of any mailing or
of transporting stolen property interstate, the gist of the
respective offenses. These contentions are without merit.
The mail fraud statute provides:
"§ 1341. Frauds and swindles"
"Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises, or to
sell, dispose of, loan, exchange, alter, give away, distribute,
supply, or furnish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or anything
represented to be or intimated or held out to be such counterfeit
or spurious article, for the purpose of executing such scheme or
artifice or attempting so to do, places in any post office or
authorized depository for mail matter, any matter or thing whatever
to be sent or delivered by the Post Office Department, or takes or
receives therefrom, any such matter or thing, or knowingly causes
to be delivered by mail according to the direction thereon, or at
the place at which it is directed to be delivered by the person to
whom it is addressed, any such matter or thing, shall be fined not
more than $1,000 or imprisoned not more than five years, or
18 U.S.C. (Supp. V) § 1341.
Page 347 U. S. 8
The National Stolen Property Act provides:
"§ 2314. Transportation of stolen goods, securities, monies, or
articles used in counterfeiting"
"Whoever transports in interstate or foreign commerce any goods,
wares, merchandise, securities or money, of the value of $5,000 or
more, knowing the same to have been stolen, converted or taken by
fraud. . . ."
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both. . . ."
18 U.S.C. (Supp. V) § 2314.
To constitute a violation of these provisions, it is not
necessary to show that petitioners actually mailed or transported
anything themselves; it is sufficient if they caused it to be done.
18 U.S.C. (Supp. V) § 2(b).
Petitioners do not deny that the proof offered establishes that
they planned to defraud Mrs. Joyce. Collecting the proceeds of the
check was an essential part of that scheme. For this purpose,
Pereira delivered the check drawn on a Los Angeles bank to the El
Paso bank. There was substantial evidence to show that the check
was mailed from Texas to California in the ordinary course of
The elements of the offense of mail fraud under 18 U.S.C. (Supp.
V) § 1341, are (1) a scheme to defraud, and (2) the mailing of a
letter, etc., for the purpose of executing the scheme. It is not
necessary that the scheme contemplate the use of the mails as an
essential element. United States v. Young, 232 U.
. Here, the scheme to defraud is established, and
the mailing of the check by the bank, incident to an essential part
of the scheme, is established. There remains only the question
whether Pereira "caused" the mailing. That question is easily
answered. Where one does an act with
Page 347 U. S. 9
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. United States v. Kenofskey, 243 U.
. The conclusion that Pereira's conviction under
this count was proper follows naturally from these factors.
As to the charge of causing stolen property to be transported in
interstate commerce, the validity of Pereira's conviction is even
more apparent. Sections 1341 and 2314 of Title 18 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, so
long as each requires the proof of a fact not essential to the
other. Gavieres v. United States, 220 U.
; Blockburger v. United States,
284 U. S. 299
U.S.C. (Supp. V) § 2314 requires (1) knowledge that certain
property has been stolen or obtained by fraud, and (2) transporting
it, or causing it to be transported in interstate commerce. It is
obvious that the mail fraud offense requires different proof. The
transporting charge does not require proof that any specific means
of transporting were used, or that the acts were done pursuant to a
scheme to defraud, as is required for the mail fraud charge.
United States v. Sheridan, 329 U.
. When Pereira delivered the check, drawn on an
out-of-state bank, to the El Paso bank for collection, he "caused"
it to be transported in interstate commerce. It is common knowledge
that such checks must be sent to the drawee bank for collection,
and it follows that Pereira intended the El Paso bank to send this
check across state lines. United States v. Sheridan,
at 329 U. S. 391
The trial court charged the jury that one who "aids, abets,
counsels, commands, induces, or procures" the commission of an act
is as responsible for that act as if he had directly committed the
Page 347 U. S. 10
18 U.S.C. (Supp. V) § 2(a). Nye & Nissen v.
United States, 336 U. S. 613
jury found Brading guilty in the light of this instruction. The
Court of Appeals, 168 F.2d 846, affirmed on the ground that the
evidence supported conviction under this charge. *
The evidence is clear and convincing that Brading was a
participant in the fraud from beginning to end. Brading made the
initial contact with the victim. He persuaded her to part with
$5,000, as a loan to Pereira for investment in some nonexistent oil
leases. He was present and participated in conversations about
buying the hotel lease. He engaged a telephone answering service
under the name of "E. J. Wilson," the name of Pereira's purported
broker. The evidence established that he sent a telegram to Pereira
authorizing an extension of the supposed option to purchase the
hotel, signing it "E. J. Wilson." He supplied the false excuse for
Pereira's departure from the victim, and went with Pereira to
collect the proceeds of the check. He and Pereira fled together
with the money.
The "aiding and abetting" instruction entitled the jury to draw
inferences supplying any lack of evidence directly connecting the
petitioner Brading with the specific acts charged in the indictment
from the abundant circumstantial evidence offered. The jury was
properly charged on this theory. There is ample evidence of the
petitioners' collaboration and close cooperation in the fraud
Page 347 U. S. 11
which the jury could conclude that Brading aided, abetted, or
counseled Pereira in the commission of the specific acts charged.
See Nye & Nissen v. United States, supra,
336 U. S. 619
The Court of Appeals has passed on the sufficiency of the evidence
to sustain Brading's conviction on this theory. We see no reason to
upset the findings of the courts below.
The petitioners allege that their conviction on both the
substantive counts and a conspiracy to commit the crimes charged in
the substantive counts constitutes double jeopardy. It is settled
law in this country that the commission of a substantive offense
and a conspiracy to commit it are separate and distinct crimes, and
a plea of double jeopardy is no defense to a conviction for both.
See Pinkerton v. United States, 328 U.
, 328 U. S.
-644, and cases cited therein. Only if the
substantive offense and the conspiracy are identical does a
conviction for both constitute double jeopardy. Cf. Gavieres v.
United States, 220 U. S. 338
substantive offenses with which petitioners were charged do not
require more than one person for their commission; either could be
accomplished by a single individual. The essence of the conspiracy
charge is an agreement to use the mails to defraud and/or to
transport in interstate commerce property known to have been
obtained by fraud. Pereira's conviction on the substantive counts
does not depend on any agreement, he being the principal actor.
Similarly, Brading's conviction does not turn on the agreement.
Aiding, abetting, and counseling are not terms which presuppose the
existence of an agreement. Those terms have a broader application,
making the defendant a principal when he consciously shares in a
criminal act, regardless of the existence of a conspiracy. Nye
& Nissen v. United States, supra,
at 336 U. S. 620
Thus, the charge of conspiracy requires proof not essential to the
Page 347 U. S. 12
the substantive offenses -- proof of an agreement to commit an
offense against the United States -- and it cannot be said that the
substantive offenses and the conspiracy are identical, any more
than that the two substantive offenses are identical.
Petitioners further contend that there was no evidence that they
agreed to use the mails in furtherance of the scheme to defraud
Mrs. Joyce or that they agreed to transport stolen property in
interstate commerce. It is not necessary that an agreement to use
the mails or transport stolen property exist from the inception of
the scheme to defraud. If there was such an agreement at any time,
it is sufficient. The existence of a conspiracy to defraud Mrs.
Joyce is not denied. Pereira obtained a check from the victim for
the purchase of an automobile. That check was drawn on a Los
Angeles bank by Mrs. Joyce's brokers. When the subject of
purchasing the hotel was broached, Mrs. Joyce told Pereira that she
would have to have her California broker sell some stocks to obtain
the funds for the purchase. When there was a delay in contacting
the broker, Brading, as "E. J. Wilson," sent a telegram extending
the spurious option for the purchase of the hotel. There is no
doubt about Pereira's knowledge that a check on an out-of-state
bank would be involved. From what we have said with regard to the
substantive offenses, it is also clear that an intent to collect on
the check would include an intent to use the mails or to transport
the check in interstate commerce. It was certainly not improper to
allow the jury to determine from the circumstances whether Brading
shared Pereira's knowledge and agreed with him as to the use of the
only appropriate means of collecting the money. It would be
unreasonable to suppose that Brading would be so closely associated
with Pereira in the scheme to defraud without knowing the details
related to the realization of their common
Page 347 U. S. 13
goal. There is no reason for this Court to upset the jury's
finding of conspiracy.
For the foregoing reasons, the judgment below is
MR. JUSTICE REED took no part in the consideration or decision
of this case.
* The Government argues that Brading's conviction on the
substantive offenses can be affirmed on the basis of Pinkerton
v. United States, 328 U. S. 640
since the record demonstrates that he conspired to defraud Mrs.
Joyce and the acts charged in the substantive offenses were acts in
furtherance of that design. The Pinkerton
is inapplicable here, since the jury was not instructed in terms of
that theory. Nye & Nissen v. United States,
336 U. S. 613
MR. JUSTICE MINTON, with whom MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS join, concurring in part and dissenting in part.
That a monumental fraud was perpetrated by the petitioners on
Mrs. Joyce in the true fashion of a confidence game cannot be
disputed. Such fraud could be punished by the States. For the
United States to take cognizance of the offenses, the mails had to
be used to carry out the fraud or the check fraudulently obtained
must have been carried across state lines. That is what the
Government charged. Count one charged that they caused a letter to
be mailed from El Paso, Texas, to Los Angeles, California, on June
15, 1951. Count ten charged that, on or about the same date, they
caused the check, in the amount of $35,286.78, to be transported in
interstate commerce from El Paso to Los Angeles, knowing it was
obtained by fraud. Count 11 charged a conspiracy to commit the
I would affirm the convictions except as to Brading on the
substantive counts. To convict on the substantive counts, the
petitioners must have actually used the mails to transport the
check from El Paso to Los Angeles. The use may be proved by direct
or circumstantial evidence, but it must be proved. Brading must
have used, or must have known or from the facts and circumstances
be reasonably expected to have known, that Pereira actually
Page 347 U. S. 14
would use the mails. United States v. Peoni,
401, 402. To be guilty of the conspiracy, Brading had only to
reasonably anticipate that Pereira might use the mails, and if he
did subsequently use them, then Brading is bound.
The elements of the offense under the Mail Fraud statute are (1)
a scheme to defraud which (2) reasonably contemplates the use of
the mails, and (3) use of the mails in furtherance of the plan. The
National Stolen Property Act is violated if (1) one transports
securities or money of the value of $5,000 or more in interstate
commerce and (2) does so knowing they have been taken by fraud.
Concededly, Brading did not participate directly in the use of
the mails to transport the thirty-five thousand dollar check from
El Paso to Los Angeles. He can be convicted, if at all, only as an
aider and abettor. Nye & Nissen v. United States,
336 U. S. 613
336 U. S. 618
There is no evidence to establish that he could reasonably have
expected that the mails would be used in carrying out the
Three financial transactions are mentioned by the Court in its
opinion. First, the $5,000 transaction. That all took place in
Roswell, New Mexico, where Mrs. Joyce cashed a check on a Roswell
bank and gave the proceeds to Pereira. No federal offense there.
The Cadillac transaction was liquidated by a check received from
Los Angeles by Mrs. Joyce and turned over to Pereira, who cashed it
in Kansas City, Missouri. Brading was not shown to have known where
this money came from, and, more important, it was not proved that
that check was mailed, as was done in the case of the third check,
Mrs. Joyce arranged for this check, the only transaction upon
which the convictions are based, by selling securities in Los
Angeles. She received the check and
Page 347 U. S. 15
turned it over to Pereira in Roswell, New Mexico, from whence he
took it to El Paso, and there, on June 15, 1951, after securing
Mrs. Joyce's endorsement, caused it to be sent through the mails
for collection. The evidence does not show where Brading was at the
time these events occurred. He next appeared at Mrs. Joyce's home
in Roswell after the completion of the acts constituting the
federal crimes, and, on June 19, 1951, left with Pereira,
ostensibly to see about some oil leases in Texas. The same day,
Pereira collected the money at the El Paso bank. There is no direct
evidence that Brading actually knew or had reason to believe that a
check would be received or that the check would be drawn on an
out-of-town bank, necessitating its being placed in the mails for
Lacking such proof, an important element of each crime charged,
namely, that Brading had reason to foresee the use of the mails or
interstate commerce, has not been established. It is true that the
use of the mails need not have been originally intended as a part
of the plan, but its use must have been a natural, reasonably
foreseeable means of executing the plan. Brading might well have
assumed that cash would be given to Pereira, or, if a check, one
drawn on a local bank.
It may well be reasonable to infer that one receiving a check
drawn on an out-of-town bank would know that it would be mailed in
the process of collection, but to that inference must be added the
inference that Brading had reason to know that a check would be
received, and also that the check would be on an out-of-town bank.
This is piling inference upon inference, in the absence of direct
proof. In short, this is simply guessing Brading into the federal
penitentiary. It may be good guessing, but it is not proof.
Brading is clearly an aider and abettor of the scheme to
defraud, which a State may punish, but is he an aider
Page 347 U. S. 16
and abettor of the federal offenses of using the mails to
defraud and causing the fraudulent check to be carried across state
lines? I think not, unless we are willing to say that aiding and
abetting the scheme to defraud is aiding and abetting any means
used for the consummation of the fraud. Brading must aid and abet
the federal crimes, not just the fraudulent scheme. There is not a
scintilla of evidence that Brading aided and abetted anything more
than the scheme to get the money from Mrs. Joyce.
In Bollenbach v. United States, 326 U.
, the defendant was charged with transporting
securities in interstate commerce knowing them to have been stolen,
and with conspiracy to commit the offense. He was convicted of
conspiracy. The court had instructed the jury that possession of
the securities by the defendant in New York soon after their theft
in Minnesota was sufficient to warrant the jury in finding that the
defendant knew the securities had been stolen, and this would
support the further "presumption" that the defendant was the thief
and transported the securities in interstate commerce. This Court
set the conviction aside. The latter inference was said to be
In this case, I think it untenable to infer that Brading had
reason to know that Pereira would get a foreign check that must be
sent through the mails and in its handling must be carried across
state lines, thereby making out the federal crimes. It is untenable
because it is unreasonable to infer one or more facts from the
inference of another fact. Looney v. Metropolitan R. Co.,
200 U. S. 480
200 U. S. 488
United States v. Ross, 92 U. S. 281