August 29, 1958
In the Matter of the Complaint That
UNITED RACE NEWS, and
LARY GYSIN,
at
Coral Gables, Miami, Florida, and
Tampa, Florida
(hereinafter called Respondent), is
engaged in conducting a scheme for
obtaining money through the mails in
violation of 39 U. S. Code 259 and 732.
P.O.D. Docket No. 1/11
INITIAL DECISION OF HEARING EXAMINER
The administrative complaint in this case issued June 12, 1958, charges in substance that the above named Respondents, in violation of the statutes invoked, are obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations and promises to the effect:
a. That the respondent regularly furnishes to remitters the names of winning horses running forthcoming races;
b. That the wagering on horses whose names are furnished remitters by the respondent does not constitute "a guessing game" but insures certain winners;
c. That persons remitting to respondent for his race horse selections and who wager on the same are sure to "come home a winner";
d. That of the selections of race horses furnished remitters by respondent "none of the newspaper handicappers even will pick: such horses, that is to say that the respondent does not furnish the names of f favorites;
e. That "to beat the races you must pay for winning info.", that is to say that persons who remit to respondent for his racing selections are provided with winning selections.
f. That the selections of horses furnished remitters by respondent will provide a "big killing", that is to say such horses will uniformly win and pay large odds.
The complaint further charges that the operation of this enterprise is in violation of the terms of an affidavit executed June 5, 1953, by Respondent Larry V. Gysin and filed with the Department in H. E. Docket No. 2/79.
Copies of the complaint and notice of hearing were duly served upon Respondents on June 14, 1958. Respondents filed answer thereto denying any violation of law. Hearing in the matter was held before me in Washington, D. C., pursuant to notice on July 11, 1958, at which time Respondent Gysin, owner and operator of the enterprise complained against, appeared without counsel and was given full opportunity to participate in the hearing, testify as a witness in his own behalf and to introduce relevant and competent evidence. At the hearing Complainant, with the approval of the undersigned, waived submittal of proposed findings of fact and conclusions of law. Respondent Gysin, after extended explanation of the procedures for preparing and filing such findings and conclusions, was given the right to file them on behalf of Respondents, but none were received on or before the date fixed therefore. The entire official record has been considered by me in reaching this decision.
Post Office Inspector R. A. Carlton who investigated this case appeared as Complainant's only witness. In the course of his investigation the inspector conducted three separate sets of test correspondence with Respondents, which, with their various subexhibits, were received in evidence without objection (Dept. Exhibits 1, 2 and 3). Evidence contained in this correspondence and the inspector's testimony relative thereto show that in the operation of this enterprise Respondents publish at periodic intervals, and offer for sale through the mails and through the medium of newsstands, a publication called :United Race News," numerous copies of which are in evidence. These list the names of horses selected and rated by Gysin, himself an ex-jockey, as possible or predicted winners at races to be run at various tracks throughout the country. In the pages of these publications Respondents offer to furnish for the sum of $100.00 the name of "one solid horse that you can play with confidence," also called a "real long shot sleeper"; or for the sum of $2.00, a "Two-Horse Daily Parlay"; or for the sum of $10.00, a "Supreme Flash," also called "The Last Word in Long Shot Sleepers" on any day of the week, Monday through Saturday, chosen by the wagerer. A section of the back page which carries an advertisement concerning the "Supreme Flash" contains the statement that "Racing is not a guessing game. Millions of dollars change hands every day at the race track, and you can be in with these big winnings by giving our SUPREME FLASH a whirl."
Also included in each issue of this publication is a coupon for use by interested individuals in subscribing to United Race News for various periods, 5 issues 41.00, 10 issues $2.00, or one year $4.00. The publication is reported in the coupon as containing "Up to the Minute Clockers Reports--Hot Off the Press Our Expert Ratings at Your Finger Tips."
Evidently what Complainant relies on most importantly to support the representations charged to be false and fraudulent is a circular which is regularly included in and accompanies each issue of United Race News as a separate insert (e.g., Dept. Exhibit 1-A-1) a copy of which is attached to the complaint. Attached to this decision as an appendix is a copy of one of these circulars, which is typical of the others in evidence. As will be noted from reading this circular, a very prominent and most natural inducement to subscribe to Respondents' "services," which include a "$10.00 Supreme Flash," $5 issues of United Race News" and "1 - $2.00 Parlay," is the unequivocal assurance that so far as Respondents are concerned "RACING IS NOT A GUESSING GAME" (which statement also appears in Respondents' Supreme Flash advertisement in their publication) and other statements the net effect of which upon the ordinary person undoubtedly is to cause them to believe that Respondents will and can, in some unconventional, highly mysterious way, regularly furnish remitters the names of winning horses at forthcoming races, and that their method of selection positively eliminates all "guessing" and insures certain winners, and that their selections are far superior to and more reliable than those picked by "newspaper handicappers"; and further, that "none of the newspaper handicappers even will pick" the horses selected by Respondents as certain winners.
I therefore find that Respondents are making in substance and effect the representations charged in the complaint.
On the basis of the advertising thus published by Respondents, the investigating inspector made purchases of their "services" by money order remittances, in connection with which he received the names of a total of 10 horses running in various races. Of the 10 so selected by Respondents, the evidence shows that only one came in first, one came in second, one came in fourth, two came in fifth, one came in last, two came in sixth and two were "scratched," that is, eliminated from the races.
The evidence with respect to seven of these horses shows that out of the seven three were the favorites of current newspaper selector's consensus, one was second choice and one third choice. It is to be noted that in the case of a horse named "Devilment" Respondent Gysin sent to a test name used by the inspector a wire to call him; that upon doing so Gysin informed the inspector that "he had a horse going today that he was selling for $100.00" and that the inspector could be "sure of winning," and instructed the inspector. if he could not pay $100.00, to "put $25.00 on him" and that "Devilment" was a "5 or 6 to one shot." In further contrast to Gysin's claim that he furnished names that "none of the newspapers handicappers even pick," the horse "Devilment" was one of the horses, above referred to, which was chosen a favorite by every selector in the Selector's Box in the Miami Herald of March 24, 1958, and ran in the ninth race but came in last (Tr. 13-14).
The inspector testified that his investigation of Gysin's horse race - mail order activities commenced as far back as 1954 and that at various periods he made comprehensive checks of the results of Gysin's selections compared with the results shown in the newspapers of the races for which Gysin furnished the names of horses and that such checks indicated losses and not "wins" (Tr. 18). There were no wins for periods including a week or a month (Tr. 19). He testified that during the period November 6 to 17, 1954, a cover was made of all race tracks in operation at that time and that if he wagered $2.00 on each race, based on the selections furnished by Gysin he would have lost $76.50. During the month of February, 1955, if he had played Gysin's daily double, "Supreme Flash" and other selections, he would have lost $76.65 even after taking into consideration one "Supreme Flash: win of $49.60 (Tr. 19). With respect to the selections furnished in the test correspondence, previously referred to, the inspector testified that if he had wagered $2.00 on each of the horses selected, and $25.00 on the special $100.00 horse" named "Devilment," as Gysin sought to induce him to do (Dept. Exhibit 1-G, Tr. 22, 23), he would have lost $30.72, and that in those selections Gysin had one winner of $13.40, all the others being losses (Tr. 20). The inspector also testified that Gysin told him during the course of an interview in 1954 that he, Gysin, did not wager on his own selections and that he thought he could make more by selling the information (Tr. 20, 21). Also according to the inspector, Gysin obtained the information sold by him from contacts with various horse owners and "racing persons" as distinguished from any extraordinary or unique method for such purposes (TR. 20).
Thus the evidence speaks loudly for itself and clearly establishes the falsity of the representations charged in the complaint.
Gysin's own testimony shows that he is well aware that his representations are false. He conceded that "there is nothing sure in racing ***. Anyone who tells you that is insulting your intelligence." He insisted that "I don't guarantee no horses. *** And all I am selling is my knowledge of horses, being around race tracks all my life, and knowing a few people around the race tracks" (Tr. 34). He further stated that "there is only one way a horse can win, and there are a thousand ways he can get beat" (Tr. 36). He also admitted the accuracy of the observation that persons who wager on horses would fare as well by going by what newspaper handicappers publish in the Miami newspapers as they do by buying his service (Tr. 43). He recognized that the chances of a horse winning a race are largely controlled by factors that human beings can not determine in advance and repeated that "there are a thousand ways he can get beaten" and "only one way he can win it," and that the odds are "pretty close" to "one to a thousand" getting a horse to win" (Tr. 55-56). Again, in contrast to his representations, he insisted that all he was doing was selling his knowledge of horses and "just handicapping" (Tr. 59-60).
Respondent Gysin has been the subject of previous fraud order proceedings involving the same type scheme as here under consideration. In a proceeding identified in the record as H. E. Docket No. 2/79, Gysin, then doing business as United Publishing Co., at Miami, Florida, and Philadelphia, Pennsylvania, was served with a complaint charging the use of fraudulent representations in the sale through the mails of his horse race selections. Those representations in nature are similar to those employed in the instant case. In the first mentioned proceeding he was permitted to execute and file with the Department an affidavit of discontinuance as a basis for disposing of the matter, following an informal discussion of the charges with counsel for the Complainant (Tr. 26-29, Dept. Exhibits 4-A and 4-B). The instant operation, as the complaint charges, unquestionably constitutes a violation of that affidavit.
On the foregoing evidence I find and conclude that the named Respondents are obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations and promises as charged in the complaint. Accordingly, there is attached hereto an appropriate order for execution by the Judicial Officer for the suppression of the fraudulent enterprise herein found.
Hearing Examiner