July 27, 1959
In the Matter of the Complaint That
MARIE LAVEAU, and
AFRO-INDIA IMPORT COMPANY, also known as
AFRO-INDIA IMPORT CO., INC.,
at
Los Angeles, CA,
(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. 1/121
INITIAL DECISION OF HEARING EXAMINER
Leonard Broady is the President of Afro-India Import Co., Inc., a corporation located in the City of Los Angles, State of California. Mr. Broudy also conducts business under the names of Marie Laveau and Afro-India Import Company. All of the names stated above except that of Mr. Broudy are Respondents in this case.
The General Counsel for the Post Office Department, the Complainant, alleges that in the conduct of this business the Respondents are engaged in conducting a fraudulent scheme in violation of Section 259 and 732 of Title 39, United States Code.
A complaint was issued, an answer was filed and the case was heard in Washington, D. C., before Hearing Examiner Edward Carlick on May 5, 1959. At the hearing both parties were represented by counsel who participated in the examination and cross-examination of witnesses and who have filed proposed findings of fact and conclusions of law in behalf of the parties they represent.
After the hearing had been held Hearing Examiner Carlick became incapacitated by reason of illness to continue work on the case, and the case was then reassigned to the undersigned Hearing Examiner because it was known that Mr. Carlick would be unavailable to the agency for an extended period of time.
In the complaint it is alleged that the Respondents are violating the cited statutes by obtaining remittances of money through the mails by falsely and fraudulently making the following representations:
a. That all persons who “Need a new lover…Need friends…Want more of the better things in life…Want to attract and influence others…Need more money” will be able to satisfy such needs and desires and “can be LUCKY in love…in money…always!” by purchasing from Respondent certain “occult Louisiana and India goods, incenses, candles, herbs, roots [and] oils” and using them as directed;
b. That any person will be able to solve problems in “Finance” and “Love Affairs,” will be able to “Control Enemies, Get Rid of Cross Conditions, Control Loved Ones, Attain Power of Attraction, Promote Peace, Get Lucky, Hold and Secure Jobs [and] Get Rid of Evil Influences” by purchasing from Respondent the book entitled “Black and White Magic” and following the directions given therein.
In their answer the Respondents admit that they are engaged in the mail order business under the names set forth above and that they have utilized the placement of advertisements and have circulated certain advertising material. Respondents deny that they are, or ever have been, obtaining remittances of money through the mails, or otherwise, by means of false and fraudulent pretenses, representations or promises.
At the hearing the only witness was Post Office Inspector Charles E. Dunbar. Mr. Dunbar testified that an advertisement by Respondents came to his attention in the course of the performance of his duties. This advertisement (Dept. Exhibit I) appeared in the Richmond, Virginia, Afro-American of September 20, 1958, and reads as follows:
You can be LUCKY
In love…in money…always! Need a new lover? Lost your old one? Is your business bad? Need more money? all alone…Need friends? Unlucky at cards? Want more of the better things in life? More happiness? Want to attract and influence others? If any of the above apply to you, send now for our free catalogue and complete list of occult Louisiana and India goods, incenses, candles, herbs, roots, oils and books of ancient and modern practices…No cost…No obligation.
AFRO-INDIA IMPORT COMPANY
Marie Laveau
POST OFFICE BOX 35176 – LOS ANGELES 35, CALIFORNIA
----------------------------------------------------------------------------------------------
AFRO-INDIA IMPORT COMPANY
Post Office Box 35176, Los Angeles 35, California
Please send me absolutely free and without
obligation your complete catalog.
NAME___________________________________
ADDRESS________________________________
CITY________________ZONE_____STATE_____
Responding to this advertisement Mr. Dunbar initiated test correspondence with the Respondents under the name George Marston, Scottsdale, Arizona. In a letter dated January 16, 1959 (Dept. Exhibit A-1), the Respondents were asked to “Kindly send me information and literature about how I can be lucky in money, business, love, etc.” In response to this request and in an envelope which was received in evidence as Department Exhibit B-1, bearing the return address Box 35176, Los Angeles 35, California, there were received two circulars, as follows:
Department Exhibit B-2 – a circular containing a list of merchandise offered for sale by the Respondents. The merchandise is listed under the following headings – Powders, Roots and Herbs, Perfumes, Incenses, Oils, Candles, Books, Number and Dream Books, and Miscellaneous.
In this circular there is a “Special Notice” which reads as follows:
“We wish to call special attention to Spiritualists, Mind Readers, Clairvoyants, Yogis, Phrenologists, Fortune Tellers and all those interested in Magics, Occult Science and Psychic Phenomena, to the fact that the Book called ‘Black and White Magic’ will help them to learn how to use most of the articles contained in this price list, and also assist in searching the ways and systems used by Old Timers in solving problems such as Finance, Love Affairs, Control Enemies, Get Rid of Cross Conditions, Control Loved-Ones, Attain Power of Attraction, Promote Peace, Get Lucky, Hold and Secure Jobs, How to Dress Homes and Business Places, Get Rid of Evil Influences and many other features.
“We will mail this wonderful book postpaid upon receipt of Two Dollars ($2.00). Its regular price is Three Dollars ($3.00).”
Covering one-third of the back of this advertising circular is the following statement: “NOW! You can learn how to use most of the articles listed inside in the ‘correct’ ways. Order your copy of the book called ‘BLACK AND WHITE MAGIC’ today! Marie Laveau.”
Department Exhibit B-3 – This is an advertising circular relating entirely to the book “Black and White Magic” and containing, among others, the following statement:
“If you want assistance in searching the ways and systems used by the OLD TIMERS in solving problems of finance – love affairs – luck in games – power of attraction – promote peace – hold and secure jobs – how to dress homes and business place – get rid of evil influences and more…SEND FOR THIS BOOK TODAY!”
This circular contains an order blank addressed to the Respondents and requests that a copy of the book be sent to the remitter and indicates that the purchase price of $2.00 is enclosed.
The inspector conducted other test correspondence under the name of F. L. Doncho, Box 199, Dexter, New Mexico. Exhibit C-1 is a letter dated September 26, 1958, addressed to the Respondents over the name of Doncho in which the writer says “Please send me particulars and free catalog about your items as advertised.” Exhibit D-1 is an envelope similar to B-1, except for the address and date of postmark, in which were contained Exhibits D-2 and D-3, which, respectively, are identical to Exhibits B-2 and B-3. On October 11, 1958, the inspector, over the name of Doncho, ordered from the Respondents the book “Black and White Magic,” for which he remitted the sum of $2.00. In due time this book (Dept. Exhibit F-2) was received from the Respondents. Other test correspondence written by the inspector, over the name of O. J. Dans, Seligman, Arizona, and the reply thereto constitute Department Exhibits G and H. This correspondence took place in February, 1959, and in response to his inquiry the inspector received from the Respondents additional circulars which are identical with Department Exhibits B-2 and B-3.
The book “Black and White Magic” is divided into the following sections: (1) various so-called magical procedures to be followed by persons in various circumstances; (2) “Outstanding Significance of Candles”; (3) “Devotion”; (4) “Significance of the Cards”; (5) a purported character reading for persons born under each sign of the zodiac; and, lastly, a list itemizing appropriate anniversary gifts for various wedding anniversaries from the fist through the seventy-fifth years. In the first part of this book each of the magical steps prescribed to be followed by persons in any of the various situations described contains frequent mention of the items offered for sale in the circulars used by the Respondents, of which Department Exhibit B-2 is an example. A short illustration of this statement appears on page 37 of Department Exhibit F-2, as follows:
THE BEST GAMBLING HAND
(Toby)
You will take the Nutmeg of India. In it you will drill a hole in which you will pour the pure Mercury and seal it with pure wax. After this take a Chamois Bag. In this bag you will put a piece of Highly Magnetic Green Lode Stone, Lucky Hand, Silver Magnetic Sand, Gold Magnetic Sand, John the Conqueror Root, Devil Shoe String and the Five Finger Grass, then on top of this you will place the prepared Nutmeg of India. This done seal the bag by sewing it all the way around so that none of these articles may fall out. And on the outside of this bag you shall sprinkle three drops of Jockey Club Perfume once every week. Keep this bag on your person at all times and allow no one to touch it.
The Respondents sell all the types of candles which are listed under the second section of the book which appears on page 40. Under the next section, “Devotion,” appearing on page 41 the use of candles is again recommended and, or course, the Respondents offer these candles for sale. The use of candles is again recommended under the various signs of the zodiac.
From the foregoing, it will be seen that the Respondents call attention to their business by means of the newspaper advertisement; to the persons who write in to inquiry is sent the list of merchandise which the Respondents have available for sale, and they are also advised that in order to use the articles contained in the price list the book “Black and White Magic” should be purchased; and, finally, after the book has been purchased the remitter is told just which of the Respondents’ products to use in applying a particular magical procedure to his own situation.
It is clear to me, and I hold, that in the advertising material used by the Respondents, the representations set forth in the complaint are made. To begin with a reader of the newspaper advertisement is told that if any of a number of specified circumstances apply to him that he should send to the Respondents and obtain a free catalog of merchandise. The catalog, which in reality is a price list, contains the representation that the book “Black and White Magic” will tell “the ways and systems used by the Old Timers in solving problems” such as were mentioned in the newspaper advertisement. Upon ordering the book the purchasers are told which of the various items of merchandise should be used in solving particular problems. The scheme of the Respondents consists of dangling a chain before gullible prospects and having the prospects swallow the chain one link at a time.
Only a very few minutes of time are required in reading any of the material issued by the Respondents to determine that the representations found to have been made are false. (Gottlieb v. Schaffer, 141 F. Supp. 7; Reilly v. Pinkus, 338 U. S. 269). The fact that these representations are so patently and grossly false to some readers of the material does not necessarily mean that their falsity will be apparent to all persons who read them. As it was stated in Gottlieb v. Schaffer, supra, at page 15 “The advertisements here make patently absurd claims which could only appeal to the superstitious, the ignorant and the gullible…”
“The purpose of mail fraud orders is not punishment, but prevention of future injury to the public by denying the use of the mails to aid a fraudulent scheme.” (Donald v. Read Magazine, 333 U. S. 178, 184) It is undoubtedly known by the Respondents that “the superstitious, the ignorant and the gullible” constitute a part of the public to whom their advertising matter is addressed.
Concerning the intent to deceive on the part of the Respondents, it is believed to be sufficient simply to repeat the statement by the Court in Gottlieb v. Schaffer, supra, at page 17 that “An intent to deceive is rarely capable of direct proof, since this involves what is in a man’s mind. It is hornbook law that this subjective element may be established by circumstantial evidence. It is not any single element segregated from the whole by which the determination is to be made but from the totality of all the acts, conduct and surrounding circumstances and the inferences which may reasonably be drawn from a combination of acts and circumstances. The type of publication in which the advertisements were inserted with their obvious appeal to a susceptible and easily influenced group, the nature of the advertisements, their combination and use in connection with other advertising media issued by the plaintiff, the focus of the advertising campaign, are all relevant on the issue.”
The facts in the present case fit squarely within the four corners of the Gottlieb case. Upon the basis of the entire record in this case I make the following findings of fact and conclusion of law.
1. The Respondents, Marie Laveau, Afro-India Import Company, and Afro-India Import Co., Inc., are engaged in a mail order business in Los Angeles, California.
2. In the conduct of their mail order business the Respondents are obtaining and attempting to obtain remittances of money through the mails upon the basis of the representations set forth in paragraph (3) of the complaint in this case.
3. The representations found to have been made by the Respondents are false.
4. The representations found to have been made by Respondents are fraudulently made.
CONCLUSION OF LAW
The Respondents are conducting a scheme for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises in violation of the provisions of Sections 259 and 732 of Title 39, United States Code.
Respondents’ first and second proposed findings of fact are adopted. Respondents’ proposed finding of fact number 3 is denied for the reasons stated herein. Concerning Respondents’ proposed finding number 4, it is denied that the hearing should have been held in Los Angeles, California, for reasons appearing in Hearing Examiner Carlick’s order dated April 16, 1959. Respondents’ proposed finding of fact number 5 is denied for the reasons stated herein. Respondents’ proposed finding of fact number 6 is neither adopted nor denied for the reason that the undersigned Hearing Examiner is unable to predict the time at which Hearing Examiner Carlick will b able to resume his duties.
Respondents’ proposed conclusion of law number 1 is denied for the reasons herein stated. Respondent’s proposed conclusions of law numbered 2, 3, 4 and 5 raise Constitutional questions which are not within the province of Hearing Examiners. Engineers Public Service Corp. v. S.E.C., 138 F.(2d) 936. Respondents’ proposed conclusion of law number 6 is denied for the reason that Hearing Examiner Carlick is at this time unavailable to the agency and it is not known at what time Hearing Examiner Carlick will be able to resume his duties in this Department. Furthermore, since there is not involved any question as to the credibility of the witness who testified, Gamble-Skogmo, Inc. v. F.T.C., 211 F.(2d) 106, is not controlling.
There is attached hereto for execution by the Judicial Officer the appropriate order for the suppression of the fraudulent enterprise.
William a. Duvall
Hearing Examiner