In the Matter of the Appeal of ) December 10, 1976 ) MARK HUNTER ) Box 2608 ) ) at ) ) Sepulveda, California 91343 ) P.S. Docket No. 5/83 APPEARANCES FOR RESPONDENT: Mark Hunter, pro se Sepulveda, California APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Law Department United States Postal Service Washington, D.C.
This case is on appeal from an Initial Decision issued by Chief Administrative Law Judge William A. Duvall finding that Mark Hunter, the Respondent in this proceeding, is engaged in conducting, within the meaning of 39 United States Code § 3005, a scheme or device for obtaining money or property through the use of the mails by means of false representations. 1/ Respondent's appeal boils down in essence to the proposition that the Complainant has not proven his case that the representations are false. Interspersed throughout are personal attacks on the integrity and competence of Complainant's counsel, Complainant's expert medical witness and the presiding judge. I have reviewed the entire record carefully and find that these personal attacks are completely without foundation and unworthy of detailed discussion.
Respondent has segrated his exceptions and arguments into thirteen segments many of which contain primarily vilification and opinion rather than reference to the record and applicable law. The first point raised by Respondent rests on the belief that the case against him fails without proof of a dissatisfied customer. This never has been and is not now the law. There is no need to establish the existence of a successful completion of the false representation in the form of an actual victim. The statute precludes materially false representations and this is an objective fact which can be established by competent evidence. See Farley v. Heininger, 165 F.2d 79, cert den 308 U.S. 587 (1939); U.S. v. International Term Papers, 477 F.2d 1277 (1973); Accurate Checkwriter Service Co., P.S. Docket No. 4/14 (1975).
Respondent's second exception consists of an innuendo with respect to the reassignment of presiding officers prior to the hearing. The innuendo is totally unwarranted and needs no further comment.
Respondent's third point suggests unfairness to him because the applicable Rules of Practice prohibit the receipt in evidence of lay testimonials and do not provide for issuance of subpoenas and, inconsistently, that he was further "encumbered" because of his promise of confidentiality to users of his system which he states he would be "extremely reluctant to breach." The record shows that Respondent elected not to present any evidence other than his own opinion as reflected in his formal Answer to the Complaint which Judge Duvall did not have to, but nevertheless did, accept as representative of the testimony Respondent would have offered. In so doing he gave it the exact weight which in my independent review of the record it deserved, in light of the Complainant's medical testimony. There is no indication at any stage of the proceedings that Respondent was denied due process or in fact requested or was denied the opportunity to present any competent, relevant and material evidence.
Respondent's fourth point emphasizes what he considers the importance of the word "guaranteed" in his plan. The law is clear that this does not serve to remove the representations, otherwise materially false, from the operation of the postal false representation statute. Iso-Tensor, P.S. Docket No. 3/30 (1975), and cases cited therein.
Respondent's next point attacks the specific expert medical testimony and in general the value of medical testimony. While arguing that Respondent's personal opinions are to be given greater weight, the totality of this argument adds to nothing in evaluating the case at hand where the qualifications of the medical expert are as clear as his testimony that Respondent's plan will not produce the results advertised.
Respondent's sixth point objects to what he considers a lack of weight given to the statements in his Answer. As I view the case Judge Duvall made no error in assigning evidentiary weight to this aspect of the record. Nor is there any legal or rational basis for imposing the absurdity, as Respondent would have, of requiring the medical expert to personally test the product on himself before testifying. See Beauty Originals, Inc., P.S. Docket No. 3/24 (1975); Skinny Suit, P.S. Docket No. 3/44 (1976); Cecily Vane, P.S. Docket No. 4/129 (1976); Roger Laboratories, P.S. Docket No. 4/123 (1976).
Respondent's seventh point takes issue with Judge Duvall's summary description on page 4 of the Initial Decision of Respondent's method. Respondent would be satisfied with nothing less here than a repetition of his complete pamphlet. That of course is totally unnecessary. The summary objected to is sufficient for purposes of the case and I find nothing erroneous about it.
Respondent's eighth point takes objection to statements in the Initial Decision with respect to representations in the pamphlet regarding capillary fracture which Respondent contends are not warranted upon a complete reading of the pamphlet. I disagree. The findings are warranted and will not be disturbed.
Respondent's tenth, eleventh and twelfth points all relate to the testimony of Complainant's medical expert. The arguments in connection therewith consist primarily of personal attacks, medical conclusions not found in the evidence and semantics which do not affect the correctness or validity of the conclusions of material false representations charged in the complaint and properly found proven on the evidence. 2/ Respondent's thirteenth point objects to the ultimate conclusion and the lack of proof of dissatisfied customers. For the reasons previously given this argument is without any merit.
Respondent's appeal has been fully considered and is denied. The Initial Decision is upheld and a remedial mail stop order is being issued forthwith under the provisions of 39 U.S.C. § 3005.
Edward F. Lussier
Judicial Officer