(specially concurring).
I agree with my associates that the record leaves in no doubt that appellant and his confederates did, as the indictment charges, devise a scheme to defraud, “the State of Louisiana, the City of New Orleans, the Orleans Parish School Board, the Board of Commissioners of the Orleans Levee District, and Agencies of the State of Louisiana and of the City of New Orleans, and the taxpayers of the State of Louisiana and of the City of New Orleans”. I agree with them, too, that the evidence supports the finding that the indictment letters were mailed as charged, that it was not error to receive Wilkinson’s testimony, that there was no prejudicial error in the complained of conduct of the trial judge, and that if the mails of the United States were used for the furtherance of the scheme, the judgment should be affirmed.
Appellant, reads the indictment as not including within those to be defrauded by the scheme the taxpayers to whom the bills were sent. He argues that under the rule applied, in Stapp v. United States, 5 Cir., 120 F.2d 898, and Spillers v. United States, 5 Cir., 47 F.2d 893, to reverse, and in Hart v. United States, 5 Cir., 112 F.2d 128, to affirm, a conviction, the bills mailed to the clients after the reductions had been secured were not mailed in furtherance of the scheme because, a scheme to defraud the taxing agencies alone, it had already been consummated.
I cannot agree with this reading of the indictment. I think it clear that “the taxpayers of the State of Louisiana and of the City of New Orleans”, alleged in the indict-* ment as victims of the scheme, were the taxpayer clients, victimized by paying for fraudulent services which they had been led to believe were to be honest and faithful services.
A reading of the indictment on page S of the record leaves this in no doubt. It is there alleged that the “said defendants * * * would pretend and represent that they were engaged in the legitimate business of procuring and obtaining for taxpayers reductions in their tax assessments on real and personal property on the official tax record * * * which said assessments the said defendants * * * would pretend, represent and claim to the said taxpayers were erroneous, excessive and improper; that they would approach and solicit taxpayers to whom they would represent, pretend and claim that they would appear before the Louisiana Tax Commission as the authorized representatives of said taxpayers for the purpose of establishing and obtaining fair assessments on the real and personal property of said taxpayers, * * * that it was a part oi said scheme and artifice to defraud, that the defendants * * * would pretend to taxpayers whom they would solicit and approach that they would employ only legitimate and honest means in effecting such reductions in assessments; that the defendants * * * would obtain contracts * * * which would provide for the payment to them as compensation for their services in obtaining any such reductions in assessments contingent fees of SO percent of the amount of taxes saved by such taxpayers by reason of any such reduction.”
Though, therefore, I cannot agree with the holding of the majority that, taking as correct the view that the scheme, as alleged in the indictment, was one to defraud the taxing agencies alone, and the victims of it were those agencies and the other taxpayers whose assessments had not been reduced, the indictment letters must still be held to have been sent in furtherance of that scheme, I do agree that the judgment must be affirmed. For the indictment charges a scheme to defraud defendant’s clients as well as the public, and the sending of the indictment letters was not only in furtherance of, it was essential to, the scheme to< defraud.