In the Matter of the Complaint That

G.R. SULLINGER
Box 286
Arlington, WA
and
G.R. SULLINGER
Box 297
Darrington, WA

(hereinafter called Respondent), is engaged in conducting a scheme for obtaining money through the mails in violation of 39 U.S. Code 4005.
P.O.D. Docket No. 2/257

APPEARANCES:
H. Richard Hefner, Esq. and
Arthur S. Cahn, Esq.
Office of the General Counsel
Post Office Department,
For the Complainant

Robert C. Bibb, Esq.
507 North Olympic Avenue
Arlington, WA
For the Respondent

INITIAL DECISION OF HEARING EXAMINER^*

The complainant in this case is the General Counsel for the Post Office Department; the respondent is Mr. G.R. Sullinger who, under his own name and from Post Office boxes at Arlington and Darrington, Washington, is engaged in the business of the sale through the mails of a device called the “Marvel” which is intended to be used by males in performing the sex act.

            The complainant charges the respondent with violation of the provisions of Section 4005 of Title 39 of the United States Code which, in pertinent parts, provides as follows:

            “(A)      Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false or fraudulent pretenses, representations or promises.  * * * The Postmaster General may–

            “(1)      Direct Postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked ‘fraudulent’ or ‘lottery mail’; and

            “(2)      Forbid the payment by a Postmaster to such a person or his representative of any money order or postal note drawn to the order of either, and provide for the return to the remitters of the sums named in the money order or postal notes.”

            Now, the essence of the complaint filed by the complainant is that in the sale of this product the respondent is making false and fraudulent representations concerning the efficacy of the device.  It is not charged and I don’t think it could be established that the device is completely worthless.  The specific charges made against the respondent are set forth in this complaint.

            “(1)      That public attention is attracted to said scheme by means of advertising matter distributed to the public and which is calculated and intended to induce readers thereof to remit money through the mails to respondent;

            “(2)      That attached as exhibits and made a part hereof are copies of advertising matter mentioned in paragraph (1) above;

            “(3)      That by means of the advertising matter mentioned in paragraph (2), and in similar matter, the respondent represents to the public in substance and effect:

            “(a)      That the “Marvel”, as advertised in Exhibit ‘A’ attached hereto, is a scientifically sound and effective means of overcoming male sexual impotency, e.g.,

            “ ‘. . . Causes immediate lasting sexual strength for sexually weak men of any age, . . .’

            “ ‘. . . how I overcame male impotency, . . .’

            “ ‘. . . I bought some books that told about the male sex organs and their functions’, et cetera.

            “ (b)     That the use of the ‘Marvel’ will assure the achievement and maintenance of an erection sufficient to permit sexual intercourse, e.g.,

            “ ‘. . . a strong, long-lasting erection?’

            “ ‘. . . no longer able to cause an erection, so that you can relieve your sex organs of health-damaging congestion?’

            “ ‘. . . causing an immediate, large, strong erection, and found I could hold that erection as long as I wanted to, even after ejaculation’, et cetera.

            “ (c)     That the use of the ‘Marvel’ will assure sexual relationship that will be mutually satisfactory to both partners, e.g.,

            “ ‘. . . Do you satisfy your wife with a strong, long-lasting erection?’

            “ ‘. . . reached complete fulfillment . . .’

            “ ‘. . .’It always causes the same enjoyable erection . . .’

            “ ‘. . . works as a sort of teaser on the female organ causing quicker fulfillment’ ., et cetera.

            “(d)      That by the use of the ‘Marvel’ the ‘elderly . . . (can) - . . enjoy sex as much and almost as often as . . . (the) . . . young’.  That ‘Men over 80 years old’ are able to obtain strong erections and ‘are enjoying a new sex life.’”

            In his answers, which were timely filed, the respondent has denied that the statements made by him in regard to this device are false, and he has also denied the existence of a fraudulent intent on his part in the sale of this product.

            Attached to this decision as Appendix A is a copy of Exhibit A to the complaint.  I have carefully compared the charges set forth above from the complaint with the advertising literature used by the respondent.  In making this comparison I have kept in mind the statement of Mr. Justice Black in Donaldson versus Read Magazine, which was decided in 1948, and is reported in 333 U.S. 178 at Page 188, that “Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds.”

            In the light of this directive from the Supreme Court, it seems to me that the respondent does make, or does make in substance, the representations attributed to it in the complaint, and I so hold.

            We will next turn to the consideration of whether these representations are true or false.  Here we turn primarily to the testimony of the medical experts who testified in this proceeding, and I think we were fortunate in having men of ability and men of candor.  My assessment in capsule form of what these medical experts said is that in some few cases this device called the Marvel could be of benefit to the man who previously had been incapable of an erection, that the cases in which this device would be effective would be in the minority, that is, cases of male impotency.

            Now we will take some of the testimony of the respondent’s own medical expert whom I regard as an outstanding man in the field of Urology.  Basically it was his testimony which led me to the conclusion that in some cases this device would be efficacious.  But when his attention was invited to the advertising literature, and it appeared to me at the hearing that today was the first time he had ever seen this advertising literature, he had to say, in substance, that the advertising representations about this product were grossly overstated.  I am referring particularly to the first line of Appendix A which appears in big print and contains the following language:

            “Inexpensive invention causes immediate, lasting sexual strength for sexually weak men of any age”.

            Dr. McRoberts said that it was, I believe he used the term “a poor choice of language” to say that this would bring about “lasting sexual strength”.  He questioned also the term “sexual strength”, and he also questioned the respondent’s recommendation of this product for use by men of any age.  Another point on which Dr. McRoberts had some reservations was the use of this product by any lay person on his own diagnosis of his condition.  Dr. McRoberts testified that ideally this should be used under the care or supervision of a physician, but he said this was also true with respect to many other, of many remedies that are being taken today.  All of the medical experts agreed that there were certain conditions in which the use of this device would produce no beneficial results.  So, it seemed to me that the testimony of the medical experts in this case is more notable for the points of agreement to be found in that testimony than for the points of differences.  Based on this testimony by the doctors, I find that the representations heretofore found to have been made by the respondent are false.

            We now come to the matter of whether the respondent made these representations innocently or with an intent to deceive.  Of course, we have the testimony by the respondent that he is not a doctor.  He wrote one letter to one doctor and told him what he proposed to do in regard to the sale of this product, and he got no response from this doctor.  It seems to me that a normally prudent man would not bring his efforts to an end, his efforts to find out about the efficacy of a device which is really being presented as a remedy for a physical condition.  It is incumbent upon people who sell devices, particularly through the mails, to find out their value prior to the time they enter into the sale of the product.

            Now the respondent testified, and I have no reason to doubt his testimony, that he based his statements that he made in his advertising literature on his personal experience.  It does not follow from that, that what worked in the respondent’s case would work for all other people, all other impotent males.  There are too many causes of this condition, too many degrees of this condition, for it to be expected that one remedy would be efficacious for all situations.  There is no caveat that I have been able to find in the respondent’s literature indicating that it is or may be effective only in certain conditions.  The respondent’s literature indicates that it will be effective for all users.

            There is some testimony that refers to the fact that he makes an offer of refund to dissatisfied purchasers, that he has invited requests for refunds, he has received requests for refunds, and that he has honored all requests for refunds that he has received.  The presence of a money-back guarantee is no assurance that the seller of a device is free of the intent to deceive.  As Judge Kaufman said in Berg-Johnson Electronics, Inc., versus Christenberry, which is a 1959 case reported at 169 Federal Supplement Section 746, where it appears that an advertiser has deliberately induced its patrons to purchase its product in the belief that its value far exceeds its true worth, this fact is sufficient to support a finding that a fraudulent scheme was being conducted, and this is true even though there is a promise to refund the purchase price if the article sold proves unsatisfactory.

            Also on the question of the offer of refund as not disposing of the element of intent to deceive, the following cases are pertinent:  G.J. Howard Company versus Cassidy, 162 Federal Supplement 568; Harris versus Rosenberger, 145 Federal 449; Farley versus Heininger, 105 Federal Second 79.  As has been pointed out, fraudulent intent is never presumed, but it must be alleged and proved, United States versus Wunderlich, 342 U.S. 98.  However, the existence of fraudulent intent may be established by circumstantial evidence, Gottleib versus Schaffer, 141 Federal Supplement 7, or by the universality of scientific belief, which had been referred to previously as is found in the case of Reilly versus Pincus, 338 U.S. 269.

            Finally, the existence of fraudulent intent may be established, and I think this is particularly pertinent here, by showing that statements were made with a reckless disregard for their truth or falsity, Kercheval versus United States, 12 Federal Second 904.  In Stone versus United States, 113 Federal Second 70, the court said, “As affecting intent or good faith, ignorance of facts set up as defense is unavailing whereas, a defendant, by the exercise of due diligence, could have become aware of his mistakes, especially where others may suffer a loss by his mistakes.”

            So that in substance, it seems to me that these statements in the respondent’s advertising literature were made by him without his having obtained proper medical advice or any medical advice, and that he was under a positive duty to obtain this advice, and that his having failed to obtain this advice indicates that the statements made by him were made either with an intent to deceive or with such a reckless disregard as to what the truth might be as to amount to the harboring of an intent to deceive, Corliss versus United States, 7 Federal Second 455; Darnell versus Darnell, 200 Federal Second 747, so that in summary, I find that the respondent made the false statements attributed to him and that he made them with an intent to deceive.

            In view of the foregoing discussion, I made the following findings of fact.  The respondent in his own name and under address at Arlington and Darrington, Washington, is engaged in the sale through the mails of a device known as Marvel; that, 2, in the sale of said device respondent makes the representations heretofore specified; 3, the representations found to have been made by the respondent are false and materially misrepresent the efficacy of the product sold; 4, that the false representations made by the respondent are made with an intent to deceive or with such a reckless disregard of what the truth might be as to constitute a fraudulent intent.

            Based on the foregoing considerations, I made the following conclusion of law:  Under the names and at the addresses previously specified, the respondent is engaged in a scheme for obtaining money through the mails by means of false and fraudulent pretenses and representations and promises in contravention of the provisions of Section 4005, Title 39, United States Code.

            The Proposed findings of fact and conclusions of law submitted orally by counsel have been considered and they are adopted to the extent herein indicated, otherwise such proposed findings of fact and conclusions of law are denied because they are immaterial or because they are contrary to the evidence of record in this case.

            In consideration of all of the foregoing matters, I recommend that the judicial officer execute and issue a fraud order to suppress the fraudulent enterprise herein found.

William A. Duvall
Chief Hearing Examiner

*   Transcribed from oral decision rendered at the close of the hearing.