INITIAL DECISION

This proceeding was initiated on January 21, 1994, when the General Counsel for the United States Postal Service ("Complainant") filed eight separate Complaints alleging that Harold P. Weingold, Helen Archer, and the named corporate Respondents violated 39 U.S.C. §3005 by engaging in various schemes for obtaining money or property through the mail by means of false representations. In P.S. Docket No. 41/29, Complainant also included a count alleging a violation of the lottery provisions of 39 U.S.C. §3005.⁽¹⁾

Neither Helen Archer nor Archer Astrology, Inc. filed Answers in P. S. Docket No. 41/25. Harold Weingold and the corporate Respondents other than Archer Astrology, Inc. (sometimes referred to collectively as "Respondents") filed timely Answers denying the allegations of the Complaints. Subsequently, Complainant filed motions to amend the Complaints in P.S. Docket Nos. 41/24, 25, 26, 27, and 29. Respondents made no objection, and Amended Complaints and Answers were filed in those cases.

The above-captioned cases were consolidated for hearing by the undersigned. A hearing was held in these matters on June 8-10 and July 26, 1994, in New York, NY. Complainant was represented by counsel and Harold P. Weingold ( "Respondent Weingold") appeared personally and was represented by counsel, who also represented the corporate Respondents. Neither Helen Archer nor any representative of Archer Astrology, Inc. appeared at the hearing.⁽²⁾

During the course of the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present documentary evidence. Complainant called as witnesses: Postal Inspector George McCarthy, Edgar Fair, Sal Vascellaro, Neil Cofino, James Monagle, and Respondent Weingold. Complainant also called as expert witnesses Paul Shaman, a professor of statistics at the University of Pennsylvania, and William Roll, Jr., who has performed extensive research and writing in the field of parapsychology and has held a position at the Parapsychology Laboratory at Duke University. Respondent Weingold was the only witness for Respondents.

Following the conclusion of the hearing Complainant filed Proposed Findings Of Fact And Conclusions Of Law and Respondents filed a Post Hearing Brief, both of which have duly been considered. To the extent indicated below proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. The findings of fact and conclusions of law set forth below are based on the entire record, including the testimony adduced at the hearing, observation of the witnesses and their demeanor, and the exhibits entered into evidence. The findings of fact with respect to each of the above-captioned cases are set out separately below.

I. FINDINGS OF FACT

A. Background

1. Harold P. Weingold, is an individual who resides at 6 Ash Avenue, West Orange, New Jersey 07052-2435 (Tr. 627).⁽³⁾

2. Respondent Weingold controls, inter alia, the following businesses: Fifth Avenue Creations (Tr. 631), Holy Trinity Society, Inc. (Tr. 634); Helen Archer, Inc. (Tr. 642); Future Forecasters Corp. (Tr. 664); Winners' Network, Inc. (Tr. 683); Consumer's Depot Corp. (Tr. 685); Fight Back International, Inc., d/b/a Pot 'O Gold Club (Tr. 689); and Paul Zax Enterprises, Inc. d/b/a Paul Zax, Jr. (Tr. 717).

3. Respondents solicit money through the mail at each of the addresses set out in the corresponding case captions.

B. Docket No. 41/23 - Fifth Avenue Creations

1. Respondent Weingold d/b/a Fifth Avenue Creations mails printed postcards to individuals whose names were obtained from a mailing list (Tr. 632). At the top of the postcard in large capital letters are the words "FINAL DELIVERY NOTICE" (CX-11). The postcard also indicates that the method of delivery is "USPS", the "Insurance: [is] paid by sender", and that the merchandise will not be held past a specified date (Id.). The sender is listed as Fifth Avenue Creations, 627 Eagle Rock Ave., Suite 105, West Orange, NJ 07502. The text of the card states (CX-11):

"IMPORTANT: We are trying to contact a [name and address of the recipient of the card] If you are the [name] we are seeking, this is to inform you that we have a package for you. You may return this form with the payment indicated to receive the merchandise described below. The following merchandise is being held at our Shipping Dock B pending verification of your correct address."

Beneath the text on the left side of the card is the heading "MERCHANDISE PENDING DELIVERY." Under that caption the merchandise is described as a "52-Piece Fine Jewelry Ensemble including genuine Emerald, genuine Ruby and genuine Sapphire," etc. (Id.). Opposite this description, under the heading "INSTRUCTIONS FOR DELIVERY:" are the following instructions (CX-11):

"Verify your address. Make any necessary changes on the front of this card. Return this card before cutoff date above with payment of $14.87[.] Make check payable to, and mail to SENDER named above."

The final paragraph on the card states "If we do not hear from you before the cutoff date above, we will be forced to terminate this pending delivery. Thank you for your assistance. GUARANTEE; 100% satisfaction or money back in full" (Id.).

2. A recipient of the above-described postcard who sends in the amount of money indicated receives an assortment of costume jewelry, including a number of pairs of plastic earrings (CX-11-A).⁽⁴⁾

3. The Complaint alleges that the Fifth Avenue Creations solicitation contains two false representations:

(a) that the recipient has previously done business with Respondents;

(b) that the amount to be remitted to the Respondents is for shipping and handling only.

(a) that the recipient has previously done business with Respondents

4. Complainant contends that the words "Final Delivery Notice" and "pending delivery" connote that the recipient of the card has previously placed an order with Fifth Avenue Creations. If made, this representation would be false, since the evidence shows that none of the individuals to whom the "Final Delivery Notice" is sent ever ordered or purchased merchandise from Fifth Avenue Creations prior to receipt of the card (Tr. 632-633).

While I agree with Complainant that the quoted language conveys the idea that a delivery is pending from Fifth Avenue Creations, that language does not necessarily imply that the recipient had prior business dealings with Fifth Avenue Creations. For example, someone else could have ordered the merchandise and caused it to be delivered to the recipient or the goods could have been entirely unsolicited. I therefore find that CX-11 does not contain the misrepresentation that the recipient of the card has previously done business with Respondent Weingold or Fifth Avenue Creations.

(b) that the amount to be remitted to the Respondents is for shipping and handling only

5. The overall impression created by Respondents' postcard is that it is a notice indicating that the sender of the card--Fifth Avenue Creations-- is attempting to deliver merchandise to the recipient. The merchandise is described on the card as a 52-piece ensemble of precious stones and 14-karat gold jewelry. Under the prominent heading "Instructions For Delivery" the card states that the jewelry will be delivered to the recipient if that individual verifies his or her mailing address and forwards the sum of $14.87. Since a reasonable person would realize that jewelry of the quality described on the card would be worth far more than $14.87, the recipient is left with the impression that the amount requested is merely a delivery charge. Nowhere on the card does it suggest that the amount requested is for purchase of the merchandise described. I therefore find that Respondents make the above representation.

6. The above representation is false because the amount to be remitted is not for shipping and handling but for the purchase of the jewelry Respondents send upon receipt of the money.

7. This representation is material because it tends to encourage the recipient to send in the money requested. Consumers are led to believe that they are merely being asked to pay shipping charges for merchandise that has already been purchased rather than being solicited themselves to purchase the goods.

C. Docket No. 41/24 - Holy Trinity Society, Inc.

1. This solicitation is in the form of an apparent personal letter from "Paul Wilkerson" to individual recipients. It describes the author's trials and tribulations, and tells how his life was changed by a "well-dressed old man" who saved him from suicide and then gave him a "beautiful golden pendant" which contained an image of the Virgin Mary. Recipients in need of a "miracle" are asked to send $20.00 to the Holy Trinity Society, Inc. to receive this pendant and its "awesome power" (CX-5).

2. The Complaint, as amended, alleges that this solicitation contains four false representations:

(a) that the Holy Trinity Society is a non-profit religious organization;

(b) that the solicitation is a personal letter from a natural person named Paul Wilkerson;

(c) that persons sending payment to Respondents will receive a unique pendant previously given to Paul Wilkerson;

(d) that Respondents can guarantee the Sacred Virgin Mary Teardrop Pendant will bring the recipient luck, money and love.

(a) that the Holy Trinity Society is a non-profit religious organization

3. The entire text of the Paul Wilkerson solicitation leads the reader to believe that the Holy Trinity Society is a non-profit religious organization. The text of the letter is replete with references to the Blessed Virgin Mary, Pope John Paul II, and reported miracles at Fatima, Portugal, all of which convey the impression that the Holy Trinity Society is affiliated with the Roman Catholic Church. The letter also creates the impression that the Holy Trinity Society is non-profit because the letter asserts that the money requested is not being solicited so that the author of the letter can profit from the sale of the "Sacred Virgin Mary Teardrop pendants". Specifically, the letter states (CX-5, p. 4):

"...I am not doing this so I can make more money. I already have all the money I need.... All I ask of you is a token sum to aid me in transferring this awesome power and a Sacred Virgin Mary Teardrop to you."

The order form at the end of the letter is headed "PERSONAL MIRACLE REQUEST" and states in pertinent part, "I'm enclosing $20 (check payable to HOLY TRINITY SOCIETY) to aid you in the transfer of this awesome power to me and for priority delivery of my golden pendant." Accordingly, I find that the above representation is impliedly made in the Paul Wilkerson solicitation. This finding is supported in part by the testimony of consumer witness Sal Vascellaro, who stated that he received a copy of the Paul Wilkerson letter and that after reading it he believed that the Holy Trinity Society was a religious organization. The text indented and quoted above, read in the context of the solicitation as a whole, leads the consumer to believe that the Holy Trinity Society is also a non-profit organization.

4. The representation that the Holy Trinity Society, Inc. is a non-profit religious organization is false. Respondent Weingold has never claimed that he and his businesses are affiliated with any organized religion and there is no evidence showing that Holy Trinity Society, Inc. is a religious organization. Although Respondent Weingold claimed that his intent in setting up the Holy Trinity Society as a business corporation was only to cover his expenses, he offered no evidence to support this claim. I do not credit Respondent Weingold's unsupported testimony that Holy Trinity Society, Inc. was intended to be a non-profit enterprise.

5. This representation is material because recipients would be more likely to send in the money requested if they believe they are supporting the work of a non-profit religious organization.

(b) that the solicitation is a personal letter from a natural person named Paul Wilkerson

6. The entire solicitation conveys the impression that it is a personal letter from a natural person named Paul Wilkerson. The letter describes apparently real events in the life of Paul Wilkerson; the many sufferings he endured, the receipt of the Sacred Virgin Mary Teardrop pendant as a gift from an old man, and the subsequent money and happiness Paul Wilkerson enjoyed after receiving the pendant.

7. The above representation is false. Respondent Weingold admitted in his testimony that there is no such person as Paul Wilkerson, but that Paul Wilkerson was just a name he uses in his solicitations (Tr. 640).

Respondents contend that all of the events described in the Paul Wilkerson letter really happened to Respondent Weingold and therefore the representation is not false. Respondent Weingold's testimony shows that although he may have adopted some of the real incidents in his life for use in the letter, they did not occur in the time or the manner stated in the solicitation. For example, the Paul Wilkerson letter states: "A year ago I was struggling in every area of my life...I lived in a tiny broken down apartment....got laid off from my job at the plant and saw no way out." (CX-5). Respondent Weingold explained that although he lives in a house, he has a small office in his home and that in his mind his home office is a broken down apartment. Respondent Weingold further explained that many years ago he was laid off from a job and that he refers to the home office where he currently works as a "plant" (Tr.753-757).

8. The above representation is material because recipients are more likely to send money if they believe that the Paul Wilkerson whose name is on the letter is a real person writing about events in his life as they actually occurred.

(c) that persons sending payment to Respondent will receive a unique pendant previously given to Paul Wilkerson

9. The solicitation strongly implies that the author of the letter, Paul Wilkerson, will send the recipient the very same pendant that was given to him. The letter describes a time when the writer allegedly was in despair and about to attempt suicide and an "old man" gave him a pendant that the latter had received from a nun at Fatima, Portugal, and said "[t]his is the Sacred Virgin Mary Teardrop" (CX-5, p. 2). The solicitation then asserts that after receiving the pendant, Paul Wilkerson's bad luck turned into enormous good fortune "through miracle after miracle after miracle", which included racetrack and lotto winnings, a beautiful new home, and an improved love life with his wife. (CX-5, pp. 2-3). The solicitation thereafter refers repeatedly to "the Virgin Mary Teardrop". The letter also tells the recipient that he must act within seven days or "it" will be given to someone else. The order form at the bottom of the letter, under the heading "Personal Miracle Request", includes the statement "Thank you Paul, for choosing me to be the receiver of your Sacred Virgin May Teardrop pendant" (CX-5, p. 4). Accordingly, I find that the Paul Wilkerson letter makes the above representation.

10. The above representation is false. Obviously, there is no single "Sacred Virgin Teardrop" pendant since the solicitation was sent to more than one person. Respondent Weingold acknowledged as much at the hearing (Tr. 637).

11. The above representation is material because people are more likely to remit the $20.00 requested if they believe they are to receive a one-of-a-kind item that has a special history.

(d) Respondents can guarantee the Sacred Mary Virgin Teardrop Pendant will bring the recipient luck, money and love

12. The final alleged representation -- that Respondents guarantee the pendant will bring luck, money and love --is also impliedly made throughout the Wilkerson letter. Some of the language that suggests a guarantee of luck money, and love is quoted below (CX-5, p. 3):

"When you want or need something special, all you have to do is press the pendant tightly to your body and concentrate on the thing you need most at the very moment ...."

The letter goes on to state that the pendant turns different colors depending upon whether the recipient wants "MONEY", "GOOD LUCK" or "LOVE AND ROMANCE".

On the last page of the letter it states (CX-5, p. 4):

"Just imagine, [first name of recipient], soon everything you've been longing for -- money, love, happiness, power over others, EVERYTHING --can miraculously appear in your life. Just ask and you shall receive. Before your next birthday. I promise!"

13. Respondents contend that the Paul Wilkerson solicitation does not represent that the pendant guarantees luck, love, and money because the final sentence of the solicitation states: "If you haven't experienced at least one miracle within six months, just return the pendant to me so I can give it to someone else, and immediately refund your money." (CX-5, p.4). Contrary to Respondents' contention, the inclusion of this sentence at the end of the four page letter does not serve to dispel the effect of the language in the solicitation that creates the impression that luck, love and money are guaranteed to those who order the pendant.

14. Since luck, love, and money are not commodities that Respondents could guarantee, it is obvious that the above representation is false.

15. The above representation is material because people are more likely to remit the $20.00 requested if they believe that use of the pendant guarantees that they will receive luck, money and love.

D. Docket No. 41/25 - Helen Archer, Inc., Uri Giller, Sister Helen,
and Holy Trinity Society

As noted above in footnote 2, a Default Order was issued in this case against Helen Archer and Archer Astrology, Inc. when they failed to file Answers and to appear at the hearing. The remaining corporate Respondent in Docket No. 41/25, Helen Archer, Inc., is Respondent Weingold's business (Tr. 642). Helen Archer, Inc. mails three different solicitations: Helen Archer Psychic Planetoligist, the Cosmic Protector solicitation and the Uri Giller solicitation (Tr. 641-659; CX-1, CX-2, CX-3). Another of Respondent Weingold's businesses, Holy Trinity Society (Tr. 634), mails a solicitation that is substantially similar to the Uri Giller solicitation except that it substitutes the name "Sister Helen" for Uri Giller (CX-12).

The Helen Archer "Psychic Planetologist" solicitation

1. This solicitation is in the form of a letter from Helen Archer, "Psychic Planetologist," to individuals whose names are obtained from mailing lists (CX-80, pp. 52-53). The solicitation states that Helen Archer was requested to contact the recipient and asks the recipient to send in $20.00 with a form provided at the bottom of the letter, headed "Personal Guidance Request" (CX-1). The solicitation then promises that Helen Archer will give the recipient her "private phone number," and guide the recipient into discovering winning lottery numbers. Recipients who send in the money requested are sent a postcard with a 1-800 number (CX-1-A). Callers who phone the number hear a recorded message giving instructions on how to compute their lucky numbers (CX 1-B).

2. The Complaint, as amended, alleges that this solicitation contains three false representations:

(a) that Helen Archer received a letter from someone close to the recipient requesting Helen Archer to contact the recipient;

(b) that Respondents can guarantee that the recipient will receive a substantial sum of money by contacting Helen Archer;

(c) that Helen Archer used the addressee's date of birth to determine the addressee's lucky times.

(a) that Helen Archer received a letter from someone close to the recipient requesting Helen Archer to contact the recipient

3. The above representation is explicitly made on page one of the solicitation. The letter states as follows (CX-1):

"Normally my clients seek me out. But in your case, I was contacted by someone close to you. Just the other day, I received a postcard from someone right here in [name of recipient's home town]. It was not signed, but the writer asked me to personally contact you."

4. The above representation is false. The message that is conveyed to the ordinary reader is that some real person who is an acquaintance of the addressee personally wrote to Helen Archer and asked her to contact the recipient.

Respondents contend that this representation is not false, relying upon Helen Archer's explanation of the text. The real Helen Archer, who claims to have psychic powers, testified in a related District Court proceeding that the phrase "someone close to you meant mostly a spiritual contact", and that she may have spoken to the recipient's "spirit guide" as part of a "collective psychic vision." (CX-91-A, p.120-121). Ms. Archer further stated the term "postcard" referred to the names Respondent Weingold obtained from a mailing list and sent to her so that she could select the individuals to whom the solicitation would be sent (CX-91-A, p.122). Whatever Ms. Archer may have meant to convey by the representation at issue, the ordinary reader would interpret it to mean that an acquaintance of the recipient literally sent a postcard to Helen Archer requesting her to contact the recipient. Contrary to Respondents' contentions, and as found above, this representation is false.

5. The above representation is material because people would be more likely to respond to the solicitation if they believed that an acquaintance of theirs contacted Ms. Archer on their behalf.

(b) Respondents can guarantee that the recipient will receive a substantial sum of money by contacting Helen Archer

6. The Helen Archer psychic planetology solicitation makes several statements, based on Ms. Archer's psychic visions and knowledge of planetology, that represent a guarantee that the recipient will receive a substantial sum of money. In the second paragraph of the solicitation it states (CX-1, p.1):

"I know for a fact you had won a very large cash prize (something like $211,721.06 or even more). . . . Every time I've had these visions before, it has always meant a BIG CASH PAYOFF for the person involved."

Towards the end of the solicitation the recipient is urged to respond as follows (CX-1, p. 2):

"The first choice is to ignore this letter and do nothing. That means your money troubles will remain the same as they are now....

The second choice is to contact me today -- to send me the PERSONAL GUIDANCE REQUEST at the bottom of this page. This choice means you can expect a money miracle sometime in the next several weeks. . . probably over $211,000.00 in cash!"

7. The above representation is false. Whatever psychic powers Ms. Archer may have she cannot guarantee anyone that they will receive the large sums of money promised in the solicitation. Ms. Archer herself acknowledged that not everyone who used her system won a lottery prize (CX-80, p.93).

8. This representation is material because people are more likely to remit the $20.00 requested if they believe they will receive guaranteed winnings.

(c) Helen Archer used the addressee's date of birth to determine the addressee's lucky times

9. The Helen Archer psychic planetology solicitation explicitly makes the above representation near the bottom of page one as follows: "From your name and birth date, I discovered that you are right on the verge of entering your 'triple-high-jackpot cycle'!"

10. The above representation is false. Ms. Archer admitted in her testimony in the District Court proceeding that she rarely knew the birth date of the individuals to whom this solicitation was mailed (CX-91, p. 97; CX-91-A, p. 119).

11. This representation is material because people are more likely to respond if they believe the author has based her representations about their lucky cycles on information that is unique to them.

The Cosmic Protector Solicitation

12. This solicitation (CX-2) is a follow-up letter sent to people who have responded to the previous psychic planetologist solicitation. It tells recipients that they are in danger of losing out on the previously promised wealth, but that they can avert this loss by purchasing the Cosmic Protector. Recipients are informed that they can obtain a Cosmic Protector by mailing in the form at the bottom of the solicitation along with $15.00.

13. The Complaint, as amended, alleges that this solicitation contains three false representations:

(a) that persons who purchase the Cosmic Protector are guaranteed to receive substantial sums of money;

(b) that persons who purchase the Cosmic Protector are guaranteed to have good luck and will be protected from persons who intend to harm them;

(c) that the Cosmic Protector is something other than a calculator.

(a) that persons who purchase the Cosmic Protector are guaranteed to receive substantial sums of money

14. As noted above, the Cosmic Protector solicitation essentially is a follow up letter sent to those individuals who responded to the Helen Archer Psychic Planetologist solicitation. A careful reading of the Cosmic Protector solicitation shows that it does not promise guaranteed wealth. The solicitation simply refers back to the promises of guaranteed wealth that were made in the Helen Archer Psychic Planetologist solicitation. The Cosmic Protector solicitation assures the reader that the purchase of the Protector will prevent some "jealous, greedy person" from interfering with the recipient's acquisition of the money promised in CX-1 or from taking away the recipient's "newfound (sic.) wealth" (CX-2, p.1). Accordingly, I find that the Cosmic Protector solicitation (CX-2) does not contain the above representation.

(b) that persons purchasing the Cosmic Protector are guaranteed to have good luck and will be protected from persons who intend to harm them

15. The representation that the Cosmic Protector will guarantee good luck and protect the purchaser from persons who intend to harm them is made many times in the solicitation. For example, the following is found on the first page of the solicitation (CX-2, p.1):

"One wrong move, and your big cash payoff could be lost forever, leaving you with nothing but misery and sorrow. But don't worry, I have encountered this problem before with other clients. Fortunately, I have since developed a unique 'Cosmic Protector' which gives you the power to strike back, to erase evil actions against you."

On the second page of the solicitation Respondents state in pertinent part (CX-2, p. 2):

"Your 'Cosmic Protector' is the insurance you need to experience amazing good luck, especially in your money situation, without having to worry about the envious troublemakers who will be hard at work trying to take it all away from you."

I therefore find that the Cosmic Protector solicitation contains the above representation.

16. This representation is patently false. The so-called Cosmic Protector is nothing more than an ordinary solar powered calculator (CX-2-B, Tr. 649-655). There is also nothing in the accompanying instructions for use of the Cosmic Protector (CX-2-A) that would support the representation of guaranteed good luck and protection from harm. According to the instructions, recipients use the numeric value of the letters in their names combined with some other significant number of their choice (such as birthdays or lucky numbers) to reach a total, which must be between 1 and 50. Helen Archer explained in her testimony that the calculator referred to in the solicitation as a Cosmic Protector is merely used to do the mathematics involved in arriving at a number from 1 to 50, which corresponds to one of the numbers in the "Psychic Energy Analysis Table", which is included with the instructions (CX-91, p.165). The table itself is a collection of generalized advisory statements such as "you might have to scramble to keep us (sic.) today, but is (sic.) should be worth it" and "[p]ut yourself where you'll do the most good today" (CX 2-A).

17. The above representation is material because consumers who read the solicitation are more likely to remit $15 if they believe that they will receive an instrument that is guaranteed to bring them good luck and protect them from negative influences.

(c) the Cosmic Protector is something other than a calculator

18. The entire thrust of the solicitation is that the Cosmic Protector is a device that has the power to protect the addressee from negative influences. The letter states in pertinent part (CX-2, p.1): "I (Helen Archer) have...developed a unique 'Cosmic Protector' which gives you the power to strike back, to erase evil actions against you." The Cosmic Protector is described as a unique "solar- energized, astral-tuned reckoning device" which will "help you [the recipient] to surround yourself with only honorable people and keep you from being victimized by the troublemakers lurking in your future". (Id.).

19. This representation is false because the device described as a Cosmic Protector is actually a solar-powered calculator which has no inherent power to do anything but assist the user in performing mathematical calculations.

20. This representation is material because recipients of the solicitation are more likely to send in the $15 requested if they think they are ordering a device that has powers far beyond those of an ordinary calculator.

The Uri Giller and Sister Helen Solicitations

21. This promotion involves two nearly identical solicitation letters, one signed by "Uri Giller," the other by "Sister Helen" (CX-3 and CX-12). Both letters claim that the addressee has a specified large sum of money waiting for him or her. The letters ask recipients to send a post-dated check for $20.00 and a strand of hair to obtain a "personal Psychic Future Reading plus ALL THE CASH...waiting for [the recipient]" (CX-3, CX-12, p. 2). The solicitations promise that the $20 check will not be cashed for 30 days and will be returned to the addressee within that time if he or she is not satisfied with the reading.

22. The Complaint, as amended, alleges that these solicitations contain some or all of the following false representations:

(a) that the letter is a personal letter from a natural person named Uri Giller;

(b) that the recipient's name was forwarded to Uri Giller or Sister Helen by a friend;

(c) that well-known personality Uri Geller is associated with Respondents' solicitation;

(d) that Respondents can guarantee that recipients will receive substantial sums of money;

(e) that Respondents will make refunds in the form of returned, uncashed postdated checks.

(a) that the letter is a personal letter from a natural person named Uri Giller

23. The Giller letter (CX-3) has the appearance of a personal letter from a real "Psychic Mentalist" named Uri Giller. The letter contains specific statements about the author's psychic accomplishments and fame. It also contains what appears to be a handwritten note at the top of the letter and a handwritten closing from "your new friend Uri Giller" (CX-3, p.2) Inclusion of the claim, "some weeks ago a friend gave me your name," also adds to the impression that the solicitation is a personal letter (CX-3, p.1).

24. The above representation is false because the solicitation is not a personal letter from Uri Giller. Uri Giller is a name used as a d/b/a by Respondent Weingold's business, Helen Archer, Inc. (Tr. 658-659). Ms. Archer, who wrote the first draft of the Uri Giller letter, stated that the name Uri Giller simply "came to her" (CX-80, p.143).

Respondents contend that because Ms. Archer is a real person and the claimed psychic accomplishments are true as to her, the representation is not false. Even assuming, arguendo, that the information about "Uri Giller" is true as to Helen Archer, the deception is in the overall appearance of the solicitation as a personal letter from one individual to another. There is nothing in the Uri Giller letter to suggest that it is from a business rather than a person. Recipients are deceived into believing that a real psychic named Uri Giller has sent them a personal letter promising them specific monetary benefits.

25. This representation is material because people would be more likely to respond if they believed they had received a personal letter from a real Uri Giller than if they knew they had actually received a mass-produced solicitation from a mail order business.

(b) that the recipient's name was forwarded to Uri Giller or Sister Helen by a friend

26. The above representation is explicitly made in both the Uri Giller and Sister Helen solicitations. Both state (CX-3, CX-12): "Some weeks ago a friend gave me your name ".

27. The above representation is false. Helen Archer acknowledged that the names of individuals to whom the solicitation is sent were taken from mailing lists forwarded to her by Respondent Weingold (CX-80, p. 52-53, 162).

Respondents contend that because Respondent Weingold was a friend of Helen Archer the statement "a friend gave me your name" is literally true. Ordinary readers would be more likely to interpret this sentence to mean that their names were sent in by a friend of theirs, rather than a friend of the author of the letter. The obvious intent of this statement is to imply that a friend of the addressee knows the author of the letter and has enough faith in Uri Giller or Sister Helen to send one of them the name of a friend. Even accepting Respondents' interpretation the statement is deceptive, since Respondent Weingold did not refer names to Helen Archer as a friend, but rather as a business associate. See, CX-80, pp. 27-28, 51-54, CX-91, pp. 67-70.

28. The above representation is material because recipients are more likely to remit the $20 check requested if they believe that their names were given to the author of the letter by a friend of theirs.

(c) that well-known personality Uri Geller is associated with Respondent's solicitation

29. This representation is inherent in the use of the name Uri Giller in CX-3.

30. This representation is false. As noted above, Ms. Archer claimed that the name Uri Giller just came to her. She further claimed that the fact that the name "Uri Giller" is very similar to the name of a one-time popular T.V. personality who allegedly had psychic powers--"Uri Geller"--is mere coincidence (CX-80, pp. 146-147). I find Ms. Archer's claim of coincidence to be inherently incredible. It is obvious that the use of the name Uri Giller is an attempt to capitalize on the notoriety of Uri Geller (Tr. 568-569, 574-581), whose name was recognized by expert witness Dr. William Roll and at least one consumer witness who testified at the hearing. See, Tr. 568-582, 433-434. There is no evidence to suggest that the real Uri Geller is in any way associated with the solicitation at issue here.

31. This representation is material because consumers are more likely to respond to a solicitation from a person whose name they recognize or have heard before, rather than from someone totally unknown to them.

(d) that Respondents can guarantee that recipients will receive substantial sums of money

32. A prominent, apparently handwritten note at the top of the first page of the Uri Giller solicitation states (CX-3):

"I'm going to send you real money in the mail - you have at least $14,701.00 waiting for you! No tricks. This is for real!"

In both solicitations the opening sentence states (CX-3, CX-12):

"Dear [first name of recipient], I know it sounds crazy, but you're really going to get the money! Just as soon as you answer this letter.... there is at least $14,701.00 in CASH waiting for you! Read everything I tell you very carefully. Then I can send your cash out to you . . .."

In addition, the order blank at the bottom of the solicitation letters states in pertinent part (CX-3, CX-12):

"I'd love to be $14,701.00 richer now and find a steady source of substantial income. Please rush me my personal Psychic Future Reading plus ALL THE CASH you have waiting for me."

These statements, as well as the overall thrust of the letters, lead the recipients to believe that Respondents will send them $14,701.00 if they send in the order form with a $20.00 check. A consumer witness who received the Uri Giller solicitation testified that he interpreted the letter to mean that he would actually receive $14,701.00 as a gift (Tr. 434). Accordingly, I find that the above representation is made in both the Uri Giller and Sister Helen solicitations.

33. The above representation is false. Recipients of the Uri Giller and Sister Helen solicitations who send in a $20 check receive only a computer-generated "future reading". (CX-3-A, CX-12-A; CX-80, pp. 212-216).

Respondents contend that the promise to send "real money" is not false because they send a $1.00 bill with the future reading. There was no evidence showing that Respondents sent even the $1.00 claimed. Consumer witness James Monagle credibly testified that he received no money whatsoever when he responded to the solicitation (Tr. 451). However, even assuming, arguendo, that Respondents sent $1.00 to some consumers, the Uri Giller and Sister Helen solicitations are still false because they represent that consumers will receive a substantial amount of money and specifically refer to $14,701.00.

34. The above representation is material because recipients are more likely to send in a $20 payment if they believe that they will receive a large sum of money in return.

(e) that Respondents will make refunds in the form of returned uncashed postdated checks

35. The final alleged representation in this promotion is that any recipient who sends in a $20.00 check and later requests a refund, will have his/her uncashed check returned. This representation is explicitly made towards the end of both the Uri Giller and Sister Helen solicitations. The exact language reads as follows (CX-3, CX-12):

"In all fairness, I want to be absolutely sure that you are sincerely interested in receiving my guidance [first name of addressee]. That's why I ask you to send me a check for $20 and to postdate it ahead for one month from now. Postdating means I cannot cash it. You have plenty of time to receive your Reading and find out about yourself -- for a whole month -- how my revelations will immediately transform your life. But you still pay me nothing and owe me nothing! If for any reason whatsoever you are not absolutely thrilled, just return the Reading, and your uncashed check will be returned to you immediately. And you can keep the cash money I send you as my gift! OK?"

The order forms at the end of the letters also state (CX-3, CX-12):

"I am postdating my check so that it cannot be cashed for 30 days. [T]his way I can verify everything you've told me is true with no risk whatsoever to myself. If I'm not happy I'll return the reading and get my uncashed check back."

36. The above representation is false. Consumer witness James Monagle credibly testified that the check he mailed in response to the Uri Giller letter was cashed prior to the end of the 30-day hold period (Tr. 435-439).

Respondents contend that although postdated checks were cashed prior to the 30 day hold period, it was nothing more than clerical error. This contention is unsupported by any evidence and Respondent Weingold admitted in his testimony that he could not say whether any uncashed checks were returned during the life of the promotions (Tr. 663-664). I therefore accord no weight to Respondents' contention of mere clerical error.

37. The above representation is material because consumers are more likely to send in checks if they believe that they will not be cashed during a 30 day trial period.

E. Docket No. 41/26- Future Forecasters

1. This case concerns a single solicitation in the form of a letter to consumers signed by "Professor H. P. Wellington" (CX-4). The letter asks recipients to send in $20.00 to authorize continuation of a psychic research project through which the recipient's name was revealed to the writer of the letter. The solicitation also promises that the recipient will soon receive a specified large sum of money.

2. The Complaint, as amended, alleges that this solicitation contains five false representations:

(a) that a group of seven psychics had a simultaneous vision involving the addressee's name and locality;

(b) that Respondents can guarantee that recipients will receive a substantial sum of money;

(c) that persons who remit payment to Respondents will receive a personalized research file compiled by a group of psychics;

(d) that numbers provided by Respondents have a 93% chance of winning a state lottery;

(e) that Project X711's secret formula has been used previously by consumers to win money.

(a) that a group of seven psychics had a simultaneous vision involving the addressee's name and locality

3. The above representation is explicitly made in the solicitation. The letter refers to a "panel discussion between our psychic research experts here at the Center!" (CX-4, p.1). The panel members are identified as "world-renowned psychics, mentalists, and metaphysical technicians" (Id.). The letter then states as follows (CX-4, p.1):

"You see [first name of recipient], last Tuesday 7 of our researchers were conducting a controversial experiment (Project X711) in psychic phenomena. The seven psychics joined their subconscious minds through mental telepathy. Their aim was to focus on a single individual (unknown to any of them) currently living in the [name of recipient's city] area.

While each was sitting in their own private cubicle, they were instructed to write down the name of the individual they had focused on. They were then instructed to jot down any important or unusual details of their vision.

The end result was amazing! The name that was written down was your name...[full name of recipient]"

4. The above representation is false. The names and addresses of recipients of the Future Forecasters solicitation were taken from mailing lists purchased by Respondent Weingold (CX-80, pp. 52-53; 240-41).

Respondents contend that this representation is not false, relying upon the statements of Helen Archer made in her deposition and District Court testimony. Helen Archer, who drafted the Future Forecasters solicitation, stated that the seven world renowned psychics and the so-called "Center" were in Tibet and that she had visited them and learned about the "experiment" only in a psychic visionary sense (CX-80, pp. 229-234, CX-91, pp. 4-8). There is nothing in the wording of the solicitation to indicate that the events described did not literally occur. The average reader would be more likely to interpret the solicitation to mean that a real group of psychics simultaneously envisioned the addressee's name. The representation is, as found above, false and misleading.

5. This representation is material because people would be more likely to send in money in response to the solicitation if they believed that their names and addresses were revealed exactly as described in the solicitation rather than being obtained in more ordinary ways.

(b) that Respondents can guarantee that recipients will receive a substantial sum of money

6. The Project X711 solicitation makes a number of promises that the addressee will receive a specified, substantial sum of money. Some of the early paragraphs of the letter state (CX-4, p.1):

"[First name of recipient], suppose I told you that there is at least $9770.00 in cash waiting for you! And what if I said you will receive this money sometime before the end of next month . . .

You're probably saying to yourself, 'This is too good to be true.' I understand how you feel. But it is true!

This fact was confirmed in a panel discussion between our psychic research experts here at the Center!....

We've never seen this happen before, [first name recipient]. But we at the Center all agree that you definitely will receive this money sometime soon -- probably by the end of the next month!"

The final paragraph of the letter reads (CX-4, p. 2):

"If you want to find out how, when, and where you can collect your $9770.00 in CASH, you must sign the form at the top of this page and mail it to me right away. . . . The sooner you do this -- the sooner you can collect your money!"

Finally, the order form attached to the letter states (Id.):

"I am very anxious to collect the $9770.00 in CASH that is waiting for me."

7. The above representation is false. What consumers get for their $20.00 is a booklet on numerology, and a "formula" for picking lottery numbers (CX-4-A). The implied promise of $9770.00 in cash is simply a false lure to sell a publication that customers might not otherwise be willing to purchase.

8. This representation is material because people would be far more likely to send in the money requested if they believe that their order will result in the acquisition of a large sum of money.

(c) that persons who remit payment to Respondents will receive a personalized research file completed by a group of psychics

9. The solicitation contains several explicit references to a personal research file for the addressee. On page one of the solicitation Respondents state (CX-4, p. 1):

"As soon as I have your OK, we will complete the experiment. We will then record our findings into your own personal 'Project X711 Research File,' and send it to you right away!"

On the second page of the solicitation Respondents add (CX-4, p. 2):

"One thing we are absolutely sure of is that you only have a very limited time to collect your money....

And you absolutely must be prepared. You need your completed personal 'Project 711 Research File' to find out how, when and where [to obtain the money.] [Y]ou miss out, if you don't hurry!"

Finally, the order form that the recipient sends in with the $20.00 payment states (Id.):

"( )YES, I authorize you to complete my personal 'Project X711 Research File' today so you can send it to me right away."

10. The above representation is false. Consumers who respond to the Project X711 solicitation all receive the same pamphlet written by Respondent Weingold. The pamphlet (CX-4-A), which contains advice on how to pick your lucky number and generalized suggestions on collecting tax refunds, veterans' benefits, and social security benefits cannot honestly be described in the language used in Respondents' solicitation.

11. This representation is material because people would be more likely to remit $20.00 if they believed they were to receive a personal research file completed by a "world renowned" group of psychics, than a pamphlet on numerology and advice on collecting government benefits.

(d) that the numbers provided by Respondents have a 93% chance of winning a state lottery

12. The representation that Respondents' lottery numbers will give a recipient a 93% chance of winning is found in a postscript at the bottom of page two of the Project X711 solicitation (CX-4):

"As I was writing this letter, our Deputy Director of Paranormal Studies, Mr. Uri Galler, informed me of another surprising fact. . . Apparently, the numerical values for each of the letters that spell your name were cross-referenced with our database of the current 'hot' lotto numbers -- which resulted in several matching numbers. He confirmed that by using our little-known, secret formula -- you will have an ultimate 93% chance of winning the Florida lottery, or any other lottery for that matter!"

13. This representation admittedly is false. Respondent Weingold acknowledged at the hearing that the Project X711 pamphlet did not include information that allegedly provides a 93% guarantee of winning. Respondent Weingold explained that there apparently was some confusion between the Project X711 pamphlet and another of his pamphlets (Tr. 674).

14. This representation is material because people would be more likely to remit $20.00 if they believed that they were buying information that would give them a 93% chance of winning a lottery.

(e) that Project X711's secret formula has been used previously by consumers to win money

15. The final representation in this solicitation is found in the postscript, directly after the language quoted above concerning the promised 93% chance of winning a lottery using Respondents' secret formula. The solicitation states as follows(CX-4, p. 2):

"Using this same secret formula, Ron and Val Taylor won $10.4 MILLION! Sisters, Linda, Anne and Barbara Lambert split the $21.6 MILLION Jackpot recently!"

16. The above representation is false. Respondent Weingold acknowledged in his testimony that he had read about the named lottery winners in newspaper stories, and had gleaned from the accounts that they must have used one of his systems for playing the lottery. Respondent Weingold further acknowledged that he never met or communicated with these winners and could not say that the news accounts mentioned Project X711 (Tr. 664-70). In short, Respondents' claim that actual lottery winners had used the formula in the Project X711 pamphlet to arrive at their winning numbers is unsupported. As found above, on this record the representation is false.

17. This representation is material because people would be more likely to send in the money requested if they believed the offer included a secret formula for winning a lottery that others had already successfully used.

F. Docket No. 41/27 Winners' Network - "The Super Ticket"

1. The Winners' Network solicitation is a one-page flyer in which recipients are offered the opportunity to purchase "Super Ticket" memberships that enable them to play over 35 different lotteries each week in the United States and other countries (CX-6). Customers are given six options for membership -- as short as two weeks, or as long as 52 weeks -- the longer the period, the cheaper the rate per week. Those who respond to the solicitation are sent a pamphlet called "The Doctor's Super Ticket" (CX-6-A).

2. The Complaint, as amended, alleges that this solicitation contains six false representations:

(a) that Respondents' "Super Ticket" is an existing lottery pool;

(b) that Respondents can guarantee recipients a 93% chance of winning a state or foreign lottery;

(c) that persons who purchase a "Super Ticket" will receive a substantial financial benefit;

d) that Respondents' "Super Ticket" is easy to use;

(e) that Respondents' "Super Ticket" is something other than a publication or pamphlet;

(f) that the consumer's initial remittance is the only expenditure necessary to participate in Respondents' program.

(a) that Respondents' "Super Ticket" is an existing lottery pool

3. The clear implication of the Super Ticket solicitation is that one who purchases a "membership" automatically will be entered into various lotteries each week, for a specified number of weeks. The language of the solicitation is couched in terms of "memberships" which are sold at prices ranging from $3.00 to $35.00, depending on the number of weeks chosen. The flyer exhorts the reader to "[p]lay the 'Super Ticket' each week" and states that the 'Super Ticket' make[s] it possible to play all 35 U.S. Lotteries plus Canada, Australia, Hong Kong and Germany... [making] the payout ... a staggering $150,000,000 weekly" (CX-6). Accordingly, I find that the above representation is made. This finding is supported by the testimony of consumer witness Neil Cofino, who testified that he paid $15 for a 25-week membership, and believed that he would be entered as part of a group into all of the lotteries described in the solicitation (Tr. 386-87).

4. This representation is false. As noted above, individuals who respond to the solicitation receive only a copy of a pamphlet titled "The Doctor's Super Ticket", which essentially describes how to set up a lottery pool (CX-6-A).

5. This representation is material because consumers would be more likely to send money if they believed that they were purchasing a membership in an existing lottery pool rather than a pamphlet on how to set up a lottery pool.

(b) that Respondents can guarantee recipients a 93% chance of winning a state or foreign lottery

6. The solicitation explicitly represents that the consumer is guaranteed a 93% chance of winning, as shown by the excerpts quoted below (CX-6):

"Play the 'Super Ticket' each week and you have a guaranteed ultimate 93% certainty of winning!!!

. . . and you [name of recipient] have a guaranteed ultimate 93% chance of winning! The 'Super Ticket' comes with a 93% win guarantee. People who use the 'Super Ticket' with all its power lose only 7% of the time."

7. The above representation is false because it omits essential information. The reader is led to believe that he or she is buying a membership in an existing, international lottery pool and that mere membership will guarantee them a 93% chance of winning. As noted above, consumers are actually purchasing a pamphlet which instructs the reader in setting up a vast pool of lottery players. Complainant's expert, Dr. Shaman, a professor of statistics at the University of Pennsylvania, analyzed Respondents' "Super Ticket" pamphlet and set out the results of this study in a letter to the Postal Inspection Service dated December 29, 1993 (CX-18). Dr. Shaman also testified about his analysis at the hearing (Tr. 187-228). Dr. Shaman described the conditions that must be met to reach the 93% chance of winning alleged in Respondents' solicitation, following the guidance in its pamphlet. According to Dr. Shaman, whose testimony and analysis I rely upon, it would require a membership group of 15,246 people - 462 in each of 33 different states, a lottery system in each state that required contestants to pick 6 numbers out of a pool of 30, and a per person investment of $1 a day for 100 days - a total of $1,524,600. Winnings would, of course, be divided 15,246 ways. See, GCX-18, p. 3. Since Respondents' solicitation omits any information concerning the extreme effort required to achieve a 93% chance of winning, the representation is essentially false.

8. The representation is material because recipients are more likely to send in the money requested if they believe that by doing so they are guaranteed a 93% chance of winning a lottery.

(c) that persons who purchase a "Super Ticket" will receive a substantial financial benefit

9. The two references in the solicitation to a total weekly payout of $150,000,000, together with the several explicit guarantees of a 93% chance of winning, clearly imply that a subscriber to the "Super Ticket" will receive a substantial financial benefit.

10. This representation is false because as shown above in paragraph 7, consumers are not likely to receive a substantial financial benefit unless they can assemble a vast lottery pool and meet the other complex conditions. This representation is material for the same reasons stated in paragraph 8 above.

(d) that Respondents ''Super Ticket" is easy to use

11. The representation that the "Super Ticket" is easy to use is implicit in the first alleged misrepresentation, i.e., that purchasers of a "membership" will be entered into several lotteries each week, for whatever number of weeks they purchase.

12. This representation is false for the reasons discussed in paragraphs 7 above. This representation is material because consumers are more likely to respond if they believe that all they need to do is send in the money requested to join an existing international lottery pool and have a guaranteed 93% chance of winning.

(e) that Respondents' "Super Ticket" is something other than a publication or a pamphlet

13. The representation that the "Super Ticket" is something other than a pamphlet is closely related to the previous misrepresentations. The term "ticket," the price list for weekly "memberships," and the phrase, "Play the 'Super Ticket' each week" clearly imply that the customer is purchasing actual entry into lotteries. There is no language at all in this solicitation to suggest that what is actually being offered for sale is an instruction pamphlet.

14. The above representation is false and material for the same reasons stated in paragraphs 4 and 5 above.

(f) that the consumer's initial remittance is the only expenditure necessary to participate in Respondents' program

15. The final alleged misrepresentation in this promotion is that a consumer's initial remittance, i.e., the purchase of a weekly "membership," is the only expenditure necessary to be entered into numerous lotteries and be guaranteed a 93% chance of winning. This representation is implicit in the price quotation for 2 week to 52 week memberships and in the language quoted below (CX-6):

"[Name of recipient], for an investment of $.40-$1.50 per week you become part of the Winners' Network - a revolutionary method of play-that shows [name] how to share each week in $150,000,000 world wide!!!"

16. This representation is false. The buyer of a weekly membership obtains neither lottery tickets nor an opportunity to participate in an established lottery pool. At a minimum, any consumer who wanted a chance to win a lottery would have to buy tickets. That alone makes the representation false, without even considering the obvious expense of setting up the betting pool advocated by the "Super Ticket" pamphlet.

17. This representation is material because consumers would be more likely to send the money requested if they believe that the "membership" fee is the only expense they will incur to become part of an existing lottery pool and have a guaranteed 93% chance of winning.

G. Docket No. 41/28 Consumer's Depot Corp.

1. The solicitation in this case is a printed postcard with the heading "FINAL DELIVERY NOTICE" in large capital letters. The card states that the sender is holding a "Multi-Item Parcel" for the addressee and instructs the addressee to remit payment ($14.47 on one sample, $19.97 on another) by check or money order before a specified date, "[f]or prompt delivery" (CX-10).

2. The Complaint alleges that this solicitation contains four false representations:

(a) that recipients have previously ordered merchandise being held by Respondents;

(b) that Respondents' solicitation is a delivery notice;

(c) that the amount to be remitted is for shipping and handling only;

(d) that the postcard is a specialized personal identification notice directed exclusively to the recipient.

(a) that recipients have previously ordered merchandise being held by Respondents

3. The above representation is implicitly made in the solicitation. The front of the postcard bears what looks like a handwritten message: "Your shipment is now ready for delivery." The reverse side of the card states: "No further notice will be given," and sender is "holding" a parcel for shipment (CX-10). The only apparent purpose for this language is to create the impression that the recipient or some member of the recipient's household, has previously ordered merchandise which is being held for delivery by Respondents.

4. This representation is false. Respondent Weingold admitted in his testimony that people who receive this postcard have not previously purchased or ordered any merchandise from Respondents (Tr. 686).

5. This representation is material because consumers would be more likely to remit the requested payment if they believed that they or someone in their household had already purchased or ordered the merchandise.

(b) that Respondents' solicitation is a delivery notice

6. The second alleged false representation is a corollary to the first. The heading, "FINAL DELIVERY NOTICE," and the other phrases quoted above in paragraph 3 are all designed to make the recipient believe that this is not a solicitation to buy a product, but merely a delivery notice for something already purchased or ordered.

7. This representation is false and material for the same reasons stated in paragraphs 4 and 5 above.

(c) that the amount to be remitted is for shipping and handling only

8. As found above, Respondents' "Consumer's Depot" solicitation creates the impression that certain merchandise has been ordered by the addressee or by someone residing at the addressee's residence. Complainant contends that implicit in this representation--that merchandise has been ordered-- is the further representation that the amount of money requested is for shipping and handling only. The card itself makes several contradictory statements about shipping costs. Under the heading "VALUE" it indicates "shipping paid" and after the $14.47 or $19.97 figure Respondents state: "All shipping and handling included" (CX-10). The only indication that the stated charges might be for shipping and handling only, rather than for payment for the merchandise itself, is Respondents' representation that the merchandise is valued at over $100 or $300.⁽⁵⁾ Any reasonable person would recognize that merchandise that valuable could not be purchased for only $14.47 or $19.97. Accordingly, the consumer is left to infer that the stated charges are for shipping and handling only. The Postal Service failed to make this specific

allegation in its Complaint, however, and I find that the alleged false representation -- that the money sought is for shipping and handling only -- is not implicit in the false representation that the merchandise has been ordered. I therefore find that the above representation is not made in the Consumer's Depot solicitation.

(d) that the postcard is a specialized personal identification notice directed exclusively to the recipient

9. The representation that the postcard is a personalized notice sent only to the named recipient is primarily made through the use of an apparently handwritten number at the top of the card. This number appears to be a unique identifier assigned to that particular delivery only. Other phrases such as "[m]ail to addressee immediately[.] Hold on file for response F.Y." under the heading "Office Use Only," also add to the impression that the notice is being directed exclusively to the recipient (CX-10).

10. This representation is false. Respondent Weingold acknowledged in his testimony that the names of recipients are obtained from mailing lists, and that the same delivery number--371187-- is used on all of the cards (Tr. 685-689).

11. This representation is material because recipients are more likely to send the money requested if they believe that the postcard is a unique notice of delivery directed exclusively to them.

H. Docket No. 41/29 Fight Back International

1. The documents at issue in this case are two solicitations in the form of letters signed by H. P. Wellington on behalf of the Pot 'O Gold Club.⁽⁶⁾

The first letter informs the recipient the he or she has won $25,000 and offers the opportunity to win an additional prize of $5 million, $10 million or $20 million for a corresponding fee of $7, $12, or $15 (CX-7). Recipients who respond to the first solicitation are sent the second solicitation (CX-8) which informs the recipient that he or she has won a "special AWARD PREMIUM," and that to receive it, along with other gifts, he or she must send a $15 "processing fee" to the Pot 'O Gold Club.

2. The Complaint, as amended, alleges that these solicitations violate 39 U.S.C. §3005 because they contain false representations and also because they constitute a lottery. The alleged false representations are as follows:

(a) that the recipient has won a substantial cash prize;

(b) that the recipient will receive a prize upon responding to the Pot 'O Gold solicitation;

(c) that persons sending payment to Respondents will receive a cash prize of greater value than the amount they remit to Respondents;

(d) that persons sending payment to Respondents will receive five Australian lottery tickets. ⁽⁷⁾

(a) that the recipient has won a substantial cash prize

3. The first alleged representation is made in the opening lines of CX-

7, directly below a facsimile of a check for $25,000.00 made payable to the named recipient. The exact language of the solicitation in which the representation is found states (CX-7):

"YOU ARE FINALLY A CASH PRIZE WINNER, [name of recipient]! I'M HOLDING A CHECK FOR YOU RIGHT NOW. MAY I SEND IT TO YOU?

Dear [name of recipient]:

It's official. You're going to get the money! No tricks and no gimmicks....I'm going to mail your check out to you just as soon as I hear from you, ...."

The solicitation goes on to explain that the Pot 'O Gold Club is a "unique 'automatic sweepstakes entry' service" and further states (CX-7):

"Before we can effectively introduce this new service nationwide, we need to have verified testimonials from people like you [recipient's first name] who've won big cash and prizes through membership in the Club."

On the second page of the solicitation Respondents add :

"That's why we pre-selected you as a GUARANTEED CASH WINNER in this 25,000.00 Sweepstakes Extravaganza. You're already a cash winner."

After stressing the importance of a quick response, the last paragraph of the solicitation states:

"...I'll rush you your check by return mail. I'd hate to see you miss out on the cash you've already won, $25,000.00 is a lot of money!"

4. The above representation is false. Recipients of this solicitation have won nothing. Regardless of the above-quoted statements indicating that recipients of the solicitation have already won a large cash prize recipients are, by Respondents' own admission, merely entered into Respondents' contest, the first prize in which is $25,000.00, and into other sweepstakes.

As Respondents correctly point out, the rules for their contest are printed at the bottom of the solicitation under the heading "Pot 'O Gold Club $25,00.00 Official Sweepstakes Rules" (CX-7, p. 2). However, the contest rules are printed in type so small that the ordinary recipient could only read them with great difficulty. In any event, merely being entered in a contest that allegedly is scheduled to conclude on December 31, 1995, at which time one grand prize of $25,000 and second prizes of 40 cent checks will be awarded (Tr. 692-697), is not the same as having already won a large cash prize. Respondents' repeated false representations that the addressee has already won a large cash prize are not offset by the presence of contest information printed in undersized type at the end of the solicitation.

5. This representation is material because people are more likely to remit $7 - $15 to join the Pot 'O Gold Club if they believe that they have already won a large cash prize.

(b) that the recipient will receive a prize upon responding to the Pot 'O Gold Club solicitation

6. This representation is implicitly made in the text quoted above in paragraph 3. The language set out below from the last paragraph of the solicitation also contains an explicit expression of this representation ( CX-7, p. 2):

"Check off the amount of prizes you want to win--$5 MILLION, $10 MILLION, or $20 MILLION--and mail me your GUARANTEED WINNER FORM today, and I'll rush your check by return mail. I'd hate to see you miss out on the cash you've already won, $25,000.00 is a lot of money!"

7. This representation is false. Respondents admittedly sent no prizes to those consumers who sent money in response to CX-7 (Tr. 693-698).

Respondents contend that the representation concerning prizes is not false because prizes were going to be awarded sometime after December 31, 1995. Since the Pot 'O Gold promotion was operating as early as 1993, even assuming, arguendo, that Respondents had a good faith intention of awarding prizes sometime after December 31, 1995, Respondents' solicitation represents that prizes will be awarded upon receipt of the consumer's response.

8. This representation is material because people would be more likely to send in money if they believe that they will promptly receive a prize.

(c) that persons sending payment to Respondents will receive a cash prize of greater value that the amount they remit

9. As shown above in paragraph 3, the solicitation promises that recipients who send in $7, $12, or $15 to the Pot 'O Gold Club will receive a $25,000 prize they have already won. Accordingly, the solicitation at issue--CX-7--contains the alleged representation.

10. The above representation is false and material for the reasons discussed in paragraphs 4 and 5 above.

(d) that persons sending payment to Respondents will receive 5 Australian lottery tickets

11. The above representation regarding Australian lottery tickets is made at three places in the solicitation (CX-7):

On the first page of the solicitation Respondents state:

"AND IN RETURN, WE'LL GIVE YOU AN ADDITIONAL 5 FREE CHANCES TO WIN UP TO $9 MILLION IN CASH!"

This representation is restated and explained as follows on the second page of the solicitation:

". . . we'll also give you 5 FREE CHANGES (sic.) TO WIN UP TO AN ADDITIONAL $9 MILLION IN CASH! These are tickets for the Australian Lottery. (They routinely give away mega-million in lump sum cash every week!)"

Finally, on the order form to be mailed in with the recipient' s payment it states :

"Rush me my additional 5 FREE chances to win up to $9 MILLION CASH also!"

12. The above representation is false. Persons who respond to the Pot 'O Gold Club solicitation do not receive any Australian lottery tickets.

Respondents contend that the solicitation at issue does not promise actual "tickets" but only five "chances to win," and that that representation is true. Respondent Weingold testified that Pot 'O Gold Club members are provided chances to win the Australian lottery through a contract he has with an organization in Canada that buys tickets and holds them for club members. Respondent Weingold acknowledged that he does not know what the Canadian business does with the lottery tickets or whether any Pot 'O Gold Club members have ever won any money. Respondent Weingold stated that he thought club members would be notified by mail if they won (Tr. 700-705).

Respondents' contentions are without merit. First of all, as shown above, the solicitation does not merely refer to chances to win, it defines the "5 free chances to win" as "tickets for the Australian Lottery". Furthermore, Respondent Weingold's claim that club members are provided with chances to win the Australian lottery through his alleged arrangement with a Canadian company is totally unsupported and inherently incredible. Even accepting his explanation at face value, his alleged contract with the Canadian company fails to assure that anyone who actually won money in the lottery would receive it. I find that consumers who send money in response to this solicitation have no real chance to win the Australian lottery.

13. This representation is material. Even though the primary incentive for responding to the Pot 'O Gold Club solicitation is to obtain the $25,000.00 the recipient has already allegedly won, an additional incentive of five free Australian lottery tickets would further encourage recipients to send in the money requested.

The Lottery Allegation

14. Complainant alleges that both CX-7 and CX-8 also contain the three elements of a lottery - a prize, awarded purely by chance, after consideration is paid by those seeking the prize.

15. The Pot 'O Gold Club is described in CX-7 as a "sweepstakes entry service". Consumers pay $7, $12, or $15 for Respondents to enter them in various sweepstakes contests. For example, by paying $7 consumers are entered in contests with prizes up to $5 million. Respondents' solicitation contains all three elements of a lottery. Consumers pay a consideration of between $7 and $15 for the opportunity to win a sweepstakes prize that is awarded purely by chance. Accordingly, CX-7 violates the lottery provision of 39 U.S.C. §3005

. Respondents contend that the money requested does not constitute consideration because it is a charge for the clerical services involved in entering the various contests and not for entering the contests themselves. Respondents made no showing that the fees they sought were tied to the amount of clerical services needed to enter various contests. On the contrary, Respondents' solicitation specifies a fee based on the amount of money the recipient seeks to win. Presumably, a consumer could be entered into only one or two contests to be eligible to win $12 million and that would require less clerical work than entering many contests with smaller prizes whose aggregate value is $7 million. Nevertheless, Respondents charge a smaller fee for eligibility to win a $7 million prize.

16. CX-8, is a follow-up solicitation that is sent to everyone who purchases a membership in the Pot 'O Gold Club through CX-7. The follow-up solicitation states that the recipient has been selected to receive a special award through the Pot 'O Gold Club. An award category is checked and 5 possible prizes in that category are listed. Recipients are requested to send in a $15 "processing fee" which entitles them to a gift award, three other free gifts, and double the chances of winning a sweepstakes.

17. CX-8 constitutes a lottery because a consideration of $15 is required to be eligible to win a prize chosen from a list of possible premiums.

Respondents contend that the element of chance is missing in CX-8 because the consumer is guaranteed to receive some prize within the category indicated and that consumers can determine in advance of sending money exactly which prize they have won. Contrary to Respondent's contention, consumers cannot realistically determine which prize they are to receive in advance of sending the money. Although the CX-8 solicitation states that recipients can find out which prize they won by sending a stamped, self-addressed envelope, the solicitation also indicates that the premium claim form must be mailed within 3 days. Therefore, consumers could not determine which prize they won without exceeding the deadline for claiming the prize.

I. Docket No. 41/30 Paul Zax Enterprises, Inc.

1. The solicitation at issue in this case is in the form of a four-page letter (CX-9), signed by "Professor Paul Zax, Jr.," another of the fictitious names used by Respondent Weingold (Tr. 716). The letter details the Professor's alleged academic credentials and success at winning lotteries. Recipients are requested to send $20.00 for a booklet called "The Professor's Winning Que" (CX-9-A), along with a "special scientific odds-improvement device" (CX-9-B) and five free chances to win "up to $9 MILLION in LUMP-SUM CASH".⁽⁸⁾

2. The Complaint alleges that this solicitation contains four false representations:

(a) that Paul Zax, Jr. is a natural person who is a Professor of Advanced Mathematics and Computer Science;

(b) that responding consumers are guaranteed to win substantial sums of money using Respondents' lottery device and secret formula;

(c) that Respondents' lottery device raises the consumer's odds of winning a lottery to 93.16%;

(d) that the Barrington Hills, Illinois Police Department won a substantial amount of money in the lottery using the Respondents' lottery device.

(a) that Paul Zax, Jr. is a natural person who is a Professor of Advanced Mathematics and Computer Science

3. This representation is explicitly made on the first page of CX-9, as follows:

"My name is Paul Zax Jr. I'm a professor of advanced mathematics and computer science."

Later, to explain why Paul Zax, Jr. doesn't just use his system to win lotteries for himself, the solicitation adds (CX-9, p.2):

"...I'm a highly visible person in the scientific community. I have given information to some very important government agencies and corporations. My reputation as a mathematical researcher must be protected. Within my professional capacity in the scientific community, lottery-playing is frowned upon, and I must abide by an approved code of behavior and ethics. (After all, I've been a distinguished Professor for over 28 years, and I am widely published in 42 scientific journals and white papers.)"

4. The above representation is false. As noted, Paul Zax, Jr. is just another fictitious name Respondent Weingold uses in his mail order promotions. Respondent Weingold acknowledged that it is his photograph that appears on the solicitation with the caption "Professor Paul Zax Jr.," and Respondent Weingold essentially claimed that he is the Professor (Tr. 716-718). Respondent Weingold admitted, however, that he does not have a degree in either advanced mathematics or computer science, and that he has not taught either of those subjects at a college or university (Tr. 718-19).⁽⁹⁾ His explanation that he has a lot of expertise in these areas and considers himself a "professor" does not make the representation any less false or misleading.

5. This representation is material because people would be more likely to rely upon the other claims made in the solicitation about winning lotteries, if they believed that the author really was a professor of advanced mathematics and computer science.

(b) that responding consumers are guaranteed to win substantial sums of money using Respondents' lottery device and secret formula

6. A number of representations are made throughout this solicitation indicating that consumers who respond are guaranteed to win substantial sums of money (CX-9):

"The reason I play lotteries is because I have found outhow to win. . . . I'm prepared to guarantee your success when you use my secret formula!

Moreover, I have indisputable proof my information can make you a winner. I spent 2 ½ years developing a fool-proof 2-part formula for winning cash lottery prizes. It is simple to use and scientifically proven....

I have all the documented reports of my achievement available for inspection at any time. I myself, am now a millionaire."

In regard to the Professor's "new winning formula" the solicitation states (CX-9, p.2:)

"It raises you[r] WIN ASSURANCE odds to the maximum -- 93.16%! Nobody in the world can offer you better odds than that,[name of addressee]!

It GUARANTEES payouts from $552.00 to $1,942.00 per ticket if only some of your numbers are correct -- and pays 7 times more than this if you use certain numbers I reveal to you!

The solicitation also give three specific examples of lottery players who allegedly have won multi-million dollar jackpots using the Professor's system. Finally, the order form that recipients are asked to mail in with a $20 payment is labeled - GUARANTEED WINNER FORM. The entire thrust of CX-9 is to lead readers to believe that they are guaranteed to win a large sum of money if they buy and use Respondents' product.

7. The above representation is false. What the consumer receives for the $20 requested in CX-9 is a booklet entitled "The Doctor's Winning Que" (CX-9-A) which gives guidance on how to calculate odds of winning with various combinations of numbers. As Complainant's expert witness Dr. Shaman concluded, this booklet cannot "guarantee" winning, unless a player is willing to buy enough tickets to cover all possible combinations of numbers (CX-50, p. 2). Likewise, CX-9-B, a paper device called an "Odds Improvement Maximizer" (CX-9-B) which is sent with the booklet, might assist a player in picking numbers but cannot "guarantee" anything. ⁽¹⁰⁾

Respondents contend that the only guarantee they make in the solicitation is that consumers will get a refund if they do not win at least $1,900.00 in a lottery before a certain date. While Respondents make this refund guarantee at page 3 of the solicitation, the ordinary reader would interpret the language quoted above in paragraph 6, as a guarantee of winning substantial cash lottery prizes. Respondents' single reference to a money-back guarantee does not offset the effect of its other representations that falsely guarantee substantial lottery winnings.

8. This representation is material because people who believe they are guaranteed to win a substantial amount of money are more likely to respond to the solicitation and pay the $20.00 requested.

(c) that Respondent's lottery device raises the consumer's odds of winning a lottery to 93.16%

9. The representation as to the 93.16% chance of winning is contained in the third quotation in paragraph 6 above. This representation is repeated in the order form at the bottom of the solicitation which is headed "Guaranteed Winner Form". The text of the order form states in pertinent part (CX-9): "Rush me 'The Professor's Winning Que'[,] your number combinations, and the special scientific odds-improvement device which raises my win assurance odds to the maximum 93.16% ...."

10. This representation is false because it omits important information about the claim. Complainant's expert witness, Dr. Paul Shaman, testified as follows concerning the 93.16% guarantee (Tr. 235):

"...the overall winning odds are far less than that. They are very close to zero. The 93 percent probability refers to only a portion of the calculation and is predicated upon a very substantial assumption."

Dr. Shaman went on to explain that Respondents' system, as outlined in the booklet, assumes the use of 12 numbers and tells the bettor that playing a "partial Que" (CX-9A, p. 5) of combinations of 6 of those 12 numbers for a certain number of days will give a 93% guarantee of winning. Dr. Shaman explained that the substantial assumption he referred to is that the 12 numbers selected will include all 6 of the winning numbers (Tr. 235). Dr. Shaman testified that the odds of winning if the bettor simply selected twelve numbers are 1,660 to one (Tr. 236-237). Accordingly, relying on Dr. Shaman's testimony and report, I find that the above representation is false.

11. The above representation is material because consumers are more likely to send in the $20 requested if they believe they have a guaranteed 93% chance of winning a lottery.

(d) that the Barrington Hills, Illinois Police Department won a substantial amount of money in the lottery using the Respondents' lottery device

12. The final alleged false representation in the Professor Paul Zax solicitation is made following the author's explanation of how he spent 2 ½ years developing a secret formula. The solicitation states that Zax tested it himself and won several lottery prizes, whereupon the following claim is made (CX-9, p.1):

"Then my secret formula was used by certain other individuals. Look what happened....

-- Recently one Wednesday, 16 members of the Barrington Hills, Illinois Police Department chipped in to buy 90 $1 tickets for Saturday's drawing. They WON $8.3 MILLION -- and are now splitting $414,000.00 a year for 20 years!"

13. The above representation is false. Edgar Fair, Chief of the Barrington Hills Police Department, testified at the hearing that members of his department did win the lottery as alleged in the solicitation. However, Chief Fair, who participated in the lottery pool, stated that his group let the lottery computer pick their numbers (Tr. 166), that he had never heard of Paul Zax before this litigation (Tr. 168), and that he had never seen either the booklet "The Doctor's Winning Que" (CX-9A) or Respondents' odds improvement device before the hearing (Tr.169-170).

Respondents contend that the Barrington Hills police used a pooling system similar to the one Respondent Weingold advocates in his "Doctor's Winning Que" booklet, and therefore the representation is true. Contrary to Respondents' contention, the representation made in the solicitation states that the Barrington Hills police won the lottery because they learned Professor Zax's "secret formula" and not because they simply pooled their bets. Respondents' solicitation implies that the Barrington police won because of secret information contained in Respondents' publication. There is nothing secret about pooling bets, pooling is an obvious method of increasing the chances of winning a lottery.

14. This representation is material because people are more likely to respond to the solicitation and send in the money requested if they believe that others have successfully used Respondents' lottery device.

CONCLUSIONS OF LAW

1. The Postal Service has jurisdiction over this matter under 39 U.S.C. §3005 (1988 & Supp. IV 1992).

2. Each of Respondents' solicitations must be considered as a whole, and the meaning is to be determined in the light of the probable impact of this material on a person of ordinary mind. Donaldson v. Read Magazine, 333 U.S.178, 189 (1948); Peak Laboratories, Inc. v. U. S. Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977). Express misrepresentations are not required. It is the net impression which the solicitation is likely to make upon individuals to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it, the false representation statute is applicable. G. J. Howard Co. v. Cassidy, 162 F. Supp. (E.D.N.Y. 1958); see also, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

3. 39 U.S.C. §3005 was intended to protect the gullible, naive, and less critical reader, as well as the more sophisticated, wary reader. Fields v. Hannegan, 162 F.2d 17 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956); Leo Daboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986). "People have a right to assume that fraudulent ... traps will not be laid to ensare them. 'Laws are made to protect the trusting as well as the suspicious.'" Donaldson v. Read Magazine, 333 U.S. at 188-189, quoting from F.T.C. v. Standard Education Society, 302 U.S. 112, 116 (1937). "As a matter of fact, 'the lack of guile on the part of those solicited may itself point with persuasion to the fraudulent character of the artifice.'" Lemon v. U.S., 278 F.2d 369, 373 (9th Cir. 1960), quoting from Norman v. U.S., 100 F.2d 905, 907 (6th Cir. 1939).

4. Where a solicitation is ambiguous or capable of more than one meaning, if one of those meanings is false, the solicitation will be held to be misleading. Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir.1953); Ralph J. Galliano, P. S. Docket No. 19/15 (P.S.D. May 2, 1985, at p. 9). It is not difficult to select words that will not deceive. See, United States v. 95 Barrels of Vinegar, 265 U.S. 438 (1924).

5. A sales promotion may be deceptive because its statements are untrue or because statements which should be contained are omitted. The total impression of a promotion may be false although each word individually is true. Vibra-Brush Corp. v. Shaffer, 152 F. Supp. 461 (S.D.N.Y. 1957), rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958). "[O]missions...of material information can constitute fraud ... cognizable under the mail fraud statute, without proof of a duty to disclose the information pursuant to a specific statute or regulations." U.S. v. Keplinger, 776 F.2d 678, 697 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986).

6. The Administrative Law Judge can determine whether the representations are made, their effect on the ordinary mind, and materiality without the assistance of lay or expert testimony. Standard Research Labs, P. S. Docket No. 7/78 (P.S.D. Oct. 27, 1980); The Robertson-Taylor Company, P. S. Docket Nos. 16/98-102, 16/120-121, (P.S.D. March 31, 1986, at page 29); Vibra-Brush v. Schaffer, 152 F. Supp. at 468.

7. Applying the foregoing standards to the findings of fact set out above, Respondents' solicitations make each of the representations alleged in each of the complaints, P. S. Docket Nos. 41/23-30, with the exception of alleged representations (b) in P.S. Docket No. 41/23, (d) in P.S. Docket No. 41/25, and (c) in P.S. Docket No. 41/28. The representations found to have been made are false and material as shown above.

8. The effect of false representations is not dispelled by a product guarantee or an offer to refund payment in the event of customer dissatisfaction. Harris v. Rosenberger, 145 F.2d 749 (8th Cir.1906); G. J. Howard v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958); Farley v. Heininger, 105 F.2d 79 (D.C. Cir. 1939); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959).

9. To be material, a representation must cause one to do other than would have been done had the truth been told. Keystone Industries, et al., P. S. Docket Nos.17/44-46 (I.D. 1983); Chaachou v. American Central Insurance Co., 241 F.2d 889, 893 (5th Cir.1957). Although a representation may not be material when viewed alone, when it lends support to the veracity of other representations alleged in the complaint, it becomes material. N. Baylely, Inc./Kurt Schneider, P. S. Docket No. 22/113 (P.S.D. 1986).

10. Whether anyone actually complains or has been deceived by the respondent's advertisements is irrelevant to the issue of false representation. Farley v. Heininger, 105 F.2d at 79. It is the likelihood of deception or the solicitation's capacity to deceive which must be judged. Montgomery Ward & Co. v. FTC, 379 F.2d 666 (7th Cir. 1967); Mid-Am Marketing, Inc., P. S. Docket No. 24/12 (P.S.D. on Recon., May 7, 1987). The existence of satisfied customers does not establish that the statute has not been violated. Farley v. Heininger, supra. However, in this case consumers have been deceived, and there are numerous consumer complaints concerning the deceptiveness of the schemes. Consumer complaints have previously been deemed admissible as evidence in a §3005 proceeding, and may be relied on to prove the existence of a false representation. See, Card Redemption Center, P. S. Docket No. 30/35 at 14 (P.S.D. June 30, 1989).

11. The necessary elements of a lottery are the furnishing of consideration, the offering of a prize, and the distribution of the prize by chance. Brooklyn Daily Eagle v. Voorhies, 181 F. 579, 581 (1910); Horner v. U.S., 147 U.S. 449 (1983). The fact that promotional language of the solicitation states that participants can communicate with the organizer to verify which prize he or she will receive does not eliminate the element of chance. See, Great American Giveaway, P. S. Docket No. 36/102, (P.S.D. June 17, 1991). Where language is ambiguous at best as to whether or not a fee is required to receive a prize, consideration does exist. Paul, Marbin & Company, Inc., et al., P. S. Docket No. 28/190 (P.S.D. October 20, 1989). See also, American Testing Institute v. U. S. Postal Service, 579 F. Supp. 1345, 1349 (1984). Whether consideration is required is determined by the impression made upon the ordinary reader of the solicitation. Thomas W. Giel d/b/a Florida Lotto Players, P. S. Docket No. 34/178 (I.D. October 20, 1989). Activities such as purchasing or pooling agent are lotteries. Canadian Express Services, et al., P. S. Docket No. 28/149 (P.S.D. Dec. 1988) aff'd., P.S.D. on Mot. for Recon., Nov.13, 1989. Respondents scheme as alleged in Count II of P.S. Docket No. 41/29 constitutes a lottery in violation of 39 U.S.C. §3005.

12. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, Inc., 587 F.2d 1149, 1168 (D. C. Cir. 1978).

Judith A. Dowd
Administrative Law Judge

1. 1. 39 U.S.C. §3005 provides, in pertinent part, as follows:

(a) Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, . . . or is engaged in conducting a lottery, . . . the Postal Service may issue an [appropriate] order.

2. 2. On September 23, 1994, a Default Order was issued against Helen Archer and Archer Astrology, Inc., in P.S. Docket No. 41/25, based on their failure to file Answers or to appear at the hearing. On September 26, 1994, the Judicial Officer issued Cease and Desist Orders with respect to them.

3. 3. "Tr." references are to pages of the hearing transcript and "CX" references are to Complainant's exhibits admitted into evidence. CX-80 consists of Helen Archer's deposition and CX-91 and CX-91-A consist of her testimony in a related proceeding in the U. S. District Court for the District of New Jersey, Civil Action No. 94-127

4. 4. CX-11-A consists of a photocopy of the collection of items that were sent to consumers who responded to the Fifth Avenue Creations solicitation. However, the undersigned inspected the actual items that were sent to consumers (Tr. 527-528, 807) and the above description is based upon personal observation.

5. Complainant made no allegation with respect to the monetary value of the "Multi-Item Parcel." A photocopy of a sample "parcel" was admitted in evidence as CX-10-A. The actual sample parcel, which the undersigned personally inspected, included a comb, a small gold tone chain, a perfume ampule, a Kodak film mailer, and a flyer announcing the recipient's one-year membership in the national freebie network (Tr. 50, 256, 808).

6. Respondents' brief indicates that Pot 'O Gold Club is a registered trade name of Fight Back International (Br. 60). It is therefore referred to by that name, including the misplaced apostrophe.

7. ⁷ Complainant withdrew a fifth allegation of false representation in its post-hearing brief (Br. 47, fn. 75).

8. The booklet is actually titled "The Doctor's Winning Que" (CX-9-A). The variation in title is not significant, and is probably indicative of nothing more than an occasional cross-mixing among Respondent's many promotions or, as Respondent Weingold suggested, "sloppy editing" (Tr. 720).

9. ⁹ Respondent Weingold refers to himself as Dr. Weingold, but his claim to that academic title is based upon his alleged receipt of a doctor's degree in psychology (Tr. 776).

10. ¹⁰ Dr. Shaman, in his written report on CX-9-A and CX-9-B (CX-50), stated that this device would be useful to help people pick random sets of numbers without repeating any combinations, and to avoid choosing too many popular numbers (CX-50, p. 3, Tr. 240).