The opinion of the court was delivered by: WILLIAM G. BASSLER
The United States of America and the United States Postal Service have applied to this Court for a preliminary injunction under 39 U.S.C. § 3007, 18 U.S.C. § 1345 and Fed. R. Civ. P. 65. The Court has received papers submitted in support of the application by Robert M. Hanna, A.U.S.A., and papers submitted in opposition by Michael L. Levine, Esq., counsel for the defendants, Harold P. Weingold, Helen Archer, Inc., Future Forecasters Corp., Holy Trinity Society, Inc., Winners' Network, Inc., Fight Back International, Inc., Paul Zax Enterprises and Consumer's Depot Corporation.
The Court has both subject matter jurisdiction over this matter under 18 U.S.C. § 981 and 28 U.S.C. §§ 1331, 1339, 1345 and 1355 and personal jurisdiction over the parties involved. The District of New Jersey is the proper venue pursuant to 18 U.S.C. § 981(h), 28 U.S.C. § 1391(b) and 39 U.S.C. § 3007(a).
The applicants have complied with Local Rule 12A, by submitting a Verified Complaint as well as the Affidavit of United States Postal Inspector, George R. McCarthy, showing that the application qualifies for emergency consideration and should not be heard as an ordinary motion.
On January 24, 1994, the Court entered an Order to Show Cause with Temporary Restraints and an Order for Expedited Discovery, by consent of the parties. On January 31, 1994, the Court entered an Order modifying the Consent Order to Show Cause keeping the restraints in full force and scheduling a preliminary injunction hearing for February 15, 1994.
On February 16, 1994, the Government concluded its case, after having introduced the following witnesses: (1) Neil Schorr; (2) Postal Inspector, George McCarthy; (3) Barrington Illinois Police Chief, Edgar W. Fair; (4) Dr. Paul Shaman; (5) Neil Cofino; (6) Dr. William George Roll; (7) Sister Mary T. Salermo; (8) Darren Burton; (9) Salvatore Bascellaro; (10) James Monagle; and (11) Joseph Sinopoli. On February 25, 1994, the defendants concluded their case, having called the following witnesses to testify on their behalf: (1) Dr. Edward D. Weinberger; (2) John R. Dalnes; (3) Helen Archer; (4) Mary Ray; (5) Defendant, Harold P. Weingold; and (6) Norman Tim. The Court entertained closing arguments from counsel on February 28, 1994.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to Fed. R. Civ. P. 52(a), the Court makes the following findings of fact and conclusions of law:
1. Defendant, Harold P. Weingold and the seven corporate defendants, are engaged in the business of direct mail marketing. (February 18, 1994 Stipulation of Facts ("Stip. of Facts"), P 1). Using mailing lists, Weingold, who holds a Ph.D. in psychology, operating through his mail order company, Tower Mail Company, targets consumers by sending through the mail what is called a "solicitation." If customers respond to any of Weingold's solicitations by sending the requested fee, the consumer receives what is called in the trade, a "fulfillment." (Stip. of Facts, P 3).
2. This action was brought by the United States Postal Service under 39 U.S.C. § 3007 and by the United States Government under 18 U.S.C. § 1345, against Weingold, individually and his seven corporations, alleging that the defendants created and implemented 11 separate mail fraud schemes.
3. The Government's investigation was prompted by numerous complaints and inquiries from consumers who received and responded to promotions and solicitations from the defendants' various businesses.
4. The State of New Jersey, Department of Consumer Affairs has also received numerous complaints and inquiries concerning defendants' solicitations and also initiated an investigation to determine whether defendants violated various state statutes. According to Barbara Ferris, an investigator with the New Jersey Division of Consumer Affairs, their investigation of Dr. Weingold began in 1990.
5. Defendant, Harold P. Weingold, is the principal in and controls the acts and practices of the seven named corporate defendants, Helen Archer, Inc., Future Forecasters Corp., Holy Trinity Society, Inc., Winners' Network, Inc., Fight Back International, Inc., Paul Zax Enterprises and Consumer's Depot Corporation. The corporate defendants have no employees. Weingold reviewed and approved each of the solicitations prior to the first mailing to potential customers. (Stip. of Facts, P 8).
6. Defendants bring their service and product promotions to the public by means of direct mail solicitations. These promotions include: (a) psychic readings, good luck and mystical pendants, using the trade styles "Helen Archer," "Uri Giller," "Future Forecasters," and "Holy Trinity Society"; (b) lottery devices and sweepstakes, using the trade styles "Winners' Network," "Pot'O Gold" and "Paul Zax, Jr."; and (c) awards and solicitations in the guise of delivery notices using the business trade styles "Consumer's Depot" and "Fifth Avenue Creations." (McCarthy Aff., P 3).
7. Defendants have used the following addresses to receive mail responding to their promotions: (a) 434 Ridgedale Avenue, Dept. 11-188, East Hanover, NJ 07936; (b) 117 W. Mt. Pleasant Avenue, Suites 127 and 132, Livingston, NJ 07039; and (c) 627 Eagle Rock Avenue, Suites 102 and 105, West Orange, NJ 07052. These addresses belong to three separate mail-receiving agencies. (McCarthy Aff., P 4).
The Helen Archer Promotion
8. Defendant, Helen Archer, Inc., is a corporation organized and doing business under the laws of the State of New York. Defendant Weingold is the principal of Helen Archer, Inc. and uses the business trade name of Helen Archer to solicit money and/or property through the mails. (McCarthy Aff., P 6).
9. Helen Archer is a reputed psychic living in Florida. As the principal of Archer Astrology Inc. she entered into a management agreement with Helen Archer, Inc. ("HAI"). (Gov. Ex. 12). Under this agreement Archer Astrology Inc. ("AAI") retained the services of Helen Archer, Inc., "as the exclusive marketing and financial consultant to AAI, for all products marketed by HAI." The agreement was signed by the defendant Weingold as Paul Zax, Jr.
11. Excerpts from the "Helen Archer" promotion solicitation state as follows:
Last night I had a vision about you. It was very powerful. Very vivid. I know for a fact you had won a very large cash prize (something like $ 211,721.06 or even more) and you were collecting your money from the Pennsylvania State Lottery Director, Mr. Charles Kline! This will happen sometime before Friday August 13, probably in the next several weeks! Every time I've had these visions before, it has always meant a BIG CASH PAYOFF for the person involved.
It is very important that I speak with you right away [name of recipient]. I will give you my private phone number. This is so important that I've made special arrangements with the phone company so you won't even have to pay any long distance charges. (I tried calling you this morning but I couldn't reach you.) This is a FREE call.
The solicitation, which is made to appear as a personalized letter, is replete with capitalized and underlined exclamations and unsubstantiated assertions such as "Normally my clients seek me out. But in your case, I was contacted by someone close to you . . . I received a postcard from someone . . . it was not signed, but the writer asked me to personally contact you." (Id.)
12. Although the solicitation by Helen Archer speaks of a personal vision ("I had a vision about you. It was very powerful. Very vivid." (Gov. Ex. 1)), Archer acknowledged at the preliminary injunction hearing that the "vision" was about a sum of money "211,721.06" and that there was no specific vision of the person she was writing to. Instead Archer later would receive "an impulse" or "feeling" when running her fingers over a computer generated commercial mailing list that the addressee was the recipient of the generalized vision of the money.
13. Defendant's witness Mary Ray testified that she understood the language to mean that Archer actually had a vision of herself "standing next to the lottery."
14. The Postal Inspection Service has received numerous complaints and inquiries regarding the Helen Archer Promotion, including letters of complaint from Elizabeth Pitt and Bart Boyer, urging the Postal Service to prevent the defendants from using the mails for their Helen Archer Promotion. (McCarthy Aff., PP 7,8 and 12).
15. The Inspection Service's investigation of the Helen Archer Promotion, revealed that responding recipients of the Helen Archer solicitation would receive a post card bearing the telephone number 1-800-331-2027. In response to two telephone calls from Inspector McCarthy, he was connected to the same tape recorded message instructing him to note the time of day and add the numbers together, note his age and add the numbers together, and add the numbers of his social security number in order to obtain his "lucky" numbers. (McCarthy Aff., P 14, Ex. 3).
16. The fulfillment of the solicitation, (Gov. Ex. 1A), is not responsive to the solicitation (Gov. Ex. 1).
The Helen Archer Cosmic Protector Promotion
18. The Helen Archer Cosmic Protector solicitation is again designed to appear as a personalized letter complete with several personalized notes from "Helen" in faux script. For example, next to the recipient's address, the words Extremely Urgent! are "written." It further represents that Helen Archer "had a frightening vision." The solicitation states:
I suspect someone is trying to prevent you from enjoying all of life's riches. Someone may be holding a grudge against you. In fact, [name of recipient], I believe more than one person does not have your best interests at heart -- possibly a friend or relative that you have trusted faithfully. This jealous, greedy person would love to take your new found wealth away from you, and keep you from enjoying the joy and happiness you truly deserve.
The solicitation continues to "warn" the recipient of the impending doom that awaits if she or he does not seek Archer's assistance.
19. In his investigation, Inspector McCarthy determined that there is no response to this back-end solicitation and that consumers receive nothing in return for a $ 15.00 payment. The postal service received a letter from Michael Levine, counsel for the defendants, dated January 4, 1994, in which Mr. Levine explained "With respect to the Helen Archer-Cosmic Protector solicitation, the product referred to therein consists of a publication which is presently being printed. I have instructed my client to forward a copy of the same to me as soon as it comes off the press and I will forward a copy of the same to you at that time." (McCarthy Aff., P 21, Ex. 24).
20. Defendants had nothing to offer consumers who responded to their "urgent" solicitation, despite the representation that the recipient can be protected by means of the "Cosmic Protector," from those whom they allege are conspiring against them.
21. At the preliminary injunction hearing, defendants introduced the "Cosmic Protector," the device that defendants assert "will help you to surround yourself with only honorable people and keep you from being victimized by the troublemakers lurking in your future." In fact this device is nothing but an ordinary calculator. (Gov. Ex. 2).
22. The Government introduced Dr. William George Roll, as an expert witness. Dr. Roll holds a Ph.D. from Lund University, Sweden, in philosophy, a Bachelor's and a Masters degree in literature, from Oxford University, England, and a Bachelor of Arts degree in philosophy, from the University of California, Berkeley. More importantly for this case, Dr. Roll has held a number of professional appointments in the area of psychic phenomena, including Project Director at the Parapsychology Laboratory, Duke University, and has published numerous books and articles on psychology, parapsychology and psychical research. The court finds Dr. Roll's testimony credible. In his opinion nothing in his experience or the clinical evidence he has read supports the claims of Archer that she can connect with a large number of people psychically in a short period of time.
23. The court makes no finding with respect to Archer's belief in planetology, numerology, tarot cards or psychic phenomena. However, based on the court's observations of Archer on the witness stand and the explanations she has given with respect to the solicitations she wrote, the court finds her testimony incredible.
The Uri Giller, Psychic Mentalist Promotion
24. In faux written script, this solicitation states "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 fact the only money mailed to the addressee is $ 1.00--something that is never mentioned. Archer testified, unpersuasively, that she wanted the $ 1.00 sent so that the recipient would receive something from her that was "energized."
26. The fulfillment to the solicitation (Gov. Ex. 3), is a computerized tarot card reading. (Gov. Ex. 3a). The solicitation does not mention anything about a tarot card reading and the fulfillment is not in response to the solicitation.
27. Despite the similarity in names, Uri Giller is not the noted mentalist, Uri Geller. In fact, Uri Giller is simply one of many pseudonyms for defendant Weingold that he uses for his solicitations. The Giller solicitation, represents that "I am Uri Giller, better known as 'The Amazing Giller,' acclaimed Psychic Mentalist. Business leaders, movie stars, politicians, and everyday people all over the world use my insights and my energies . . ." Defendant Weingold used his corporation Helen Archer, Inc. to file a certificate of assumed name for "Uri Giller Astrology" with the Department of State of New York on August 6, 1993. (See Def's ex. S). It is signed by defendant, not using his name of Weingold, but rather another assumed name, that of "Harold P. Wellington.
28. Helen Archer drafted the Uri Giller solicitation (Gov. Ex. 3). Although Archer was aware of the world famous (with an apparently tarnished reputation) Uri Geller, she testified that she was not trying to play off the Geller name but wanted a masculine name for marketing purposes and that the name came to her when she was in a meditative state. The Court carefully observed Archer as she testified about the coincidence of the names. Quite frankly her explanation is simply not credible. That conclusion is based not only on the inherent unbelievability of the story but also her demeanor while testifying. Neither did the balance of Archer's explanations with respect to the Giller solicitation make any more sense.
29. Plaintiff's expert witness, Dr. Roll, testified that Uri Geller was a psychic performer, that research reports publicized that his reputation was mixed, that there was support for the belief that he did in fact show genuine psychic abilities under controlled conditions, and that he was very widely publicized. Dr. Roll further stated that in recent years Mr. Geller was not widely publicized.
30. The postal service has investigated numerous complaints which almost uniformly state that their post-dated checks were cashed almost immediately, despite the post-date, and that there was some confusion between the name "Uri Giller" and the famous psychic, Uri Geller. (McCarthy Aff., PP 26-29).
31. The "Uri Giller" name used in the solicitation is intentionally deceptively similar to the name "Uri Geller." Weingold acknowledged at the preliminary injunction hearing and in his deposition testimony that he was aware of the existence of the psychic, Uri Geller, but that "Giller" and "Galler" are merely "DBAs." (Weingold Dep. Tr., Oct. 20, 1993, at 76:2-4). When he was contacted by the Postal Service, the real Uri Geller denied any affiliation with the defendants.
The Future Forecasters Corp. Promotion
33. Helen Archer drafted the solicitation for Future Forecasters. It is signed by "Professor H.P. Wellington." Professor Wellington is of course the defendant Dr. Weingold. Dr. Weingold filed a business certificate to the effect that he is conducting business under the name of "Dr. H.P. Wellington Publishing." The certificate is singed "Harold P. Weingold a/k/a Dr. H.P. Wellington." It was filed in the County of New York and with the Essex County Clerk in 1991.
34. One of the solicitations, the Governments' Exhibit 4, is addressed to Neil Cofino, who testified at the preliminary injunction hearing. It states as follows:
My name is Professor H.P. Wellington and I am the President of the Future Forecasters. Neil, suppose I told you that there is at least $ 9770 in cash waiting for you! And what if I said you will receive this money sometime before the end of next month . . .
This fact was confirmed in a panel discussion between our psychic research experts here at the Center (By the way these are world-renowned psychics, mentalists and metaphysical technicians).
This portion of the solicitation was written by Archer.
35. At the preliminary injunction hearing, Archer testified that the Center, referenced in paragraph 33 above, was in Tibet, that the psychic researchers were in the "astral plain," where the research itself was conducted, and that the seven psychics joined their subconscious minds through "mental telepathy" in order to communicate and that:
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 . . .
Archer testified that it was entirely a psychic phenomenon taking place "here at the Center." Archer could not identify the seven psychic researchers.
36. No where in the solicitation does the reader know that the "Center" exists only on the "astral plain" and that the researchers are not identified or identifiable.
37. The solicitation reads that the psychic researchers were conducted through Future Forecasters under the aegis of Professor H.P. Wellington. As a matter of fact the language is entirely the production of Archer. Defendant Weingold attempted to distance himself from this by testifying that Archer did not tell him that the experiment would take place "in the astral zone." Defendant Weingold did not ...