5076. Magnetic Ray device.    (Inj. No. 19.)
APPLICATION FILED: On or about 7-22-44, in the Northern District of Texas, 
the United States attorney filed an application for an order which would 
require Frank B. Moran, t/a Magnetic Ray Co., Dallas. Tex., to show cause 
why he should not be punished for criminal eontempt of the permanent injunc- 
tion which had been entered against him on 6-30-42, as reported in notices of 
judgment on drugs and devices, No. 883.
CHARGE : It was alleged that the defendant, Frank B. Moran, had made a number 
of interstate shipments of the Magnetic Ray device in violation of the 
injunction.
DISPOSITION : An order to show cause was entered on 7-22-44, and in response 
thereto, an answer was filed by the defendant. The case came on for trial 
before the court without a jury on 8-10-44, and at its conclusion, the court 
handed down the following opinion, findings of fact, conclusions of law, and 
sentence:
ATWELL, District Judge: "On June 30, 1942, this injunction was granted 
under the statute. The Defendant, Frank B. Moran, individually and doing 
business as Magnetic Ray Company, and his agents, employees, representatives 
and all others acting by or under his direction and authority, and all persons, 
firms, partnerships, companies, corporations and their representatives, of- 
ficers, servants, agents, employees in active concert or participating with 
defendant herein, be and are hereby perpetually enjoined and restrained from 
in any manner or by any device, directly or indirectly, further introducing 
or delivering for introduction into interstate commerce, or causing introduction 
or delivery for introduction into interstate commerce, of any device labeled 
'Magnetic Appliance' or 'Magnetic Ray Instrument' or a similar device, similarly 
labeled in the manner and form of the aforesaid Magnetic Ray Instrument.
"From correspondence introduced at this trial the defendant represented 
that the injunction was a faree; it also shows that he sent a pamphlet out 
attacking the Court for issuing the restraint, and in the correspondence he 
advised that he appealed from that decision, and that it would be reversed, 
that the action of the court would be reversed. There was never any appeal 
from it, and he knew it He knew very well that the injunction was against 
him, and the testimony shows here not only a contumacious attitude on the 
part of the defendant, but a determination to go forward with his business, 
and to carry it forward. He has been well represented at this trial, and guided 
in a manner that might have saved him from the predicament he is in if he 
had had that guidance at an earlier period.
"Assuming, without testimony, that the number of his so-called magnetic 
belts is as indicated by the number of those manufactured, and that he has 
gotten twenty dollars apiece for them, he would now have received $133,760.00 
for the 6,688 of these so-called magnetic belts sold. The testimony does not 
show whether he started out with No. 1 or not, but it does show that No. 6688 
has been introduced in interstate commerce. The lady testified, according to 
my recollection, substantially, that she made certain parts of this identical 
instrument. The testimony at the trial disclosed that a number of reputable 
physicians testified that the claim as to the curative powers of this so-called 
magnetic instrument were untrue. The Court, however, taking the side of the 
defendant, and not against the defendant, suggested that the Holy Writ was 
authority for the statement that if one believed he was healed, that he had 
the right to testify to such healing, and with that thought in mind, allowed 
the defendant to introduce his testimony, even though physicians testified that 
the instrument could not and would not do what the defendant claimed it 
would do. But one who is suffering from an ailment and comes up and says 'I 
am cured' certainly has the right to be heard, and the record in that case will 
show that the Court gave the defendant the benefit of that consideration.
"I am extremely careful in a contempt proceeding to discover contumacy, 
the determination to avoid and not follow the restraint issued by the Court, 
before punishment is inflicted. That appears here to be big, and this de- 
fendant has deliberately gone forward in his business without regard for the 
restraint, except to seek to cover up his actions by duplicity in a number of 
manners and matters, as best he could, to avoid discovery.
"Now there is this to be said for him: he is an elderly man, about seventy- 
nine years of age. The evidence does not disclose his pecuniary capacity, and 
I do not know whether he has funds to respond to a substantial fine or not, 
but this statute is a wholesome statute. I remember when it was placed on 
the books, and the paragraph to which Mr. McCutcheon now alludes with 
reference to where the Commissioner may issue a warning, has nothing to do 
with a case of this sort, as a reading of the statute will disclose. It does have 
a place in a certain part of the original investigation, but here is a remedy 
which was sought by the Government, and the Government secured the ap- 
propriate restraint at the hands of the Court and it must be obeyed. The 
punishment is in the hands of the Chancellor, who must be quick to discover 
that which is right and just, and I can hardly think of a more salutary road 
for the Government to travel than one whieh prevents the trusting to become 
the prey, if I may use that rather harsh word, of one who seeks funds. One 
of them is a man who comes and says he has gone into business with the in- 
strument, himself limited apparently intellectually and perhaps in other ways, 
and he sends a cheek of rather good size for a sizeable order of the machines, 
and wrote that he could do a thriving business among the people in his section 
of the country, etc.   It is unnecessary, I think, to go farther in that direction.
?*I find as findiQgs of fact:
" (1) That the defendant has violated the injunction.
''(2) That he knew he was violating the injunction, and did so on purpose.
"As a result of that, and as conclusions of law, I hold him guilty of contempt, 
and I fix his punishment at a fine of seven hundred and fifty dollars, and ten 
days in the county jail, the imprisonment to continue until the fine is paid.
'?I have thought seriously about the costs the Government has been put to 
in this case. Witnesses who come from long distances cost money, and the 
defendant claims he was doing business from Maine to California, which 
challenges the Government in a sense. I believe in view of the fact that there 
is no disclosure of ability to respond, that this amount is rather substantial,
and that will be the judgment of the Court. Draw the Judgment, to be okayed 
by Mr. McCutcheon, saving such exceptions as may be desired, Mr. District 
Attorney."