Mail Fraud - Proof of Mailing or Wiring

Schmuck v. United States, 489 U.S. 705 (1989)

It is not necessary that a mailing constitute an essential element of the scheme to defraud; it is enough if the mailings are an incident to an essential part of the scheme and that the defendant could foresee that the mails would be used. In this case, the mailings did not contribute directly to the fraud but did constitute a necessary element of the successful passage of title of the cars which were fraudulently sold by the defendant. Without the mailing of the car titles to the Motor Vehicles Bureau, title to the car could not be passed from the defendant to his victims.

United States v. Tanke, 743 F.3d 1296 (9th Cir. 2014)

A post-fraud “lulling” letter or “cover-up” letter can be considered a mailing in connection with the mail fraud scheme only if the lulling or cover-up letter was conceived before the fraud was completed. Otherwise, the mailing is not part of the scheme to defraud. The evidence was sufficient to support the conviction in this case.

United States v. Phillips, 704 F.3d 754 (9th Cir. 2012)

The defendant defrauded a company and then used the proceeds to purchase a watch. The watch was mailed to the defendant. This mailing was not connected to the fraud; it simply represented his expenditure of the fraud proceeds. Pursuant to United States v. Maze, 414 U.S. 395 (1974), this did not support a mail fraud conviction.

United States v. Dooley, 578 F.3d 582 (7th Cir. 2009)

The defendant, a police officer, stole money from the evidence room that was evidence in an armed robbery case. A supervisor sent him an email, instructing him to retrieve the evidence in preparation for the FBI which was going to assume responsibility for the case. Though this “wire” alerted the defendant to the need to cover-up his crime, it was not a sufficient wire to support a wire fraud prosecution. The defendant did not “cause” the wire to be sent.

United States v. Lazarenko, 564 F.3d 1026 (9th Cir. 2009)

Wires that occurred four years after the money was obtained by fraud were not in furtherance of the fraud. The fact that the the wires were intended to hide the existence of the fraud is not sufficient.

United States v. Redcorn, 528 F.3d 727 (10th Cir. 2008)

In a wire fraud case, wiring money that has been embezzled is a sufficient wiring to support a conviction. In this case, however, after the defendant wired money into their accounts, they later wired the money out of the accounts into different accounts, such as investment accounts. These wirings were not designed to further conceal the money or the embezzlement. Therefore, these subsequent wirings were not in furtherance of the scheme to embezzle the money, or part of the scheme to defraud, as opposed to post-fraud/embezzlement transfers of the money. Those transfers could not form the basis for separate wire fraud convictions. See Parr v. United States, 363 U.S. 370 (1960); Kann v. United States, 323 U.S. 88 (1944); United States v. Maze, 414 U.S. 395 (1974).

United States v. Ingles, 445 F.3d 830 (5th Cir. 2006)

The defendant was charged with burning a “camp” that belonged to another member of his family. The mailings on which the government relied to make out its mail fraud prosecution were sent to the other member of his family from the insurer and the other member of the family was not involved in the arson. Moreover, regardless of whether the fire was caused by arson, the insurer was required to pay the family member. Therefore, those mailings were not “part of the scheme” and could not form the basis for a mail fraud prosecution. The government argued that the family member was planning on turning the insurance proceeds over to the arsonist, thus the mailings were part of the arsonist’s scheme, but this fact did not alter the Fifth Circuit’s reasoning.

United States v. Strong, 371 F.3d 225 (5th Cir. 2004)

The mailings in this case were insufficiently linked to the scheme to defraud. The defendant was involved in a fraudulent scheme by which he obtained cars at an auction and promptly applied for a new title using various forged documents. A certified copy of an original title was given to the defendant at the office where he filed the application. The applications were then sent to a state agency for processing. The fraud was complete, however, when he obtained his certified copy. The mailings to the state office, therefore, were tangential mailings that occurred after the fraud scheme was completed.

United States v. Frost, 125 F.3d 346 (6th Cir. 1997)

In this complex mail fraud case, with respect to one series of counts, the government failed to prove that the mailings were related to the fraud. 125 F.3d at 358-359.

United States v. Lefkowitz, 125 F.3d 608 (8th Cir. 1997)

The government failed to prove that the phone call that was the subject of one of the wire fraud counts involved an interstate call. Though circumstantial evidence can supply the proof that a call was interstate, there was no evidence in this case that the call was not intrastate.

United States v. Evans, 148 F.3d 477 (5th Cir. 1998)

The defendant was a parole officer. She received bribes from one of her parolees in exchange for which she protected him from dirty urine results. She also accepted drugs and started having sexual relations with him. The defendant visited the parolee in his home periodically (as part of her job) and submitted travel vouchers for reimbursement from the state. She submitted false travel vouchers, as well, and these, too, were mailed by her office to the state capital for reimbursement. The Fifth Circuit reversed the mail fraud convictions: the government’s evidence did not establish that Evans’s travel vouchers were mailed in furtherance of her scheme to defraud the state. See Kann v. United States, 323 U.S. 88 (1944); Parr v. United States, 363 U.S. 370 (1960); United States v. Maze, 414 U.S. 395 (1974); United States v. Vontsteen, 872 F.2d 626 (5th Cir. 1989). The vouchers and the defendant’s reimbursement were not part of the scheme to defraud the state. The scheme focused on the defendant’s receipt of bribes in exchange for depriving the state of her honest services. Though the defendant was required to travel to the parolee’s house (and the vouchers verified that this occurred – falsely), the voucher was submitted to her supervisor, who later mailed it to the state capital. Once the supervisor reviewed the voucher, the scheme to defraud was complete and the subsequent mailing to the state was irrelevant to the scheme.

United States v. Pietri-Giraldi, 864 F.2d 222 (1st Cir. 1988)

The evidence did not support the defendant’s wire fraud conviction because the telexes which formed the basis of the indictment were not in furtherance of the financial institution fraud. The wires were used in communications between financial institutions. These telexes led to the discovery that the defendant was engaged in a fraudulent scheme, and were not a part of the scheme envisioned by the defendant.

United States v. LaBarbara, 129 F.3d 81 (2d Cir. 1997)

The government failed to prove that checks were mailed in this mail fraud prosecution. There was evidence that other checks were hand-delivered. There was no direct evidence that the checks involved in this case were mailed.

United States v. Altman, 48 F.3d 96 (2d Cir. 1995)

The government failed to prove that the mail fraud counts in this indictment involved mailings which were sufficiently related to the fraud to sustain the conviction. In this scheme to defraud, the mailings were not necessary to avoid jeopardizing a relationship of trust and good will; were not part of the business of processing a claim or transaction; and in general were not sufficiently related to the defendant’s scheme to be said to be in furtherance of it. See also Kann v. United States, 323 U.S. 88 (1945); United States v. Maze, 414 U.S. 395 (1974); Parr v. United States, 363 U.S. 370 (1960).

United States v. Cross, 128 F.3d 145 (3rd Cir. 1997)

Employees of the court system in Allegheny County, Pennsylvania participated in a scheme to deprive litigants of impartial justice. The only mailing involved in the mail fraud counts was the court notice that was sent to the litigant after the case was resolved. Because the deprivation of the honest services of government employees occurred prior to the time these notices were mailed out, these mailings could not serve as the foundation for the mail fraud convictions.

United States v. Hannigan, 27 F.3d 890 (3rd Cir. 1994)

The government failed to offer sufficient evidence of a mailing to support this mail fraud conviction. Though there was testimony from an insurance company employee about the normal procedures of the company (checks were stuffed in envelopes and then sent to the mail room), and a computer printout was in evidence which suggested that the check was handled in this manner, there was no evidence about what happened in the usual circumstance with regard to envelopes once they ended up in the mail room. Only by speculation could the jury assume that the US mail was used by the “mail room” as opposed to messenger, or private carrier.

United States v. Burks, 867 F.2d 795 (3rd Cir. 1989)

The Court of Appeals reverses this mail fraud conviction on the basis that the government failed to establish that the mails were actually used to further the scheme. Simply relying on evidence that it was standard business practice to use the mail was not sufficient to establish that the mail was in fact used to further the scheme in this case. It is questionable whether this case is still good law. See United States v. Hannigan, 27 F.3d 890 (3rd Cir. 1994).

United States v. Evans, 148 F.3d 477 (5th Cir. 1998)

The defendant, a parole officer, accepted bribes from one of her charges in exchange for not supervising him. The defendant submitted travel vouchers to her officer, falsely claiming that she had made trips in the field to supervise the parolee. The office later mailed these vouchers to the state office. These mailings were not sufficiently connected to the crime to satisfy the mailing element of a mail fraud offense. The crime was completed once the defendant submitted the vouchers to her office. No part of the crime depended on the subsequent mailing of the vouchers to the state office.

United States v. Vontsteen, 872 F.2d 626 (5th Cir. 1989)

A mail fraud conviction cannot be based on the fact that a victim mails a related document after the fraud has been committed. Although mailing of invoices of a defrauded seller may in some cases provide a basis for a mail fraud conviction, the mailings must somehow advance, or be an integral part of, the fraud. Mere “post-fraud accounting” by the victims of the fraud is not a sufficient mailing to allow for a mail fraud conviction.

United States v. Massey, 827 F.2d 995 (5th Cir. 1987)

The defendant was convicted of mail fraud. The only evidence that there was a mailing was evidence of the usual office procedure regarding the transmittal of mail. The Fifth Circuit reverses holding that this was insufficient evidence of the existence of a mailing.

United States v. Castile, 795 F.2d 1273 (6th Cir. 1986)

A fire insurer served various documents to an insured who in this mail fraud prosecution was accused of burning down his restaurant and using the mails in connection therewith. The mailings by the insurance company did not further the mail fraud scheme. On the contrary, these mailings were designed to frustrate the scheme. In the absence of any evidence that the mails were used to further the scheme to defraud, the conviction was reversed.

United States v. Walters, 997 F.2d 67 (7th Cir. 1993)

The defendant, a sports agent, induced college athletes to sign agency contracts prior to their graduation, a practice which is not permitted by the NCAA. The agent was prosecuted for mail fraud. The conviction was reversed for several reasons: (1) the only alleged mailing was a form which the colleges mailed to the Big Ten conference, certifying that the players were eligible. This mailing was not instrumental to the fraud and was probably not even known to the defendant; (2) the supposed victims of the fraud were the colleges, which awarded scholarships to the players, despite their ineligibility. Yet, the defendant did not receive any of this money, thus the defendant did not defraud the schools out of any money; (3) in essence, this fraud amounted to no more than cheating the NCAA, and was not fraud.

United States v. Swinson, 993 F.2d 1299 (7th Cir. 1993)

The circumstantial evidence that a mailing had occurred in this case was not sufficient to support a mail fraud conviction. The government relied on “normal” business practice, but also established that this particular transaction was not handled in a normal fashion; thus, the fact that normal business practice would have involved a mailing was not sufficient proof that a mailing occurred in this case.

United States v. Kwiat, 817 F.2d 440 (7th Cir. 1987)

The defendants were bank officers who made collateralized loans on real estate. The conduct of the officers clearly deprived the bank’s shareholders and depositors of the defendants’ honest services as directors. However, the only mailings involved in this scheme were the mailing of the mortgage instrument by the recorder of deeds. These mailings did not make the fraud possible or facilitate it in any way. Thus, there was an absence of proof that the mailings were made for the purpose of executing the fraudulent scheme. The convictions of the bank employees were reversed.

United States v. Leyden, 842 F.2d 1026 (8th Cir. 1988)

The defendant was convicted of mail fraud with the predicate mailing being a responsive pleading filed by an insurance company in the plaintiff’s fraudulent lawsuit. The Court holds that the mailing by the insurance company cannot be the predicate mailing for the basis of a mail fraud conviction. The insurance company’s pleading denied coverage in this case and thus in no way could it have furthered the defendant’s fraudulent scheme to collect insurance.

United States v. Hanson, 41 F.3d 580 (10th Cir. 1994)

The defendant hired another person to raise money for her investment firm. The solicitations made by this other person were untrue. There was insufficient evidence, however, that the defendant participated in this fraud. Moreover, with regard to certain wire fraud counts, the supposed victim could recount nothing about the phone call which was the core of that wire fraud count. No rational finder of fact could have found that the phone call facilitated a scheme to defraud.

United States v. Smith, 934 F.2d 270 (11th Cir. 1991)

The defendant participated in a scheme to defraud an insurance company by filing a false claim. There was insufficient evidence to show that he reasonably should have known that the mails would be used in connection with his scheme. The only actual mailing involved occurred after he received a draft settlement from his local agent, a copy of the draft was mailed by the agent to the regional headquarters for approval to pay the draft. This is not a sufficient mailing to bring this offense within the scope of 18 U.S.C. §1341. Because the indictment alleged that the mailing consisted solely of the mailing of the accounting copy of the draft from the agent to the headquarters of the insurer, and because the mailing was not reasonably foreseeable to the defendant, his convictions on the substantive mail fraud counts were reversed.