The Champion
December 1994

Mail Fraud: Limiting The Limitless
By Ellen S. Podgor

Ellen S. Podgor is an Associate Professor of Law at Georgia State University College of Law, Atlanta, Georgia. She is the author of White Collar Crime In a Nutshell (West, 1993), and is also Co-Chair of the Ethics Advisory Committee and Vice-Chair of the NACDL 8300 Task Force.

One thinks of the mail fraud statute as omnipotent and omnipresent, with prosecutors often selecting this charge as a convenient tool for pursuing alleged criminal conduct. Jed Rakoff called mail fraud the prosecutor's "Stradivarius" and "Colt 45."1 Justice Burger termed it the "stopgap" provision.2 I continue to maintain that it is the prosecutor's "Uzi."3 Despite its overwhelming nature, however, there are limits to this statute. This article selects seven lines of attack that may help in curtailing mail fraud's continued expansion.

The present mail fraud statute (18 U.S.C. section 1341)4 "emanates from an 1872 recodification of the Postal Act."5 In its inception the postal system served as the crux of the offense.6 Although a "mailing" is still a jurisdictional component of this offense, the central focus has shifted to the "scheme to defraud" element of the statute. The basic "elements of the present day offense are: 1) a scheme devised or intending to defraud or for obtaining money or property by fraudulent means, and 2) use or causing the use of the mails in furtherance of the fraudulent scheme."7 The second element of this offense can be subdivided into three subparts: "a) a mailing, b) by the defendant or caused to be mailed by the defendant, c) in furtherance of a scheme to defraud."8

Since 1872 there have been several amendments to the mail fraud statute, three of which are significant to present case law. In 1909 the legislature added the language "or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises."9 This language proved crucial to the Supreme Court's decision in McNally v. United States,10 a landmark case that reversed a prosecutor's application of an intangible rights theory where there was no charge or jury instruction requiring a finding of a deprivation of money or property. In McNally, the majority found that "the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property."11

A second significant amendment to the mail fraud statute came in the aftermath of the McNally decision. In an effort to restore mail fraud to its pre-McNally status, Congress amended the fraud statutes to include a new definition for a "scheme to defraud." Section 1346 of title 18, passed as a segment of the Anti-Drug Abuse Act of 1988, states that "[f]or the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."12This amendment, applicable to the mail, wire, and bank fraud statutes, has resulted in prosecutions premised upon intangible rights.13

Amendments to the mail fraud statute also appeared in legislation concerning the savings and loan crisis. One amendment, appearing as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRRE), increased penalties for mail fraud involving financial institutions.14 Mail fraud carries a penalty of a fine of not more than $1000 and not more than five years imprisonment.15 A recent amendment to the mail fraud statute provides for an increased penalty of a maximum fine of $1 million and up to 30 years imprisonment when the fraud relates to a financial institution.16

Rule One -- Not Everything Is A Scheme To Defraud
An endless number of frauds have been found to be encompassed within the "scheme to defraud" element of this statute. For example, one sees securities fraud,17 insurance fraud,18 franchise fraud,19 and "divorce mill" fraud20 charged as mail fraud. In recent years, prosecutors have resorted to the mail fraud statute for alleged criminal conduct arising from promotion schemes.21

Rarely does a court dismiss conduct as exceeding the "scheme to defraud" element of the mail fraud statute. Limits are found, however, when one examines some of the instances where courts have rejected the prosecutor's application of this statute. These cases demonstrate that not everything a prosecutor wishes to call a "scheme to defraud" will in fact be found to be a "scheme to defraud."

An early indication that the Supreme Court would place limits on what constitutes a "scheme to defraud" is apparent in the case of Fasulo v. United States.22 The Court found in Fasulo that a "use of the mails for the purpose of obtaining money by means of threats of murder or bodily harm" was not a scheme to defraud for the purposes of the mail fraud statute.23 The Court stated that "scheme or artifice to defraud" is a phrase that encompasses a "great variety of transactions."24 Justice Butler noted, however, that " . . . broad as are the words 'to defraud,' they do not include threat and coercion through fear or force."25

The government's use of a mail fraud charge for the mailing of tax returns has been found to be proper in several cases.26 A 1974 decision of the United States District Court for the Southern District of New York, however, dismissed mail fraud charges that were predicated on an alleged mailing of tax returns.27 In United States v. Henderson, the court found that mail fraud's "stopgap" device was unnecessary with alleged income tax violations due to the existence of "particularized legislation."28 The court stated that "[t]he use of the mail fraud provision has been generally confined to schemes of a type designed to defraud members of the community at large, in the sale of commodities and services, rather than schemes to defraud the government . . . ."29 Recently the Department of Justice issued a guideline instructing prosecutors not to use mail fraud for a fraudulently filed tax return.30 Only in "exceptional circumstances" will tax fraud be approved for mail fraud prosecutions.31 This is particularly significant because mail fraud serves as one of the predicate offenses for a RICO charge.32

The use of mail fraud as a predicate offense for a RICO charge is not limited to criminal actions. The expansiveness of the mail fraud statute has resulted in "garden variety frauds" being alleged in civil RICO actions.33 The inclusion of mail fraud in civil RICO actions does provide one benefit to criminal defense attorneys, that being additional cases outside the criminal context that limit the scope of the "scheme to defraud" element.

In McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc.,34 the Fifth Circuit Court of Appeals noted that not every use of the mails in furtherance of a scheme to defraud another of property would be mail fraud. For example, a breach of contract in itself would not constitute mail fraud.35 Nor would the mere breach of a fiduciary duty.36 The court stated that the scheme "must be intended to deceive another, by means of false or fraudulent pretenses, representations, promises, or other deceptive conduct."37

Recently the Eighth Circuit Court of Appeals, in a case involving an alleged promotional coupon offer, found insufficient evidence of a scheme to defraud. 38 In reversing the mail fraud convictions, the court noted the distinction between coupon offers that violated the criminal law and those that did not. The "illegal scheme involves some affirmative misrepresentation or active concealment manifesting an intent to deceive."39 The court noted that "[w]ithout some objective evidence demonstrating a scheme to defraud, all promotional schemes to make money, even if 'sleazy' or 'shrewd,' would be subject to prosecution on the mere whim of the prosecutor."40

In addition to relying on court decisions that have provided limitations to the "scheme to defraud" element of the mail fraud statute, criminal defense attorneys can also examine the dictionary definition of the terms "scheme" and "defraud." "Scheme" is defined as "a detailed plan or system, . . . a carefully constructed arrangement, . . . a secret, dishonest or malicious plot. . . ."41 According to "Webster's Third International Dictionary, 'defraud' means 'to take or withhold from (one) some possession, right or interest by calculated misstatement or perversion of truth, trickery, or other deception."' 42 Requiring prosecutors to limit mail fraud charges to alleged conduct that meets dictionary definitions of these two terms may offer clearer boundaries to this element of the statute.

Rule Two -- Absent Section 1346 Money Or Property Is Necessary And Not Everything Is Money Or Property

Absent the use of section 1346's definition of scheme or artifice to defraud including the intangible right to honest services, a showing of a deprivation of money or property is required of prosecutors.43 Courts have liberally construed the term "property" to include almost everything. For example, the manipulation of frequent flyer mileage was found to be a misappropriation of airline property.44 The United States Supreme Court in Carpenter v. United States45 held the term "property" to include intangible property in the form of confidential information.46

There are, however, instances in which courts remind prosecutors that not everything is property. The use of a constructive trust theory, standing alone, has in some instances been rejected as outside the scope of the term property for the purposes of the mail fraud statute. Prosecutions that attempt to include choses in action and licenses as property have also been rejected by some courts. One court found that "'[m]arket share' is neither tangible or intangible property; its loss is far too amorphous a blow to support a claim of mail fraud under the reasoning of McNally and Carpenter."47

In the aftermath of the McNally and Carpenter cases, prosecutors attempted to impose the mail fraud statute on the basis of a constructive trust theory. The loss of money or property was premised upon a claim that a fiduciary had breached his or her duty "by appropriating an economic benefit that should be the principal's."48 Few courts have accepted this application.49 Constructive trust theories have been rejected in cases involving "faithless public officials and their collaborators," as well as in a case involving apartments and the profits generated by their resale.50 A chose of action, in the form of a right to bring a lawsuit to recover profits from the sale of apartments, was also found to be outside the scope of the term property for purposes of a mail fraud charge.51

Courts have struggled with the application of property to cases involving licenses.52 Some courts have concluded that unissued licenses and permits constitute property for the purposes of the mail fraud statute.53 Equally prevalent, however, are decisions holding that unissued licenses and permits are not encompassed within the term "property." Some of these cases concentrate on unissued licenses and permits being mere regulatory manifestations of police powers, and as such they are found not to be property interests.54

The disarray in case law is not merely a jurisdictional dichotomy. For example, the Seventh Circuit Court of Appeals has approached the question of whether a license constitutes property by distinguishing the type of license involved in the alleged scheme to defraud. A regulatory license (taxi license) was found not to be property,55 yet a cable television franchise was considered as property in that it represented "far more than a mere 'promise not to interfere' by the government."56

In United States v. Granberry,57 the Eighth Circuit Court of Appeals considered the application of property in two distinct contexts. The court found that a chose in action in the form of an employment contract could be property.58 In contrast, a governmental permit was not considered to be property for the purposes of the mail fraud statute. The court noted that although a governmental permit may be property in the hands of the person receiving it, it was not property from the perspective of the licensing authorities.59 The court stated, "[t]he physical piece of paper that represents the permit is tangible enough, but it is simply negligible -- de minimis as a matter of law and insignificant as a matter of fact, apart from the legal entitlement it represents."60

Courts have held that arms export permits and licenses are not property for the purposes of the mail fraud statute.61 One court stated that "the value of the paper, ink, and seal at issue is plainly inconsequential . . ." and as such to consider this property was "patently absurd."62 In United States v. Bruchhausen,63 the government contended that one could derive a property right from the Arms Export Control Act and the Export Administration Act of 1979 which recognized the government's interest in the future alienation of American high technology products. The Ninth Circuit Court of Appeals, however, rejected this argument finding that a government's potential forfeiture interest would not constitute property.64 Courts have also rejected government attempts to use a Federal Aviation Administration pilot license,65 a gambling license,66 and a bingo permit67 as property for the purposes of the mail fraud statute.

Recently the Seventh Circuit Court of Appeals, in United States v. Walters,68 held that "[b]oth the 'scheme or artifice to defraud' clause and the 'obtaining money or property' clause . . . contemplate a transfer of some kind."69 A mere deprivation does not suffice for a mail fraud charge. The court stated that "[l]osses that occur as byproducts of a deceitful scheme do not satisfy the statutory requirement."70

Rule Three -- Section 1346 Is A Ridiculous Provision That Needs To Be Repealed
Section 1346 expands the term "scheme or artifice to defraud" to include deprivations of the "intangible right of honest services."71 At the time of the passage of this amendment, Representative Conyers stated that, "this amendment restores the mail fraud provision to where that provision was before the McNally decision."72 Congress failed, in passing section 1346, to explicitly define "honest services." Further, pre-McNally cases did not always employ the term "honest services."73 What remains, therefore, is an intangible rights doctrine that can arguably result in arbitrary and discriminatory application.74

Section 1346 refers only to the "intangible rights to honest services" and not to all intangible rights.75 "[N]ot all of the schemes prosecuted before McNally involved the participation of persons who might be said to owe a duty of honest services."76 For example, election fraud schemes that fail to involve public officials may now fall outside the scope of the mail fraud statute.77

Scholars have continually criticized the use of intangible rights as a basis for a mail fraud charge.78 After all, the use of an intangible rights theory as a basis for a mail fraud prosecution can have absurd results.79 Judge Winter, in his dissent in United States v. Margiotta,80 noted that "there is no end to the common political practices which may now be swept within the ambit of mail fraud."81

Proving the ambiguity of this statute can be difficult in light of the plethora of pre-McNally cases. Commentators have noted that a source of assistance for making this argument can be found in Justice White's majority opinion in a recent Supreme Court case.82 Speaking for a unanimous Court in affirming mail and wire fraud convictions, Justice White stated in the case of Carpenter v. United States83 that, "[t]he Journal, as Winans' employer, was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute, which 'had its origin in the desire to protect individual property rights.'"84 One can only hope that our present Court will recall these words when confronted with an argument to void section 1346.

Rule Four -- Prosecutors Think Intent Can Always Be Inferred From The Evidence And That Just Isn't So
Prosecutors must prove an intent to defraud. Some courts require proof of a specific intent.85 Intent often is inferred from the defendant's action or from circumstantial evidence.86 The Seventh Circuit Court of Appeals found that "[g]ood faith, or the absence of an intent to defraud, is a complete defense to a charge of mail fraud."87

An intent to deceive is not the same as an intent to defraud. In United States v. Regent Office Supply Co., Inc.,88 the Second Circuit Court of Appeals held that "an intent to deceive, and even to induce, may have been shown; but this does not, without more, constitute the 'fraudulent intent' required by the statute."89 Recently, a district court in Missouri, in a bank fraud case, noted that an intent to deceive customers was not the same as an intent to defraud them.90

Rule Five -- Mailing Means Mailing; Make Them Prove It
Although the "mailing" element of the statute has become a jurisdictional component of the offense, as opposed to the central focus, it is still essential that the prosecution prove both a mailing and that the mailing was by the defendant or caused to be mailed by the defendant. There have been instances where convictions have been reversed as a result of the prosecution's failure to have sufficient evidence of this element.

Courts have allowed the government to use circumstantial evidence to prove a mailing. For example, evidence of office custom and procedure has been found acceptable to establish a mailing where a witness did not personally put the letter in the United States mailbox.91 One court stated that, "[a]lthough circumstantial evidence may be used to prove the element of mailing essential to conviction under 1341, reliance upon inferences drawn from evidence of standard business practice without specific reference to the mailing in question is insufficient."92 Another court noted that if using circumstantial evidence, such as testimony regarding office practice, the circumstances must "directly support the inference and exclude all reasonable doubt to the extent of overcoming the presumption of innocence."93 The Fourth Circuit Court of Appeals stated that "[p]robability is not enough to convict a party of mail fraud."94

The Third Circuit Court of Appeals recently reversed a mail fraud conviction where the government had specific reference to the mailing, but failed to present adequate evidence that it was the business practice to mail letters that were delivered to the mail room.95 The court stated that "it is quite possible that the mail room used a personal messenger or private delivery service to deliver the type of correspondence at issue here."96 Saying that correspondence has been "sent" does not necessarily mean that it was mailed.97

In addition to proving a mailing, the government must also prove that the mailing was by the defendant or caused by the defendant. The United States Supreme Court, in Pereira v. United States,98 held that it is sufficient if one acts with knowledge or if the use of the mails can be reasonably foreseen.99 The Eleventh Circuit Court of Appeals, in United States v. Smith,100 found, however, insufficient proof by the government that the defendant knew or should have known that the mails would actually be used where there was no proof that the defendant had actual knowledge of the mailing and the mailing was not reasonably foreseeable. The court stated that "[w]e do not believe the bare fact that large organizations mail communications between offices brings every fraud against such entities within the federal mail fraud statute."101

A defendant's withdrawal from the scheme to defraud may serve to negate the government's allegation that the defendant caused the mailing. The Ninth Circuit Court of Appeals held that where a defendant presents prima facie evidence of withdrawal from participation in the scheme, the government must show "that the defendant did not withdraw or that each charged use of the mails or wires was the foreseeable result of actions taken by the defendant or his [her] co-schemers before the defendant's withdrawal."102

Rule Six -- Mail + Fraud = Mail Fraud?
"Innocent" mailings,103 mailings between innocent persons,104 and routine mailings105 have been found sufficient in some cases to support mail fraud charges.106 The mailing does not have to be an essential element of the scheme, as long as it is incident to an essential part of the scheme,107 or one "step in a plot."108 A mere mailing coupled with a scheme to defraud, however, does not suffice for sustaining mail fraud charges. The mailing must be "in furtherance" of the scheme to defraud.109 Convictions have been reversed where the government failed to provide sufficient evidence of the mailing being in furtherance of the scheme to defraud.

Limitations have developed to the "in furtherance" aspect of mail fraud.110 In some cases, mailings that conflict with the scheme, assist in the detection of the fraud,111 or are counterproductive to the scheme were found not to be in furtherance of the scheme to defraud.112 It also has been held improper to premise mail fraud charges upon "[m]ailings made or caused to be made under the imperative command of duty imposed by state law."113 Mailings prior to the commencement of the scheme to defraud114 and after fruition of the scheme to defraud115 have been found to be outside the scope of the mail fraud statute.116

The viability of these limitations to the "in furtherance" element of the mail fraud statute are questionable as a result of the Supreme Court case of Schmuck v. United States.117 According to the Schmuck decision, the test for determining whether the mailings were in furtherance of the scheme to defraud, is "whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time."118 According to Schmuck, counterproductivity to the scheme is not a relevant consideration.119

Despite the restrictiveness of the language in the Schmuck case, some lower courts have continued to reject mail fraud cases premised upon limitations espoused in pre-Schmuck cases. In United States v. Pacheco-Ortiz,120 the First Circuit Court of Appeals stated that "outside the statute as not furthering the illegal scheme are those mailings that: serve to put the defended party on notice regarding the fraud; make the execution of the fraud less likely; oppose the scheme; or disclose the nature of the fraud."121 A Tenth Circuit Court of Appeals found that where the scheme had reached fruition, the mailing "was not for the purpose of executing the scheme."122

Mailings involving little more than post-fraud accounting have been rejected as not in furtherance of the scheme to defraud. The Fifth Circuit Court of Appeals required "that the government convincingly demonstrate how such mailings advanced or were integral to the fraud."123 Mailings that were meant "to serve some antecedent purpose in the fraudulent scheme," where the prior purpose is abandoned are not "in furtherance" for the purposes of mail fraud.124 Mailings having no relation to the plot's success have also been found insufficient.125

Rule Seven --If All Else Fails, Be Innovative
Innovative arguments have proven successful in placing some limits on the mail fraud statute.126 In formulating new arguments, one can examine the historical setting for the mail fraud statute. This proved to be effective in the McNally case, where the Supreme Court rejected numerous lower court decisions that had endorsed an intangible rights doctrine.127

Consideration should also be given to the relationship between mail fraud and other statutes. The Third Circuit Court of Appeals rejected use of the mail fraud statute for an alleged scheme to deprive employees of rights under section seven of the National Labor Relations Act.128 Because "Congress did not intend unfair labor practices to have any criminal consequences," the court held that an alleged scheme to deprive employees of Section 7 rights did not constitute a crime under the mail fraud statute.129

One may also want to consider the status of mail fraud in the context of our federal and state criminal justice system. State and local officials have accounted for an inordinate number of the mail fraud prosecutions.130 Is the transfer of prosecution power to our federal system warranted, and is mail fraud the proper vehicle for achieving federal government monitoring of our state systems?

Clearly, the mail fraud statute needs to have additional limitations placed upon it. Ideally, Congress should recalibrate this statute to curtail its haphazard application and make it "into a recognizable crime."131 Absent legislative action, our courts need to strictly construe the statute so that it cannot serve political predilections of prosecutors. New and innovative arguments by defense attorneys can assist in achieving limitations to this limitless offense.

1. Jed S. Rakoff, The Federal Mail Fraud Statute (pt.1), 18 Duq. L. Rev. 771 (1980).

2. United States v. Maze, 414 U.S. 395, 405-06 (1974) (Burger, C.J., dissenting).

3. Ellen S. Podgor, Mail Fraud: Opening Letters, 43 S.C. L. Rev. 223, 224 (1992).

4. Section 1341 states:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C.A. 1341 (West Supp. 1991).

5. Podgor, supra note 3, at 225. See Act of June 8, 1872, ch. 335, 301, 17 Stat. 283, 323.

6. See Rakoff, supra note 1, at 784.

7. Podgor, supra note 3, at 226.

8. Id.

9. Act of Mar. 4, 1909, ch. 321, 215, 35 Stat. 1088, 1130.

10. 483 U.S. 350 (1987).

11. Id. at 356.

12. 18 U.S.C. 1346 (1989).

13. See, e.g., United States v. ReBrook, 837 F. Supp. 162 (S.D. W. Vir. 1993).

14. Act of Aug. 9, 1989, Pub. L. 101-73, Title IX, 961(1), 103 Stat. 500.

15. 18 U.S.C.A. 1341 (West Supp. 1991).

16. Act of Nov. 19, 1990, Pub. L. 101-647, Title XXV, 2504(h), 104 Stat. 4861. (increased the penalty from 20 to 30 years for frauds relating to financial institutions).

17. See, e.g., United States v. Morse, 785 F.2d 771 (9th Cir.), cert. denied, 476 U.S. 1186 (1986); United States v. Bruce, 488 F.2d 1224 (5th Cir. 1973), cert. denied 419 U.S. 825 (1974).

18. See, e.g., United States v. Cavalier, 17 F.3rd 90 (1994).

19. See, e.g., United States v. Serlin, 538 F.2d 737 (7th Cir. 1976); United States v. Kutner, 631 F. Supp. 126 (E.D. Pa. 1986).

20. See United States v. Edwards, 458 F.2d 875 (5th Cir.), cert. denied, 409 U.S. 891 (1972).

21. See, e.g., United States v. Goodman, 984 F.2d 235 (8th Cir. 1993); Hofmann v. United States, 353 F.2d 188 (10th Cir. 1965).

22. 272 U.S. 620 (1926).

23. Id. at 625.

24. Id. at 628.

25. Id.

26. See generally Ellen S. Podgor, Tax Fraud-Mail Fraud: Synonymous, Cumulative or Diverse?, 57 Cin. L. Rev. 903 (1989).

27. See United States v. Henderson, 386 F. Supp. 1048 (S.D.N.Y. 1974), contra United States v. Miller, 545 F.2d 1204 (9th Cir. 1976).

28. Id. at 1053.

29. Id. at 1053.

30. See U.S. Dep't Of Justice, United States Attorneys' Manual 6-4.211(1) (1990).

31. Id.

32. 18 U.S.C.A. 1961-1968 (West 1984 & Supp. 1991).

33. See Susan Getzendanner, Judicial 'Pruning' of 'Garden Variety Fraud' Civil RICO Cases Does Not Work: It's Time for Congress to Act, 43 Vand. L. Rev. 673, 679 (1990).

34. 904 F.2d 786 (1st Cir. 1990).

35. Id. at 791.

36. United States v. Greenleaf, 692 F.2d 182, 188 (1st Cir. 1982), cert. denied, 460 U.S. 1069 (1983).

37. McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir. 1990), cert. denied, 498 U.S. 992 (1990).

38. United States v. Goodman, 984 F.2d 235 (8th Cir. 1993).

39. Id. at 239.

40. Id.

41. The New Lexicon Webster's Dictionary 893 (1989).

42. McEvoy Travel Bureau v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir. 1990), cert. denied, 498 U.S. 992 (1990).

43. Section 1346 can not be applied retroactively, given the Ex Post Facto Clause of the Constitution. United States v. Bush, 888 F.2d 1145, 1146 (7th Cir. 1989). In United States v. Alkins, 925 F.2d 541 (2d Cir. 1991), however, the court held that, "convictions based on fraudulent conduct that occurred prior to the effective date of 1346 did not violate the ex post facto clause since appellants could have taken steps after the effective date of that statute to halt the mailings." Id. at 549.

44. See United States v. Mullins, 992 F.2d 1472, 1476-77 (9th Cir. 1993), cert. denied, 114 S. Ct. 556 (1993).

45. 484 U.S. 19 (1987).

46. See generally Eli Lederman, Criminal Liability for Breach of Confidential Commercial Information, 38 Emory L.J. 921 (1989).

47. Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397, 406 (9th Cir. 1991), cert. denied, 112 S. Ct. 1168 (1992) (citations omitted).

48. United States v. Runnels, 833 F.2d 1183, 1187 (6th Cir. 1987), reversed and vacated, 877 F.2d 481 (6th Cir. 1989) (en banc).

49. See, e.g., United States v. Walgren, 885 F.2d 1417 (9th Cir. 1989); United States v. Holzer, 840 F.2d 1343, 1346-48 (7th Cir.), cert. denied, 486 U.S. 1035 (1988); United States v. Shelton, 848 F.2d 1485, 1491-92 (10th Cir. 1988) (en banc); cf. United States v. Fagan, 821 F.2d 1002, 1010-11 n.6 (5th Cir. 1987), cert. denied, 484 U.S. 1005 (1988).

50. United States v. Miller, 997 F.2d 1010, 1019-1020 (2d Cir. 1993).

51. Id.

52. See generally Donna M. Maus, Comment, License Procurement and the Federal Mail Fraud Statute, 58 U. Chi. L. Rev. 1125 (1991).

53. See, e.g., United States v. Bucuvalas, 970 F.2d 937 (1st Cir. 1992), cert. denied, 113 S. Ct. 1382 (1993); United States v. Martinez, 905 F.2d 709 (3rd Cir.), cert. denied, 498 U.S. 1017 (1990); United States v. Allard, 864 F.2d 248 (1st Cir. 1989).

54. "It is well established that the government's regulatory interests are not protected by the mail fraud statute." United States v. F.J. Vollmer & Co., Inc., 1 F.3rd 1511 (7th Cir. 1993), cert. denied, 114 S. Ct 688 (1994).

55. See Toulabi v. United States, 875 F.2d 122 (7th Cir. 1989).

56. Borre v. United States, 940 F.2d 215, 221-22 (7th Cir. 1991). A dissenting opinion by Judge Easterbrook criticized the majority opinion noting that, "[a]lthough the license may be property from the recipient's perspective, from the government's it is no different from an opinion by the Corporation Counsel that so-and-so meets the standards local law sets for doing such-and-such." Id. at 225.

57. 908 F.2d 278 (8th Cir. 1990), cert. denied, 500 U.S. 921 (1991).

58. Id. at 280.

59. Id.

60. Id.

61. See United States v. Schwartz, 924 F.2d 410, 418 (7th Cir. 1991); United States v. Evans, 844 F.2d 36 (2d Cir. 1988), but see United States v. Novad, 923 F.2d 970 (2d Cir.), cert. denied, 500 U.S. 919 (1991).

62. United States v. Schwartz, 924 F.2d 410, 417-18 (7th Cir. 1991).

63. 977 F.2d 464 (9th Cir. 1992).

64. Id. at 466.

65. See United States v. Kato, 878 F.2d 267, 269 (9th Cir. 1989).

66. See United States v. Dadanian, 856 F.2d 1391, 1392 (9th Cir. 1988).

67. See United States v. Murphy, 836 F.2d 248, 254 (6th Cir.), cert. denied, 488 U.S. 924 (1988).

68. 997 F.2d 1219 (7th Cir. 1993).

69. Id. at 1227.

70. Id.

71. 18 U.S.C.A. 1346 (West Supp. 1991).

72. 134 Cong. Rec. H11,251 (daily ed. Oct. 21, 1988).

73. Podgor, supra note 3, at 237.

74. See Podgor, supra note 3, at 236-39. In United States v. ReBrook, 837 F. Supp. 162 (S.D. W. Vir. 1993), the court rejected a vaguesness argument stating, "[c]oncrete parameters outlining the duty of honest service should not be necessary in order for a person to be charged with violating this duty. The concept of the duty of honest service sufficiently conveys warning of the proscribed conduct when measured in terms of common understanding and practice." Id. at 171.

75. See United States v. Bruchhausen, 977 F.2d 464, 468 (9th Cir. 1992).

76. Norman Abrams And Sara Sun Beale, Federal Criminal Law 137-38 (2d ed. 1993).

77. Id.

78. See, e.g., Gregory H. Williams, Good Government by Prosecutorial Decree: The Use and Abuse of Mail Fraud, 32 Ariz. L. Rev. 137 (1990); John C. Coffee, Jr., The Metastasis of Mail Fraud: The Continuing Story of the 'Evolution' of a White-Collar Crime, 21 Amer. Crim. L. Rev. 1 (1983); Daniel J. Hurson, Limiting the Federal Mail Fraud Statute - A Legislative Approach, 20 AMER. Crim. L. Rev. 423 (1983).

79. See Podgor, supra note 3, at 236-39.

80. 688 F.2d 108, 139-44 (2d Cir. 1982) (Winter, J., dissenting), cert. denied, 461 U.S. 913 (1983).

81. Id. at140.

82. See Abrams & Beale, supra note 76, at 150.

83. 484 U.S. 19 (1987).

84. Id. at 25. (emphasis added). See Abrams & Beale, supra note 76, at 150.

85. See United State v. Martin-Trigona, 684 F.2d 485, 492 (7th Cir. 1982).

86. See United States v. Gelb, 700 F.2d 875, 879-80 (2d Cir.), cert. denied, 464 U.S. 853 (1983).

87. United States v. Martin-Trigona, 684 F.2d 485, 492 (7th Cir. 1982); see also United States v. Curry, 681 F.2d 406 (5th Cir. 1982).

88. 421 F.2d 1174 (2nd Cir. 1970).

89. Id. at 1181.

90. See United States v. Bridges, 820 F. Supp. 475 (W.D. Mo. 1993).

91.See United States v. Flaxman, 495 F.2d 344, 349 (7th Cir.), cert. denied, 419 U.S. 1031 (1974).

92. United States v. Burks, 867 F.2d 795, 797 (3rd Cir. 1989).

93. United States v. Brooks, 748 F.2d 1199, 1202 (7th Cir. 1984).

94. United States v. Scott, 730 F.2d 143, 147 (4th Cir.), cert. denied sub nom., Wilson v. United States, 469 U.S. 1075 (1984).

95. See United States v. Hannigan, 1994 WL 275855 (3rd Cir. 1994).

96. Id. at 3.

97. See United States v. Hart, 693 F.2d 286 (3rd Cir. 1982).

98. 347 U.S. 1 (1954).

99. Id. at 8-9.

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

101. Id. at 273.

102. United States v. Lothian, 976 F.2d 1257, 1263 (9th Cir. 1992); contra United States v. Read, 658 F.2d 1225 (7th Cir. 1981).

103. Although innocent mailings may serve as the basis for a mail fraud charge, it is necessary that there be "some link between the mailing and the success of the scheme." United States v. Kwiat, 817 F.2d 440, 443 (7th Cir. 1987), cert. denied sub. nom., Kehoe v. United States, 484 U.S. 924 (1987).

104. See United States v. Draiman, 784 F.2d 248, 251 (7th Cir. 1986).

105. See Carpenter v. United States, 484 U.S. 19 (1987); but see United States v. Tarnopol, 561 F.2d 466, 472 (3rd Cir. 1977).

106. See Podgor, supra note 3, at 240.

107. See Pereira v. United States, 347 U.S. 1, 8 (1954).

108. Badders v. United States, 240 U.S. 391, 394 (1916).

109. See Kann v. United States, 323 U.S. 88, 95 (1944).

110. See Podgor, supra note 3, at 242-54.

111. See, e.g., Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 649 (7th Cir. 1985), cert. denied, 479 U.S. 987 (1986); United States v. Otto, 742 F.2d 104, 109 (3rd Cir.), cert. denied, 469 U.S. 1196 (1984); United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir. 1977).

112. See, e.g., United States v. Maze, 414 U.S. 395, 402 (1974); United States v. Castile, 795 F.2d 1273, 1278 (6th Cir. 1986); United States v. Bonansinga, 773 F.2d 166, 172 (7th Cir. 1985), cert. denied, 476 U.S. 1160 (1986).

113. United States v. Parr, 363 U.S. 370, 391 (1960); see also United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979); McNally v. United States, 483 U.S. 350, 353 n.2 (1987).

114. See, e.g., United States v. Beall, 126 F. Supp. 363 (N.D. Cal. 1954); United States v. Tarnopol, 561 F.2d 466 (3rd Cir. 1977).

115. See, e.g., 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). Mailings occurring after the scheme to defraud, that are used to lull the victim into the scheme, have been found to be in furtherance of the scheme to defraud. See, e.g., United States v. Sampson, 371 U.S. 75 (1962); United States v. Lane, 474 U.S. 438 (1986).

116. See Podgor, supra note 3, at 242.

117. 489 U.S. 705 (1989).

118. Id. at 714.

119. Id. at 715; see also United States v. Biesiadecki, 933 F.2d 539 (7th Cir. 1991).

120. 889 F.2d 301 (1st Cir. 1989).

121. Id. at 305. (quoting from United States v. Leyden, 842 F.2d 1026, 1030 (8th Cir. 1988).

122. United States v. Cardall, 885 F.2d 656, 682 (10th Cir. 1989).

123. United States v. Vontsteen, 872 F.2d 626, 629 (5th Cir. 1989); cert. denied, 498 U.S. 1074 (1991).

124. See United States v. McClain, 934 F.2d 822 (7th Cir. 1991).

125. See United States v. Walters, 997 F.2d 1219 (7th Cir. 1993); see also Robert Suris General Contractor Corp., 873 F.2d 1401, 1406 (11th Cir. 1989).

126. See McNally v. United States, 483 U.S. 350 (1987).

127. See McNally, 483 U.S. 350, 362 n.1 (Stevens, J., dissenting).

128. See United States v. Boffa, 688 F.2d 919 (3rd Cir. 1982); cert. denied, 465 U.S. 1066 (1984).

129. Id. at 930.

130. See Williams, supra note 78, at 145.

131. See Podgor, supra note 3, at 225.

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