Use of Mailings and Wires in Furtherance of the
of the Scheme
"The federal mail fraud statute does not purport to reach all
but only those limited instances in which the use of the mails is a part of
execution of the fraud, leaving all other cases to be dealt with by
state law." United States v. Schmuck, 489 U.S. 705, 710 (1989)
Kann v. United States, 323 U.S. 88, 95 (1944)); accord
States v. Coachman, 727 F.2d 1293, 1302 n. 43 (D.C. Cir. 1984) ("The
of mail fraud demands proof of a scheme to defraud which, at some point, is
intentionally furthered by use of the mails.").|
"It is not necessary that the scheme contemplate the use of the
as an essential element." Pereira v. United States, 347 U.S. 1, 8
Durland v. United States, 161 U.S. 306, 313 (1896) (proof of specific
intent to use the mails on the part of defendants need not be proven). "It
sufficient for the mailing to be 'incident to an essential part of the
. . . or 'a step in [the] plot' . . . . " Schmuck, 489 U.S. at 710-11
(citations omitted); cf. United States v. Diggs, 613 F.2d 988,
(D.C. Cir.) ("[A]lthough the schemer need not 'contemplate the use of the
as an essential element,' the mailings must be sufficiently closely related
[the] scheme to bring his conduct within the statute.") (footnote omitted),
cert. denied, 446 U.S. 982 (1980); United States v. Alston,
F.2d 531, 538 (D.C. Cir. 1979) ("For conviction under the mail fraud
mails must be used 'for the purpose of executing' the fraudulent scheme, and
merely 'as a result of' such scheme.") (quoting Kann, 323 U.S. 88),
cert. denied, 445 U.S. 918 (1980).
As in the case of mail fraud, a wire transmission may be considered
be for the purpose of furthering a scheme to defraud if the transmission is
incident to the accomplishment of an essential part of the scheme.
States v. Mann, 884 F.2d 532, 536 (10th Cir. 1984). Moreover, it is not
necessary to show that the defendant directly participated in the
where it is established that the defendant caused the transmission, and that
use was the foreseeable result of his acts. United States v. Gill,
F.2d 274, 277-78 (7th Cir. 1990); United States v. Jones, 554 F.2d
253 (5th Cir.), cert. denied, 434 U.S. 866 (1977) (cases cited);
States v. Wise, 553 F.2d 1173 (8th Cir. 1977).
The gist of the offenses is not the scheme to defraud, but the use
the mails or interstate wire communication. See United States v.
Garland, 337 F. Supp. 1, 3 (N.D. Ill. 1971); see also United
v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("The use of the post office
establishment in the execution of the alleged scheme to obtain money by
pretenses is the gist of the offense which the statute denounces, and not
scheme to defraud.") (quoting Cochran v. United States, 41
193, 197 (8th Cir. 1930)), cert. denied, 116 S.Ct. 748 and 116 S.Ct.
(1996); United States v. Lebovitz, 669 F.2d 894, 898 (3d Cir.) ("The
of the offense of mail fraud is the use of mails by someone to carry out
essential element of the fraudulent scheme or artifice."), cert.
456 U.S. 929 (1982). Accordingly, each use of the mails (in the case of mail
fraud) and each separate wire communication (in the case of wire fraud)
constitutes a separate offense, i.e., each mailing and/or wire transmission
constitute a separate count in the indictment. See, e.g., United
States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (mail fraud);
States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.) (each use of mails is
separate offense), cert. denied, 506 U.S. 1035 (1992); United
v. Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987) (wire fraud).
[cited in USAM 9-43.100]