Proof of Mailings and Transmissions
The mailing or wire communication may be proven by circumstantial
evidence. See, e.g., United States v. Griffith, 17 F.3d 865,
(6th Cir.), cert. denied, 115 S.Ct. 149 (1994); United States v.
Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986) (mailings performed in the
of the bank's customary practices) (citing United States v.
Ledesma, 632 F.2d 670, 675 (7th Cir.), cert. denied, 449 U.S. 998
(1980)); United States v. Brooks, 748 F.2d 1199, 1202-03 (7th Cir.
(introduction of envelope). But see United States v.
F.3d 890, 895 (3d Cir. 1994) (defendant's statement that he received check
insufficient to prove check was sent through the mails).|
"To constitute a violation of [§ 1341] . . ., it is not
to show that [defendants] actually mailed . . . anything themselves; it is
sufficient if they caused it to be done. Pereira v. United States,
U.S. 1, 8 (1954) (citing 18 U.S.C. (Supp. V) § 2(b)); United States
Kenofskey, 243 U.S. 440, 443 (1917) ("Cause" is used "in its well-known
of bringing about . . . ."); accord United States v. Diggs,
F.2d 988, 998 (D.C. Cir.) ("One must 'cause' the mails to be used" to
element of "use of the United States mails 'for the purpose of executing the
scheme.'") (quoting United States v. Maze, 414 U.S. 395, 400 (1974)
(quoting Kann v. United States, 323 U.S. 88, 94 (1944), cert.
denied, 446 U.S. 982 (1980). The government need show only that the
defendant "caused" the mailing by acting "with knowledge that the use of the
mails follow in the ordinary course of business, or where such use can
be foreseen, even though not actually intended." Pereira, 347 U.S.
"'[I]nnocent' mailings - ones that contain no false information -
supply the mailing element." United States v. Schmuck, 489 U.S. 705,
(1989) (citing Parr v. United States, 363 U.S. 370, 390 (1960)).
Moreover, the elements of mail fraud may be satisfied where the mailings
been routine. Mailings that may lead to the uncovering of the fraudulent
may also supply the mailing element of the mail fraud offense. Id.
relevant question at all times is whether the mailing is part of the
of the scheme as conceived by the perpetrator at the time, regardless of
the mailing later, through hindsight, may prove to have been
and return to haunt the perpetrator of the fraud.").
[cited in USAM 9-43.100]