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CRM 500-999

954. Lulling Letters, Telegrams and Telephone Calls

In United States v. Maze, 414 U.S. 395 (1974), mailings which occurred after the scheme ended fell outside the prohibitions of the statute. See also United States v. West, 549 F.2d 545, 556 (8th Cir. 1977), cert. denied, 430 U.S. 956 (1977) and Battaglia v. United States, 349 F.2d 556, 561 (9th Cir.), cert. denied, 382 U.S. 955 (1965) (wire used after the scheme has come to an end is not within the statute); cf. United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.)(Maze has no adverse impact on fraud prosecutions where the scheme has not reached fruition.), cert. denied, 429 U.S. 924 (1976).

It is a well-established principle of mail fraud law, however, that use of the mails after money is obtained may nevertheless be "for the purpose of executing" the fraud. This proposition was considered by the Supreme Court in United States v. Sampson, 371 U.S. 75 (1962), where salesmen fraudulently obtained applications and advance payments from businessmen and then mailed acceptances to the defrauded victims to lull them into believing the services would be performed. The Court held that such a "lulling" use of the mails was for the purpose of executing the fraudulent scheme. Thus, post-purchase mailings or wire transmissions that are designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect can be in furtherance of the scheme. United States v. Rogers, 9 F.3d 1025 (2d Cir. 1993), cert. denied, 115 S.Ct. 95 (1994).

[cited in JM 9-43.100]