United States v. Maze

Delivered the opinion of the Court.

In February 1971 respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year respondent’s fancy lightly turned to thoughts of the sunny Southland, and he • thereupon took Meredith’s BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith’s name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent’s departure from Louisville, notified the Louisville bank that his credit card had been stolen.

Upon respondent’s return to Louisville he was indicted on four counts of violation of the federal mail fraud statute, 18 U. S. C. § 1341, and one count of violation of the Dyer Act, 18 U. S. C. § 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services at four specified motels by presenting Meredith's Bank-Americard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time.

Respondent was tried by a jury in the United States District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith’s Bank-Americard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmerieard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the Dyer Act. 468 F. 2d 529 (1972). Because of an apparent conflict among the courts of appeals as to the circumstances under which the fraudulent use of a credit card may violate the mail fraud statute, we granted the Government’s petition for certiorari. 411 U. S. 963 (1973). For the reasons stated below, we affirm the judgment of the Court of Appeals.

The applicable parts of the mail fraud statute provide as follows:

“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 ... for the purpose of executing such scheme or artifice or attempting so to do . . . 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 [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1341.

In Pereira v. United States, 347 U. S. 1, 8-9 (1954), the Court held that one “causes” the mails to be used where he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . . . .” We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze “caused” the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent’s scheme to bring his conduct within the statute.

Under the statute, the mailing must be “for the purpose of executing the scheme, as the statute requires,” Kann v. United States, 323 U. S. 88, 94 (1944), but “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element,” Pereira v. United States, supra, at 8. The Government relies on Pereira, supra, and United States v. Sampson, 371 U. S. 75 (1962), to support its position, while respondent relies on Kann v. United States, supra, and Parr v. United States, 363 U. S. 370 (1960).

In Kann, supra, corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks:

“The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.” 323 U. S., at 94.

In Parr, supra, the defendants were charged, inter .alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on Kann, the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants’ scheme, because it was immaterial to the defendants how the oil company went about collecting its payment.

The defendant in Pereira, supra, was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words:

“Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los An-geles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los An-geles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier’s check for $35,000 was drawn in favor of Pereira.” 347 U. S., at 5.

Thus the mailings in Pereira played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded. Unlike the mailings in Pereira, the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent’s scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all.

The Government, however, relying on United States v. Sampson, supra, argues that essential to the success of any fraudulent credit-card scheme is the “delay” caused by use of the mails “which aids the perpetrator . . . in the continuation of a fraudulent credit card scheme and the postponement of its detection.” In Sampson, various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that Kann and Parr did not preclude the application of the mail fraud statute to “a deliberate, planned use of the mails after the victims' money had been obtained.” 371 U. S., at 80.

We do not believe that Sampson sustains the Government’s position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service, which causes the time lag in the physical transmission of such correspondence.

Congress has only recently passed an amendment to the Truth in Lending Act which makes criminal the use of a fraudulently obtained credit card in a “transaction affecting interstate or foreign commerce.” 84 Stat. 1127, 15 U. S. C. § 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme. But it did not do this; instead, it required that the use of the mails be “for the purpose of executing such scheme or artifice ...” Since the mailings in this case were not for that purpose, the judgment of the Court of Appeals is

Affirmed.

The Court of Appeals determined that even though it affirmed respondent’s Dyer Act conviction, for which he had received a concurrent five-year sentence, it should also consider the mail fraud convictions as well. There is no jurisdictional barrier to such a decision, Benton v. Maryland, 395 U. S. 784 (1969), and the court decided that “no considerations of judicial economy or efficiency have been urged to us that would outweigh the interest of appellant in the opportunity to clear his record of a conviction of a federal felony.” 468 F. 2d, at 536 n. 6. We agree that resolution of the mail fraud questions presented by this case is appropriate.

The decision of the Court of Appeals for the Tenth Circuit in United States v. Lynn, 461 F. 2d 759 (1972), appears consistent with the decision of the Sixth Circuit in the instant case. Five other courts of appeals apparently take a contrary view. E. g., United States v. Kellerman, 431 F. 2d 319 (CA2), cert. denied, 400 U. S. 957 (1970); United States v. Chason, 451 F. 2d 301 (CA2 1971), cert. denied, 405 U. S. 1016 (1972); United States v. Madison, 458 F. 2d 974 (CA2), cert. denied, 409 U. S. 859 (1972); United States v. Ciotti, 469 F. 2d 1204 (CA3 1972), cert. pending, No. 72-6155; Adams v. United States, 312 F. 2d 137 (CA5 1963); Kloian v. United States, 349 F. 2d 291 (CA5 1965), cert. denied, 384 U. S. 913 (1966); United States v. Reynolds, 421 F. 2d 178 (CA5 1970); United States v. Thomas, 429 F. 2d 407 (CA5 1970); United States v. Kelly, 467 F. 2d 262 (CA7 1972), cert. denied, 411 U. S. 933 (1973); United States v. Kelem, 416 F. 2d 346 (CA9 1969), cert. denied, 397 U. S. 952 (1970).

The full text of the section reads as follows:

“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.” 18 U. S. C. § 1341.

The Government indicates that in 1969 it was estimated that more than 300 million consumer credit cards were in circulation, with annual charges between $40 billion and $60 billion. It was also estimated that, in 1969, 1.5 million cards were lost or stolen, and that losses due to fraud had risen from $20 million in 1966 to $100 million in 1969. Brief for United States 14 n. 2, citing 115 Cong. Rec. 38987 (1969). The mail fraud statute, first enacted in 1872, c. 335, § 301, 17 Stat. 323, while obviously not directed at credit card frauds as such, is sufficiently general in its language to include them if the requirements of the statute are otherwise met.

While it is clearly implied in this Court’s opinion in Pereira that the El Paso bank did not immediately credit the account of the defendant, but instead awaited advice from the Los Angeles bank to which it had mailed the check, the opinion of the Court of Appeals for the Fifth Circuit in Pereira makes that fact abundantly clear:

“The return of [the] check from Texas to California constitutes the mailing referred to in the First Count .... In mailing the check back to the bank in California on which it was drawn, the El Paso, Texas, bank sent 'instructions to wire fate,’ meaning to wire whether the item was paid or not. Upon receiving a telegram stating that the cheek had been paid, the bank in El Paso gave Pereira its cashier’s check for $35,286.01, which Pereira promptly cashed on June 19, 1951.” Pereira v. United States, 202 F. 2d 830, 836 (1953).

Mr. Justice White’s dissenting opinion indicates that respondent engaged in a “two-week, $2,000 transcontinental spending spree.” While we are not sure of the legal significance of the amounts fraudulently charged on the credit card by the respondent, we note that the four counts of mail fraud charged in the indictment were based on charges on Meredith’s credit card totaling $301.85. Brief for Respondent 4 n. 2; Brief for United States 4-5.

Since we are admonished that we may not as judges ignore what we know as men, we do not wish to be understood as suggesting that delays in mail service are solely attributable to the distance involved. If the Postal Service appears on occasion to be something less than a 20th century version of the wing-footed Mercury, the fact remains that the invoices were mailed to and were ultimately received by the Louisville bank.

Distance is not the only cause of delay. The Court of Appeals noted that BankAmericard had a billing system in which billing was aceomplished by collecting receipts over a one-month period and then billing the card holder. 468 F. 2d, at 535. It might reasonably be argued that respondent himself used facilities of interstate travel for the purpose of executing his scheme, since the large distances separating the defrauded motels from one another and from .the Louisville bank probably did make it more difficult to apprehend him than if he had simply defrauded local enterprises in Louisville. But the statute is cast, not in terms of use of the facilities of interstate travel, but in terms of use of the mails.

Volume 84 Stat. 1127, 15 U. S. C. § 1644 provides:

“Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a. retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

The Court of Appeals felt that the enactment by Congress of the above amendment to the Truth in Lending Act manifested a legislative judgment that credit card fraud schemes- were to be excluded from the application of the mail fraud statute “unless the offender makes a purposeful use of the mails to accomplish his scheme.” 468 F. 2d, at 536.

Respondent contends that the passage of the amendment indicates that Congress believed in 1970 that credit card fraud was not a federal crime under 18 U. S. C. § 1341 or otherwise. Respondent also notes that the legislative history of the passage of the amendment indicates that the original bill, as enacted by the Senate, contained no jurisdictional amount limitation. The Senate-House conferees, at the request of the Department of Justice, later added the limitation of federal jurisdiction under the section to purchases exceeding $5,000. Brief for Respondent 16-21.

The Government contends that the Court of Appeals erred in attaching significance to the 1970 amendment, urging that there is no indication that Congress intended its provisions to be the sole vehicle for the federal prosecution of credit card frauds. Brief for United States 33-37, citing United States v. Beacon Brass Co., 344 U. S. 43, 45 (1952).

We deem it unnecessary to determine the significance of the passage of the amendment, since we conclude without resort to that fact that the mail fraud statute does not cover the respondent’s conduct in this ease.

We are admonished by The Chibe Justice in dissent that the “mail fraud statute must remain strong to be able to cope with the new varieties of fraud” which threaten “the financial security of our citizenry” and which “the Federal Government must be ever alert to combat.” We believe that under our decision the mail fraud statute remains a strong and useful weapon to combat those evils which are within the broad reach of its language. If the Federal Government is to engage in combat against fraudulent schemes not covered by the statute, it must do so at the initiative of Congress and not of this Court.