Petitioner used-car distributor was charged with multiple counts
of mail fraud. The indictment alleged that he purchased used cars,
rolled back their odometers, and sold them to Wisconsin retail
dealers at prices artificially inflated by the low-mileage
readings, and that the unwitting dealers, relying on the altered
readings, resold the cars to customers at inflated prices,
consummating the transactions by mailing title-application forms to
the State on behalf of the buyers. Petitioner filed a pretrial
motion to dismiss on the ground that the latter mailings were not
in furtherance of the fraudulent scheme and, thus, did not satisfy
the mailing element of the crime of mail fraud. He also moved under
Federal Rule of Criminal Procedure 31(c) for a lesser included
offense jury instruction on the crime of tampering with an
odometer. The District Court denied both motions, and, after trial,
the jury returned guilty verdicts on all counts. A Court of Appeals
panel initially ruled that, although the mailings satisfied the
mailing element of the crime, the requested jury instruction should
have been given under the "inherent relationship" test, which
considers one offense to be included in another when the facts as
alleged and proved support the inference that the defendant
committed the less serious crime, and when an "inherent
relationship" exists between the two offenses such that both relate
to the protection of the same interests and the proof of the
greater offense can generally be expected to require proof of the
lesser one. However, the Court of Appeals en banc rejected the
"inherent relationship" test in favor of the "elements" test,
whereby one offense is necessarily included within another only
when the elements of the lesser offense form a subset of the
elements of the offense charged. Finding that the elements of
odometer tampering are not a subset of the elements of mail fraud,
the en banc court affirmed petitioner's conviction.
Held:
1. The mailings at issue satisfy the mailing element of the
crime of mail fraud. Such mailings need not, as petitioner
contends, be an essential element of the scheme to defraud, but are
sufficient so long as they are incident to an essential part of the
scheme. Here, although the mailings may not have contributed
directly to the duping of either the retail dealers or the
customers, they were necessary to the successful
Page 489 U. S. 706
passage of title to the cars, which in turn was essential to the
perpetuation of the scheme to defraud, since a failure in the
passage of title would have jeopardized petitioner's relationship
of trust and goodwill with the dealers upon whose unwitting
cooperation the scheme depended.
Kann v. United States,
323 U. S. 88;
Parr v. United States, 363 U. S. 370; and
United States v. Maze, 414 U. S. 395,
distinguished. Pp.
489 U. S.
710-715.
2. The elements test must be utilized in determining when a
lesser included offense instruction is appropriate under Rule
31(c). Pp.
489 U. S.
715-721.
(a) The Rule's language -- which provides in relevant part that
"[t]he defendant may be found guilty of an offense necessarily
included in the offense charged" -- supports the application of the
elements approach. That language suggests that a comparison must be
drawn between offenses -- and therefore between the statutory
elements of the offenses in question -- whereas the inherent
relationship approach mandates that the determination be made by
reference to conduct proved at trial regardless of the statutory
definitions of offenses. Furthermore, while the elements test is
true to the Rule's requirement that the lesser offense be included
in the greater, the inherent relationship approach dispenses with
that requirement by permitting an instruction even if the proof of
one offense does not invariably require proof of the other, as long
as the two offenses serve the same legislative goals. Moreover,
although the Rule implicitly suggests that an instruction is
equally available to the prosecution and the defense, the inherent
relationship approach -- which delays the determination whether the
offenses are sufficiently related until all the evidence is
developed -- renders such mutuality impossible. Pp.
489 U. S.
716-718.
(b) The elements approach is grounded in the Rule's history,
which demonstrates that that approach was settled doctrine at the
time of the Rule's promulgation and thereafter, and that the Rule
incorporated this established practice by restating the preexisting
law. Pp.
489 U.S.
718-720.
(c) Since the elements test involves an objective, textual
comparison of criminal statutes and does not depend on inferences
that may be drawn on evidence introduced at trial, it is far more
certain and predictable in its application than the inherent
relationship approach. Pp.
489 U. S. 720-721.
3. Petitioner was not entitled to a lesser included offense
instruction. The offense of odometer tampering includes the element
of knowingly and willfully causing an odometer to be altered, which
is not a subset of any element of mail fraud. Pp.
489 U. S.
721-722.
840 F.2d 384, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined.
SCALIA, J., filed
Page 489 U. S. 707
a dissenting opinion, in which BRENNAN, MARSHALL, and O'CONNOR,
JJ., joined,
post, p.
489 U. S.
722.
JUSTICE BLACKMUN delivered the opinion of the Court.
I
In August, 1983, petitioner Wayne T. Schmuck, a used-car
distributor, was indicted in the United States District Court for
the Western District of Wisconsin on 12 counts of mail fraud, in
violation of 18 U.S.C. §§ 1341 and 1342. App. 3.
The alleged fraud was a common and straightforward one. Schmuck
purchased used cars, rolled back their odometers, and then sold the
automobiles to Wisconsin retail dealers for prices artificially
inflated because of the low-mileage readings. These unwitting car
dealers, relying on the altered odometer figures, then resold the
cars to customers, who in turn paid prices reflecting Schmuck's
fraud. To complete the resale of each automobile, the dealer who
purchased it from Schmuck would submit a title application form to
the Wisconsin Department of Transportation on behalf of his retail
customer. The receipt of a Wisconsin title was a prerequisite for
completing the resale; without it, the dealer could not transfer
title to the customer, and the customer could not obtain Wisconsin
tags. The submission of the title application form supplied the
mailing element of each of the alleged mail frauds.
Before trial, Schmuck moved to dismiss the indictment on the
ground that the mailings at issue -- the submissions of the title
application forms by the automobile dealers -- were not in
furtherance of the fraudulent scheme and, thus, did not
Page 489 U. S. 708
satisfy the mailing element of the crime of mail fraud. Schmuck
also moved under Federal Rule of Criminal Procedure 31(c) [
Footnote 1] for a jury instruction on
the then misdemeanor offense of tampering with an odometer, 15
U.S.C. §§ 1984 and 1990c(a) (1982 ed.). [
Footnote 2] The District Court denied both motions.
[
Footnote 3] After trial, the
jury returned guilty verdicts on all 12 counts.
A divided panel of the United States Court of Appeals for the
Seventh Circuit reversed and remanded the case for a new trial. 776
F.2d 1368 (1985). Although the panel rejected Schmuck's claim that
he was entitled to a judgment of acquittal because the mailings
were not made in furtherance of his scheme, it ruled that, under
Criminal Rule 31(c), the District Court should have instructed the
jury on the lesser offense of odometer tampering. The panel applied
the so-called "inherent relationship" test for determining what
constitutes a lesser included offense for the purpose of Rule
31(c).
See, e.g., United States v. Whitaker, 144
U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971). Under that test,
one offense is included in another when the facts as alleged in the
indictment and proved at trial support the inference that
Page 489 U. S. 709
the defendant committed the less serious offense, and an
"inherent relationship" exists between the two offenses. This
relationship arises when the two offenses relate to the protection
of the same interests, and the proof of the greater offense can
generally be expected to require proof of the lesser offense.
Ibid. Applying this test, the court concluded that both
the mail fraud and odometer tampering statutes protect against
fraud, and that the proof of mail fraud generally entails proving
the underlying fraudulent conduct. [
Footnote 4] The panel then held that Schmuck was entitled
to the lesser offense instruction because a rational jury could
have found him guilty of odometer tampering, yet acquitted him of
mail fraud on the ground that the mailings were too tangential to
the fraudulent scheme to satisfy the requirements of mail
fraud.
The Court of Appeals vacated the panel decision and ordered the
case to be reheard en banc. 784 F.2d 846 (1986). On rehearing, by a
divided vote, 840 F.2d 384 (1988), the en banc court rejected the
"inherent relationship" test for defining lesser included offenses,
and adopted instead the "elements test," whereby one offense is
necessarily included within another only when the elements of the
lesser offense form a subset of the elements of the offense
charged.
Id. at 387. The Court of Appeals found that the
elements test
"is grounded in the terms and history of Rule 31(c), comports
with the constitutional requirement of notice to defendant of the
potential for conviction of an offense not separately charged,
permits a greater degree of certainty in the application of Rule
31(c), and harmonizes the concept of 'necessarily included' under
Rule 31(c) with that of a lesser included offense where the issue
is double jeopardy."
Id. at 388. Applying the elements test, the Court of
Appeals held that Schmuck was not entitled to a jury instruction on
the offense of odometer tampering, because he could have been
convicted
Page 489 U. S. 710
of mail fraud without a showing that he actually altered the
odometers, but could not have been convicted of odometer tampering
absent such a showing. Since the elements of odometer tampering are
not a subset of the elements of mail fraud, odometer tampering did
not qualify as a lesser included offense of mail fraud and,
accordingly, the District Court was not required under Rule 31(c)
to instruct the jury on the odometer-tampering offense.
We granted certiorari, 486 U.S. 1004 (1988), to define further
the scope of the mail fraud statute and to resolve a conflict among
the Circuits over which test to apply in determining what
constitutes a lesser included offense for the purposes of Criminal
Rule 31(c). [
Footnote 5]
II
"The federal mail fraud statute does not purport to reach all
frauds, but only those limited instances in which the use of the
mails is a part of the execution of the fraud, leaving all other
cases to be dealt with by appropriate state law."
Kann v. United States, 323 U. S.
88,
323 U. S. 95
(1944). [
Footnote 6] To be part
of the execution of the fraud, however, the use of the mails need
not be an essential element of the scheme.
Pereira v. United
States, 347 U. S. 1,
347 U. S. 8
(1954). It is sufficient for the
Page 489 U. S. 711
mailing to be "incident to an essential part of the scheme,"
ibid., or "a step in [the] plot,"
Badders v. United
States, 240 U. S. 391,
240 U. S. 394
(1916).
Schmuck, relying principally on this Court's decisions in
Kann, supra, Parr v. United States, 363 U.
S. 370 (1960), and
United States v. Maze,
414 U. S. 395
(1974), argues that mail fraud can be predicated only on a mailing
that affirmatively assists the perpetrator in carrying out his
fraudulent scheme. The mailing element of the offense, he contends,
cannot be satisfied by a mailing, such as those at issue here, that
is routine and innocent in and of itself, and that, far from
furthering the execution of the fraud, occurs after the fraud has
come to fruition, is merely tangentially related to the fraud, and
is counterproductive, in that it creates a "paper trail" from which
the fraud may be discovered. Brief for Petitioner 20-24. We
disagree both with this characterization of the mailings in the
present case and with this description of the applicable law.
We begin by considering the scope of Schmuck's fraudulent
scheme. Schmuck was charged with devising and executing a scheme to
defraud Wisconsin retail automobile customers who based their
decisions to purchase certain automobiles at least in part on the
low mileage readings provided by the tampered odometers. This was a
fairly large-scale operation. Evidence at trial indicated that
Schmuck had employed a man known only as "Fred" to turn back the
odometers on about 150 different cars. Tr. 102-103. Schmuck then
marketed these cars to a number of dealers, several of whom he
dealt with on a consistent basis over a period of about 15 years.
Id. at 33-34, 53. Indeed, of the 12 automobiles that are
the subject of the counts of the indictment, 5 were sold to "P and
A Sales," and 4 to "Southside Auto." App. 6-7. Thus, Schmuck's was
not a "one-shot" operation in which he sold a single car to an
isolated dealer. His was an ongoing fraudulent venture. A rational
jury could have concluded that the success of Schmuck's venture
depended
Page 489 U. S. 712
upon his continued harmonious relations with, and good
reputation among, retail dealers, which in turn required the smooth
flow of cars from the dealers to their Wisconsin customers.
Under these circumstances, we believe that a rational jury could
have found that the title registration mailings were part of the
execution of the fraudulent scheme, a scheme which did not reach
fruition until the retail dealers resold the cars and effected
transfers of title. Schmuck's scheme would have come to an abrupt
halt if the dealers either had lost faith in Schmuck or had not
been able to resell the cars obtained from him. These resales and
Schmuck's relationships with the retail dealers naturally depended
on the successful passage of title among the various parties. Thus,
although the registration form mailings may not have contributed
directly to the duping of either the retail dealers or the
customers, they were necessary to the passage of title, which in
turn was essential to the perpetuation of Schmuck's scheme. As
noted earlier, a mailing that is "incident to an essential part of
the scheme,"
Pereira, 347 U.S. at 8, satisfies the mailing
element of the mail fraud offense. The mailings here fit this
description.
See, e.g., United States v. Locklear, 829
F.2d 1314, 1318-1319 (CA4 1987) (retail customers obtaining title
documents through the mail furthers execution of wholesaler's
odometer tampering scheme);
United States v. Galloway, 664
F.2d 161, 163-165 (CA7 1981) (same),
cert. denied, 456
U.S. 1006 (1982);
cf. United States v. Shryock, 537 F.2d
207, 208-209 (CA5 1976) (local motor vehicle department's mailing
of title applications to state headquarters furthers retailer's
odometer-tampering scheme),
cert. denied, 429 U.S. 1100
(1977).
Once the full flavor of Schmuck's scheme is appreciated, the
critical distinctions between this case and the three cases in
which this Court has delimited the reach of the mail fraud statute
--
Kann, Parr, and
Maze -- are readily apparent.
The defendants in
Kann were corporate officers and
directors
Page 489 U. S. 713
accused of setting up a dummy corporation through which to
divert profits into their own pockets. As part of this fraudulent
scheme, the defendants caused the corporation to issue two checks
payable to them. The defendants cashed these checks at local banks,
which then mailed the checks to the drawee banks for collection.
This Court held that the mailing of the cashed checks to the drawee
banks could not supply the mailing element of the mail fraud
charges. The defendants' fraudulent scheme had reached
fruition.
"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."
323 U.S. at
323 U. S.
94.
In
Parr, several defendants were charged,
inter
alia, with having fraudulently obtained gasoline and a variety
of other products and services through the unauthorized use of a
credit card issued to the school district which employed them. The
mailing element of the mail fraud charges in
Parr was
purportedly satisfied when the oil company which issued the credit
card mailed invoices to the school district for payment, and when
the district mailed payment in the form of a check. Relying on
Kann, this Court held that these mailings were not in
execution of the scheme, as required by the statute, because it was
immaterial to the defendants how the oil company went about
collecting its payment. 363 U.S. at
363 U. S. 393.
[
Footnote 7]
Page 489 U. S. 714
Later, in
Maze, the defendant allegedly stole his
roommate's credit card, headed south on a winter jaunt, and
obtained food and lodging at motels along the route by placing the
charges on the stolen card. The mailing element of the mail fraud
charge was supplied by the fact that the defendant knew that each
motel proprietor would mail an invoice to the bank that had issued
the credit card, which in turn would mail a bill to the card owner
for payment. The Court found that these mailings could not support
mail fraud charges, because the defendant's scheme had reached
fruition when he checked out of each motel. The success of his
scheme in no way depended on the mailings; they merely determined
which of his victims would ultimately bear the loss. 414 U.S. at
414 U. S.
402.
The title registration mailings at issue here served a function
different from the mailings in
Kann, Parr, and
Maze. The intrabank mailings in
Kann and the
credit card invoice mailings in
Parr and
Maze
involved little more than post-fraud accounting among the potential
victims of the various schemes, and the long-term success of the
fraud did not turn on which of the potential victims bore the
ultimate loss. Here, in contrast, a jury rationally could have
found that Schmuck by no means was indifferent to the fact of who
bore the loss. The mailing of the title registration forms was an
essential step in the successful passage of title to the retail
purchasers. Moreover, a failure of this passage of title would have
jeopardized Schmuck's relationship of trust and goodwill with the
retail dealers upon whose unwitting cooperation his scheme
depended. Schmuck's reliance on our prior cases limiting the reach
of the mail fraud statute is simply misplaced.
To the extent that Schmuck would draw from these previous cases
a general rule that routine mailings that are innocent
Page 489 U. S. 715
in themselves cannot supply the mailing element of the mail
fraud offense, he misapprehends this Court's precedents. In
Parr, the Court specifically acknowledged that "innocent"
mailings -- ones that contain no false information -- may supply
the mailing element. 363 U.S. at
363 U. S. 390.
In other cases, the Court has found the elements of mail fraud to
be satisfied where the mailings have been routine.
See, e.g.,
Carpenter v. United States, 484 U. S. 19,
484 U. S. 28
(1987) (mailing newspapers).
We also reject Schmuck's contention that mailings that someday
may contribute to the uncovering of a fraudulent scheme cannot
supply the mailing element of the mail fraud offense. The relevant
question at all times is whether the mailing is part of the
execution of the scheme as conceived by the perpetrator at the
time, regardless of whether the mailing later, through hindsight,
may prove to have been counterproductive and return to haunt the
perpetrator of the fraud. The mail fraud statute includes no
guarantee that the use of the mails for the purpose of executing a
fraudulent scheme will be risk-free. Those who use the mails to
defraud proceed at their peril.
For these reasons, we agree with the Court of Appeals that the
mailings in this case satisfy the mailing element of the mail fraud
offenses.
III
Federal Rule of Criminal Procedure 31(c) provides, in relevant
part: "The defendant may be found guilty of an offense necessarily
included in the offense charged." As noted above, the Courts of
Appeals have adopted different tests to determine when, under this
Rule, a defendant is entitled to a lesser included offense
instruction. The Seventh Circuit's original panel opinion applied
the "inherent relationship" approach formulated in
United
States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314
(1971):
"[D]efendant is entitled to invoke Rule 31(c) when a lesser
offense is established by the evidence adduced at
Page 489 U. S. 716
trial in proof of the greater offense, with the caveat that
there must also be an 'inherent' relationship between the greater
and lesser offenses,
i.e., they must relate to the
protection of the same interests, and must be so related that in
the general nature of these crimes, though not necessarily
invariably, proof of the lesser offense is necessarily presented as
part of the showing of the commission of the greater offense."
Id. at 349, 447 F.2d at 319. The en banc Seventh
Circuit rejected this approach in favor of the "traditional," or
"elements" test. Under this test, one offense is not "necessarily
included" in another unless the elements of the lesser offense are
a subset of the elements of the charged offense. Where the lesser
offense requires an element not required for the greater offense,
no instruction is to be given under Rule 31(c).
We now adopt the elements approach to Rule 31(c). As the Court
of Appeals noted, this approach is grounded in the language and
history of the Rule, and provides for greater certainty in its
application. It, moreover, is consistent with past decisions of
this Court which, though not specifically endorsing a particular
test, employed the elements approach in cases involving lesser
included offense instructions. [
Footnote 8]
First, the wording of Rule 31(c), although not conclusive,
supports the application of the elements approach. The Rule speaks
in terms of an offense that is "necessarily included in the offense
charged." This language suggests that the comparison to be drawn is
between
offenses. Since offenses are statutorily defined,
that comparison is appropriately conducted by reference to the
statutory elements of the offenses in question, and not, as the
inherent relationship approach
Page 489 U. S. 717
would mandate, by reference to conduct proved at trial
regardless of the statutory definitions. Furthermore, the language
of Rule 31(c) speaks of the necessary
inclusion of the
lesser offense in the greater. While the elements test is true to
this requirement, the inherent relationship approach dispenses with
the required relationship of necessary inclusion: the inherent
relationship approach permits a lesser included offense instruction
even if the proof of one offense does not invariably require proof
of the other, as long as the two offenses serve the same
legislative goals.
In addition, the inherent relationship approach, in practice,
would require that Rule 31(c) be applied in a manner inconsistent
with its language. The Rule provides that a defendant "may be found
guilty" of a lesser included offense, without distinguishing
between a request for jury instructions made by the Government and
one made by the defendant. In other words, the language of the Rule
suggests that a lesser included offense instruction is available in
equal measure to the defense and to the prosecution. [
Footnote 9] Yet, under the inherent
relationship approach, such mutuality is impossible.
It is ancient doctrine of both the common law and of our
Constitution that a defendant cannot be held to answer a charge not
contained in the indictment brought against him.
See Ex parte
Bain, 121 U. S. 1,
121 U. S. 10
(1887);
Stirone v.
United
Page 489 U. S. 718
States, 361 U. S. 212,
361 U. S.
215-217 (1960);
United States v. Miller,
471 U. S. 130,
471 U. S. 140,
471 U. S.
142-143 (1985). This stricture is based at least in part
on the right of the defendant to notice of the charge brought
against him.
United States v. Whitaker, 144 U.S.App.D.C.
at 350-351, 447 F.2d at 320-321. Were the prosecutor able to
request an instruction on an offense whose elements were not
charged in the indictment, this right to notice would be placed in
jeopardy. Specifically, if, as mandated under the inherent
relationship approach, the determination whether the offenses are
sufficiently related to permit an instruction is delayed until all
the evidence is developed at trial, the defendant may not have
constitutionally sufficient notice to support a lesser included
offense instruction requested by the prosecutor if the elements of
that lesser offense are not part of the indictment. Accordingly,
under the inherent relationship approach, the defendant, by in
effect waiving his right to notice, may obtain a lesser offense
instruction in circumstances where the constitutional restraint of
notice to the defendant would prevent the prosecutor from seeking
an identical instruction. [
Footnote 10] The elements test, in contrast, permits
lesser offense instructions only in those cases where the
indictment contains the elements of both offenses, and thereby
gives notice to the defendant that he may be convicted on either
charge. This approach preserves the mutuality implicit in the
language of Rule 31(c).
Second, the history of Rule 31(c) supports the adoption of the
elements approach. The Rule, which has not been amended since its
adoption in 1944, is the most recent derivative of the common law
practice that permitted a jury to find a defendant "guilty of any
lesser offense necessarily included in the offense charged."
Beck v. Alabama, 447 U. S. 625,
Page 489 U. S. 719
447 U. S. 633
(1980). Over a century ago, Congress codified the common law for
federal criminal trials, providing in the Act of June 1, 1872, ch.
255, § 9, 17 Stat.198, that,
"in all criminal causes the defendant may be found guilty of any
offence the commission of which is necessarily included in that
with which he is charged in the indictment."
Rule 31(c) was intended to be a restatement of this "preexisting
law."
See Keeble v. United States, 412 U.
S. 205,
412 U. S. 208,
n. 6 (1973). Accordingly, prevailing practice at the time of the
Rule's promulgation informs our understanding of its terms, and,
specifically, its limitation of lesser included offenses to those
"necessarily included in the offense charged."
The nature of that prevailing practice is clear. In
Giles v.
United States, 144 F.2d 860 (1944), decided just three months
before the adoption of Rule 31(c), the Court of Appeals for the
Ninth Circuit unequivocably applied the elements test to determine
the propriety of a lesser included offense instruction:
"'To be necessarily included in the greater offense, the lesser
must be such that it is impossible to commit the greater without
first having committed the lesser.'"
Id. at 861, quoting
House v. State, 186 Ind.
593, 595-596, 117 N.E. 647, 648 (1917). This approach, moreover,
was applied consistently by state courts. Indeed, in
State v.
Henry, 98 Me. 561, 564, 57 A. 891, 892 (1904), the Supreme
Judicial Court of Maine concluded that
"a practically universal rule prevails that the verdict may be
for a lesser crime which is included in a greater charged in the
indictment, the test being that the evidence required to establish
the greater would prove the lesser offense as a necessary
element."
The California Supreme Court, in
People v. Kerrick, 144
Cal. 46, 47, 77 P. 711, 712 (1904), stated:
"To be 'necessarily included' in the offense charged, the lesser
offense must not only be part of the greater in fact, but it must
be embraced within the legal definition of the greater as a part
thereof."
See also State v. Marshall, 206 Iowa 373, 375, 220 N.W.
106 (1928);
People ex rel. Wachowicz v. Martin, 293 N.Y.
361,
Page 489 U. S. 720
364, 57 N.E.2d 53, 54-55 (1944). This Court's decision in
Stevenson v. United States, 162 U.
S. 313 (1896), reflects the "practically universal"
practice. There, in holding that the defendant in a murder charge
was entitled to a lesser included offense instruction on
manslaughter under the statutory predecessor to Rule 31(c), the
Court engaged in a careful comparison of the statutory elements of
murder and manslaughter to determine if the latter was a lesser
included offense of the former. 162 U.S. at
162 U. S. 320.
In short, the elements approach was settled doctrine at the time of
the Rule's promulgation, and for more than two decades thereafter.
In its restatement of "preexisting law,"
Keeble v. United
States, 412 U.S. at
412 U. S. 208,
n. 6, Rule 31(c) incorporated this established practice. [
Footnote 11]
Third, the elements test is far more certain and predictable in
its application than the inherent relationship approach. Because
the elements approach involves a textual comparison of criminal
statutes, and does not depend on inferences that may be drawn from
evidence introduced at trial, the elements approach permits both
sides to know in advance what jury instructions will be available
and to plan their trial strategies accordingly. The objective
elements approach, moreover, promotes judicial economy by providing
a clearer rule
Page 489 U. S. 721
of decision and by permitting appellate courts to decide whether
jury instructions were wrongly refused without reviewing the entire
evidentiary record for nuances of inference.
The inherent relationship approach, in contrast, is rife with
the potential for confusion. Finding an inherent relationship
between offenses requires a determination that the offenses protect
the same interests, and that, "in general," proof of the lesser
"necessarily" involves proof of the greater. In the present case,
the Court of Appeals appropriately noted:
"These new layers of analysis add to the uncertainty of the
propriety of an instruction in a particular case: not only are
there more issues to be resolved, but correct resolution involves
questions of degree and judgment, with the attendant probability
that the trial and appellate courts may differ."
840 F.2d at 389-390. This uncertainty was illustrated here. The
three judges of the original appellate panel split in their
application of the inherent relationship test to the offenses of
mail fraud and odometer tampering. 776 F.2d at 1373-1375 (opinion
concurring in part and dissenting in part). In the context of rules
of criminal procedure, where certainty and predictability are
desired, we prefer the clearer standard for applying Rule
31(c).
IV
Turning to the facts of this case, we agree with the Court of
Appeals that the elements of the offense of odometer tampering are
not a subset of the elements of the crime of mail fraud. 840 F.2d
at 386. There are two elements in mail fraud: (1) having devised or
intending to devise a scheme to defraud (or to perform specified
fraudulent acts), and (2) use of the mail for the purpose of
executing, or attempting to execute, the scheme (or specified
fraudulent acts). The offense of odometer tampering includes the
element of knowingly and willfully causing an odometer to be
altered. This element is not a subset of any element of mail fraud.
Knowingly and willfully tampering with an odometer is not identical
to devising
Page 489 U. S. 722
or intending to devise a fraudulent scheme.
Compare 18
U.S.C. § 1341
with 15 U.S.C. §§ 1984 and 1990c(a).
V
We conclude that Schmuck's conviction was consistent with the
statutory definition of mail fraud, and that he was not entitled to
a lesser included offense instruction on odometer tampering. The
judgment of the Court of Appeals, accordingly, is affirmed.
It is so ordered.
[
Footnote 1]
Rule 31(c) provides in relevant part: "The defendant may be
found guilty of an offense necessarily included in the offense
charged."
[
Footnote 2]
In 1986, Congress made odometer tampering a felony. Pub.L.
99-579, § 3(b), 100 Stat. 3311, 15 U.S.C. § 1990c(a) (1982 ed.,
Supp. V).
[
Footnote 3]
The District Court concluded that whether the mailings alleged
in the indictment furthered the fraudulent scheme was a "matter to
be determined at trial." App. 12. The court concluded that Schmuck
was not entitled to the lesser offense instruction, because
odometer tampering was not a necessarily included offense of mail
fraud.
Id. at 28. Schmuck raised these objections again in
support of a motion for acquittal at the close of the Government's
case.
Id. at 55-59. That motion was denied.
Id.
at 60.
The District Court instructed the jury that, in order to find
Schmuck guilty of mail fraud, the jury had to find beyond a
reasonable doubt that he knowingly devised a scheme to defraud, and
that he caused matter to be sent in the mail for the purpose of
executing that scheme. Tr. 189. The court also told the jury that
it could find Schmuck guilty if the use of the mails was reasonably
foreseeable.
Id. at 191.
[
Footnote 4]
One judge, concurring in part and dissenting in part, agreed
with the panel's application of the inherent relationship test, but
found no such relationship between mail fraud and odometer
tampering. 776 F.2d at 1373.
[
Footnote 5]
Compare, e.g., United States v. Whitaker, 144
U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971) (inherent
relationship test), and
United States v. Martin, 783 F.2d
1449, 1451 (CA9 1986) (same),
with United States v.
Campbell, 652 F.2d 760, 761-762 (CA8 1981) (elements test),
and Government of Virgin Islands v. Joseph, 765 F.2d 394,
396 (CA3 1985) (same).
[
Footnote 6]
The statute provides in relevant part:
"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 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.
[
Footnote 7]
Parr also involved a second fraudulent scheme through
which the defendant school board members misappropriated school
district tax revenues. The Government argued that the mailing
element of the mail fraud charges was supplied by the mailing of
tax statements, checks, and receipts. This Court held, however,
that, in the absence of any evidence that the tax levy was
increased as part of the fraud, the mailing element of the offense
could not be supplied by mailings "made or caused to be made under
the imperative command of duty imposed by state law." 363 U.S. at
363 U. S. 391.
No such legal duty is at issue here. Whereas the mailings of the
tax documents in
Parr were the direct product of the
school district's state constitutional duty to levy taxes,
id. at
363 U. S. 387,
and would have been made regardless of the defendants' fraudulent
scheme, the mailings in the present case, though in compliance with
Wisconsin's car registration procedure, were derivative of
Schmuck's scheme to sell "doctored" cars, and would not have
occurred but for that scheme.
[
Footnote 8]
Our decision in no way alters the independent prerequisite for a
lesser included offense instruction that the evidence at trial must
be such that a jury could rationally find the defendant guilty of
the lesser offense, yet acquit him of the greater.
Keeble v.
United States, 412 U. S. 205,
412 U. S. 208
(1973)
[
Footnote 9]
This reading of the Rule is consistent with its origins. The
Rule "developed as an aid to the prosecution in cases in which the
proof failed to establish some element of the crime charged."
Beck v. Alabama, 447 U. S. 625,
447 U. S. 633
(1980).
Of course, it is now firmly established that Rule 31(c)'s
provision for lesser offense instructions benefits the defendant,
as well. The Court recognized in
Keeble v. United States,
supra, that, where the jury suspects that the defendant is
plainly guilty of
some offense, but one of the elements of
the charged offense remains in doubt, in the absence of a lesser
offense instruction, the jury will likely fail to give full effect
to the reasonable doubt standard, resolving its doubts in favor of
conviction. 412 U.S. at
412 U. S.
212-213. The availability of a lesser included offense
instruction protects the defendant from such improper
conviction.
[
Footnote 10]
In
Keeble, 412 U.S. at
412 U. S. 214,
n. 14, we acknowledged that the inherent relationship approach
abandoned mutuality in the application of Rule 31(c), but we had no
occasion to address the merits of the approach, or to discuss
whether mutuality was implicit in the language of the Rule.
[
Footnote 11]
This Court's decisions after the adoption of Rule 31(c), while
not formally adopting the elements approach, reflect adherence to
it. Those decisions have focused on the statutory elements of
individual offenses when considering the propriety of lesser
included offense instructions. In
Keeble, for example, we
held that the defendant was entitled to an instruction on the
lesser offense of simple assault:
"[A]n intent to commit serious bodily injury is a necessary
element of the crime with which petitioner was charged, but not of
the crime of simple assault. Since the nature of petitioner's
intent was very much in dispute at trial, the jury could rationally
have convicted him of simple assault if that option had been
presented."
412 U.S. at
412 U. S. 213.
See also Sansone v. United States, 380 U.
S. 343,
380 U. S. 352
(1965) (analyzing the elements involved in 26 U.S.C. § 7207, and
finding that they are a subset of the elements in 26 U.S.C. §
7201).
JUSTICE SCALIA, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and
JUSTICE O'CONNOR join, dissenting.
The Court today affirms petitioner's mail fraud conviction under
18 U.S.C. § 1341. A jury found that petitioner had defrauded retail
automobile purchasers by altering odometer readings on used cars,
and then selling the cars to unwitting dealers for resale. The
scheme was a continuing one, and some dealers bought a number of
the cars from petitioner over a period of time. When the dealers
sold the cars, state law required them to submit title application
forms to the appropriate state agency. The Court concludes that the
dealers' compliance with this requirement by mail caused the scheme
to constitute mail fraud, because
"a failure of this passage of title would have jeopardized
Schmuck's relationship of trust and goodwill with the retail
dealers upon whose unwitting cooperation his scheme depended."
Ante at
489 U. S. 714.
In my view, this is inconsistent with our prior cases' application
of the statutory requirement that mailings be "for the purpose of
executing" a fraudulent scheme. 18 U.S.C. § 1341.
The purpose of the mail fraud statute is "to prevent the post
office from being used to carry [fraudulent schemes] into effect."
Durland v. United States, 161 U.
S. 306,
161 U. S. 314
(1896);
Parr v. United States, 363 U.
S. 370,
363 U. S. 389
(1960). The law does not establish a general federal remedy against
fraudulent conduct, with use of the mails as the jurisdictional
Page 489 U. S. 723
hook, but reaches only
"those limited instances in which the use of the mails is
a
part of the execution of the fraud, leaving all other cases to
be dealt with by appropriate state law."
Kann v. United States, 323 U. S.
88,
323 U. S. 95
(1944) (emphasis added). In other words, it is mail fraud, not mail
and fraud, that incurs liability. This federal statute is not
violated by a fraudulent scheme in which, at some point, a mailing
happens to occur -- nor even by one in which a mailing predictably
and necessarily occurs. The mailing must be in furtherance of the
fraud.
In
Kann v. United States, we concluded that, even
though defendants who cashed checks obtained as part of a
fraudulent scheme knew that the bank cashing the checks would send
them by mail to a drawee bank for collection, they did not thereby
violate the mail fraud statute, because, upon their receipt of the
cash "[t]he scheme . . . had reached fruition," and the mailing was
"immaterial . . . to any consummation of the scheme."
Id.
at
323 U. S. 94. We
held to the same effect in
United States v. Maze,
414 U. S. 395,
414 U. S.
400-402 (1974), declining to find that credit card fraud
was converted into mail fraud by the certainty that, after the
wrongdoer had fraudulently received his goods and services from the
merchants, they would forward the credit charges by mail for
payment. These cases are squarely in point here. For, though the
Government chose to charge a defrauding of retail customers (to
whom the innocent dealers resold the cars), it is obvious that,
regardless of who the ultimate victim of the fraud may have been,
the fraud was complete with respect to each car when petitioner
pocketed the dealer's money. As far as each particular transaction
was concerned, it was as inconsequential to him whether the dealer
resold the car as it was inconsequential to the defendant in
Maze whether the defrauded merchant ever forwarded the
charges to the credit card company.
Nor can the force of our cases be avoided by combining all of
the individual transactions into a single scheme, and saying,
Page 489 U. S. 724
as the Court does, that, if the dealers' mailings obtaining
title for each retail purchaser had not occurred, then the dealers
would have stopped trusting petitioner for future transactions.
(That conclusion seems to me a
non sequitur, but I accept
it for the sake of argument.) This establishes, at most, that the
scheme could not technically have been consummated if the
mechanical step of the mailings to obtain conveyance of title had
not occurred. But we have held that the indispensability of such
mechanical mailings, not strictly in furtherance of the fraud, is
not enough to invoke the statute. For example, when officials of a
school district embezzled tax funds over the course of several
years, we held that no mail fraud had occurred, even though the
success of the scheme plainly depended on the officials' causing
tax bills to be sent by mail (and thus tax payments to be received)
every year.
Parr v. United States, 363 U.S. at
363 U. S.
388-392. Similarly, when those officials caused the
school district to pay by mail credit card bills -- a step plainly
necessary to enable their continued fraudulent use of the credit
card -- we concluded that no mail fraud had occurred.
Id.
at
363 U. S.
392-393.
I find it impossible to escape these precedents in the present
case. Assuming the Court to be correct in concluding that failure
to pass title to the cars would have threatened the success of the
scheme, the same could have been said of failure to collect taxes
or to pay the credit card bills in
Parr. And I think it
particularly significant that in
Kann the Government
proposed a theory
identical to that which the Court today
uses. Since the scheme was ongoing, the Government urged, the fact
that the mailing of the two checks had occurred after the
defendants had pocketed the fraudulently obtained cash made no
difference. "[T]he defendants expected to receive further bonuses
and profits," and, therefore, "the clearing of these checks in the
ordinary course was essential to [the scheme's] further
prosecution." 323 U.S. at
323 U. S. 95.
The dissenters in
Kann agreed. "[T]his," they said,
"was not the last step in the fraudulent scheme. It was a
Page 489 U. S. 725
continuing venture. Smooth clearances of the checks were
essential lest these intermediate dividends be interrupted and the
conspirators be called upon to disgorge."
Id. at
323 U. S. 96
(Douglas, J., dissenting). The Court rejected this argument,
concluding that
"the subsequent banking transactions between the banks concerned
were merely incidental and collateral to the scheme, and not a part
of it."
Id. at
323 U. S. 95. I
think the mailing of the title application forms equivalently
incidental here.
What Justice Frankfurter observed almost three decades ago
remains true:
"The adequate degree of relationship between a mailing which
occurs during the life of a scheme and the scheme is . . . not a
matter susceptible of geometric determination."
Parr v. United States, supra, at
363 U. S. 397
(Frankfurter, J., dissenting). All the more reason to adhere as
closely as possible to past cases. I think we have not done that
today, and thus create problems for tomorrow.