circumstances standard of proof. The courts have held that representations made with a reckless
disregard for truth or falsity are sufficient to prove intent. The standard for "fraudulent" is whether a
scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension."
U.S. v. Bohonus, 628 F2d 1167 (9th Cir. 1964), cert. den. 65 L.Ed 2d 1122 (1965)).
Obviously, this section is aimed at offenders who seek to get money or other property through fraud.
What constitutes property may not be obvious at first glance. The courts have held that intangibles can
be property for the purposes of this section. One thing is clear with regard to intangibles: the intangible
must be a property interest. The Supreme Court recently stated: "The mail fraud statute clearly
protects property rights, but does not refer to the intangible right of the citizenry to good government"
McNally v. U.S., 97 L.Ed 2d 292, 300 (1987). In McNally, the Court noted that there was no showing of
loss to the government or the taxpayer and that "good government" or the loss of "good government"
was not covered by Section 1341. The Court will accept an intangible as property, but it appears to be
reluctant to expand its definition unless there is a showing of loss of some identifiable interest in
property.
This section is titled "Mail Fraud". The use of the mails is an element of the crime, so it must be
proved. The standard is that the use of the mails could be reasonably foreseen in the ordinary course
of business. The use of the mails does not have to be by the accused, so long as the accused causes
the use of the malls. The accused in U.S. v. Kenofaky, 243 US 440 (1917) filled out a phony death
certificate which his supervisor mailed. Even though the supervisor was unaware of the scheme, the
Court held that Kenofaky had used the mails. Anyone can use the mails, even the victim of the fraud or
scheme.
A more difficult question is whether the use of the mails is for the purpose of executing the scheme.
The most difficult question on this point is whether use of the mails after the receipt of money or
anything of value is still for the purpose of executing the scheme. There is a temptation to say that
once money is received, the scheme is complete and any use of the mails thereafter is incidental and
not for the purpose of executing the scheme. This temptation should be avoided. You must look at
factors in addition to the timing of the use of the mails.
In U.S. v. Maze, 38 L.Ed 2d 603 (1974), the accused stole his roommate's credit card and drove
from Kentucky to California paying for motel rooms and meals with the stolen credit card. Maze was
charged with mail fraud on the theory that the motels would mail the sales invoices (for the rooms) to
the bank for payment. The government argued that even though Maze had already received rooms
and meals, the fraud would not be discovered until the bank received the invoices. The time that the
invoices were in the mail would delay discovery and aid Maze in further illegal use of the card. The
Court disagreed. The Court found that things had been received and that the mailing did not affect the
fraud. In fact, the Court pointed out that Maze would have preferred that the invoices never be mailed
at all; if the invoices were never mailed, the fraudulent use of the card would never be discovered. As it
was,
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