Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 CR 25 - Charles P. Kocoras, Judge.
Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH , Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
It is unlawful for a driver to leave the scene of an accident. Many leave nonetheless, and if the police learn the license plate number of the departing car, they ask the owner of the car to come in for an interview. The officer conducting the interview may determine whether the owner of the car was involved in the illegal conduct and, if so, whether a dispute about the accident should be settled between the parties rather than through the criminal process. If the officer determines the need, he may issue a citation. This starts a process that could end in suspension or revocation of the driver's license or criminal penalties. The invitation to appear at an interview comes by mail.
This is a case of mail fraud statute, 18 U.S.C. § 1341. Ronald Green, an officer of the Chicago Police, was assigned to the Major Accident Investigation Section. Other officers would send accident reports to this section, and officers such as Green would find out who owned each car and mail notices to the owners. The notices are form letters, which Green filled out. Each notice states:
A complaint has been made that a vehicle bearing your license number was involved in an accident at on . It is therefore requested that either you or the person who was driving your car at the time of the accident appear in person in Room , 54 West Hubbard Street, at M., on , 19 , to make an accident report as required by law. The Illinois Revised Statutes make it a punishable offense for anyone involved in a motor vehicle accident to fail or neglect to make a report of such accident. The law also provides that the Secretary of State shall suspend the license of any person who wilfully fails and refuses or neglects to make a report of a traffic accident as required by law.
This is an opportunity for you to state your side of the case. Your cooperation and compliance with the law are earnestly requested. It is also requested that you bring your vehicle with you.
Green filled out and mailed these forms in the line of duty. The indictment charged, and the jury found, that what followed departed from the rule book. The indictment detailed seven occasions on which Green solicited or accepted a bribe from a driver, in exchange for ensuring that the driver's license would not be suspended and that the case would not be referred to the prosecutor. The evidence permitted the jury to conclude that Green sometimes threatened people that their licenses would be suspended if they did not pay. The jury convicted Green on all eight counts - seven of mail fraud and one of racketeering, in violation of 18 U.S.C. § 1962(c). The judge sentenced Green to 18 months' imprisonment on one of the mail fraud counts, to be followed by concurrent terms of five years' probation on each of the other seven counts.
Green mailed notices to more than 2,000 people each year during his work in the major investigations section. Each form was prescribed by his superiors; each was truthful; mailing them was part of his duties. His principal argument is that because he mailed truthful notices under legal command, he did not violate § 1341.
The statute provides: "Whoever, having devised . . . any scheme or artifice to defraud, . . . for the purpose of executing such scheme or artifice or attempting to do so, [mails] any matter or thing whatever . . . or knowingly causes to be delivered by mail . . . any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both." The government charged Green with the "scheme" of inviting people to visit him at the police station, threatening them (explicitly or implicitly) with unpleasant consequences, and separating them from their money. In the course of this scheme he mailed "any matter or thing whatever", a mailing that lured the pigeons to Green's office. It does not matter, the government insists, what was mailed, so long as the mailing was "for the purpose of executing the scheme" and was causally linked to its success. United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 733-34, 88 L. Ed. 2d 814 (1986); Kann v. United States, 323 U.S. 88, 94-95, 89 L. Ed. 88, 65 S. Ct. 148 (1944). Although the notices may have been innocent in themselves, the statute applies if their mailing was "a step in a plot". Badders v. United States, 240 U.S. 391, 394, 60 L. Ed. 706, 36 S. Ct. 367 (1916).
Long ago one could have argued that the mail fraud statute applies only when the mails are used to carry the fraudulent material. If that argument ever carried any weight, it does no longer. The Supreme Court has sustained convictions based on the mailing of "innocent" matter that is an expectable part of a larger scheme. E.g., United States v. Sampson, 371 U.S. 75, 9 L. Ed. 2d 136, 83 S. Ct. 173 (1962). See also Badders, supra. We have held many times that "innocent" mailings may offend the statute if they are integral parts of a scheme to defraud. E.g., United States v. Bonansinga, 773 F.2d 166 (7th Cir. 1985). The causal connection between the mailing and the success of the scheme, not the knavery in the mailings, is what matters.
So, too, we have affirmed convictions based on mailings that could be characterized as "legally required." In United States v. Murphy, 768 F.2d 1518, 1529-30 (7th Cir. 1985), the "scheme" was that Judge Murphy took bribes for deciding cases. The mailings were cash bond refunds, which the judge authorized to be sent by court officials to the lawyers who had paid the money. The court officials were required to send the money, as the judge directed, in the course of their duties, but we sustained Murphy's conviction on the ground that the mailings were useful and expected parts of the scheme. In United States v. Fallon, 776 F.2d 727 (7th Cir. 1985), and United States v. Cina, 699 F.2d 853 (7th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 481, 78 L. Ed. 2d 679 (1983), the mails were used to carry automobile titles from state officials to the cars' owners. The schemers used innocent state officials to obtain titles showing odometer readings that were less than the cars' actual mileage. The mailings were part of the officials' duties, just as Green's notices were, yet the mailings violated the statute because they were part of the means of carrying out the entire scheme to defraud. Cf. United States v. Galloway, 664 F.2d 161 (7th Cir. 1981), cert. denied, 456 U.S. 1006, 73 L. Ed. 2d 1300, 102 S. Ct. 2296 (1982).
Green lamely tries to distinguish these cases on the ground that in them the mailing "really" was integral to the scheme, while here it is not. There is no significant difference on this score. In each of those cases, as in Green's, the mails played an essential role. His real argument is that these cases are inconsistent with Parr v. United States, 363 U.S. 370, 4 L. Ed. 2d 1277, 80 S. Ct. 1171 (1960). The defendants in Parr were officials of a school district, and they appropriated some of the district's money. One of the prosecutor's theories was that mail fraud occurred when the school district sent out tax notices and taxpayers remitted by mail. This produced the fund the defendants tapped. The Supreme Court held that these mailings were not enough: "we think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the federal mail fraud statute, even though some of those who are so required to do the mailing for the District plan to steal, when or after received, some indefinite part of its moneys." 363 U.S. at 391.
This language certainly assists Green, but it is not the holding of Parr. The Court emphasized not only the "imperative command of duty" but also the prosecutor's neglect to tie the mailings to the success of the scheme or to connect the defendants' acts to the size of the taxes. The Court observed that the government had not tried to establish a plan to use tax notices to carry out a scheme. The plan charged in the indictment was to steal the money, not to collect taxes fraudulently. The indictment did not charge that anyone paid an extra nickel as a result of the plot, so that the mailings were not closely connected to the scheme. The district was bound to levy taxes, so if the scheme did not inflate the taxes the mailings had no substantial connection with the defendants' removal of money from the district's treasury. Of course, the mailings (or some other way of raising money) were necessary to fill the district's coffers; you can't steal from an empty piggy bank. Yet but-for causation has never been enough to support a prosecution for mail fraud. If burglars stole money from the headquarters of United Air Lines, the prosecutor would be able to show that United had used the mails to create the fund from which the burglar stole. This burglary would not be mail fraud. The connection between the mails and the fraud must be more substantial. United States v. Maze, 414 U.S. 395, 38 L. Ed. 2d 603, 94 S. Ct. 645 (1974); Lane, supra.
In Parr the Court recited the "particular circumstances of this case" it found pertinent, "especially (363 U.S. at 391): (1) the district was legally required to collect taxes; (2) the government had not charged or established that the fraud inflated the taxes; (3) the state law compelling the district to collect taxes also compelled it to use the mails. As a result, the Court concluded, the mailings were not "part[s] of the execution of the fraud,", ibid., quoting Kann v. United States, supra, 332 U.S. at 95, or "incident to an essential part of the scheme," quoting Pereira v. United States, 347 U.S. 1, 8, 98 L. Ed. 435, 74 S. Ct. 358 (1954). The decision was based on the way the government presented the case, not solely on the legal requirement that the district mail tax notices.
Parr and other cases require that the government prove that legally-required mailings were important to the successful execution of the fraud. Although this is less clear, Parr also may require proof that legally-required mailings were used with specific intent to defraud the recipients of the mail. Both elements were present here. Mailings were essential to Green's plan. Green needed the mailings to reel in the fish. The taxpayers in Parr were uninjured (the Court assumed); the recipients of Green's notices suffered. And although Green protests that he did not mail the notices with intent to defraud, this was a disputed inference. The district court instructed the jury that it could convict Green only if it found that Green not only hatched a plan to defraud but also that "for the purpose of carrying out the scheme . . . [Green] used the United States mails . . . knowingly and with the intent to defraud." If the jury followed these instructions, it found that Green used the mails with the intent to extort money from those who responded to the notices.*fn* The evidence supports such a conclusion. Green mailed notices and extorted money repeatedly, and the jury could infer that in mailing each notice Green had in mind prior episodes of extortion and contemplated future ones. Green depicts each episode of extortion as an isolated event, a spur-of-the-moment decision unconnected to the mailings. There is evidence, however, from which the jury could find that a plan predated the first mailing charged in the indictment. In July 1981 (six months before the first mailing charged), Green demanded $100 from an attorney representing the driver in a hit-and-run accident. The evidence that Green regularly extorted money supports a conclusion that the notices were designed to put a plan of extortion into action, to create a pool of potential victims from which Green could choose.
The remaining arguments revolve around the identification of Green. His defense was that if anyone took bribes, it must have been some other police officer. The notices told people to come to Green's cubicle, but Green was not there every day. One theory he presents is that the victims named in the indictment arrived while he was out and met someone else.
This was a difficult defense to present. Green signed the notice telling each of the seven victims to come to his office. Time records of the police department show that Green was on duty during the time each victim arrived and was interviewed. Each victim testified at trial that he spoke with a person who called himself officer Green. There is a typed "supplemental report" concerning each interview; each report is signed by the owner of the car, by Green, and by Green's supervisor. Green acknowledges that he filled out and signed these reports but insists that someone else conducted the interviews. This would be highly irregular, if it happened, for officers signing their names to someone else's report are supposed to indicate the identity of the someone else. But bureaucratic irregularities are not the same as mail fraud, so Green stands on the story that he messed up the forms but did not take bribes. The strongest support for this version of events is the difficulty the victims had in identifying Green.
Only one of the seven victims identified Green during the trial. One explanation for this may have been that their fleeting visits with Green had occurred some time ago, and they may not have tried to remember his face (as opposed to his name or badge number). Green was entitled, however, to press the defense that they did not remember him because they had not met him. This produces three issues for our decision. Green asserts that the one in-court identification was attributable to coercion, that the district court should have allowed ...