United States v. Gray
Eleventh Circuit Court of Appeals

The appellant, Kevin Gray, was found guilty of mail fraud. He had attempted to convince a businessman, Frank Patti, who was on trial for tax evasion and faced substantial jail time, that for $85,000 he would bribe the jury, thus avoiding the threat of jail for the businessman. The methods used by the appellant were, however, at times hardly believable. As a result, the appellant seeks a judgment of acquittal on the ground that his fraudulent scheme was "so absurd" that a person of ordinary prudence would not have believed it; the scheme, therefore, fell outside the realm of conduct proscribed by the mail fraud statute.

Circuit Judge Tjoflat
On May 8, 2002, a federal grand jury in the Northern District of Florida returned an indictment charging the appellant on one count of mail fraud. He pled not guilty, and the case proceeded to trial before a jury. The jury, having received evidence establishing the facts set forth above, found the appellant guilty, and the district court sentenced him to prison for 28 months.

This appeal followed
The appellant's initial attack on his conviction is that the evidence was insufficient to make out a case of mail fraud. He argues that to prove the crime of mail fraud, the Government must establish that the defendant "intended to create a scheme ‘reasonably calculated to deceive persons of ordinary prudence and comprehension.'"

Additionally, it must show that the defendant took some action in furtherance of his scheme-to bring it to fruition-in the form of a material misrepresentation made to the would-be victim that "a reasonable person would have acted on." It is on this peg that the appellant hangs his hat, contending that a reasonable person would not have acted on his representations when considered as a whole.

In bolstering his argument, he draws attention to his statement to Patti that $85,000 would be needed to bribe three of the jurors who would be trying his case: $35,000 for J-1, and $25,000 each for J-2 and J-3. The appellant contends that a reasonable person would know that since the pool from which these jurors would be selected would not be known until April 15-when the pool assembled at the courthouse for the trial-the representation had to be phony.

While it is true that statements like the one he cites would seem absurd or fanciful to a reasonable person, the mail fraud statute does not require that every representation a defendant utters while executing his scheme must be credible. Instead, the statute requires proof that the defendant's scheme to defraud involved the use of material, false representations or promises. The initial representations the appellant made to Patti satisfy this requirement.

In the letter to Patti, the appellant made a false promise: "we can assure you . . . no imprisonment but you must pay the agreed tax settlement issued by the court." In addition, he falsely represented that an undisclosed number of sympathizers-including "our mutual friend" and "our associates in Pensacola"-would work to extricate Patti from his legal predicament if the businessman would agree to follow certain instructions. True, the letter did not identify precisely how the writer and these sympathizers would help Patti, but this omission did not render the letter devoid of any material misrepresentations that were capable of prompting a reasonable person to act as Patti did.

What the appellant overlooks is that the mail fraud statute "punishes unexecuted, as well as executed, schemes. This means that the government can convict a person for mail fraud even if his targeted victim never encountered the deception-or, if he encountered it, was not deceived." All that the Government needs to show to establish the mens rea element of the offense is that the defendant anticipated the intended victim's reliance, and the appellant's anticipation of Patti's reliance can be inferred from, among other things, the fact that he was prepared to call Patti at the pay phone at the time and location specified in the letter.

Because the letter received by Patti contained false material representations from the appellant as part of an effort to receive cash payments from the desperate businessman, the crime of mail fraud was complete when the appellant delivered the letter via FedEx to Patti.

Affirmed in favor of the Prosecution.
CRITICAL THINKING ABOUT THE LAW
The defendant in this case seems to misunderstand the law. His contention is that his offer to bribe is an absurdity and that Patti should have recognized it as such. His logic is that there can be no fraud unless the person who is allegedly being helped by the fraud reasonably believes the promised act will occur. In other words, the more outrageous the promise, the more the person charged with fraud can escape liability. The court in this case makes it clear that it is the act of the person initiating the fraud that is the key to the offense, not the response of the person being defrauded.

1. Does the rule of law in mail fraud cases require any particular action or belief on the part of the person being defrauded?
Clue: Study the quote in the next-to-last paragraph of the decision.

2. What ethical norm is being emphasized by the rule of law with respect to mail fraud?
Clue: Look back at the list of alternative ethical norms and make a determination about which of them is being advanced by the rule of law as it applies to mail fraud.