Saturday, January 6, 2007

More on the Westar Related Case

Judge Hartz's decision in the Lake case (Westar executives) provides a comprehensive analysis of the "legally compelled mailing" doctrine, a doctrine that seldom comes into play in the mail and wire fraud context. As quoted in this court opinion, the Supreme Court in United States v. Parr held that

"[W]e 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."

Compelled mailings, whether they be under state or federal law, cannot be a basis for a mail fraud charge.  This applies also to wire fraud (compelled wire submissions) as mail fraud operates in parallel to the wire fraud statute. The one exception that has developed over the years to this doctrine involves mailing that are themselves false (see Leona Helmsley's case at 941 F.2d 71 (2d Cir. 1991)).

The court in the Lake case references several cases that have applied the "legally compelled mailing" doctrine," including how it was an important issue for the lower court in the McNally case, a case that initially destroyed for prosecutors the ability to bring cases using the "intangible rights" doctrine (later changed by Congress when they passed 18 U.S.C. s 1346). Interestingly, when the McNally case went to the Supreme Court, the Court dropped a footnote, footnote 2, that explicitly recognized that six counts had been dismissed based on the mailing of tax returns.  The footnote stated, "[t]he Court of Appeals held that mailing required by law cannot be made the basis for liability under section 1341 unless the documents themselves [are] false."  The Court also noted that the government had not sought review of this aspect of the lower court decision.

Judge Hartz reminds readers here that this particular case being decided yesterday is even stronger than Parr (and thus it would also be stronger than McNally) because of the nature of the documents and the fact that they are not false documents.

It may sometimes cause confusion to see the distinction between the "legally compelled mailing" doctrine and the fact that in mail fraud, the mailing only has to be incidental to the mailing.  Although the mailing need only be "incident to an essential part of the scheme" (Pereira v. U.S.) or "a step in the plot," (Badders v. U.S.) it does not negate the fact that the mailing cannot be something that is required by law to be mailed.

Hats off to Judge Hartz for recognizing this fine distinction in the law and explaining it well.


Addendum - Check out Tom Kirkendall's Houston's Clear Thinkers analysis of the decision - here.  Also see the provocative questions asked by Professor Doug Berman of the Sentencing Blog here.

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In this scathing 43-page decision, the 10th U.S. Circuit Court of Appeals set aside the convictions of former Westar Energy executives David Wittig and Douglas Lake on every count and ruled that most of the counts could not be retried.... [Read More]

Tracked on Jan 6, 2007 7:14:59 AM


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