Burn! chopping down the inquisitor's stake

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Burn!: Chopping Down the Inquisitor’s Stake.
Arguments against the Mail Fraud Statute
By: Camilo Enciso


In this paper I intend to (i) summarize the evolution of the Mail Fraud Statute (MFS) and §1346, as construed by US courts during the past decades, (ii) evaluate the compatibility of those provisions and their interpretation by US courts with the requisite of definitenessof crimes, and (iii) argue that the Supreme Court of Justice should find the MFS and §1346 unconstitutional, barring from the federal legal system a terrifying set of indefinite and overbroad set of criminal provisions.

Before developing each of the aforementioned issues, I will make some brief introductory remarks: Since its inception the broad language and construction of the MFS, enhancedby the interpretation of several circuit courts, allowed a strong over criminalization of undefined conducts, in violation of the definiteness requisite (DR) of crimes. Further, after McNally, Congress legislation broadened the reach of the MFS, in defiance of the DR, once again. However, it is also true that the scope of the MFS, and in particular, the notion of some elements of the crime such asscheme to defraud have stretched and contracted cyclically during the past decades.[1]

The construction of the MFS exemplifies the difficulties of the common law to secure the principle of legality. In the United States the government and the courts can charge and convict a person for committing mail fraud, or acquit him/her, depending on the cycle of interpretation of the statute in whichthe government or courts stand in that particular moment, and on the broad or narrow interpretation of the law that they make at that moment, for that specific case, through law-making ad-hoc decisions.

Whether the MFS should be broadened or narrowed, is, of course, a matter of state policy. The broader the scope of the MFS, the more possibilities to get the bad guys, no matter the cost fordisingenuous persons falling in the trap of prosecutorial investigations or outrageous court decisions. The narrower the scope of the MFS, the less possibilities to get the bad guys, no matter what the risk might be for the society to let go major wrongdoers free. However, it is also a matter of justice, and of the possibility of protecting the integrity of constitutional rights and principles, suchas the right to due process of individuals that pertain to a community that claims to obtain its strength from its Constitution. Thus, it is important to prevent the MFS from becoming some sort of morals legislation eroding criminal law’s authority, as Herbert Packer and Sanford Kadish were afraid could happen if criminal law were used to enforce economic regulations.[2]

The MFS is one of themost effective weapons used by federal prosecutors in white collar crime cases. Almost thirty years ago Jed Rakoff referred to it, in a somehow “poetic” fashion, as “our Stradivarius, our Colt 45, our Louisville Slugger, our Cousinart-and our true love” and characterized it as “the “first line of defense”[3] against virtually every area of fraud to develop in the United States in the pastcentury”.[4] More recently, scholarship has referred to it (jointly with the wire fraud statute) as the “workhorses of federal white collar crime enforcement”[5] or as the prosecutors’ “secret weapon”.[6]

Therefore, the MFS enacted as part of a recodification of the Postal Act, as far as June 8, 1872[7], has been and has become, even more, some sort of joker crime, facilitating a prosecution andconviction where the construction of other charges of the government seems to fail. In short, the MFS is the winning ace where other cards seem to fail.

The MFS with the amendments made to it as of December 2009 states:

§ 1341. Frauds and swindles

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or...