Good Government by Prosecutorial Decree: The Use and Abuse of Mail Fraud
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DECREE:THE USE AND ABUSE OF MAIL
FRAUD
Gregory Howard Williams*
INTRODUCTION
The mail fraud' statute bears the distinction of being one of the oldest federal
criminal provisions in continuous use. Initially enacted in 1872,2 it has been called
the the federal government's number-one weapon in the fight against crime.3 U.S.
Attorneys marvel at its ability to cover a wide range of criminal activity,4 yet others
recoil at its broad application.5 In the past two decades, the statute has been used
* Professor of Law, University of Iowa College of Law. I am indebted to my col-
leagues, Professor of Law Robert N. Clinton of the University of Iowa, Professor of Law
Ronald J. Allen and Visiting Professor of Law A.T.H. Smith of Northwestern University for
their comments on an earlier draft of this article. I also benefitted from the help provided by my
research assistants Michael Rabbitt, Steve Rhodes, Sam Spounias, Natalia Williams and, most
especially, Kathy Schlueter.
1. 18 U.S.C. § 1341 (1988).
2. The Act of June 8, 1872, ch. 335 & 301, 17 Stat. 323 (repealed 1909), provided
in pertinent part:
That if any person having devised or intending to devise any scheme or artifice to
defraud, or be effected by either opening or intending to open correspondence or
communication with any other person ... by means of the post office establish-
ment... such person, so misusing the post office establishment, shall be guilty
of a misdemeanor ... the court thereupon shall give a single sentence, and shall
proportion the punishment especially to the degree in which the abuse of the post
office establishment enters .... into such fraudulent scheme and device.
3. See Rakoff, The Federal Mail Fraud Statute (Part 1), 18 DUQ. L. REV. 771, 771
(1980), where the statute is referred to by federal prosecutors as our Stradivarius, our Colt 45,
our Louisville Slugger, [and] our Cuisinart.
4. For example, some of the activities to which the mail fraud statute has been
applied include stock fraud, see Bobbroff v. United States, 202 F.2d 389 (9th Cir. 1953); land
fraud, see United States v. McDonald, 576 F.2d 1350 (9th Cir.), cert. denied sub nom. Stewart
v. United States, 439 U.S. 830, cert. denied sub nom. Besbris v. United States, 439 U.S. 927
(1978); bank fraud, see United States v. Miller, 676 F.2d 359 (9th Cir.), cert. denied, 459 U.S.
856, 866, and cert. denied sub nom. Harrington v. United States, 459 U.S. 866 (1982);
insurance fraud, see United States v. Peters, 732 F.2d 1004 (1st Cir. 1984); commodities fraud,
see Lonergan v. United States, 88 F.2d 591 (9th Cir.), rev'd on other grounds, 303 U.S. 33
(1937); blackmail, see Lupipparu v. United States, 5 F.2d 504 (9th Cir. 1925); counterfeiting,
see Blanton v. United States, 213 F. 320 (8th Cir. 1914); election fraud, see United States v.
Clapps, 732 F.2d 1148 (3d Cir. 1984); and bribery, see United States v. Craig, 573 F.2d 455
(7th Cir. 1977). Rakoff, supra note 3, at 772.
5. See, e.g., United States v. Margiotta, 688 F.2d 108, 139-44 (2d Cir. 1982),
cert. den., 461 U.S. 913 (1983) (Winter, J., dissenting). The mall fraud statute is one of
several federal statutes whose recent expansion permits the prosecutor to exercise virtually
unfettered discretion in defining the kind of misbehavior on which he intends to focus. Coffee,](ViewImageLocal?handle=hein.journals/arz32&div=12&collection=&method=preview&ext=.png&size=3)
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Good Government by Prosecutorial Decree: The Use and Abuse of Mail Fraud
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