The Lulling Letter Doctrine in Federal Mail Fraud Cases

Name: Michael J. Petro
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Federal mail fraud does not always require that the mailing occur before the victim loses money. In some cases, a mailing made after the principal fraud has occurred can still support a mail fraud charge if it was intended to conceal the scheme, reassure a victim, delay investigation, or reduce the likelihood that the fraud would be discovered.

This principle is commonly known as the lulling letter doctrine.

One Seventh Circuit decision applying the doctrine has a personal connection for federal criminal defense attorney Michael J. Petro. The defendant in United States v. Anderson, 809 F.2d 1281 (7th Cir. 1987), was Kenneth Anderson—a barber Petro knew as a child.

The case provides an interesting example of how an otherwise routine mailing can become the federal element of a mail fraud prosecution.

What Is the Lulling Letter Doctrine?

The federal mail fraud statute, 18 U.S.C. § 1341, generally requires the government to prove a scheme to defraud and the use of the United States mail in furtherance of that scheme.

An important question arises when the mailing occurs after the defendant has already obtained the money or benefit sought through the fraud.

Does the mailing still count?

Sometimes it does.

A mailing can be considered part of the execution of a fraudulent scheme when it is designed to:

Reassure a victim
Make a fraudulent transaction appear legitimate
Prevent or delay questions
Postpone complaints to law enforcement
Conceal the fraud
Reduce the likelihood of detection
Permit an ongoing fraudulent scheme to continue

These communications are often described as lulling letters or lulling communications.

The Supreme Court Recognized the Lulling Letter Doctrine

The Supreme Court addressed the principle in United States v. Sampson, 371 U.S. 75 (1962).

The defendants had obtained money from victims by falsely promising to help them obtain loans or sell their businesses.

After receiving the victims’ money, the defendants mailed acceptance letters to reassure them that the promised services would be performed.

The defendants argued that the fraud was already complete because they had received the victims’ money before the letters were mailed.

The Supreme Court rejected that argument.

The fraudulent plan contemplated activities occurring both before and after the defendants received the money. The later mailings were intended to reassure the victims and delay their realization that they had been defrauded.

The mailings could therefore be considered part of the execution of the fraudulent scheme.

Not Every Mailing After a Fraud Is Mail Fraud

The lulling letter doctrine does not mean that every mailing occurring after a fraudulent transaction satisfies the federal mail fraud statute.

The connection between the mailing and the fraudulent scheme matters.

A useful contrast is United States v. Maze, 414 U.S. 395 (1974).

Maze used a stolen credit card at motels. The motels later mailed invoices through the banking system to obtain payment.

The Supreme Court concluded that those later mailings were not sufficiently connected to the execution of Maze’s fraudulent scheme.

The scheme had already accomplished its objective, and the later mailings were not designed to lull the victims or help Maze avoid detection. Indeed, processing the invoices increased the likelihood that his conduct would be discovered.

The distinction between Sampson and Maze remains important:

A mailing that merely follows a completed fraud is not necessarily enough. The government must establish a sufficient relationship between the mailing and execution of the fraudulent scheme.

United States v. Anderson

The Seventh Circuit applied the lulling-letter principle in United States v. Anderson, 809 F.2d 1281 (7th Cir. 1987).

Kenneth Anderson was a barber in Crown Point, Indiana.

His co-defendant, John Marine, was an official at the Lake County Court.

Federal prosecutors alleged that Anderson and Marine participated in a scheme involving bribes to arrange favorable dispositions of alcohol-related driving cases.

The defendants were convicted of federal offenses, including mail fraud, Hobbs Act violations, and RICO.

The Undercover Investigation

The investigation involved an undercover officer named Mingo.

According to the Seventh Circuit’s decision, the government presented evidence of a scheme in which payments were made in exchange for favorable treatment of driving offenses.

One issue became particularly important to the mail fraud count:

A refund check was mailed to the undercover officer.

The defense argued that the mailing occurred after the essential fraudulent transaction had already taken place and therefore could not support the federal mail fraud charge.

The Seventh Circuit disagreed.

Why the Refund Check Mattered

The court concluded that mailing the refund check served a purpose in the continuing scheme.

The mailing helped prevent unwanted attention from being directed toward Anderson and Marine while their activities continued.

In other words, the mailing helped make the transaction appear routine and reduced the possibility that questions would be raised about what had occurred.

The Seventh Circuit compared the situation to other cases involving communications designed to delay, divert attention, or prevent the discovery of an ongoing fraud.

That was enough to bring the mailing within the lulling-letter doctrine.

A Mailing Can Occur After the Money Changes Hands

Anderson illustrates an important feature of federal mail fraud law.

The mailing need not cause the victim to part with money initially.

A later mailing may qualify if it remains sufficiently connected to the scheme.

The Supreme Court has similarly recognized that delayed mailings may further a scheme when their purpose is to reassure victims or prevent discovery.

This is why the timing of a mailing, standing alone, does not answer the question.

The more important issue is:

What role did the mailing play in the fraudulent scheme as the defendant allegedly conceived it?

Concealment Can Further an Ongoing Fraud

The lulling doctrine is particularly significant in the context of an ongoing fraudulent operation.

Suppose a defendant repeatedly obtains money from different victims.

After obtaining money from a victim, the defendant sends the victim a reassuring letter stating that everything is proceeding normally.

If the purpose of the letter is to keep the victim from complaining while the defendant continues to obtain money from others, prosecutors may argue that the mailing helped execute the overall scheme.

The fact that the particular victim had already paid does not necessarily end the analysis.

The government may contend that keeping earlier victims quiet was important to the continued success of the fraud.

The Defendant’s Purpose Matters

The Supreme Court’s mail fraud decisions focus on whether the mailing was sufficiently connected to the execution of the scheme as contemplated by the defendant.

A mailing does not cease to qualify merely because it ultimately proves unsuccessful or even helps investigators discover the fraud.

As the Supreme Court explained in Schmuck v. United States, 489 U.S. 705 (1989), the relevant inquiry focuses on the role the mailing played in the scheme as conceived at the time, rather than whether hindsight shows that the mailing eventually proved counterproductive.

This distinction can be important in defending a mail fraud prosecution.

What Must the Government Prove in a Mail Fraud Case?

Mail fraud under 18 U.S.C. § 1341 requires more than proof that someone committed fraud and that something happened to travel through the mail.

The government must establish the required connection between the mailing and the scheme to defraud.

When the prosecution relies on the lulling letter doctrine, important questions can include:

Was the alleged fraud already complete?
What was the purpose of the mailing?
Did the defendant contemplate the mailing as part of the scheme?
Was the mailing intended to reassure a victim?
Did it postpone questions or complaints?
Did it conceal the alleged fraud?
Did it permit an ongoing scheme to continue?
Would the mailing have occurred regardless of the alleged fraud?
Did the mailing actually help execute the scheme, or was it merely incidental?

The answers depend upon the facts of the particular case.

When a Post-Fraud Mailing May Not Be Enough

The defense should carefully examine whether the government’s alleged lulling communication actually furthered the fraudulent scheme.

A later mailing may present a stronger defense when:

The defendant had already obtained everything sought from the scheme
The scheme had completely ended
The mailing was routine and unrelated to the fraud
The mailing was legally required regardless of the fraudulent conduct
The mailing did nothing to reassure a victim
The mailing did not conceal the conduct
The mailing did not delay detection
The mailing did not facilitate additional fraudulent transactions

The Seventh Circuit itself has recognized limits on the lulling-letter theory. In United States v. Cina, 699 F.2d 853 (7th Cir. 1983), the court explained that the completion of the alleged scheme must depend in some way upon the mailing relied upon by the government.

That limitation is important.

The lulling doctrine expands the types of mailings capable of supporting a mail fraud prosecution, but it does not eliminate the statutory requirement that the mailing be sufficiently connected to the execution of the scheme.

Mail Fraud Can Turn a Seemingly Ordinary Communication

One reason federal mail fraud cases can become complicated is that the mailing itself may appear completely ordinary.

It might be:

A refund check
A confirmation letter
An invoice
A receipt
An account statement
A proof-of-loss form
A business communication
A customer-service letter
Another routine document

The government’s theory may be that the apparently ordinary communication played a concealed role in furthering the fraudulent scheme.

The defense must therefore examine the purpose and context of the mailing—not merely the document itself.

The Anderson Case and Federal Jurisdiction

Anderson presented another interesting issue.

The undercover officer had requested that the refund check be mailed to him. The defense argued that the government had effectively manufactured the federal jurisdiction necessary for the mail fraud charge.

The Seventh Circuit rejected that argument.

The court distinguished cases involving artificial efforts by federal agents to manufacture an interstate or federal element. It concluded that mailing the check in Anderson was an efficient and legitimate means of returning it rather than the type of artificial jurisdictional manipulation condemned in other cases.

The court therefore affirmed the convictions.

A Barber and a Published Federal Fraud Decision

The Anderson decision has always been memorable to Attorney Petro for a reason unrelated to federal criminal doctrine.

Kenneth Anderson was Petro’s barber when Petro was a child.

Years later, Anderson’s prosecution produced a published Seventh Circuit decision addressing an important aspect of federal mail fraud law.

The case illustrates how an everyday act—mailing a refund check—can become a significant element of a federal criminal prosecution when prosecutors contend that the mailing helped conceal or continue a fraudulent scheme.

It also demonstrates why the precise relationship between the mailing and the alleged fraud must be carefully analyzed.

Defending Federal Mail Fraud Charges

Federal mail fraud prosecutions can involve complex questions about the alleged fraudulent scheme, the defendant’s intent, and the relationship between specific communications and the alleged offense.

The government may characterize a communication as a lulling letter because it occurred after money was obtained and allegedly reassured a victim or delayed detection.

The defense should examine whether the evidence actually supports that characterization.

A communication that occurs after a transaction is not automatically a lulling communication.

The statutory question remains whether the mailing was sufficiently connected to the execution of the alleged fraudulent scheme.

Experienced Federal Fraud Defense Attorney

Michael J. Petro has more than 35 years of criminal defense experience representing individuals facing serious federal investigations and criminal charges.

Federal mail fraud cases can involve questions concerning intent, material misrepresentations, use of the mails, financial transactions, electronic communications, and the scope and duration of the alleged fraudulent scheme.

When prosecutors rely upon the lulling letter doctrine, the defense should carefully examine whether the mailing actually furthered the scheme or merely occurred after the alleged fraud.

If you are facing a federal mail fraud, wire fraud, embezzlement, or other fraud investigation or prosecution, contact federal criminal defense attorney Michael J. Petro to discuss your case.