Essay

Dupes and Losers in Mail Fraud

Thomas J. Miles

Professor of Law, The University of Chicago Law School

The author thanks James G. Hein, Jr and Richard H. McAdams for helpful comments. This Essay was written for a festschrift honoring Judge Frank H. Easterbrook’s twenty-five years on the Seventh Circuit.

Are practical jokes punishable under the federal mail fraud statute? Imagine that person A invites person B to a surprise party for their mutual friend C. A mails B an invitation, and B drives his automobile to the location specified in the invitation. But the joke is on B—there is no party, and B loses the value of the fuel spent driving his automobile to the location of the fictitious party. Most of us would think this joke is not terribly funny and perhaps a bit cruel, but no one would think it should be punished with five years in federal prison. Yet the joke seems to satisfy all the elements of federal mail fraud. There was a scheme to deceive, financial loss caused by the deceit, and use of the mails in furtherance of the scheme. In United States v Walters, Judge Frank H. Easterbrook posed this hypothetical.

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