Schmuck v. United States, No. 87-6431

• Court: United States Supreme Court
• Writing for the Court: BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. SCALIA
• Citation: 109 S.Ct. 1443,103 L.Ed.2d 734,489 U.S. 705
• Parties: Wayne T. SCHMUCK, Petitioner v. UNITED STATES
• Docket Number: No. 87-6431
• Decision Date: 22 March 1989

489 U.S. 705 109 S.Ct. 1443 103 L.Ed.2d 734 Wayne T. SCHMUCK, Petitioner

v.

UNITED STATES.

No. 87-6431. Argued Nov. 30, 1988. Decided March 22, 1989. Rehearing Denied May 15, 1989.

See 490 U.S. 1076, 109 S.Ct. 2091.

Syllabus

Petitioner used-car distributor was charged with multiple counts of mail fraud. The indictment alleged that he purchased used cars, rolled back their odometers, and sold them to Wisconsin retail dealers at prices artificially inflated by the low-mileage readings, and that the unwitting dealers, relying on the altered readings, resold the cars to customers at inflated prices, consummating the transactions by mailing title-application forms to the State on behalf of the buyers. Petitioner filed a pretrial motion to dismiss on the ground that the latter mailings were not in furtherance of the fraudulent scheme and, thus, did not satisfy the mailing element of the crime of mail fraud. He also moved under Federal Rule of Criminal Procedure 31(c) for a lesser included offense jury instruction on the crime of tampering with an odometer. The District Court denied both motions, and, after trial, the jury returned guilty verdicts on all counts. A Court of Appeals panel initially ruled that, although the mailings satisfied the mailing element of the crime, the requested jury instruction should have been given under the "inherent relationship" test, which considers one offense to be included in another when the facts as alleged and proved support the inference that the defendant committed the less serious crime, and when an "inherent relationship" exists between the two offenses such that both relate to the protection of the same interests and the proof of the greater offense can generally be expected to require proof of the lesser one. However, the Court of Appeals en banc rejected the "inherent relationship" test in favor of the "elements" test, whereby one offense is necessarily included within another only when the elements of the lesser offense form a subset of the elements of the offense charged. Finding that the elements of odometer tampering are not a subset of the elements of mail fraud, the en banc court affirmed petitioner's conviction.

Held:

1. The mailings at issue satisfy the mailing element of the crime of mail fraud. Such mailings need not, as petitioner contends, be an essential element of the scheme to defraud, but are sufficient so long as they are incident to an essential part of the scheme. Here, although the mailings may not have contributed directly to the duping of either the retail dealers or the customers, they were necessary to the successful

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passage of title to the cars, which in turn was essential to the perpetuation of the scheme to defraud, since a failure in the passage of title would have jeopardized petitioner's relationship of trust and goodwill with the dealers upon whose unwitting cooperation the scheme depended. Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88; Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277; and United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603, distinguished. Pp. 710-715.

2. The elements test must be utilized in determining when a lesser included offense instruction is appropriate under Rule 31(c). Pp. 715-721.

(a) The Rule's language—which provides in relevant part that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged"—supports the application of the elements approach. That language suggests that a comparison must be drawn between offenses—and therefore between the statutory elements of the offenses in question—whereas the inherent relationship approach mandates that the determination be made by reference to conduct proved at trial regardless of the statutory definitions of offenses. Furthermore, while the elements test is true to the Rule's requirement that the lesser offense be included in the greater, the inherent relationship approach dispenses with that requirement by permi ting an instruction even if the proof of one offense does not invariably require proof of the other, as long as the two offenses serve the same legislative goals. Moreover, although the Rule implicitly suggests that an instruction is equally available to the prosecution and the defense, the inherent relationship approach—which delays the determination whether the offenses are sufficiently related until all the evidence is developed—renders such mutuality impossible. Pp. 716-718.

(b) The elements approach is grounded in the Rule's history, which demonstrates that that approach was settled doctrine at the time of the Rule's promulgation and thereafter, and that the Rule incorporated this established practice by restating the pre-existing law. Pp. 718-720.

(c) Since the elements test involves an objective, textual comparison of criminal statutes and does not depend on inferences that may be drawn on evidence introduced at trial, it is far more certain and predictable in its application than the inherent relationship approach. Pp. 720-721.

3. Petitioner was not entitled to a lesser included offense instruction. The offense of odometer tampering includes the element of knowingly and willfully causing an odometer to be altered, which is not a subset of any element of mail fraud. Pp. 721-722.

840 F.2d 384 (CA7 1985), affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. SCALIA, J., filed

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a dissenting opinion, in which BRENNAN, MARSHALL, and O'CONNOR, JJ., joined, post, p. 722.

Peter L. Steinberg, for petitioner.

Brian J. Martin for respondent.

Justice BLACKMUN delivered the opinion of the Court.

I

In August 1983, petitioner Wayne T. Schmuck, a used-car distributor, was indicted in the United States District Court for the Western District of Wisconsin on 12 counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1342. App. 3.

The alleged fraud was a common and straightforward one. Schmuck purchased used cars, rolled back their odometers, and then sold the automobiles to Wisconsin retail dealers for prices artificially inflated because of the low-mileage readings. These unwitting car dealers, relying on the altered odometer figures, then resold the cars to customers, who in turn paid prices reflecting Schmuck's fraud. To complete the resale of each automobile, the dealer who purchased it from Schmuck would submit a title-application form to the Wisconsin Department of Transportation on behalf of his retail customer. The receipt of a Wisconsin title was a prerequisite for completing the resale; without it, the dealer could not transfer title to the customer and the customer could not obtain Wisconsin tags. The submission of the title-application form supplied the mailing element of each of the alleged mail frauds.

Before trial, Schmuck moved to dismiss the indictment on the ground that the mailings at issue—the submissions of the title-application forms by the automobile dealers—were not in furtherance of the fraudulent scheme and, thus, did not

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satisfy the mailing element of the crime of mail fraud. Schmuck also moved under Federal Rule of Criminal Procedure 31(c) ¹ for a jury instruction on the then misdemeanor offense of tampering with an odometer, 15 U.S.C. §§ 1984 and 1990c(a) (1982 ed.).² The District Court denied both motions.³ After trial, the jury returned guilty verdicts on all 12 counts.

A divided panel of the United States Court of Appeals for the Seventh Circuit reversed and remanded the case for a new trial. 776 F.2d 1368 (1985). Although the panel rejected Schmuck's claim that he was entitled to a judgment of acquittal because the mailings were not made in furtherance of his scheme, it ruled that under Rule 31(c) the District Court should have instructed the jury on the lesser offense of odometer tampering. The panel applied the so-called "inherent relationship" test for determining what constitutes a lesser included offense for the purpose of Rule 31(c). See, e.g., United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971). Under that test, one offense is included in another when the facts as alleged in the indictment and proved at trial support the inference that

Page 709

the defendant committed the less serious offense, and an "inherent relationship" exists between the two offenses. This relationship arises when the two offenses relate to the protection of the same interests and the proof of the greater offense can generally be expected to require proof of the lesser offense. Ibid. Applying this test, the court concluded that both the mail fraud and odometer tampering statutes protect against fraud, and that the proof of mail fraud generally entails proving the underlying fraudulent conduct.⁴ The panel then held that Schmuck was entitled to the lesser offense instruction because a rational jury could have found him guilty of odometer tampering, yet acquitted him of mail fraud on the ground that the mailings were too tangential to the fraudulent scheme to satisfy the requirements of mail fraud.

The Court of Appeals vacated the panel decision and ordered the case to be reheard en banc. 784 F.2d 846 (CA7 1986). On rehearing, by a divided vote, 840 F.2d 384 (1988), the en banc court rejected the "inherent relationship" test for defining lesser included offenses, and adopted instead the "elements test" whereby one offense is necessarily included within another only when the elements of the lesser offense form a subset of the elements of the offense charged. Id., at 387. The Court of Appeals found that the elements test "is grounded in the terms and history of Rule 31(c), comports with the constitutional requirement of notice to defendant of the potential for conviction of an offense not separately charged, permits a greater degree of certainty in the application of Rule 31(c), and...