United States v. James H. Dondich

James Dondich, who participated in a scheme to separate banks from their money by obtaining loans on worthless collateral, appeals his conviction of violation of 18 U.S.C. § 1341 (mail fraud) upon the ground that the government neglected to prove that he had used the mails within the meaning of § 1341. We agree, and reverse.

The only government evidence of mailing is found in the answer of a government witness to the leading question, “Did you then, pursuant to that agreement, send a letter verifying that note to the bank?” The witness: “Yes, I did.” The collateral in the case was “hand carried”.

Elsewhere in the transcript we find testimony that the banker in a distant city received the so-called verification, and another reference to its having been “sent”. The issue on appeal, therefore, is whether the trier of fact was entitled to infer from the above testimony that the sending of the document was through the United States Postal Service.

The knowing use of the mails for the purpose of the alleged crime is an essential element of the offense. United States v. Maze, 414 U.S. 395 , 94 S.Ct. 645 , 38 L.Ed.2d 603 (1974); Kann v. United States, 323 U.S. 88, 94 , 65…