US SUPREME COURT DECISIONS

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 chanrobles.com-red

Page 489 U. S. 706

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; Parr v. United States, 363 U. S. 370; and United States v. Maze, 414 U. S. 395, distinguished. Pp. 489 U. S. 710-715.

2. The elements test must be utilized in determining when a lesser included offense instruction is appropriate under Rule 31(c). Pp. 489 U. S. 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 permitting 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. 489 U. S. 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 preexisting law. Pp. 489 U. S. 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. 489 U. S. 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. 489 U. S. 721-722.

840 F.2d 384, affirmed.

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

Page 489 U. S. 707

a dissenting opinion, in which BRENNAN, MARSHALL, and O'CONNOR, JJ., joined, post, p. 489 U. S. 722.