“[A] mailing satisfies this requirement where it is a normal concomitant of a transaction that is essential to the fraudulent scheme.”
How later courts described this case
- “[A] mailing satisfies this requirement where it is a normal concomitant of a transaction that is essential to the fraudulent scheme.”
- twelve years is sufficiently close
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
dissenting.
I agree that each kickback payment need not be related to a specific shipment of meat (or the mailings pertaining to it). I do think, however, that all the shipments of meat (and related documents), furnishing the basis of the indictment, must have arisen from a transaction in which Lea participated. The government as much as conceded that the latter relationship was not affirmatively and specifically established. For example, the government asserts at pp. 24-25 of its brief:
“Further, even if a Mutual offer was accepted by an employee other than Lea, that fact by itself would not remove the transaction from the fraudulent scheme. Mutual’s offer would nonetheless have been formulated with the benefit of knowledge of competitor’s prices improperly given by Lea in violation of company policy. In addition, the suppliers were compelled to make their offers through Mutual by their inability to do business directly with Lea.”
The facts assumed by these arguments are unclear. A “nexus” based on such dubious arguments is insufficient. I respectfully dissent.