By Zachary Margulis-Ohnuma
Does the federal mail fraud statute criminalize cheating on a state driving test, where the “mailing” is incidental to the cheating and a state law specifically addresses cheating on a DMV test? No, writes Judge Glasser of the U.S. District Court for the Eastern District of New York. In United States v. Ng, the defendants operated a driving school with lots of Chinese speaking students. They admitted to helping students who were unable to read English cheat on the written portion of the DMV commercial drivers license test. After the person passes the test, DMV sends out a drivers license by U.S. mail.
The federal mail fraud law forbids any “scheme or artifice to defraud” but only when the defendant places something in the mail or causes something to be mailed. As Judge Glasser pointed out, the Supreme Court has warned that the law should not be read “to place under federal superintendence a vast array of conduct traditionally policed by the States.” The mailing of the licenses by DMV, Judge Glasser held, just was not enough — the fraud was complete once the student passed the test. “Putting the envelope in a mail box did not make the postal service an accomplice of the defendants,” Judge Glasser observed. As a result, the defendants had not committed a federal crime. The full decision can be found here.
Judge Glasser’s decision has serious repercussions for the defendants, a married couple who were facing up to 20 years in prison and a federal felony conviction. The prosecution was asking to lock them away for years. But the state crime is only a misdemeanor, punishable by a maximum of one year in jail.
Judge Glasser generously pointed out the quality of the legal argument by defense lawyer Michelle Gelernt, Esq., prosecutor Paul Tuchmann, Esq., and this office, noting that “[t]he issues were briefed extensively with lucid and vigorously presented arguments, exhaustively researched[.]” Because the mailing was insufficient, the court did not reach another argument presented by the defense, that the DMV licenses were not property in the hands of the state and there was no bribery, hence no federal fraud under Cleveland v. United States.
The Daily News covered the decision in yet another insightful article by John Marzulli.