Mail Fraud — sufficiency of the evidence

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United States Court of Appeals For the Seventh Circuit

Criminal

Mail Fraud — sufficiency of the evidence

The evidence was insufficient to convict a contractor of mail fraud, where it only contacted other bidders to obtain work as a subcontractor if it failed to be awarded the general contract.

“It is conceivable that the City would not have awarded Urban the contract in the second round of bidding had it known the company was trying to insure itself against the consequences of failing to land the contract by encouraging other companies to bid that would subcontract the actual work to Urban. But since we know that the City was willing to award the contract to Urban if Urban was the low bidder, as it was—that any animosity toward Urban was insufficient to induce it to exclude Urban from the bidding process—why would it have balked at Urban’s attempt to retain a role in the performance of the contract if someone else was the low bidder? Especially since that someone else couldn’t have performed the contract without incurring either large upfront costs because it lacked the necessary facilities in Chicago or large two-way shipping costs if it did the refurbishing elsewhere, and so it couldn’t have been the low bidder without enlisting Urban’s participation in performing the contract.”

Reversed and Remanded.

11-2459 U.S. v. Fenzl

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Posner, J.