United States v. Philip Morris USA Inc.: Amended Final Opinion
The Government Has Proven that Defendants Caused Mailings and
The Government Has Proven that Defendants Caused Mailings and
Wire Transmissions, in Furtherance of the Scheme to Defraud, in Violation of 18 U.S.C. § § 1341 and/or 1343 The Supreme Court has ruled that one "'causes' the mails to be used" when "one does an act
¶with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended. . . ." Pereira v. United States, 347 U.S. 1, 8-9 (1954); see also Maze, 414 U.S. at 399-400; United States v. Serang, 156 F.3d 910, 914 (9th Cir. 1998); Sawyer, 85 F.3d at 723 n.6; United States v. Alexander, 135 F.3d 470, 474-75 (7th Cir. 1998); United States v. McClelland, 868 F.2d 704, 707 (5th Cir. 1989); United States v. Haimowitz, 725 F.2d 1561, 1571 (11th Cir. 1984); United States v. Diggs, 613 F.2d 988, 998 (D.C. Cir. 1979).
¶The "causing" requirement does not impose an onerous burden. United States v. Weisman, 83 F.2d 470, 474 (2d Cir. 1936) (interpreting 18 U.S.C. § 338, the former mail fraud statute). In Weisman, the defendant, who operated a fraudulent property purchase scheme, responded to a series of advertisements placed by individuals seeking to sell properties. The court of appeals noted that "Weisman, so far as possible, abstained from using the mails in connection with his fraudulent transactions." Id. at 472. However, with regard to one customer, Lewis, the defendant dictated a typewritten response to Lewis' advertisement, and the defendant's agent delivered the response to the newspaper by hand delivery. Id.
1579¶Unbeknownst to Weisman, Lewis had left instructions for the newspaper that any responses be forwarded to him by mail, and the newspaper followed these directions by sending Weisman's fraudulent response to Lewis. Id. Therefore, "[i]n spite of [Weisman's] general efforts on his part to avoid the use of the mails, they undoubtedly were used for the purpose of executing the schemes to defraud" his victims. Id. Moreover, despite the fact that Weisman had not himself used the mails, and neither intended -- nor even knew of -- Lewis' instructions to the newspaper to forward Weisman's response, he in fact "caused" the letter to be mailed:
When Weisman had a letter delivered to the [New York] Times office in New York, there was every chance that the Times would forward it to its customer by mail. It has long been settled that a defendant may cause a letter to be sent or delivered by mail though such a mode of transmission was neither known nor intended, provided mailing or delivery by post might reasonably have been foreseen.
¶Id. at 473.
¶To counter the overwhelming circumstantial evidence showing the likelihood that Defendants would use mailings and wire transmissions to conduct the affairs of the Enterprise, Defendants rely on a Fifth Circuit case which held that "the use of circumstantial evidence does not relieve the Government of its burden of establishing use of the mails 'beyond a mere likelihood or probability.'" United States v. Massey, 827 F.2d 995, 999 (5th Cir. 1987). In Massey, the Fifth Circuit held that "[c]ircumstantial evidence 'such as testimony regarding office practice' is sufficient only 'so long as the circumstances proven directly support the inference and exclude all reasonable doubt to the extent of overcoming the presumption of innocence." Id. However, in that criminal case, evidence was presented which suggested it was just as likely that the mails weren't used as it was that they were. Thus, in Massey, a criminal case, unlike here, there was reasonable doubt as to whether the mails were used. In this case, the United States has proven by a preponderance of the evidence, and even beyond a reasonable doubt, that the mails and wires were used to transmit Defendants' fraudulent statements. Indeed, Defendants could not have carried out the Enterprise's scheme to defraud without mailings and wire transmissions of their fraudulent statements.
1580¶To establish a charge of mail or wire fraud under 18 U.S.C. §§ 1341 and 1343, the matter or communication sent via the mails or wires need not itself contain false or misleading information or evidence fraud. Rather, "'innocent' mailings -- ones that contain no false information -- may supply the mailing element." Schmuck v. United States, 489 U.S. 705, 715 (1989) (citing Parr v. United States, 363 U.S. 370, 390 (1960)); see also Philip Morris, 304 F. Supp. 2d at 70.
¶The D.C. Circuit has long held that 18 U.S.C. § 1341 does not require that any mailing utilized to establish a mail fraud prosecution be false: "Under the mail fraud statute it is not necessary that the individual mailing relied upon by the prosecution be shown to be in any way false or inaccurate, if the matter mailed is utilized in furtherance of or pursuant to the scheme to defraud." United States v. Reid, 533 F.2d 1255, 1263 (D.C. Cir. 1976) (footnote omitted); see also Deaver v. United States, 155 F.2d 740, 744 (D.C. Cir 1946) ("a 'scheme' may be fraudulent though no misrepresentation is made"); Tabas v. Tabas, 47 F.3d 1280, 1294 n.18 (7th Cir. 1995); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1413-14 (7th Cir. 1991) ("The actual violation is the mailing, although the mailing must relate to the underlying fraudulent scheme. . . . The mailing need not contain any misrepresentations. Rather 'innocent' mailings – ones that contain no false information – may supply the mailing element."). Moreover, "it does not matter that some of these mailings contained no false or misleading information, and individually contained no pecuniary loss; routine and innocent mailings can also supply an element of the offense of mail fraud." United
1581¶States v. Hickok, 77 F.3d 992, 1004 (7th Cir. 1996) (citing United States v. Brocksmith, 991 F.2d 1363, 1368 (7th Cir. 1993)).
¶Moreover, the mailing or wire transmission need not be essential to the scheme or succeed in deceiving; rather it need only be "for the purpose of executing the scheme." United States v. Maze, 414 U.S. 395, 400 (1974); see also United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir. 1995); United States v. Waymer, 55 F.3d 564, 569 (11th Cir. 1995); Kehr Packages, 926 F.2d at 1413; United States v. Haimowitz, 725 F.2d 1561, 1571 (11th Cir. 1984); United States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981); Reid, 533 F.2d at 1264. "The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive . . . ." Schmuck, 489 U.S. at 715. In this case, Defendants caused the mailings and wire transmissions in order to communicate their fraudulent statements to the American public. See generally, Findings of Fact.
¶It should be noted that courts have taken a flexible approach to the "in furtherance" requirement, holding that it is sufficient that the mailing or wire transmission was "incident to an essential part of the scheme. . . or a step in [the] plot." Schmuck, at 711 (quoting Badders v. United States, 240 U.S. 391, 394 (1916)); see also United States v. Sun-Diamond Growers, 138 F.3d 961, 972 (D.C. Cir. 1998), aff'd, 526 U.S. 398 (1999); Coyle, 63 F.3d at 1244; United States v. Waymer, 55 F.3d 564, 569 (11th Cir. 1995); United States v. Hollis, 971 F.2d 1441, 1448 (10th Cir. 1992); United States v. Wormick, 709 F.2d 454, 462 (7th Cir. 1983) ("mailings made to promote the scheme . . . or which facilitate the concealment of the scheme"); United States v. McClelland, 868 F.2d 704, 707-09 (5th Cir. 1989) (mailings which tended to further the scheme).
1582¶In this case, all of the Racketeering Acts promoted and furthered Defendants' execution of their fraudulent scheme to maximize their profits, to avoid costly verdicts, and to derail attempts to make smoking socially unacceptable by perpetrating the deceptions which have already been enumerated and described in great detail in the Findings of Fact.
¶The evidence shows that it was the Defendant's routine or standard business practice -- which one would expect of any major corporation -- to send or receive matters via the mails or wire transmission. Moreover, Defendants spoke or wrote their fraudulent statements with the knowledge that the use of the mails and wires "c[ould] reasonably be foreseen." Pereira, 347 U.S. at 8-9. Finally, each of the alleged mailings and wire transmissions was in furtherance of the overarching scheme to defraud. Accordingly, the United States has proven that Defendants "caused" the mailings and wire transmissions underlying the Racketeering Acts in an effort to further the scheme to defraud.
a. Defendants' Routine Mailing Practices The evidence is undisputed that Defendants employed the following routine mailing
¶practices.23
(1) Philip Morris All of Philip Morris' incoming mail flows either to its Richmond, Virginia, or New York
¶City, New York mail room facilities. Approximately 80% of its United States mail would have
¶Prior to 1974, the United States Mail was virtually the only means of authorized postal delivery in the United States. See Air Courier Conference of America v. American Postal Workers Union, 498 U.S. 517, 519 (1991); O'Brien, 644 F. Supp. at 142. Moreover, effective September 13, 1994, Congress amended the mail fraud statute to attach liability to anyone who in furtherance of a scheme to defraud, "deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier." Pub. L. No. 102-322 (codified as amended at 18 U.S.C. § 1341 (1994)).
1583¶flowed through Philip Morris' central Richmond facilities prior to September 11, 2001. Since September 11, 2001, approximately 85% of the incoming correspondence and packages arriving at Philip Morris' Richmond mail room was sent by U.S. Mail. Philip Morris estimated that as of July 1, 2002, about three-quarters of items arriving in its New York mail room were sent by U.S. Mail. Since September 11, 2001, 75% of the mails and materials Philip Morris has sent have been transmitted by U.S. Mail. Philip Morris did not begin using private courier or commercial carriers, e.g. Fedex (formerly Federal Express), DHL, Airborne Express, and United Parcel Service, to send correspondence or packages any earlier than 1967. Philip Morris now uses fax machines, an Internet web site, and e-mail, as well as United States Mail, to transmit documents. Dale Frazier Dep., 33:20-34:10, 20:12-20:17, 12:12-13:17, 22:6-18, 42:19-43:17, 23:10-23:15, 42:19-43:17.
(2) Lorillard Since 1994, seventy-five percent of the total mailings to and from Lorillard have been made
¶via U.S. Mail. Lorillard generally sends its public statements and press releases electronically to the news organizations. Becky Wright Dep., 6/27/02, 14:11-14:25.
(3) Liggett Liggett sends correspondence by U.S. Mail and commercial carriers. Liggett did not transmit
¶documents by facsimile until the mid-1980s.
(4) R.J. Reynolds In 1968, U.S. Mail was generally R.J. Reynolds' only means of transmitting documents.
¶During the 1970s, most of R.J. Reynolds' correspondence was transmitted by U.S. Mail. Gwendowlyn Beck Joyner Dep., 6/28/02, 14:18-15:22.
1584(5) The Tobacco Institute The Tobacco Institute transmitted its booklet, "Helping Youth Decide," by U.S. Mail when
¶single copies were requested. U.S. Mail was the Tobacco Institute's most frequent mode of sending correspondence. Approximately 90% of its incoming mail was delivered by U.S. mail and 90% of its press releases were sent by U.S. Mail. William Adams Dep. 6/19/02, 448:02-11, 454:19-455:01, 479:20-480:04.
(6) Council For Tobacco Research The Council For Tobacco Research ("CTR") sent its annual reports through mailing houses.
¶Individual requests for the annual reports were answered with U.S. Mail packages. More often than not, CTR used the U.S. Mail to send award letters, checks, and routine correspondence to grantees. It used U.S. Mail to send correspondence and funds to special projects recipients, and the recipients' affiliated institutions, as well as to send minutes of board of directors meetings and annual meetings. CTR used U.S. Mail to send agenda books containing applications for review by its Scientific Advisory Board. CTR did not acquire a fax machine until 1989 or 1990. Harmon McAllister Dep, 5/24/02, 65:11-66:19, 67:07-18.
b. Prior Stipulations and Admissions Establish the Mailings and Wire Transmissions Underlying 79 of the Alleged 145 Racketeering Acts Defendants' stipulations and admissions proved that they "caused" the mailings and wire
¶transmissions underlying the following 79 Racketeering Acts: 3, 4, 5, 6, 7, 8, 10, 11, 12, 17, 18, 21, 23, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 38, 42, 44, 45, 46, 49, 50, 51, 52, 53, 54, 57, 60, 63, 66, 67, 68, 70, 73, 77, 79, 81, 82, 86, 87, 88, 89, 90, 94, 96, 98, 99, 103, 104, 105, 106, 108, 109, 110, 114, 115, 116, 117, 118, 121, 122, 124, 125, 127, 129, 132, 133, 143, 144, 145, and 146. See United
1585¶States Proposed Findings of Fact, Section IV, Paragraphs 1-5; see also United States Final Proposed
¶Conclusions of Law (vol. 1), (I)(G)(5)(d).24
c. The Mailings and Wire Transmissions Underlying the Alleged Racketeering Acts Which Involve Defendants' Press Releases and Advertisements Were Disseminated to the Public Via the United States Mails and Wire Transmissions
¶The United States established that Defendants' issued their advertisements and press releases in various newspapers and magazines, that were thereafter disseminated to the public via the United
¶States Mails. For example, the "Frank Statement to Cigarette Smokers", which underlies
¶Racketeering Act 1, was published on January 4, 1954 in 448 newspapers throughout the United
¶States.
¶The Court has already taken judicial notice that since 1954, the following newspapers have been routinely sent to subscribers via U.S. Mail, and that this practice was reasonably foreseeable as to each Defendant: Atlanta Constitution; Atlanta Journal; Boston Globe; Charlotte Observer;
¶Chicago Tribune; Los Angeles Times; Miami Herald; New York Times; San Diego Union-Tribune;
¶Washington Post. Order #616. In addition, the Court has already taken judicial notice that the following newspapers have been routinely sent to subscribers via United States Mail beginning in the years noted, and that this practice was reasonably foreseeable as to each Defendant: Atlanta
¶The Court attempted to be very certain about the Racketeering Acts to which Defendants have stipulated or admitted the "causing" requirement, but it proved impossible. Both the Government's and Defendants' papers on this issue are unclear and at times inconsistent. For example, the Government states in its July 1, 2004 Proposed Conclusions of Law that Defendants' stipulations and admissions on the "causing" requirement include Racketeering Acts 68, 115, 118, 124, 125, 127, 129, and 144. However, in its Post-Trial Proposed Findings of Fact, those Racketeering Acts are not included in the list of stipulations and admissions on "causing." With no guidance from the parties, the Court is left to guess.
1586¶Journal-Constitution - 2001; New York Post - 1993; Philadelphia Inquirer - 1970; Village Voice - 1959. Id.
¶The Court has taken judicial notice that since 1954, the following magazines have been routinely sent to subscribers via U.S. Mail, and that this practice was reasonably foreseeable as to each Defendant: Car Craft; 4-Wheel & Off-Road; Glamour; Hot Rod; Mademoiselle (through 2001); Motorcyclist; Playboy; Vogue. Id. The Court has taken judicial notice that the following magazines have been routinely sent to subscribers via U.S. Mail beginning in the years noted, and that this practice was reasonably foreseeable as to each Defendant: Allure - 1991; ESPN The Magazine - 1998; GQ-Gentlemen's Quarterly - 1957; Maxim - 1997. Id. Accordingly, Defendants caused the Racketeering Acts by publishing press releases and advertisements in the listed newspapers or magazines.
¶Moreover, when a Defendant sends press releases and advertisements to newspapers and magazines for dissemination, it is obviously reasonably foreseeable that the newspapers and magazines will use the U.S. Mail to send such matter to their subscribers, and therefore, that such Defendant "caused" the use of the mails within the meaning of the mail fraud statute. See, e.g., Carpenter, 484 U.S. at 28 ("[U]sing the wires and the mail to print and send the [Wall Street] Journal to its customers" containing the column at issue "was not only anticipated but an essential part of the scheme."); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 992 (8th Cir. 1989) ("[I]t was almost certain that notice of [foreclosure sales] would be mailed to other claimants or that notice would be published in newspapers and copies of the notice distributed through the mails."); United States v. Bowers, 644 F.2d 320 (4th Cir. 1981) (holding that it was reasonably foreseeable that newspapers would be mailed to some subscribers containing the advertisements the defendant placed in the newspaper); United States v. Shepherd, 587 F.2d 943, 944 (8th Cir. 1978); United States v. Buchanan, 544 F.2d 1322, 1324-25 (5th Cir. 1977); Pritchard v. United States, 386 F.2d 760, 764 (8th Cir. 1967) (same for advertisements in magazines as well as newspapers); Atkinson v. United States, 344 F.2d 97, 98-99 (8th Cir. 1965) (same for advertisements in newspapers); Weisman, 83 F.2d at 473 (holding that it was reasonably foreseeable to the defendant that the letter he hand- delivered to a newspaper in response to an advertisement would be sent by the newspaper to its customer via the U.S. mails).
1587¶For the foregoing reasons, it is clear beyond any question that Defendants caused the mailings and wire transmissions underlying the 30 Racketeering Acts involving the news media's dissemination of Defendants' press releases and advertisements to their subscribers.
d. Defendants Caused Wire, Radio, and Television Transmissions Underlying the Racketeering Acts Defendants caused the Racketeering Acts which involved wire, radio, and television
¶transmissions. As Pereira noted, "Where one does an act with knowledge that the use of the mails [or wires] will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he 'causes' the mails to be used." 347 U.S. at 8-9 (1954). Here, too, there can be no question that it was reasonably foreseeable that Defendants' representatives' statements would be broadcast to the public via the wire, radio, and television transmissions. Indeed,18 Defendants assert that the statements of their C.E.O.s before the Waxman Subcommittee in 1994 constitutes petitioning activity protected from any imposition of liability under the Noerr-Pennington doctrine. See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965). This legal issue is addressed fully in the Conclusions of Law. The facts, as recounted herein, speak for themselves. -637- U.S.C. § 1343 explicitly provides that it applies when a person "causes to be transmitted by means of . . . television communication in interstate or foreign commerce" a communication to execute a scheme to defraud.
¶For instance, various statements from Defendants' internet websites are or were published on the worldwide web, a global network of computers which employs telephone, fiberoptic, and other wire and wireless infrastructures. Similarly, telephone communications, telexes, cable letters, telegrams, e-mails, facsimile transmissions, and television and radio involve the use of wire and radio/television signals in interstate and/or foreign commerce. Therefore, Racketeering Acts 103- 116, 130, 134, 137, and 143-147 were transmitted by use of the wires, radio, and television signals in interstate and/or foreign commerce. 689033421-3421 (US 31045); 508293416-3416 (US 21514); 1002605545-5564 (US 35622); 680273641-3643 (US 20998); 504331775-1776 (US 22738); 301030943-0944 (US 46577); 2029200293-0294 (US 21537); 450010016-0019 (US 21539); 690149518-9531 at 9520 (US 21046); 690149518-9531 (US 78732); TLT0770044-0049 (US 86656); TLT0770095-0128 (US 72410).
1588e. The Mailings and Wire Transmissions Involving Communications Were Sent or Received by Defendants or their Representatives Defendants caused the mailings and wire transmissions, which involve communications sent
¶or received by Defendants and their representatives, that underlie the remaining Racketeering Acts. It was Defendants' routine or standard business practice to send or receive matters via the mails or wire transmissions. Therefore, it was reasonably foreseeable that the mails would be used by a Defendant or by a third-party as a result of a Defendant's actions in the ordinary course of business. Moreover,33 The Court is not making a finding that all paid industry consultants lied or gave testimony that they knew to be false. -1320- of the 41Racketeering Acts which Defendants challenge involve correspondence mailed from one city to another. They are Racketeering Acts 2, 3, 6, 7, 9, 10, 12, 13, 14, 15, 16, 19, 20, 21, 22, 27, 33, 40, 41, 58, 62, 69, 71, 72, 74, 75, 79, 80, 81, 85, 117, 132 and 133.
¶In addition, Defendants "caused" the mailings of matters which they had sent or received in response to correspondence that they sent. See, e.g., United States v. Hollis, 971 F.2d 1441, 1448 (10th Cir. 1992); McClelland, 868 F.2d at 707; Diggs, 613 F.2d at 998-99; United States v. United
1589¶Medical & Surgical Supply Corp., 989 F.2d 1390, 1404 (4th Cir. 1993) (defendant's broker mailed fraudulent reports); United States v. Bortnovsky, 879 F.2d 30, 36-37 (2d Cir. 1989) (defendant's agent sent the mailings); United States v. Tiller, 302 F.3d 98, 103 (3d Cir. 2002) (defendant's employer). For purposes of Section 1341, when a defendant sets a course of events in motion, and then receives a mailing in response to his action, he is deemed to have "caused" the use of the mails. See, e.g., United States v. Toliver, 541 F.2d 958, 966-67 (2d Cir. 1976) (where defendants made fraudulent representations to state unemployment office, which then mailed unemployment checks to defendants, defendants "caused" the mailings); United States v. Otto, 742 F.2d 104, 109 (3d Cir. 1984) (letter written by investor-victim was responsive to defendant's failure to fulfill terms of earlier agreement); United States v. Weisman, 83 F.2d 470, 472-73 (2d Cir. 1936).25
¶In light of Defendants' routine mailing practices, Defendants "caused" the mailings and wire transmissions of correspondence they sent or received which furthered the Enterprise's scheme to defraud.
¶Furthermore, it is important to note that 18 U.S.C. § 1341 proscribes not only sending the communication in furtherance of the scheme to defraud, but also receiving the communication. See, e.g., United States v. Coyle, 943 F.2d 424, 425 (4th Cir. 1991). For instance, as detailed in Racketeering Act 17, CTR mailed a communication to Liggett, Philip Morris, Reynolds, Brown & Williamson, and Lorillard. In addition to the cigarette company Defendants' "causing" CTR to send the mailing, they (as members of the scheme to defraud) are liable for receiving it.
1590f. The Cigarette Company Defendants Are Liable for the Mailings and Wire Transmissions Underlying the Racketeering Acts Committed By Defendants CTR and TI
¶All Defendant cigarette companies who were members of or involved in CTR and
¶TI are liable for the mailings and wire transmissions caused by these organizations26 under the predicate provisions of 18 U.S.C. §§ 1341 and 1343, the mail and wire fraud statutes, respectively.27
¶Each of the six cigarette company Defendants participated in the creation, funding, and support of TIRC/CTR and TI. See Findings of Fact Sections III(B, C, D). They formed, funded, and staffed these entities in order that they would further the Enterprise's scheme to defraud.
¶Specifically, these entities funded research supporting Defendants' position on smoking and health issues and served as a forum to issue public statements on smoking and health and related matters.
¶See id. The cigarette company Defendants provided directors and officers of the organizations;
¶reviewed, approved or recommended approval of various research proposals and public statements
¶(including research reports and press releases); and provided many other forms of advice and assistance which both enabled and encouraged the mailings and wire transmissions at issue. See id.
¶Indeed, Defendants' essential purpose in forming CTR and TI was to use them to issue advertisements, press releases, and research reports.
¶See Racketeering Acts 2, 3, 5, 6, 7, 8, 10, 12, 13, 17, 18, 21, 23, 24, 27, 29, 31, 33, 34, 35, 42, 43, 44, 46, 49, 56, 66, 67, 70, 73, 77, 79, 81, 87, 88, 91, 93, 98, 117, 118, 120, 130, 132, and 133.
¶The Government has argued that Defendants are liable for CTR and TI's racketeering acts as aiders and abettors under 18 U.S.C. § 2(a) ("[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal"). However, because the Court finds Defendants caused CTR and TI's mailings on other grounds, it need not reach that issue.
1591¶There can be no question that the cigarette company Defendants are liable for the Racketeering Acts committed by CTR and TI under the mail and wire fraud statutes. As has already been noted, to establish a violation of the mail fraud statute it is not necessary to show that the defendant itself actually mailed anything; it is sufficient instead to prove that it caused a mailing or that use of the mails was reasonably foreseeable from its actions. The mailings and wire transmissions of CTR and TI were reasonably foreseeable or otherwise "caused" by the six cigarette company Defendants, given the involvement of those Defendants in their creation, funding, and ongoing activities. Therefore, the Defendant tobacco companies must be held liable for the mailings of CTR and TI. United States v. Rodgers, 624 F.2d 1303, 1308-1309 (5th Cir. 1980) ("co- schemers" liable for mail fraud); United States v. Craig, 573 F.2d 455 (7th Cir. 1977); Maxwell, 920 F.2d at 1036 ("All that is required is that appellant have knowingly and willingly participated in the scheme; she need not have performed every key act herself"); Amrep Corp., 560 F.2d at 545 ("So long as a transaction is within the general scope of a scheme on which all defendants had embarked, a defendant not directly connected with a particular fraudulent act is nonetheless responsible therefor if it was of the kind as to which all parties had agreed."); United States v. Stapleton, 293 F.3d 1111, 1115-16 (9th Cir. 2002); United States v. Joyce, 499 F.2d 9,16 Cipollone v. Liggett Group, 505 U.S. 504 (1992), was one of the first tobacco lawsuits in which the industry was assessed damages. It was particularly significant to the industry because it involved the unprecedented use of thousands of internal industry documents. -445- (7th Cir. 1974) ("As a member of a mail fraud scheme, [the defendant] was responsible for any letter which any other member of the scheme caused to be mailed in execution of the scheme").