In U.S. v. Evans, No. 05-10624 (Dec. 26, 2006), the Court held that the jury was entitled to find that a fax from a fraud victim to the perpetrator of a fraud was"lulling" activity for purposes of satisfying the wire fraud statute, 18 U.S.C. § 1343.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.
