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Illinois Dealer Argues Jury Was ‘Hostile’ To Odometer Tampering

December 1, 1988

WASHINGTON (AP) _ An Illinois auto dealer who turned back the mileage of used cars he sold was the victim ″of the jury’s hostility toward odometer tampering,″ his lawyer told the U.S. Supreme Court in arguing that the dealer’s mail fraud conviction was excessive.

″The only fraud here was odometer tampering,″ attorney Peter L. Steinberg told the court Wednesday, saying that dealer Wayne T. Schmuck of Harvard, Ill., should have been convicted of misdemeanor rather than felony counts.

Schmuck, who did business as Big Foot Auto Sales of Harvard, Ill., was accused in Wisconsin of altering the mileage readings of the cars to increase their value. The charges stemmed from cars sold wholesale to Wisconsin auto dealers.

Courts have held that mail fraud charges can be brought in cases where the mail is necessary to the success of odometer tampering schemes.

Steinberg, who practices in Madison, Wis., also said a federal district judge in Madison erred by refusing to advise jurors they could have considered finding Schmuck guilty of a lesser offense.

Steinberg said his client should have been found guilty of odometer tampering, a misdemeanor punishable by a $50,000 fine and a year in prison. Instead he was convicted in December 1983 of 12 counts of mail fraud, a federal felony carrying a maximum penalty of a $1,000 fine, five years’ imprisonment or both, and later was sentenced to 90 days in jail and four years’ probation.

″We were the victims of the jury’s hostility toward odometer tampering,″ he said. ″The feeling was: ’He’s certainly guilty. We have to convict him of something.‴

″We would have been happy to take 12 counts of odometer tampering,″ Steinberg said. ″It’s a misdemeanor. The fine is $50,000. That’s 50 times worse than mail fraud, but it’s only a year in prison.″

Steinberg said his client did not use the mails, and instead hand-delivered paperwork making false mileage statements on the cars he sold to unsuspecting auto dealers.

Retail customers who bought the cars from the dealerships then would mail title and registration papers to the Wisconsin Department of Motor Vehicles, and the lawyer said it was sending those documents which constituted fraudulent use of the mails.

″Is every person who tampers with an odometer going to be guilty of mail fraud when someone on down the line mails in a registration?″ he asked.

″You have to be able to point out how the mailing contributed to the success of the scheme,″ Steinberg said. ″Otherwise you open the flood gate for prosecutions.″

Attorney Brian J. Martin, an assistant to the U.S. Solicitor General, argued that Schmuck could not operate a fraudulent business successfully for two years without using the mails, since his customers would not buy cars unless they could be registered.

″The sale cannot be made without the title being sent to the state department of transportation,″ Martin said. ″The sale was made. The dealers came back for more.″

The Supreme Court is expected to rule on the case sometime next year. --

The case is Schmuck vs. U.S., 87-6431.

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