In message <[EMAIL PROTECTED]>, william@userfriendly.
com writes:
>Hello Domain,
>
>Tuesday, October 17, 2000, 2:09:28 PM, you wrote:
>>>Being aware of a problem in their billing and system, and not fixing
>>>it in a timely matter, is not the same as having a specific intent to
>>>fraud.
>
>> Think again. Modern case law is changing EXACTLY that. The legal
>> definition of intent is being gradually extended to include the
>> combination of foreknowledge and omission of action to remedy.
>
>> Case in point: Here, in my home town, a young child was recently
>> killed by a drunk driver with a history of DUI's. The DA reasoned
>
>Irrelevant from a legal perspective.
What?!? You couldn't be more wrong. The applicability of precedents
set in case law is not restricted solely to cases involving
the same charges as that in which the precedent is set. This
is a tenet of case law. Without it, nothing the Supreme
Court ever did would have any effect in any case unless the
charges are the same. There is no such restriction.
When a court of competent jurisdiction makes a ruling on a
particlar issue (not just passing judgement or sentence--
but any time a judge or panel rules), that ruling carries
the full authority of that court, which necessarily extends to
all courts of equal or lesser authority.
Take the most well-known example in American jurisprudence.
If you are arrested for any criminal act under the sun, you have to be
Mirandized before questioning, or anything you say is inadmissible
in court. In short, your ignorance of your own rights may not
be exploited. Yet, this is not written in any statute. It is
what is known as "case law" handed down by the Supreme Court, and
it carries the force of law because 1) all courts are of lesser
authority than the Supreme Court 2) repeat my second sentence
(applicability is not limited to cases with like charges).
The charges in the Miranda case were rape and kidnapping.
Yet, the case law established therein is globally applicable.
>>>You are not the first to float this idea that NSI is committing mail
>>>fraud, and you probably won't be the last. But the bottom line is
>>>that it is NOT mail fraud, at least not under the law.
>
>> The bills passed by Congress are half the story. Case law specifies
>> the broad vaguarities that exist in any bill so that its remedies and
>> restrictions can be applied uniformly AND, more importantly, in the
>> SPIRIT in which they were intended.
>
>References for similar cases that have resulted in actual
>charges of mail fraud, please. Otherwise, this too is irrelevant.
See above. The actual charges brought have no bearing on the
applicability of case law established for a particular question.
>> This case is NOT so big a stretch. NSI has been advised of what
>> is happening and by direct omission of action (which, btw, is not
>> differentiated legally from direct action-- omission of action
>> is action) continues to do so.
>
>Fraud cannot exist through inaction.
Wrong yet again. The bank makes an error, putting more money
in your pocket than you're due. After being advised of this,
you fail to act to recitify the situation. Fraud.
A case just like that was brought up before the federal courts
a couple years ago. Fraud was the original charge, but I
believe the guy made a deal for a lesser charge.
Besides, sending an invoice is an action.
>Talk to an attorney.
I did. He thinks we have a good case.
-Cengiz
