REVISED AUGUST 28, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30681

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNIE TRAXLER,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Louisiana

Before DAVIS, ELROD, and COSTA*, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Defendant Johnnie Traxler pleaded guilty to one count of mail fraud in 

violation of 18 U.S.C. § 1341 for making unauthorized purchases on her 

employer’s credit cards. Traxler now appeals the district court’s denial of her

motion to dismiss the indictment for lack of jurisdiction, which she preserved. 

* Judge Costa participated by designation in the oral argument of this case as a United 

States District Judge for the Southern District of Texas. Since that time he has been 

appointed as a Fifth Circuit Judge.

United States Court of Appeals

Fifth Circuit

FILED

August 22, 2014

Lyle W. Cayce

Clerk

 

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Because the government provided sufficient evidence that Traxler used the 

mails in executing her ongoing fraudulent scheme, we AFFIRM.

I.

Traxler worked as an association executive for the Northeast Louisiana 

Association of Realtors (“NLAR”) from August 2008 until October 2010. 

Beginning in the summer of 2009, Traxler and another employee began making 

personal purchases with the NLAR’s credit cards, and opened up additional 

unauthorized accounts. The NLAR apparently did not notice their activities, 

and continued to receive and pay its credit card bill during this time. According 

to the government, the bulk of the losses resulted from their fraudulent activity 

on the NLAR’s Visa card, Sam’s Club account, and an unauthorized Home 

Depot account. The government estimated that Traxler was responsible for 

$66,966.25 in total losses, including a $32,585.00 loss to NLAR. At some point, 

her activities were reported to the NLAR Board, which initiated an audit, 

discovered the fraud, and then fired Traxler. 

Traxler was charged with mail fraud in violation of 18 U.S.C. § 1341.

The indictment alleged that Traxler’s unauthorized purchases caused a Visa 

card statement to be sent to the NLAR address that included a $101.43 charge 

to Dish Network for service at Traxler’s residence. Traxler moved to dismiss 

the indictment for lack of jurisdiction, arguing that there was no federal 

jurisdiction because the mailing alleged in the indictment was a routine 

statement from the credit card company and did not satisfy the 18 U.S.C. 

§ 1341 mailing requirement. 

The district court denied her motion, finding that the mailing alleged in 

the indictment satisfied the jurisdictional requirement to support the charge 

under 18 U.S.C. § 1341. Traxler then conditionally pleaded guilty to the mail 

fraud count, preserving her right to appeal the denial of her motion to dismiss 

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the indictment. The district court accepted Traxler’s guilty plea and sentenced 

her to 15 months in prison, to be followed by a three-year term of supervised 

release. Traxler was also ordered to pay $40,000 in stipulated restitution. On 

appeal, Traxler challenges the district court’s denial of her motion to dismiss. 

II.

Traxler argues that the district court lacked jurisdiction because she did 

not use the mails to further a scheme to defraud the NLAR. See United States 

v. Pepper, 51 F.3d 469, 474 (5th Cir. 1995) (explaining that “this element is the 

basis of federal jurisdiction”). We review jurisdictional questions de novo. 

United States v. Mills, 199 F.3d 184, 188 (5th Cir. 1999) (citing United States 

v. Becerra, 155 F.3d 740, 756 (5th Cir. 1998)). 

III.

To prove mail fraud under 18 U.S.C. § 1341, the government must show:

(1) a scheme to defraud; (2) the use of the mails to execute the scheme; and (3)

the specific intent to defraud. United States v. Bieganowski, 313 F.3d 264, 275 

(5th Cir. 2002) (citing United States v. Peterson, 244 F.3d 385, 389 (5th Cir.

2001)). Traxler does not challenge the existence of a scheme or her intent to 

commit fraud. Instead, she argues that she did not use the mails to execute 

the scheme. We disagree. 

In order to meet 18 U.S.C. § 1341’s jurisdictional requirement, use of the 

mails “need not be an essential element of the scheme.” Schmuck v. United 

States, 489 U.S. 705, 710 (1989) (citing Pereira v. United States, 347 U.S. 1, 8 

(1954)). It will suffice if the mails are merely “incident to an essential part of 

the scheme.” Id. The use of the mails may also be merely “a step in [the] plot.” 

Id. at 711 (quoting Badders v. United States, 240 U.S. 391, 394 (1916)). In 

addition, the defendant need not personally effect the mailing. It is sufficient 

that the defendant “cause” the mailing, or “act with knowledge that the use of 

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the mails will follow in the ordinary course of business, or where such use can 

reasonably be foreseen, even though not actually intended.” Pereira, 347 U.S. 

at 8–9 (quoting United States v. Kenofskey, 243 U.S. 440 (1917)). 

In support of her position, Traxler relies heavily on the Supreme Court’s 

decision in Parr v. United States, 363 U.S. 370 (1960). In Parr, the defendants 

were school district employees who made unauthorized gasoline and oil 

purchases on credit cards. Id. at 381–82. To support the mail fraud charge, 

the government relied on the fact that the oil companies mailed invoices for 

these unauthorized purchases to the school district, and the school district paid 

the invoices by mailing checks. Id. at 382. The Supreme Court concluded that 

the fraudulent scheme reached its fruition at the time the defendants received 

the gasoline and other service items, and was therefore already complete before 

the invoices were ever sent through the mail. Id. at 392–93. As a result, the 

Supreme Court held that the mailing requirement was not met and that there 

was no jurisdiction over the scheme. Traxler contents that her fraud likewise 

reached its fruition at the time that she made her unauthorized purchases, and 

that her scheme was therefore finished by the time the NLAR received the 

credit card bills for those purchases. We recognize that there are a number of 

similarities between this case and Parr. However, Parr was not the Supreme 

Court’s last word on this topic. 

Since Parr, the Supreme Court has addressed this jurisdictional 

question several times. See Schmuck, 489 U.S. 705 (jurisdictional element 

satisfied when defendant car dealer used the mails to complete the sale of 

vehicles by transferring title after turning back odometers); United States v. 

Maze, 414 U.S. 395 (1974) (no jurisdiction when defendant fraudulently used 

credit card for food and lodging); United States v. Sampson, 371 U.S. 75 (1962)

(jurisdictional element satisfied when defendants used letter to mislead fraud 

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victims into believing that their applications for loans had been accepted). Our 

circuit has subsequently applied the analysis laid down in these cases in a 

number of circumstances. See, e.g., United States v. Arledge, 553 F.3d 881, 891 

(5th Cir. 2008); Bieganowski, 313 F.3d at 275; Mills, 199 F.3d 184; United 

States v. Evans, 148 F.3d 477, 480 (5th Cir. 1998); United States v. Vonsteen, 

872 F.2d 626, 627 (5th Cir. 1989), superseded on other grounds, 950 F.2d 1086 

(5th Cir. 1992) (en banc). 

Rather than deciding this question based solely on Parr, we must look to 

our Fifth Circuit precedent interpreting Parr and the subsequent Supreme 

Court cases. “It is a well-settled Fifth Circuit rule of orderliness that one panel 

of our court may not overturn another panel’s decision, absent an intervening 

change in the law, such as by a statutory amendment, or the Supreme Court, 

or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 

(5th Cir. 2008) (citation omitted). “Indeed, even if a panel’s interpretation of 

the law appears flawed, the rule of orderliness prevents a subsequent panel 

from declaring it void.” Id.; see also McClain v. Lufkin Indus., 649 F.3d 374, 

385 (5th Cir. 2011) (“This court’s rule of orderliness prevents one panel from 

overruling the decision of a prior panel.”); Barber v. Johnson, 145 F.3d 234, 237 

(5th Cir. 1998) (“Even if persuaded that [our prior panel opinion] is 

inconsistent with [an earlier Supreme Court opinion], we may not ignore the 

decision, for in this circuit one panel may not overrule the decision of a prior 

panel.”); Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir. 1981) (“It is the firm 

rule of this circuit that we cannot disregard the precedent set by a prior panel, 

even though we perceive error in the precedent.”). Indeed, in Jacobs, we 

specifically rejected the idea that later Supreme Court and other decisions that 

were not directly on point could alter the binding nature of our prior precedent. 

Jacobs, 548 F.3d at 378. 

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Under our post-Parr precedent, the critical question is whether Traxler’s

fraud was completed prior to the transmission of documents through the mails, 

or if use of the mails was part of an ongoing scheme. While the exact 

delineation between these cases remains murky, we have drawn a line between 

cases involving a “one-shot” operation and “ongoing venture[s].” See id. at 189 

(internal quotation marks omitted).1 Thus, in Mills we held that the 

jurisdictional requirement was met because the defendant’s scheme to 

embezzle funds from his employer “involved numerous checks totaling at least 

$125,000 and extended over at least thirteen months.” Id. at 189–90. We also 

noted that the mail was integral to the “success of the ongoing fraudulent 

venture” because it “depended upon continued harmonious relations among 

Mills’s personal banks, [other financial institutions, and his employer]. 

Otherwise, future fraudulent checks issued pursuant to the scheme would be 

dishonored and not credited to Mills’s accounts.” Id. at 190. As a result, “Mills 

was not indifferent as to when the scheme was discovered or who bore the loss 

because the continuation of the scheme depended upon the successful 

deception of the intermediate parties.” Id. 

Likewise, the indictment here charges Traxler with repeatedly making 

unauthorized use of her employer’s credit cards over the course of more than a 

year. The PSR estimated that Traxler’s scheme caused a loss of $66,966.25, 

including a loss of $32,585.00 to her employer. Traxler did not make all of 

these expenditures at once. Instead, she was able to gradually steal from the 

NLAR by making multiple purchases over time. Traxler would not have been 

able to continue to defraud the NLAR if her employer had not received, and 

1 Although Mills addressed a wire fraud charge, we noted that “[t]he Supreme Court 

has said that because the mail and wire fraud statutes share the same language in relevant 

part, the same analysis applies to each” and accordingly analyzed the case under the same 

case law relevant here. Mills, 199 F.3d at 188. 

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paid the credit card bills. The PSR notes four separate occasions when those 

bills were sent to her employer through the mail. Just as in Mills, Traxler’s 

continued fraud thus depended on her employer receiving and paying the 

credit card bills through the mails, so that the credit card company would not 

become aware of her fraud or decline her subsequent purchases. As a result, 

Traxler likewise used the mails to execute her fraud. See 18 U.S.C. § 1341. 

In Mills we also distinguished cases, like the one at issue here, from 

those where we have determined that the use of mails was insufficient to confer 

federal jurisdiction. We explained that in Kann v. United States, 323 U.S. 88 

(1944),

the Supreme Court held that where the mail fraud defendants 

cashed fraudulently obtained checks and received the moneys 

contemplated by the scheme such that the scheme reached fruition 

before the checks were placed into the mails for collection, it was 

“immaterial” to the defendants how the banks that paid or credited 

the checks would collect from the drawee banks and “[i]t cannot be 

said that the mailings in question were for the purpose of executing 

the scheme, as the statute requires.” 

Mills, 199 F.3d at 188–89 (quoting Kann, 323 U.S. at 94). Likewise, we 

explained that the defendants in Maze, Parr, Evens, and Vontsteen were 

unconcerned with whether anyone ever paid their unauthorized charges. Id. 

at 189. By contrast, it was material to both Mills and Traxler that their 

employers continue to make payments in order for their ongoing schemes to 

continue. See id. at 190. Unlike the “one-off” charges in Kann, Maze, Parr,

Evens, and Vontsteen, Mills and Traxler were able to continue to take 

advantage of their employers only because their unauthorized bills were 

received and paid. See id. at 188–90 (distinguishing Kann, Maze, Parr, Evens,

and Vontsteen). 

As the Supreme Court has noted, “[t]o be part of the execution of the 

fraud, . . . the use of the mails need not be an essential element of the scheme. 

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It is sufficient for the mailing to be incident to an essential part of the scheme, 

or a step in [the] plot.” Schmuck, 489 U.S. at 710–11 (internal quotation marks 

and citations omitted). Based on our decision in Mills, the use of the mails was 

a step in Traxler’s plot to defraud her employer. Because we are bound by that 

precedent, we hold that there is jurisdiction here. 

IV.

Accordingly, we AFFIRM the district court. 

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