dissenting.
I must respectfully disagree with the majority. Kentucky law at the time of Terry Goodpaster’s alleged scheme to defraud provided as follows:
(3) No notice of cancellation of [an automobile liability insurance policy] shall be effective unless mailed or delivered by the insurer to the named insured at least twenty (20) days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten (10) days’ notice of cancellation accompanied by the reason therefor shall be given. This subsection shall not apply to renewals.
Ky.Rev.Stat.Ann. § 304.20-040(3) (BobbsMerrill 1981) (amended 1985). There was no proof offered at trial that a valid notice of cancellation was sent to Goodpaster.1 Dairyland Insurance Company’s agent, Mrs. Paulene Cannon, testified that her only knowledge was that Goodpaster had a premium due on November 13, 1980,2 and did not have one due on December 13,1980, from which she inferred that the policy had lapsed for nonpayment of the premium. Transcript at 81-83, 124. Her inference was based on statements she said appeared on the policy, that there was “No grace period” and “If premium is not received in office by due date, your coverage expires.” 3 Transcript at 83. She stated repeatedly that she had no personal knowledge of Dairyland’s business practice or of whether any notice of cancellation actually *380was sent by Dairyland. Transcript at 78-79, 81-84, 125.
In short, there was uncontroverted evidence that Goodpaster had been covered by insurance. Kentucky law clearly stated that the purported cancellation for nonpayment of premiums was effective only if Goodpaster was first sent a notice of cancellation. In this record there is no evidence such a notice was sent.4 Certainly this proof would not support a denial of coverage in a civil claim.
The mail fraud statute imposes liability if Goodpaster used the mails “for the purpose of executing such scheme or artifice [to defraud] or attempting so to do.” 18 U.S.C. § 1341. Goodpaster completed his “scheme” and the insurance payments were delivered through the mails. The United States did not, however, show that the defendant was not entitled to the payments, so he cannot be said actually to have executed a scheme to defraud. Instead, the prosecution’s argument must be that Goodpaster attempted fraud.
The majority’s citation of authority for the proposition that “a conviction under § 1341 does not require proof that the intended victim was actually defrauded” only hints at the unanimity with which courts have embraced this proposition. There is simply no doubt that the statute imposes liability for an unsuccessful attempt to defraud. The question, however, is whether Goodpaster can be found guilty of an attempt when he did everything he meant to do and has not been proven thereby to have committed a completed crime.
We need not concern ourselves with the traditional distinction between factual impossibility and legal impossibility.5 The modern view increasingly rejects that distinction, following instead the formulation in the Model Penal Code: “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.” Model Penal Code § 5.01(a) (Proposed Official Draft 1962). But here it is the operation of law, not a mistake of fact, that establishes that Goodpaster’s action was not the crime with which he was charged. “[A]ll that is involved is an application of the principle of legality; the defendant did not intend to do anything which had been made criminal, and what is not criminal may not be turned into a crime after the fact by characterizing his acts as an attempt.” W. LaFave & A. Scott, Handbook on Criminal Law § 60, at 442 (1972) (footnote omitted).6
*381Of course, we might surmise that Dairy-land properly sent the notice of cancellation to Goodpaster, whereby he was not covered by insurance under state law, and thus he was guilty of a successful mail fraud. However, it was the prosecutor’s duty to prove beyond a reasonable doubt that the defendant defrauded or attempted to defraud the insurance company out of the payments, and here the prosecution introduced not even a scintilla of evidence on this element of the crime. See In re Win-ship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). If Goodpaster had been entitled to payment of his claim in a civil proceeding, surely we can set no lower standard of proof in his criminal case.
The probable fact that Goodpaster was, by law, covered by insurance shows the sorry role of the Dairyland Insurance Company throughout these proceedings. Dairyland paid the original claim, then discovered Goodpaster’s falsification of the time of the accident from the hospital records. In knowing or unknowing violation of section 304.20-040, which is part of the Kentucky Insurance Code, Dairyland then represented to Goodpaster that his claim was not covered by insurance and persuaded him to enter an agreement to repay the amount they paid out on his claim.7 It was only after Goodpaster was unable to make these payments, because of crop failure and hospital bills, that Dairy-land approached the Federal Bureau of Investigation and sought Goodpaster’s prosecution for mail fraud. In short, the FBI and the office of the United States Attorney have effectively lent their services as a collection agency to collect a disputed sum to which the defendant may in fact have been entitled, and in my opinion it does not redound to their, or to Dairyland’s, credit.8
. The majority suggests that this may have been a renewal, making section 304.20-040(3) inapplicable. However, the statute provides:
(c) "Renewal” or “to renew” means the issuance and delivery by an insurer of a policy replacing at the end of the policy period, a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term of less than six (6) months shall for the purpose of this section be considered as if written for a policy period or term of six (6) months. Provided, further, that any policy written for a term longer than one (1) year or any policy with no fixed expiration date, shall for the purpose of this section, be considered as if written for successive policy periods or terms of one (1) year, and such policy may be terminated at the expiration of any annual period upon giving twenty (20) days’ notice of cancellation prior to such anniversary date, and such cancellation shall not be subject to any other provisions of this section.
Ky.Rev.Stat.Ann § 304.20-040(l)(c) (BobbsMerrill 1981) (emphasis added). The prior policy was issued on July 5, 1980, less than six months before the supposed fraud, so it is clear under the statute that the renewal exception did not apply.
. The majority’s flat statements that Mrs. Cannon had received "renewal notices," slip op. at 2, 7, refers only to a sheet listing when policyholders’ premiums were due. Transcript at 78-79, 81-82.
. These statements, of course, appear to be in conflict with section 304.20-040(3).
. I suspect that the notice of cancellation in fact was not sent. Had it been sent, it would have been easy for the prosecutor to produce evidence of that fact from Dairyland. Also, if Dairyland believed the erroneous statement on the face of the policy that coverage expired automatically on nonpayment, it would have known of no reason to send the notice. As the majority notes, such conjectures have little or no consequence in resolving this issue. As I see it, the point made by the majority is the fact that it is pure conjecture that the notice was sent to Goodpaster.
The majority relies on Goodpaster's apparent personal belief that he was not covered by insurance. Goodpaster did not know whether the notice was sent. In fact, he was unaware of the statute and misled by the policy.
. Under the traditional approach, legal impossibility but not factual impossibility is a defense to a charge of attempt. Legal impossibility is commonly defined as the case in which the defendant did everything he intended to do but yet had not committed the completed crime, while factual impossibility is the situation in which the defendant is unable to accomplish what he intends because of some facts unknown to him.
W. LaFave & A. Scott, Handbook on Criminal Law § 60, at 438 (1972).
. I do not mean to endorse such cases as the oft-criticized United States v. Berrigan, 482 F.2d 171, 184-90 (3d Cir.1973), which held that there could be no conviction for attempting to send letters into and out of a penitentiary without the knowledge of the warden when the warden knew of the letters. (Berrigan considered and rejected the Model Penal Code approach.) This case is not like Berrigan. Goodpaster more resembles a malevolent Englishman who decides to drive on the right side of the road while visiting the United States. Such a defendant could not be convicted of attempting to drive on the wrong side of the road, notwithstanding his belief that he is in violation of law. "[A]n *381immoral motive to inflict some injury on one’s fellows coupled with a misapprehension about the content of the criminal law are not good reasons for conviction.” Hughes, One Further Footnote on Attempting the Impossible, 42 N.Y. U.L.Rev. 1005, 1022 (1967), quoted in W. LaFave & A. Scott, Handbook on Criminal Law § 60, at 442 (1972).
. The district judge refused to order Goodpaster to repay the insurance payments, saying Dairy-land must bring a separate action for repayment. When Dairyland brings such an action, it will undoubtedly rely on Goodpaster’s agreement as an enforceable accord and satisfaction. If in fact Goodpaster’s insurance was still in effect because of Dairyland’s failure to comply with section 304.20-040, then I do not believe the agreement is an enforceable accord and satisfaction. Goodpaster was an acknowledged illiterate with little legal knowledge, while Dairyland is a member of a highly regulated industry trying to avoid responsibility for its dereliction. In such a case, the agreement should be unenforceable as an unconscionable contract. See, e.g., Restatement (Second) of Contracts § 208 (1981).
. I express no opinion on whether the actions of Dairyland — disseminating false statements of the law on its insurance policies and invoking those statements and the aid of federal law enforcement personnel to obtain repayment of insurance proceeds from an illiterate client who was entitled to those proceeds — may be an appropriate basis for a mail fraud prosecution.