dissenting:
Because my understanding of the crucial facts and the law pertaining thereto differs sharply from that of my colleagues, I dissent.
THE FACTS
Appellants’ scheme, as alleged in the indictment and charged to the jury, was to defraud its lettershoppe customers by inducing them, by means of false and fraudulent pretenses, representations and promises and by concealing material facts, to pay and prepay postage money for mailing their advertising material and then converting over $400,000 of this amount to their personal use. The undisputed facts in support of this charge are:
1. Postage had to be paid in advance before the customers’ brochures could be mailed.
2. Appellants promised that they would pay the postage if their customers advanced the money for this purpose.
3. Appellants pocketed over $400,000 of the postage money which the customers advanced.
I do not understand how, in the light of the foregoing undisputed facts, my colleagues can say that the Starrs “in no way misrepresented to their customers the nature or quality of the service they were providing” and that “there was no discrepancy between benefits ‘reasonably anticipated’ and actual benefits received.”
Without belaboring the point, I simply include herewith an excerpt from the testimony of the president of one of appellants’ customers and leave it to the reader to decide whether those customers received the benefits they were promised.
Q. Why is it, as you testified with AMS, you were paying them for the postage, you were issuing a check to them? How did that come to be?
A. Mr. Starr asked me to write checks directly out to his organization, as it would simplify matters, he told me. It would make it easier for them, and they would keep two separate accounts so that at any point in time I could tell just exactly how much money I had in my postage account, just as the postmaster would have done. And I agreed to that. And I might say now, quite foolishly. And not because of this case, but because, irregardless of the letter shop I made my postage checks out to, there was certainly not the trust that the post office was going to, in turn, make payments to the post office, as I had, you know, expected when the post — you know, the letter shop can do anything they want with money. They can use it to pay overhead, they can, you know, put it in their pockets and go out of business. They can do anything they like. So it was a real foolish move on my part, something we’re not doing any longer.
At a later point the same witness described AMS as “our agent for transporting the money, at least I thought, from our account to the post office’s account.”
If the reader decides, after reading the foregoing testimony and viewing it in the light most favorable to the Government, that appellants made no false representations or promises and concealed no material facts, and that there was no discrepancy between the benefits appellants’ customers anticipated and the benefits they received, the reader need proceed no further in this *103opinion — appellants are innocent, ever, on the assumption that the reader will view the facts differently from my colleagues, I will go on to the law. 1 How-
THE LAW
The mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, read in pertinent part as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,____
The use of the word “or” between the two clauses signifies that they are disjunctive rather than conjunctive. United States v. Astolas, 487 F.2d 275, 279-80 (2d Cir.1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974). Accordingly, the statute is not limited to fraudulent schemes that contemplate the actual loss of money or property. United States v. Margiotta, 688 F.2d 108, 121 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Castor, 558 F.2d 379, 382-83 (7th Cir.1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 720, 54 L.Ed.2d 752 (1978); United States v. States, 488 F.2d 761, 764 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). Appellants’ customers were just as surely defrauded if they were deprived of their chance to bargain with all the material facts before them.
The mail fraud statute formerly was codified in 18 U.S.C. at § 338. Prior to 1899, the statute did not contain the clause “or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” These words were added by statutory amendment at the turn of the century, and the reason for the addition was aptly described in Moore v. United States, 2 F.2d 839, 841 (7th Cir. 1924), cert. denied, 267 U.S. 599, 45 S.Ct. 354, 67 L.Ed. 807 (1925):
The added words were evidently intended to enlarge the scope of the act, and to denounce and punish the use of the mails in execution not only of a scheme to defraud, but also of a scheme to obtain money or property by means of false representations or promises, and would in its terms include any scheme to obtain money from another by means of false pretenses, under circumstances where, but for the false pretenses or promises, the money or property would not have been parted with.
In United States v. Rowe, 56 F.2d 747, 749 (2d Cir.), cert. denied, 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289 (1932), Judge Learned Hand, citing the Moore holding with approval, said:
Civilly of course the action would fail without proof of damage, but that has no application to criminal liability. A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.
In United States v. Regent Office Supply Co., 421 F.2d 1174, 1182 (2d Cir.1970), the case much relied upon by the majority, Judge Moore, referring to Rowe, said:
Thus, taken in its factual context, the formulation of law stated in the Rowe decision was perfectly accurate in affirming that a wrong has been suffered when a man is deprived of his chance to bargain “with the facts before him” where the absent facts are facts material to the bargain he is induced thereby to enter.
See also United States v. Rodolitz, 786 F.2d 77, 80-81 (2d Cir.1986), where we said:
*104To sustain the conviction the government needed to prove only that Rodolitz employed a deceptive scheme intending to prevent the insurer from determining for itself a fair value of recovery.
In United States v. Hasenstab, 575 F.2d 1035 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 100, 58 L.Ed.2d 120 (1978), defendant, a purchasing supervisor for Pan American World Airways, Inc., received kickbacks from suppliers of business forms. The Court did not indicate in its opinion that Pan American paid excessive amounts to the suppliers. We held, nonetheless, that the essential element of the scheme to defraud “was the creation of a system under which Pan American would buy forms and paper from Barney’s company that it would normally have purchased elsewhere.” Id. at 1038. See also United States v. Bryza, 522 F.2d 414, 422 (7th Cir.1975), cert. denied, 426 U.S. 912, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976); United States v. Fischl, 797 F.2d 306, 311 (6th Cir.1986).
The testimony in the instant case shows that AMS sent its customers no written bills for postage. Instead, “Larry Starr would call them up and tell them that your mailing is going out tomorrow, please wire us so much money.” When the check for postage came in, it would either have the word “postage” written on the memo portion of the check, “[o]r they would attach a little note with a check saying, ‘This check is for our postage mailing that’s going out at the end of the week,’ or something like that.” In one case, however, the customer opened a special bank account and gave Charles Starr authorization to write checks on that account.
I think it clear that AMS acted as an agent for the delivery of its customers’ postage money to the post office and, as such, owed them the fiduciary duty of honesty and good faith. “An agent is a fiduciary with respect to the matters within the scope of his agency.” Restatement (Second) of Agency § 13. “The law requires the utmost good faith from agents. The relation is one of trust and confidence, and an agent will not be permitted to make profit for himself in the transaction of the business of his principal.” Noyes v. Landon, 59 Vt. 569, 574, 10 A. 342 (1887). See also Vermont Marble Co. v. Mead, 85 Vt. 20, 28, 80 A. 852 (1911); 2A C.J.S. Agency §§ 4a, 5. Moreover, where, as here, money is placed in the hands of another earmarked and kept separate for delivery to a third party, a trust will be imposed on the funds for the accomplishment of the intended use. McKee v. Lamon, 159 U.S. 317, 322, 16 S.Ct. 11, 13, 40 L.Ed. 165 (1895); Carrier Corp. v. J.E. Schecter Corp., 347 F.2d 153, 155 (2d Cir.), cert. denied, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965); Cumberland Portland Cement Co. v. Reconstruction Finance Corp., 140 F.Supp. 739, 749 (E.D.Tenn.1953), aff'd, 232 F.2d 930 (6th Cir.1956).
“There is abundant authority that a scheme to use a private fiduciary position to obtain direct pecuniary gain is within the mail fraud statute.” United States v. Dixon, 536 F.2d 1388, 1399 (2d Cir.1976) (citing United States v. Buckner, 108 F.2d 921, 926-27 (2d Cir.), cert. denied, 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016 (1940), and United States v. Groves, 122 F.2d 87 (2d Cir.), cert. denied, 314 U.S. 670, 62 S.Ct. 135, 86 L.Ed. 536 (1941)). The failure of a fiduciary to disclose material information, where the failure to disclose could result in harm to his principal, also violates the mail fraud statute. United States v. Weiss, 752 F.2d 777, 784 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985); United States v. Siegel, 717 F.2d 9, 14 (2d Cir.1983) (citing United States v. Newman, 664 F.2d 12, 19 (2d Cir.1981)).
Appellants’ failure to disclose that they did not pay or intend to pay the correct postage that was owed by their customers could indeed result in tangible harm to the customers. As every layman knows, postage must be fully prepaid on all mail at the time of mailing. See 39 C.F.R. Pt. 3001, Subpt. C, App. A § 3000.010. The jury was informed that there are three methods of demonstrating prepayment of postage for presorted third-class mail — adhesive stamps, metered stamps, or permit imprints. “Permit imprints are printed indicia indicating postage has been paid by the sender under the permit number shown.” *10539 C.F.R. Pt. 3001, Subpt. C, App. A, General Definitions .07. We are concerned in this case only with permit imprint mailings. A permit to use imprints is obtained by applying to the post office where mailings are to be made and paying a prescribed fee. Upon issuance of the permit, the post office opens an advance deposit trust account for the permit holder against which drawings are made for postage. Each piece of mail sent under permit must bear the permit imprint which indicates that postage has been paid, and the postage must be charged against the permit holder. For this reason, each “Statement of Mailing with Permit Imprints”, Form 3602, must contain the name and address of the permit holder.
AMS had a permit to use imprints. So also, however, did many of its customers. Although AMS insisted that all of its customers’ postage checks be made payable to it, when it used a customer’s permit number, as it often did, it channeled the postage money through that customer’s advance deposit trust account. This was done by drawing against AMS’s account, depositing the withdrawn funds in the customer’s trust account and immediately withdrawing the funds from the latter and redepositing them in the former. In this manner, the post office was able to identify the customer and establish whether it was complying with all its permit requirements. The customer’s permit would be revoked if it was used in operating any unlawful scheme or for any noncompliance with the regulations governing the use of permit imprints. See Domestic Mail Manual (DMM) § 145.2.22.
AMS processed both regular and nonprofit bulk mail for its customers. One of its nonprofit mailers, the American Institute for Professional Education, mailed between 12 and 15 million pieces of mail a year. “Nonprofit bulk mail is third-class mail mailed by authorized nonprofit organizations or associations of the following types [religious, educational, etc.].” 39 C.F.R. Pt. 3001, Subpt. C, App. A § 300.-0212. See also DMM §§ 623.1, 623.2.21. When AMS processed mailings for the American Institute, or any of its other nonprofit customers, it used the customer’s mailing permit. A Form 3602 had to be prepared and signed by either the “Permit Holder or Agent”. In almost every case, the Statement was signed by an AMS representative as Agent for the Permit Holder. Each Form 3602 carried a clear printed warning that “[b]oth principal and agent are liable for any postage deficiency incurred.” Unlike my colleagues, I am prepared to assume that the jurors could read the numerous Form 3602’s that were placed in evidence, and that the most untutored among them knew what was meant by the simple statement that both principal and agent were liable for postage deficiencies.
Once the trier of fact has found for the Government, all permissible inferences must be construed in favor of the Government. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Martino, 759 F.2d 998, 1002 (2d Cir.1985). Instead of discussing the above-quoted Form 3602 clause and the only logical conclusion the jury could draw from it, my colleagues simply disregard it. They say that whether or not the post office has recourse against appellants’ customers is “irrelevant”. Perhaps it is this strange logic which leads them to conclude that the only harm in this case is “metaphysical”.
My colleagues also disregard the provisions of the mail regulations which provide that nonprofit bulk mail is third-class mail “mailed” by authorized nonprofit organizations and which forbid such organizations to “mail” at the special rates unless their applications to “mail” at the special rates are approved. See 39 C.F.R. Pt. 3001, Subpt. C, App. A § 300.0212; DMM §§ 623.1, 623.2.21, 642.4. The DMM provides that, “[notwithstanding any statement contained in this manual or the statements of any employee of the United States Postal Service, the burden rests with the mailer to assure that he has complied with the prescribed laws and regulations governing domestic mail.” DMM § 111.3. Nonprofit organizations, such as the American Institute, cannot escape their *106designation as “mailers” by using the services of AMS. As a result of the majority’s unfortunate holding that appellants’ customers got everything to which they were entitled, if the post office decides to seek recovery of the underpayments from “mailers” such as the American Institute, these “mailers” surely will be met with the defense of collateral estoppel if they attempt to claim over against appellants. See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).
THE CHARGE
In instructing the jury concerning the law which is pertinent on this appeal, the district judge commenced his discussion by reading 18 U.S.C. §§ 1341 and 1343, the statutes which appellants were charged with violating. This was perfectly proper. Williams v. United States, 328 F.2d 256, 262 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964); Smith v. United States, 269 F.2d 217, 218 (D.C.Cir.), cert. denied, 361 U.S. 865, 80 S.Ct. 130, 4 L.Ed.2d 108 (1959); Maynard v. United States, 215 F.2d 336, 339 (D.C.Cir.1954). Then, with the obvious assistance of Devitt and Blackmar’s authoritative work, Federal Jury Practice and Instructions, he paraphrased and enlarged upon the statutes, referring first to the mail fraud statute and then in identical language to the wire fraud statute:
In order to establish that the defendants are guilty of mail fraud, the government must prove beyond a reasonable doubt, first, that the defendants made up a plan or scheme which was reasonably calculated to defraud another or for obtaining money or property by means of false pretenses, representations, or promises; second, that for the purpose of carrying out the scheme or attempting to do so, the defendant used the United States mails or caused the United States mails to be used in the manner charged in that particular count; and third, that the defendant did so knowingly and with intent to defraud, (emphasis supplied).
He then charged:
The word scheme includes any plan or course of action intended to deceive others and to obtain by false or fraudulent pretenses, representations or promises money or property from persons so deceived.
A statement or representation is false or fraudulent if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with an intent to defraud.
He continued:
A statement or representation may also be false or fraudulent when it constitutes half a truth or effectively conceals a material fact with intent to defraud.
A material fact is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. To act with intent to defraud means to act knowingly, and with a specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self.
Finally, the court said:
The mail fraud statute can be violated whether or not there’s any loss or damage to the victim of a crime.
Reference to Devitt and Blackmar will disclose that the district judge hewed closely to their recommended instructions. While these instructions are not the equivalent of Holy Writ, they have been widely adopted and are eminently correct. See, e.g., United States v. Alexander, 743 F.2d 472, 478 (7th Cir.1984); United States v. Feldman, 711 F.2d 758, 765 (7th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 317 (1983); United States v. Seymour, 576 F.2d 1345, 1347-48 (9th Cir.), cert. denied, 439 U.S. 857, 99 S.Ct. 171, 58 L.Ed.2d 164 (1978). Moreover, both the Government and appellants based their requests to charge in large measure upon *107Devitt and Blackmar, and so indicated to the district court.
Nowhere in appellants’ principal brief or reply brief is there a contention that the district court erred in its charge to the jury. See Fed.R.App.P. 28(a)(4); Sullivan v. Town of Salem, 805 F.2d 81, 87 (2d Cir.1986); Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08 (5th Cir.1985); United States v. Tamura, 694 F.2d 591, 598 (9th Cir.1982). As a result, the correctness of the charge has not been briefed by the Government. Nonetheless, my colleagues have taken it upon themselves to find error. They say that “[t]o the extent that the charge permits the jury to find an intent to defraud based solely on the defendants’ appropriation of a benefit to themselves, it is error.” I find no such permission given in the charge. In the above-quoted portions of the charge, the district court listed three elements that the Government was required to prove, and the third of these was that the defendants acted “knowingly, with the intent to defraud.” Since both the mail fraud and wire fraud statutes were involved, this charge was given twice. Indeed, when the jury came in for instructions, it was given a third time. On three occasions, the court told the jury that the defendant had to act “knowingly, with intent to defraud.” The court charged the jury that “if ... any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”
I have read the charge very carefully, and nowhere can I find any basis for the majority’s statement that the court erred in charging the jury that “contemplated harm is not an element of fraudulent intent.” The district court charged only that “[t]he mail fraud statute can be violated whether or not there’s any loss or damage to the victim of a crime.” There was nothing wrong with this. See United States v. Margiotta, supra, 688 F.2d at 121; United States v. Von Barta, 635 F.2d 999, 1005-06 (2d Cir.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981).
The indictment charged, and the Government proved, that appellants, through false representations and the concealment of material facts, induced their customers to prepay postage money for mailing the customers’ documents. The district court charged the jury without exception that “[a] material fact is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction.” I take it as a given that every legitimate businessman wants to operate his business honestly and to avoid dealing with those who would do otherwise. I would like to think my colleagues would agree that, had appellants’ customers known that appellants were thieves and embezzlers, who would pocket over 41 percent of the money advanced to them for postage, the customers would have taken their business elsewhere. See United States v. Hasenstab, supra, 575 F.2d at 1038. Appellants’ scheme, which deprived their customers of the right to have their business conducted honestly, was a scheme to defraud. United States v. Bohonus, 628 F.2d 1167, 1172 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980).
Our decision in United States v. Regent Office Supply Co., supra, 421 F.2d 1174, is not to the contrary. Regent was a most unusual case in that it was tried upon stipulations of fact and admissions. The district court was asked to determine whether certain stipulated representations by the defendant’s sales agent constituted mail fraud; viz., that the agent had been referred by a friend of a customer or an officer of a corporate customer, or that the agent or a friend had stationery which had to be disposed of. Id. at 1176. “The reaction, if any, of any customers to the representations or the effect, if any, of such reaction on the commercial transactions was not revealed.” Id. There was no evidence that any of the customers failed to receive merchandise of the quality promised. Id. at 1177. In viewing the paucity of proof, this Court said:
Without a fuller factual disclosure than here afforded, we are confronted with the proposition of simply declaring that any untrue statement designed to obtain the sympathetic ear of a potential cus*108tomer comes within the purview of the mail fraud statute. We believe it prudent to avoid this pitfall.
Id. at 1178. The Court then concluded: Does solicitation of a purchase by means of false representations not directed to the quality, adequacy or price of goods to be sold, or otherwise to the nature of the bargain, constitute a “scheme to defraud” or “obtaining money by false pretenses” within the prohibition of 18 U.S.C. § 1341? We hold that, as here presented, it does not and the convictions should be reversed____ But this is not to say that we could not, on different facts or more specific proof, arrive at a different conclusion.
Id. at 1179.
The instant case supplies the “different facts” and “more specific proof”. Here, appellants’ customers were deprived of their chance to bargain with facts material to the bargain before them. Here, in the language of Regent Office Supply, “fraud in the bargaining may be inferable from facts indicating a discrepancy between benefits reasonably anticipated because of the misleading representations and the actual benefits which the defendant delivered, or intended to deliver.” Id. at 1182.
In United States v. London, 753 F.2d 202 (2d Cir.1985), the indictment charged that the defendant and his cohorts devised a scheme “to obtain money by means of false and fraudulent pretenses, representations, and promises____” Id. at 206. Appellant in that case argued that the court’s charge was inadequate because it failed to require a finding of contemplation of actual harm or injury before the jury could convict appellant of participating in the scheme with which he was charged. Id. at 205. Rejecting this argument, we said that there was nothing in the case of United States v. Siegel, supra, 717 F.2d 9, upon which appellant London relied, “to indicate that it is error for a court to fail to charge a jury with the specific language ‘the prosecution must show that some harm or injury was contemplated by the scheme.’ ” Id. at 206. We also said, quoting Regent Office Supply, supra, that harm or injury may be inferred “when the scheme has such effect as a necessary result of carrying it out.” Id. Quoting again from Regent Office Supply, we said that “[w]here the false representations are directed to the quality, adequacy or price of the goods themselves, the fraudulent intent is apparent because the victim is made to bargain without facts obviously essential in deciding whether to enter the bargain.” Id. (emphasis added in opinion). These statements are clearly applicable to the charge in the instant case.
CONCLUSION
The Government’s proof was overwhelming. Defense counsel conceded in summation that “the numbers and the statements that [the prosecutor] made ... about the postage shortage are all absolutely true.” Defense counsel also told the district court at the close of proof:
They [appellants] do not argue with the Government’s evidence that the post office received less postage than it was due. Nor do they argue with the evidence that while they owned the American Mailing Systems their employees buried higher rate mail within lower rate mail, and even dumped mail on occasion.
Although I have proceeded up to this point upon the same assumption which appellants’ customers made — that all their mail went out — the fact of the matter, as appellants concede, is that some of the mail was dumped. On one occasion, approximately thirty bags of mail were destroyed. Figuring about 200 pieces of mail to a bag, this totals about 6,000 pieces. My colleagues, ignoring the fact that appellants’ customers received no credit for either the destroyed mail or the unused postage, forgetting that Mr. Whitaker, the “dumper” of the mail, was a co-conspirator of appellants, and, paying only lip service to the requirement that all evidence with regard to the destruction of the mail must be construed in the light most favorable to the Government, blithely dismiss the destruction of the 6,000 pieces as unimportant.
There were other occasions when appellants cheated a customer without also *109cheating the post office. Presorted first-class mail can be sent at a lower rate than unsorted. AMS presorted the mail without letting the client know that it had done so and pocketed the savings from the unsorted rate which the client had advanced. My colleagues call this a “legitimate” charge; I suggest that no hidden charge ever can be “legitimate”. I point out also that an overcharge of $60 per month on a continuing basis, as here, adds up to the non-trivial sum of $720 per year. My colleagues pooh-pooh this as an indicia of fraud; I do not.
In all probability, the federal authorities would not have indicted appellants if the just described incidents of wrongdoing were all that were involved. However, as everyone, including my colleagues, concede, there is no doubt whatever that appellants secretly pocketed over $400,000 that had been entrusted to them for other purposes. Purely and simply, they embezzled it. See 2 LaPave and Scott, Substantive Criminal Law § 8.6 (1986); 13 Vt.Stat.An-not. § 2531 (1974). I believe this is exactly the type of wrongdoing the mail fraud statute was designed to prevent. I regret that this Court is now holding otherwise.
ADDENDUM
Judge Newman’s concurring opinion was not received until after the above dissent was written. Because Judge Newman’s comments highlight in a few words the differences that separate the majority and the dissent, they merit comment.
These differences inhere in the analogy which the concurring opinion attempts to draw between the United States Post Office and “the supplier of printed forms”, “the landlord”, “the telephone company”, or appellants’ other “trade creditors”. The third party to appellants’ scam was not some unidentified “trade creditor” of appellants but was instead the United States Government, to whom appellants’ customers owed both allegiance and postage. The analogy takes no cognizance of the undisputed fact that appellants conned their customers into entrusting them with the customers’ postage money, which appellants specifically undertook and agreed to transmit to the post office. The concurrence does not deny that appellants owed a fiduciary obligation with regard to the postage funds thus entrusted to them. The concurrence does not, and indeed cannot, challenge the dissent’s assertion that appellants embezzled their customers’ funds. The concurrence overlooks the undisputed facts that appellants hid their misappropriations from their customers by sending them false statements of mailing, certified with a sealing stamp which had been stolen from the post office. Finally, the concurrence does not dispute the possibility that appellants’ customers might be held liable for the unpaid postage. In short, Judge Newman seems to be discussing an entirely different case than the one presently before us.
Simplification of the issues is always a result to be desired. I suggest, however, that the issue whether appellants were guilty of mail and wire fraud can be more accurately resolved by reference to three short statements of undisputed fact.
1. Appellants’ customers entrusted appellants with the customers’ postage money, which appellants kept separate and apart from their own funds and which they undertook and agreed to transmit to the post office.
2. Until the postage money was delivered to the post office, it remained the property of appellants’ customers.
3. Appellants did not deliver all of the customers’ funds to the post office as they had agreed to do, but, instead, stole, or in Judge Meskill’s words “appropriated”, over $400,000 of those funds.
I submit that appellants did not receive absolution from the embezzlement of their customers’ money by stuffing and burying higher postage rate mail under lower postage rate mail so as to conceal the evidence of their thefts.
. In order to arrive at a correct decision, the reader should know that every question by defense counsel concerning customer satisfaction was related to and based upon the customers' assumption that all of the mail for which they had paid postage to appellants went out. No customer testified that he was satisfied with the fact that appellants had embezzled over $400,-000 of customer money. Unlike my colleagues, the jury was not taken in by this clever questioning ploy of the defense lawyers.