with whom CUDAHY, Circuit Judge, joins, dissenting.
I do not agree with the majority’s conclusion that the use of the “inherent relationship” test in determining when to give a lesser included offense instruction contravenes either the language or purpose of Federal Rule of Criminal Procedure 31(c). Accordingly, I would leave United States v. Cova, 755 F.2d 595 (7th Cir.1985), and its predecessors intact as the law of this circuit. Applying that test, I conclude that the district court erred in denying the defendant’s requested lesser included offense instruction on odometer tampering.
I.
It seems to me inherently contradictory to discuss the appropriateness of giving any jury instruction without reference to the evidence adduced at trial, which will always permit the most complete assessment of what instructions the record will support. Nonetheless, the majority concludes that to do so would violate the text of Rule 31(c), which provides in relevant *391part that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged....” The rule does not specifically mention instructions. Nevertheless, we know they are necessary to inform the jury of the existence and elements of appropriate offenses. None of the reasons advanced by the majority persuade me that a more constricted analysis of whether an instruction is supportable is necessary or even desirable simply because the proposed instruction presents the jury with an optional lesser charge. If the record fairly and rationally supports a tendered instruction, and if the instruction comports with the law on the subject and does not unfairly prejudice any party, we have no grounds for barring it.
To confine the determination of whether to give an instruction to an analysis of statutes is to impose an artificial restraint on the instruction formulation process. Nowhere is this artificiality more apparent than in Cova, the case that the majority herein overrules. In that case this court held that in light of the manner in which the government had proved its case, conspiracy to possess cocaine was a lesser included offense of conspiracy to distribute it. Conspiracy was a lesser included offense because the government offered proof that the defendant’s method of supposed distribution included obtaining possession. 755 F.2d at 598. The majority of this en banc court concludes that Cova’s result could not be sustained under the element comparison test “[b]ecause it is possible for persons acquiring lawful possession to conspire to distribute,” an occurrence that is probably rare but, more significantly, is completely alien to the government’s theory in Cova. See supra n. 8. In plain terms, had the “elements” test been applied in Cova, the government would have lost a case that it had proved for a reason that had nothing to do with the case itself.
The test applied in Cova does not really change the question to be asked under Rule 31(c) in determining whether an instruction on a lesser offense should be given; rather, it simply expands the scope of the inquiry undertaken in answering that question. After all, it is the indictment that delimits the “offense charged” by the government in a particular case. The specific offense is further defined by the proof presented by the government at trial. Permitting consideration of the indictment and succeeding evidence, in addition to the elements set forth in the relevant statutes, can only lead to a more complete and accurate determination of the character of the “offense charged” in a given case, and of the lesser offenses necessarily subsumed therein. An assessment of what offenses the government has proved beyond those it charged can hardly be conducted without considering what the government’s proof was.
The need for a complete method of determining what lesser offenses are included within a charged offense is particularly great where, as here, the statute at issue is one that can be violated in a number of ways. Indeed, the past several years have seen the enactment of a number of criminal statutes that can be violated in various ways, and that in fact are specifically predicated on violations of any number of other legal provisions. See, e.g., 18 U.S.C. § 1963 (RICO); and 21 U.S.C. § 848 (Continuing Criminal Enterprise). The mail fraud statute at issue herein, 18 U.S.C. § 1341, also defines a violation in terms of other offensive conduct. It does not, however, attempt to limit the specific varieties of pertinent conduct in order to afford the government broad authority to battle particular fields of crime. These statutes are umbrella-like and, especially where RICO and the CCE statute are concerned, carry extensive penalties. They are exactly the type of offenses for which consideration of lesser offenses is appropriate under Rule 31(c), but it is hard to imagine how any lesser included offense could ever be considered under the elements test, precisely because these “greater” offenses are so broadly defined. The lesser offense, because of its specific nature, will always contain elements not necessary for conviction under the broader statute. It is this exact concern that recently led a panel of the Tenth Circuit, in three separate opinions, to conclude that both the “elements” test and the “inherent relationship” test *392are valid, and that the use of each should be dictated by the nature of the individual case. United States v. Cooper, 812 F.2d 1283, 1285-86 (10th Cir.1987); id. at 1287 (Baldock, J., concurring); id. at 1289 (McKay, J., concurring and dissenting).
The majority also decries the “inherent relationship” test because it necessarily results in the abandonment of the rule of “mutuality,” which allows one party to request an instruction on a lesser included offense only if the other party also could have done so. This rule is inconsistent with a test for lesser included offenses that takes into account the evidence introduced at trial because the government is not permitted to alter the charges contained in the indictment when it submits them to the trier of fact if such alteration would prejudice the defendant, i.e. (as is relevant here) if the original indictment did not put the defendant on notice of the possibility of the alternate charge. See generally Stirone v. United States, 361 U.S. 212, 215-18, 80 S.Ct. 270, 272-74, 4 L.Ed.2d 252 (1960); United States v. Cina, 699 F.2d 853, 857-58 (7th Cir.1983). This latter rule, it should be noted, is the product of concerns for fairness at trial and the recognition of the role of an indictment in informing a defendant of the nature of the charges against him, as opposed to any specific concern for the relationship of the offenses to one another. The Whitaker court, in formulating the “inherent relationship” test, recognized that these principles of fairness would be violated if the government were permitted to submit an alternative charge to the jury that, although supported by the trial record, was not sufficiently foreshadowed by the indictment. Accordingly, that court determined that the principle of mutuality should be “dispensed] with” so that the “inherent relationship” test could be applied. 447 F.2d at 320-22.
I agree with the Whitaker court’s conclusion that the principle of mutuality is not necessary to the fair administration of justice and that it is properly discarded in favor of the “inherent relationship” test. In an ideal world, where all lawyers would be omniscient, both sides would be able to request instructions on lesser offenses based on the full trial record, which would have been anticipated before trial by omniscient defense counsel. In the real world, however, fairness requires that the prosecution be allowed to request only instructions that could .fairly have been expected prior to trial. Defendants should be allowed to request instructions based on all the information available to them at the time of the request, including the trial record, thereby waiving any claim that they were not on notice. It may be, as the Whitaker court concluded, that this distinction gives no unfair advantage to defendants over prosecutors because prosecutors, who bear the burden of proof, will be able to assess the likely state of the record in advance and make their charging decisions accordingly. 447 F.2d at 321. Even if there is some advantage gained by defendants due to the abandonment of mutuality, that advantage is outweighed by the interests of justice that favor continued adherence to the “inherent relationship” test. This is hardly the only area of criminal trial law in which different rights accrue to the two respective sides.1
II.
I turn now to an evaluation of the instant case under the test originally formulated in *393Whitaker and refined by this court in Cova and several preceding cases, as well as in the panel opinion in this case. A comparison of the elements of the two crimes, mail fraud and odometer alteration, reveals (as the majority concludes) that the latter does not fall within the former as they are defined in the statute; proof of odometer alteration is not an element of mail fraud. In fact, no particular crime or unlawful conduct (or, for that matter, particular lawful conduct) is proscribed by the mail fraud statute with the exception of the act of mailing or causing matter to be mailed. This illustrates an earlier point, i.e. that statutes like the mail fraud provision, broadly drafted to encompass whole classes of illegal activity, will have few if any lesser included offenses under the elements test. Nevertheless it is clear to me that when the indictment and trial record are taken into account, the offense of odometer tampering should be considered a lesser included offense of mail fraud in this case.
In the instant case, the mailings that were the subject of the charges against the defendant were not separate from the fraudulent acts of which he was accused, but followed those acts both logically and chronologically. The mailings of the title applications by the defrauded car dealers, which the government claimed were caused by the defendant, were the direct result of the sales of altered cars. These sales were in turn the result of the odometer alterations that the defendant now asserts are lesser included offenses. As the government proved this case, it had to prove odometer tampering because tampering led to sale, which led to mailing. Had the charged mailings occurred before the tampering and/or in furtherance of the scheme (e.g. a letter from defendant to a confederate instructing him on tampering procedures or to a dealer proposing a fraudulent sale), it would not have been necessary to prove any fraudulent conduct beyond that of devising the scheme.2 As is frequently the case, though, the government proved fraud in this, instance by proving execution. In this case it had to prove execution because the charged mailings would not have occurred if the fraud had not been carried out. In this case, therefore, “proof of the lesser offense [was] necessarily presented as part of the showing of the commission of the greater offense.” Whitaker, 447 F.2d at 319 (footnote omitted).
III.
The conclusion that odometer tampering should be considered as a lesser included offense of mail fraud in this case does not complete the inquiry necessary to determine whether an odometer tampering instruction should have been given. Even if a lesser offense is included in a greater offense (either under the majority’s test or under the Cova test), a lesser offense instruction should not be given unless the evidence permits the jury “rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). See also United States v. Medina, 755 F.2d 1269, 1273 (7th Cir.1985). As Judge Swy-gert pointed out in his original panel opinion, this requirement serves two functions: it prevents a defendant from using a lesser offense instruction simply as a device to allow him to ask for mercy from the jury, and it preserves the district judge’s domain over questions of law and the jury’s over questions of fact. 776 F.2d at 1371-72. In the present case the defendant presented at trial a rational basis upon which the jury could have found him guilty of odometer tampering but not guilty of mail fraud. *394The district court therefore erred in denying the defendant’s request for the odometer tampering instruction.
At the close of the government’s case, the defendant moved for a directed verdict of acquittal, basing his motion in part on United States v. Galloway, 664 F.2d 161 (7th Cir.1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982), a case that concerned a nearly identical mail fraud scheme. In Galloway the defendant argued that his conviction under the mail fraud statute was precluded by the fact that the title documents mailed by the car dealers actually led to his capture, i.e. that they were counterproductive to rather than in furtherance of his fraudulent scheme. This court disagreed, concluding that the mailings were necessary to complete the retail sale of the automobiles and that they could not therefore be considered counterproductive to the scheme. 664 F.2d at 165, distinguishing United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). In Galloway, however, the title applications that were contained in the unlawful mailings did not include odometer readings because none were required. This court noted that “[s]uch a requirement, of course, might have made detection of the scheme more likely.” 664 F.2d at 165 n. 7.
In his motion for a directed verdict, the defendant argued that the odometer readings in the title forms mailed in his case (the existence and inclusion of which were not disputed) made them counterproductive to his scheme as a matter of law. The district court correctly denied the motion, holding that whether the mailings (with readings included) were so counterproductive to the scheme that they could not fairly be said to have been in its furtherance was a question for the jury.3 It is that holding, however, that required the court to grant the defendant’s request for an odometer tampering instruction. The defendant himself conceded that he had tampered with the odometers. It was therefore a rational possibility that the jury could have convicted the defendant of odometer tampering while acquitting him of mail fraud because it. found the mailing of the title forms inimical to the fraudulent car sale scheme. Because this rational possibility existed based on the record assembled at trial, the defendant was entitled to a lesser instruction on odometer tampering.
The test adopted today by the majority for determining the propriety of lesser offense instructions has one virtue: it is the simpler of the two to apply. In the end, though, it disserves the purpose for which such instructions are allowed by separating the inquiry from its proper foundation. That the Cova test is more complex is not so much the result of its own inherent difficulty as of the necessary complexity of trials. Where jury instructions are concerned, accuracy has always been the goal, both in the law as they state it and in the analysis of their support in trial records. I see no reason, either in Rule 31(c) or elsewhere, to turn to an antiseptic and unworldly formula, one which will, I believe, come to hinder both defense and prosecuto-rial efforts. Nowhere is this possibility made clearer than in Cova, the case that is overruled today. Accordingly I respectfully dissent from the affirmance of the defendant’s conviction.
. The majority also opines that it "seems desirable" that the same test be used for determining whether a lesser offense instruction should be given and for determining whether cumulative punishment and/or separate trial is permissible on two charged offenses. Supra p. 390. I do not see why this identity is required. If a more expansive test is used for instruction purposes, the result will be that in some cases both instructions will be allowed where the two offenses could be punished cumulatively or tried separately, i.e. where they are "separate” offenses under the elements test. I do not foresee any undesirable consequences flowing from this eventuality. If a defendant in such a case is acquitted on both charges he cannot be retried on either, not because of their relationship but because the acquittal itself acts as a bar. The same is true if the defendant is only convicted of the lesser offense; he could not be retried on the greater because his lesser conviction represents an implied acquittal on the greater charge. If he is convicted of the greater offense there is a theoretical possibility that the government could retry him on the lesser charge (because the jury never considered it), but this is highly unlikely. Of course, in a case such as the one I have just described the prosecution presumably would be free to charge both offenses initially and to seek consecutive sentences thereon.
. In view of this analysis, the original panel opinion may have gone farther than necessary in declaring generally that "there is an inherent relationship between mail fraud and the 'fraud' that underlies the mail fraud offenses." 776 F.2d at 1371. This may not always be the case, as the illustration in the text suggests. The analysis this court applied in Cova reflects, in my view, the correct use of information beyond the mere statutory elements by concentrating on the case as charged and tried, even though this may reflect some difference with the Whitaker court’s formulation. There is really no need to discuss in the context of jury instructions how a prosecutor would "generally” charge or prove mail fraud when a black-and-white indictment and a real evidentiary record are available.
. Trial Transcript, p. 114. In his closing argument to the jury, defendant’s counsel in fact argued that the mailings actually endangered the scheme to the point where they could not be considered "in furtherance." Id. at p. 173.