Mail and Wire Fraud
The mail and wire fraud statutes are the most commonly used in federal fraud prosecutions.
18 U.S.C. §1343, provides as following:
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, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.''
The mail and wire fraud statutes are identical to each other and the only difference between them is that to be convicted under the mail fraud statute, any use of the mails is sufficient, but to be convicted under the wire fraud statute, the wire transmission must actually be an interstate or foreign.
In order to obtain conviction under the mail fraud statute, the government must prove (1) a scheme to defraud and (2) use of interstate wire in furtherance of that scheme. To convict under the wire fraud statute, the government must show that interstate or foreign wires were used in furtherance of the scheme.
Not every mailing will qualify as basis for prosecution. For instance, regular mailings conducted in the course of legitimate business activity do are not illegal if they ar enot part of the illegal scheme.
A scheme to defraud must necessarily be based on the intent to defraud. Government must establish that the defendant had the specific intent to defraud. As a part of this requirement, the prosecution must prove that the defendant willfully participated in a scheme and that he or she was aware of its fraudulent nature. The term “scheme to defraud” means that the defendant misrepresents or omits information for the purpose of deceiving others. The fraud scheme may involve defrauding individuals of money or other tangible property interests as well as actions directed to intangible rights and interests. The latter is used in corruption, bribery, and vote fraud prosecutions.
The mail and wire fraud statutes are also used in prosecutions of investment and loan frauds, especially the advance fee scheme, where a victim pays an up-front fee for a promised service, which is never delivered.
It is important to realize that in a mail fraud prosecution, it does not matter whether the scheme was successful and the victim has actually been defrauded. All the government need to prove is that the defendant actually engaged in illegal activity intended with the intent to defraud and used the mails in furtherance of the scheme. This explains a very high rate of federal convictions in mail and wire fraud prosecutions. In one case, United States v. Helmsley, the defendant was convicted of tax fraud and mail fraud simply based because he used the mails to submit false tax returns. The defendant appealed arguing that the government did not prove that he was actually obligated to pay any taxes. The Second Circuit Court ruled that ''the absence of proof of taxes due to New York state is immaterial because success of a scheme to defraud is not required.''
There are certain defenses available to defendants in mail and wire fraud cases. One is the good faith defense where the defendant claims that he indented to carry out the promises and representations. This defense is the most solid one because, if successful, it eliminates the element of intent to defraud necessary for conviction. However, this “intent to deliver” must be seriously substantiated by facts; the defendant may not just claim that he “believe” that he could deliver on promises where all the evidence would indicate that it was unreasonable to have such a belief, although it could be considered as one of the factors in determining the defendant’s intent.
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