Mail and wire fraud

In the United States, mail and wire fraud is any fraudulent scheme to intentionally deprive another of property or honest services via mail or wire communication. It has been a federal crime in the United States since 1872.[1]

Mail

18 U.S.C. § 1341 provides:

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, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a Presidential declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.[2]

Wire

18 U.S.C. § 1343 provides:

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 under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.[3]

Honest services

Main article: Honest services fraud

18 U.S.C. § 1346 provides:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.[4]

Elements

There are three elements to mail and wire fraud:

  1. Intent;
  2. A "scheme or artifice to defraud" or the obtaining of property by fraud; and,
  3. A mail or wire communication.[5]

To be fraudulent, a misrepresentation must be material.[6]

Mail fraud applies only to United States domestic mailings and use of interstate carriers (UPS, FedEx) which must originate in one state, and successfully terminate pursuant to the address label inside another state, a transportation that is termed "interstate" (over which Congress has power to regulate) and does require that the mailing cross at least one state line into another state; wire fraud has been expanded by Congress to include foreign wire communication or interstate connections via (e.g.) an e-mail server or telephone switch or radio communication.[7]

Case law

In McNally v. United States (1987), the Supreme Court held that 18 U.S.C. §§ 1341 and 1343 did not reach "honest services fraud".[8] Congress responded by passing 18 U.S.C. § 1346. In Skilling v. United States (2010), the Court construed § 1346 to apply only to bribes and kickbacks.[9]

Mail fraud schemes

There are many types of mail fraud schemes, including employment fraud, financial fraud, fraud against older Americans, sweepstakes and lottery fraud, and telemarketing fraud. Additional information about these various types of mail fraud schemes can be found on the United States Postal Inspection Service website.

In the 1960s and 1970s, Chief Postal Inspector Martin McGee, also known as "The Top Sleuth" or "Mr. Mail Fraud", led his department in exposing and prosecuting numerous mail fraud swindles such as land sales, phony advertising practices, insurance ripoffs, and fraudulent charitable organizations using the mail.[10]

Abuse and overcriminalization

18 U.S.C. §1341 and 18 U.S.C. §1343 are extremely broad, criminalizing every "scheme to defraud" that "causes" mails to be used at any incidental stage.[11] This has been held by the Supreme Court to encompass "everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future."[12] Lower courts have progressively expanded this ruling, finding that the act "puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the 'reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society'".[13] As interpreted, these requirements are not difficult to meet, and while the Justice Department claims to defer federal prosecution for petty local fraud, no legal mechanism prevents abuse of this limitation.[14] As a result, seemingly innocent acts are prosecuted as federal crimes.

See also

Notes

  1. ↑ "Mail Fraud Schemes". www.postalinspectors.uspis.gov. US Postal Information Service. Retrieved 27 October 2016.
  2. ↑ 18 U.S.C. § 1341.
  3. ↑ 18 U.S.C. § 1343.
  4. ↑ 18 U.S.C. § 1346.
  5. ↑ 18 U.S.C. § 1343.
  6. ↑ Neder v. United States, 527 U.S. 1, 23 (1999).
  7. ↑ see also J. Pollock, Criminal Law 545 (9th ed. 2009).
  8. ↑ McNally v. United States, 483 U.S. 350 (1987).
  9. ↑ Skilling v. United States, 30 S. Ct. 2896 (2010).
  10. ↑ Shu Shin Luh (January 17, 2000). "Martin McGee, former postal inspector". Chicago Sun-Times. Retrieved November 19, 2012 – via Highbeam.com.
  11. ↑ Schmuck v. United States, 489 U.S. 705 (U.S. Supreme Ct. 1989).
  12. ↑ Durland v. United States, 161 U.S. 306 (U.S. Supreme Ct. 1896).
  13. ↑ Blachly v. United States, 380 F.2d 665 (5th Cir. 1967).
  14. ↑ Williams, Gregory H. (1990). "Good Government By Prosecutorial Decree: The Use and Abuse of the Mail Fraud Statute". Arizona Law Review. 32: 137–171.

References

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