Defending against mail and wire fraud

One of the realities of the criminal process is that prosecutors generally do everything they can to seek criminal penalties for an offender. In many cases, prosecutors try to tag as many charges on a defendant as possible in order to maximize penalties, even if charges are largely duplicative. One area where this frequently happens is with fraud cases.

Whether a defendant is facing criminal charges for mortgage fraud, tax fraud, insurance fraud, health care fraud, or some other form of fraud, it is not at all uncommon for prosecutors to tack on mail and wire fraud charges. Under federal law, mail and wire fraud have essentially the same elements, other than the difference in the means of communication.

In order to successfully prove mail and wire fraud charges, prosecutors are required by law to provide enough evidence to demonstrate, beyond a reasonable doubt, that the defendant made (1) use of mail or wire communications in foreseeable furtherance (2) of a scheme to defraud (3) with the intent to deprive another (4) of property or honest services (5) by means of a material deception. These are the basic elements in mail and wire fraud cases.

Each of these elements, of course, involves specific considerations and rules established by case law. For example, to be “in furtherance of” a fraud scheme, a communication need not actually benefit the scheme—even unsuccessful communications can fulfill this element, as long as the defendant intended the communication to be a part of the scheme. Communications—successful or unsuccessful—which are not intended to be in furtherance of a fraud scheme do not fulfill this element.

With respect to the second element, one issue that can arise is the audience at which the scheme was aimed. Schemes which aim to deceive those who fail to exercise reasonable prudence may, in some cases, not come within the scope of mail and wire fraud statutes. There is variance on this point among the courts, though.

In our next post, we’ll continue looking at this issue.

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