NCJ Number
204672
Journal
United States Attorneys' Bulletin Volume: 49 Issue: 6 Dated: November 2001 Pages: 6-22
Date Published
November 2001
Length
17 pages
Annotation
This article provides an overview of issues that may be associated with the prosecution of fraud under the Federal mail and wire fraud statutes.
Abstract
In discussing a unitary statutory structure of mail fraud and wire fraud, the article outlines the elements of mail and wire fraud, which have identical elements except for the characteristics of the transmission. Although the mail fraud statute appears to have two prongs and to prohibit both schemes to defraud and schemes to obtain money and property by means of false and fraudulent pretenses, representations, and promises, the U.S. Supreme Court has held that these are merely two ways of saying the same thing. The distinction between the two parts of the mail fraud statute is that a scheme to defraud includes material omissions and a scheme by false representations does not. The article notes that it is not necessary for the defendant to gain or for the scheme to succeed in order to convict the defendant. The victim does not have to suffer a loss, because the crime consists of devising the scheme and executing or attempting to execute it. Congress did not define "scheme or artifice to defraud" when it first coined this phrase, nor has it since. Instead, that expression has taken on its current meaning from 111 years of case law. Principal case law is summarized. Mail fraud is a specific intent crime; however, the specific intent required relates only to the intent to defraud. Regarding mail fraud, it is not necessary that the scheme contemplate the use of the mails as an essential element, nor is it necessary for the Government to show that the defendant mailed anything, so long as he/she caused it to be mailed. The mailing involved must be "in furtherance" of the scheme. The case law on this issue is reviewed in the article. Other issues discussed are the mailing requirement, the materiality requirement, the victim's status in the context and dynamics of the offense, the failure to disclose, single versus multiple schemes, withdrawal, multiple counts, venue, the deceived and the defrauded, and "honest services." The latter term refers to the mail fraud statute's reference to the defrauding of another of the "intangible right of honest services."