Abogado Aly: Mail and Wire Fraud: The Basics

Thursday, July 23, 2020

Mail and Wire Fraud: The Basics

Originally published by Jason B. Freeman.

What Is Mail and Wire Fraud?

Mail and wire fraud are essentially treated the same under the law—both require/involve a scheme to intentionally defraud another. Whether one is applicable depends, generally, upon whether the scheme at issue is perpetuated through the mail or through a wire transfer.

Notably, the scheme to defraud does not have to primarily use mail or wire to complete the fraud; the use of mail or wire at any point during the scheme may be sufficient to charge a defendant under the statutes.

Elements of Mail and Wire Fraud Offenses

For a defendant to be found guilty of mail or wire fraud, the following three elements must all be proven beyond a reasonable doubt:

The use of a scheme to defraud by using false promises or misrepresentations
The use of mail or wire, radio, or television communication in furtherance of that scheme
The intention to defraud another of money, property, or honest services

Use of mail is not limited to the United States Postal Service (USPS). Private couriers such as UPS or FedEx also can be used to satisfy mail fraud, as long as the courier operates interstate.

What Is the Necessary Intent?

Intent is a critical part of mail and wire fraud. Because mail and wire fraud are specific intent crimes, the government must prove that the defendant intended to:

Defraud or deceive through use of a fraudulent scheme;
Participate in the scheme knowing it was fraudulent; and
Harm the victim through use of the fraudulent scheme.

Importantly, it does not matter whether the defendant intended to use mail or wire, only that the defendant should have reasonably foreseen such use. For example, if a victim sends mail or wire to the defendant as a result of the scheme, the defendant may be found responsible.

Withdrawing from Mail and Wire Fraud

Federal courts in Texas allow defendants to prove that they withdrew from the scheme as an affirmative defense. To prove a withdrawal defense, the defendant must show that he or she (1) acted in a way contrary to the scheme’s objective and (2) communicated a withdrawal from the scheme to the co-schemers.

If a defendant can establish a withdrawal defense, he or she will not be liable for the mail or wire fraud charge, even if the scheme was ultimately completed by the co-schemers.

Penalties for Mail and Wire Fraud

The maximum sentence for mail and wire fraud charges is 20 years imprisonment and a fine of not more than $250,000 for individuals and $500,000 for organizations. However, udder the alternative fine provision, the fine can be up to twice the amount of gain or loss for the victim, even if that number exceeds the $250,000 or $500,000 maximum. Furthermore, courts can impose consecutive sentences for multiple mail and wire fraud charges.

Abogado Aly