Mail and Wire Fraud Law Firm

Federal prosecutors regularly charge individuals and entities with violating the mail fraud and wire fraud statutes—indeed, they are two of the most frequently prosecuted federal criminal laws. Both statutes have serious penalties, including lengthy prison sentences and substantial fines. If you are being investigated for or have been charged with violating the mail fraud and/or wire fraud statutes, then it is essential to hire skilled federal criminal defense lawyers to protect your rights.

We have decades of experience successfully representing individuals and entities under investigation and facing federal criminal charges for alleged violations of the mail fraud and wire fraud statutes. We pride ourselves on working hard and representing individuals the way we would want to be represented. If you have a matter that you would like to discuss with us, please contact us at (404) 658 – 9070.

Overview of Mail Fraud and Wire Fraud

Mail Fraud: The federal mail fraud statute, 18 U. S. C. § 1341, makes it a federal crime to use the United States mail in carrying out a scheme to defraud someone else. According to the Eleventh Circuit pattern jury instructions, in order to convict someone of violating the federal mail fraud statute, the government must prove beyond a reasonable doubt: “(1) the Defendant knowingly devised or participated in a scheme to defraud someone by using false or fraudulent pretenses, representations, or promises; (2) the false or fraudulent pretenses, representations, or promises were about a material fact; (3) the Defendant intended to defraud someone; and (4) the Defendant used the United States Postal Service by mailing or by causing to be mailed something meant to help carry out the scheme to defraud.”  To be clear, the statute does not only concern use of the United States mail; it also prohibits use of private or commercial interstate carriers for the same purposes.

Wire Fraud: The federal wire fraud statute, 18 U. S. C. § 1343, makes it a federal crime to use interstate wire, radio, or television communications to carry out a scheme to defraud someone else. The Eleventh Circuit pattern jury instructions provide that for the government to convict someone of violating the federal wire fraud statute, the government must prove beyond a reasonable doubt: “(1) the Defendant knowingly devised or participated in a scheme to defraud someone by using false or fraudulent pretenses, representations, or promises; (2) the false pretenses, representations, or promises were about a material fact; (3) the Defendant acted with the intent to defraud; and (4) the Defendant transmitted or caused to be transmitted by wire, radio, or television some communication in interstate commerce to help carry out the scheme to defraud.”

What are common defenses to alleged violations of the mail fraud and wire fraud statutes?

No knowledge of falsity: Both the mail fraud and wire fraud statutes hinge on the government proving beyond a reasonable doubt that the accused knew the representations or promises at issue were false at the time they were made. The Eleventh Circuit’s pattern jury instruction define a statement or representation as “false” or “fraudulent” if it is “about a material fact, it is made with intent to defraud, and the speaker either knows it is untrue or makes it with reckless indifference to the truth. It may be false or fraudulent if it is made with the intent to defraud and is a half-truth or effectively conceals a material fact.” Therefore, an accused may defend against wire and mail fraud charges by pointing to her good faith—for example, the evidence that she believed the statements at issue were true when she made them.

Lack of Materiality: Both the mail fraud and wire fraud statutes require the government to prove beyond a reasonable doubt that the accused made false representations or promises about a “material” fact. The Eleventh Circuit’s pattern jury instructions define a “a material fact” as “an important fact that a reasonable person would use to decide whether to do or not do something.” Thus, where the alleged false representation or promise at issue in a wire fraud prosecution concerns a seemingly incidental fact that a reasonable person would not have relied upon, lack of materiality may be an effective defense.

As an extreme hypothetical: Imagine a ticket-vendor sells $1,000 seats in an online marketplace to a professional sports event and promises customers that each seat purchased comes with a free hot dog, which is otherwise available at concessions for $3. Further, imagine that upon arrival at the event the customers receive the purchased seats but not the promised hot dog. If the federal government prosecuted the vendor for wire fraud, one possible defense would be to argue that the alleged false representation did not concern “a material fact”—given the tickets at issue cost $1,000, it is exceedingly unlikely that a “reasonable person would decide” to purchase the tickets based on the false promise of a free hot dog worth $3.

No Intent to Defraud: Both the mail fraud and wire fraud statutes require the government to prove beyond a reasonable doubt that the accused acted with “intent to defraud.” The Eleventh Circuit’s pattern jury instructions define “intent to defraud” as “act[ing] knowingly and with the specific intent to use false or fraudulent pretenses, representations, or promises to cause loss or injury.” Thus, proof of deception alone is not sufficient; instead, the government must also prove the accused acted with the specific intent to use the deception “to cause loss or injury.” Where there is only evidence of deception, not evidence of intent to cause loss, the accused may have a viable defense based on lack of intent to defraud.

Alleged fraud unrelated to use of the mail or wires: The government must prove beyond a reasonable doubt that the accused used the wires and/or the mail to further the scheme to defraud. Thus, if the only evidence is that the wires and/or mail were used, the defendant can argue that the government failed to meet this requirement. That said, the government need not prove that the accused accomplished the fraud through use of the wires and/or mail. For example, evidence that the accused used the mail and/or the wires to fool the victim or conceal the crime may be sufficient for the government to prove that the mail and/or wires were used in furtherance of the scheme to defraud.

Scheme does not pertain to money or property: The mail fraud and wire fraud statutes only prohibit schemes to defraud a victim of money or property. In Cleveland v. United States, 531 U. S. 12, 15 (2000), the Supreme Court ruled that the state of Louisiana had a regulatory interest in issuance of state and municipal licenses for video poker machines, but not a property interest. Thus, the Court ruled that the defendant’s false statements in applications to the Louisiana State Police for permission to operate video poker machines did not establish mail fraud.

Evidence improperly obtained: When the government obtains evidence of alleged wire fraud and mail fraud through searches and wiretaps, the accused may have a viable argument that the evidence should be suppressed if the evidence was collected in violation of the accused’s Fourth Amendment rights against “unreasonable search[es] and seizure[s].”

How does the federal government count crimes under the mail fraud and wire fraud statutes?

Each unique use of the interstate wires (or radio and television communications) that is part of the scheme to defraud counts as a separate violation of the wire fraud statute. Likewise, each distinct use of the United States mail that is part of the scheme to defraud is a separate violation of the mail fraud statute.

What is the maximum penalty for violating the mail fraud and/or wire fraud statutes?

Subject to certain potential enhancements, the maximum penalty for violation of the wire fraud and mail fraud statutes is 20 years’ imprisonment and an applicable fine. If the conduct affects a financial institution, or relates to a presidentially declared major disaster or emergency, then the maximum penalty is 30 years’ imprisonment and a $1 million fine.

To prove a violation of the mail fraud and wire fraud statutes, does the government have to prove that anyone was defrauded?

No, courts have repeatedly affirmed that the government does not need to prove loss or injury to establish violations of the mail fraud and wire fraud statutes. Instead, the relevant question is whether the accused intended to defraud someone else.

To prove a violation of the mail fraud and wire fraud statutes, does the government have to prove that the alleged fraud was intended to deceive a reasonable person or merely someone?

To prove a violation of the mail fraud and wire fraud statutes, the government must prove that the accused meant to deceive someone—even if the intended victim was naïve or gullible. In United States v. Svete, 556 F. 3d 1157 (11th Cir. 2009), the Court held: “Proof that a defendant created a scheme to deceive reasonable people is sufficient evidence that the defendant intended to deceive, but a defendant who intends to deceive the ignorant or gullible by preying on their infirmities is no less guilty. Either way, the defendant has criminal intent.” 

What will happen at the sentencing hearing if I enter a guilty plea to wire fraud and/or mail fraud?

Section 2B1. 1 of the United States Sentencing Guidelines concerns calculation of a fraud defendant’s total offense level, which is one of the two variables for determining the guidelines range. Under section 2B1. 1, a key consideration is “loss amount.” When assessing “loss amount,” courts consider the amount of loss that resulted as well as the amount the defendant intended to result. We have successfully argued for reduced loss amounts in dozens of federal sentencing hearings. For more information on federal sentencing hearings, read our page on that topic.

If you have a matter that you would like to discuss with us, please contact us at (404) 658-9070