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Mail and wire fraud 101 part one (jurisdictional elements)

This is another of a series of posts illustrating how you can use this site to become reliably grounded on federal law issues.

Mail fraud (18 U.S.C. § 1341) and wire fraud (§ 1343) have essentially the same elements, except for the jurisdictional elements. Mail fraud involves mailing, and wire fraud requires a wire transmission that passes in interstate commerce. "Beyond the jurisdictional bases, the mail and wire fraud offenses are read in tandem and case law on the two is largely interchangeable." Pattern Crim. Jury Instr. 6th Cir. 10.00 (2019). For convenience, we'll break this discussion into two parts. First, we'll discuss the juridictional elements, and next we'll talk about the common elements.

Specifically, the jurisdictional element for mail fraud is that "the defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with the carrier] something meant to help carry out the scheme to defraud." Pattern Crim. Jury Instr. 11th Cir. OI O50.1 (2019). The charged mailings must be "for the purpose of executing the scheme." Kann v. United States, 323 U.S. 88, 94 (1944).

"Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes' the mails to be used." Pereira v. United States, 347 U.S. 1, 8-9 (1954).

Any mailing need only be incident to an essential part of the scheme or a step in the plot. It does not have to be an essential element of the scheme. Pattern Crim. Jury Instr. 11th Cir. OI O50.1 Comment (2019). It could, for example, occur after receipt of the goods obtained by fraud if they were designed to "lull" the victims into a false sense of security or postpone their complaint to the authorities. United States v. Lane, 474 U.S. 438, 451–52 (1986). The mailing may be routine or innocent, need not contain false information, and may even have been counterproductive. Schmuck v. United States, 489 U.S. 705, 715 (1989). "Each use of the mails to advance, or to further, or to carry out the scheme or plan may be a separate violation of the mail fraud statute." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1341-6 Comment (2017).

The jurisdictional element of wire fraud is that the "defendant transmitted or caused to be transmitted by [wire] [radio] [television] some communication in interstate commerce to help carry out the scheme to defraud." Pattern Crim. Jury Instr. 11th Cir. OI O51 (2019).

[T]he government must prove beyond a reasonable doubt that a transmission by a wire, radio, or television communication facility in interstate commerce was, in fact, used in some manner to further, or to advance, or to carry out the scheme to defraud. The government must also prove either that [the defendant] used wire, radio, or television communication in interstate commerce, or that [the defendant] knew the use of the wire, radio, or television communication in interstate commerce would follow in the ordinary course of business or events, or that [the defendant] should reasonably have anticipated that wire, radio, or television communication in interstate commerce would be used.

It is not necessary that the information transmitted by means of wire, radio, or television communication in interstate commerce itself was false or fraudulent or contained any false or fraudulent pretense, representation, or promise, or contained any request for money or thing of value.

However, the government must prove beyond a reasonable doubt that the use of the wire, radio, or television communication in interstate commerce furthered, or advanced, or carried out, in some way, the scheme.

Mod. Crim. Jury Instr. 3rd Cir. 6.18.1343-1 (2016).

This would include emails, communications with Internet Web sites, and instant (text) messages. Id.; Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1343 Wire Communication (2018).

As with mailings, "[wire communications] which are designed to lull victims into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are wire communications in furtherance of the scheme." Model Crim. Jury Instr. 8th Cir. 8.18.1343 (2017). "It is not necessary that the [government] prove that the [wire communication] was an essential part of the scheme. A [wire communication] may be routine or sent for a legitimate purpose so long as it assists in carrying out the fraud." Id. "Each transmission by wire communication in interstate commerce to advance, or to further, or to carry out the scheme or plan may be a separate violation of the wire fraud statute." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1343-2 (2017).

(8/29/19)

 
 
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