San Antonio Mail and Wire Fraud Criminal Defense

San Antonio Mail and Wire Fraud Criminal Defense.

Mail and Wire Fraud are federal crimes. These laws make it a crime to con or scam people by using the mail, radio, television, or other wire. Moreover, the purpose of these laws is to stop a wide variety of frauds and swindles. And using the mail or wire to commit these frauds creates the hook to make it a federal crime.

But how are mail and wire fraud defined? And what are the penalties for these crimes? This post will answer these questions. It will also provide an overview of possible defenses.

What are examples of Mail and Wire Fraud?

Examples include using the mail or wire to:

  • File a false auto claim;
  • Sell used cars with rolled-back odometers;
  • Run a “Ponzi” scheme;
  • Submit a false mortgage application;
  • Conduct fraudulent real-estate transactions;
  • Engage in money-laundering activities;
  • Commit a Racketeering (RICO) violation; or
  • Engages in traditional bribery or kickback schemes.

In short, these are just some of the many ways to commit mail or wire fraud. Now, let’s consider the legal definitions of these crimes.

What is Mail Fraud?

18 USC § 1341 makes it illegal for anyone to use the mails, or any private or commercial interstate carrier, in carrying out a scheme to defraud. In addition, the table below shows the facts the government must prove to convict a person of mail fraud:

Federal Mail Fraud Definition

No.Federal Mail Fraud Elements
1.The defendant knowingly devised or intended to devise a scheme to defraud;
2.The scheme to defraud employed false material representations, false pretenses, or false material promises;
3.The defendant mailed something, caused something to be sent or delivered through the United States Postal Service (or private commercial interstate carrier) for the purpose of executing such scheme or attempting so to do; and
4.The defendant acted with specific intent to defraud.

In summary, the essence of mail fraud is the scheme to defraud. See Bridge v. Phoenix & Indem. Co., 553 U.S. 639, 647 (2008). And, any “mailing that is incident to an essential part of the scheme satisfies the mailing element” of mail fraud “even if the mailing itself contains no false information.”  Id.

Finally, each separate use of the mails (or wires) to further a scheme to defraud is a separate offense.  See United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (discussing how prosecutors obtain mail fraud convictions).

What is Wire Fraud?

The federal wire fraud statute makes it a crime to use a wire to commit a fraud.  San Antonio Criminal Defense Attorney writes about this crime.
The Federal Wire Fraud Statute makes it illegal to use a wire to commit fraud.

18 USC § 1343 makes it a crime for anyone to use interstate wire (or radio, television, or foreign wire) communications in carrying out a scheme to defraud. Similar to the mail fraud statute, the table below lists the facts the government must prove to convict a person of wire fraud:

Federal Wire Fraud Statute

No.Elements of the Federal Wire Fraud Statute.
1.The defendant knowingly devised or intended to devise any scheme to defraud;
2.The scheme to defraud employed false misrepresentations, false material pretenses, or false material promises;
3.The defendant transmitted or caused to be transmitted by way of wire (including radio, television, or foreign wire) communications in interstate (or foreign) commerce, any writings (including signs, pictures, or sound) for the purpose of executing such scheme; and
4.The defendant acted with specific intent to defraud.

Next, let’s compare these two types of frauds. Specifically, let’s consider how they are similar. And how they are different.

Mail Fraud vs. Wire Fraud

The elements of these crimes are similar and courts apply the same analysis to both offenses.  See United States v. Phipps, 595 F.3d 243, 245 (5th Cir. 2010).  Further, mail and wire fraud are both specific intent crimes.  In other words, the government must prove that a defendant knew the scheme involved false representations.  See id. At 245-246.

However, mail and wire fraud differ in both obvious and subtle ways.  One obvious difference is how a defendant violates the mail and wire fraud statutes.  Mail fraud requires the use of the postal service, a private carrier, or commercial carrier to commit the offense.  While wire fraud requires the use of a wire to commit the offense.

Another difference is the government must prove an interstate nexus to secure a conviction for wire fraud.  But the mail fraud statute does not require proof of an interstate nexus.  This is because Congress passed these laws using different constitutional powers.  Congress passed the wire fraud statute using its Commerce Clause powers.  And it passed the mail fraud statute using its authority under Article I, Section 8, Clause 7 of the United States Constitution.  See Matthew Angelo, Justin Loscalzo & Ryan Turner, Mail and Wire Fraud, 57 Am. Crim. L. Rev. 1023, 2015 (2020) (discussing similarities and differences between the mail and wire fraud.)

Now, let’s talk about the related crime of honest-services fraud.

What is Honest-Services Fraud?

Both the mail and wire fraud statutes allow the government to prosecute a defendant for the “deprivation of honest services.” It is frequently used to prosecute people for bribery and kickback schemes. See Skilling v. United States, 561 U.S. 358, 412 (2010).  Specifically, the definition of “scheme or artifice to defraud” includes depriving another person of “the intangible right to honest services.”  18 USC § 1346.  

Further, the Supreme Court provided a useful example of honest-services fraud:

[I]f a city mayor (the offender) accepted a bribe from a third party in exchange for awarding that party a city contract, yet the contract terms were the same as any that could have been negotiated at arm’s length, the city (the betrayed party) would suffer no tangible loss.  (Citations omitted.)  Even if the scheme occasioned a money or property gain for the betrayed party, courts reasoned, actionable harm lay in the denial of that party’s right to the offender’s honest services.”

Skilling, 561 U.S. at 400.

In short, these laws allow the government to prosecute defendants and politicians for bribe and kickback schemes. This is true even if the scam benefited the victims.

On a related note, defendants charged with honest-services fraud should ask basic questions about the government’s case.  Specifically, what was the actual fraud or scheme? What intangible right did the defendant deprive the victim of?  And what was the bribe or kickback?  In many cases, the answers will be obvious.  But in others, the answers will help prepare a strong defense.

Mail Fraud Penalties, Wire Fraud Penalties, and Statutes of Limitations

The mail and wire fraud statutes share identical penalties:

Penalties for Mail and Wire Fraud

StatutePunishment RangeFine RangePossible Asset ForfeitureStatute of Limitations
Mail Fraud Penalty0-20 years

or

0-30 years-

If fraud affects a financial institution.
0-$250,000.00

or

0-$1,000,000.00-

If fraud affects a financial institution.
Yes.5 years

or

10 years-

If fraud affects a financial institution.
Wire Fraud Penalty0-20 years

or

0-30 years-

If fraud affects a financial institution.
0-$250,000.00

or

0-$1,000,000.00-

If fraud affects a financial institution.
Yes.5 years

or

10 years-

If fraud affects a financial institution.

What are defenses to Mail and Wire Fraud?

A. Challenge Elements of Crime

There are two common ways to defend against these types of white-collar fraud prosecutions.  The first is to challenge one or more of the elements of these crimes.  Notably, “good faith” is a classic defense to the “intent to defraud” element of the mail and wire fraud offenses:

In mail fraud cases often the only available defense is that of good faith.  In the typical case, the accused is not in the position usually to refute that the representations made were false.  The accused can then only defend on the ground that the representations were made in good faith without the intent to defraud.  Courts have come to recognize that in our high pressure economy, puffing of merchandise and services to the legal limit is commonplace.  Consequently, a person accused of fraudulent representations to prospective customers must not be unduly restricted in asserting what may be his sole defense, good faith.  Intent to defraud is a jury question and a liberal policy as to the admission of evidence tending to prove good or bad faith should be followed.

United States v. Diamond, 430 F.2d 688, 692 (5th Cir. 1970) (Emphasis added.).

Additionally, a defendant can challenge the link between the scam and the use of mails (or wires) in furtherance of that scam.  If there is no link between the two, then a defendant should not be convicted of mail (or wire) fraud.  See United States v. Evans, 148 F.3d 477, 483 (5th Cir. 1998) (reversing mail fraud conviction because the fraudulent scam was completed prior to and independent of the mailing.)  These are just two examples of how to challenge the elements of these types of white-collar crimes.  The precise challenge will depend on the facts of each case.

B. Statute of Limitations Defense

A defendant should also raise a statute-of-limitations defense if the indictment is filed five years after the offense was committed.  18 USC § 3282(b)(2).  Similarly, raise a statute-of-limitations defense if the indictment was filed 10 years after the offense was committed where the fraud affects a financial institution.  18 USC § 3293(2).

Affordable San Antonio Mail and Wire Fraud Criminal Defense Attorney

The mail and wire fraud statutes are almost identical. They both cover a wide variety of frauds and swindles.  These statutes also carry significant penalties.  However, the case law for these crimes outline defenses for people facing these charges.  And a defendant should carefully review the evidence and case law with his or her attorney to determine if he or she should plead guilty or go to trial.

Genaro R. Cortez
Phone: 210-733-7575

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org