Mail and Wire fraud are a frequently prosecuted crimes. Since many schemes attached to it involve vulnerable people who are easily persuaded, that makes the crime especially egregious in the minds of prosecutors. Many defendants often choose to plea bargain rather than face trial since juries can be unmerciful in these cases.
However, there are ways to avoid the penalties attached to mail and wire fraud. It is possible to find a defense that works well for your circumstances and arise from this ordeal with dismissed or reduced charges. You need to hire an experienced attorney first and understand how these charges play out in federal court.
Wire Fraud Charges
Wire fraud can be a state or federal crime, but is generally prosecuted in federal court. It is closely related to regular fraud, which is defined in federal law as creating a scheme to obtain money from another by the use of “false or fraudulent pretenses.” It is the most common white collar crime that is prosecuted in the state of Nevada.
The federal wire fraud statute applies when allegations are that the defendant used wire, radio or television communications in the commission of the fraud. This definition has been interpreted to include the use of computers and the internet.
In order to obtain a conviction for wire fraud, the prosecution must prove beyond a reasonable doubt, that:
- The defendant was involved in a scheme to defraud.
- The defendant used wire, radio, or television to further the scheme.
- The defendant had a specific intent to defraud.
According to the U.S. Court of Appeals for the Ninth Circuit, in order to prove that there was a scheme to defraud, the prosecution must also prove “the defendant employed ‘material falsehoods.’” A false statement is material if it has a “natural tendency to influence” the decision maker to whom the false statement was addressed.
Mail Fraud Charges
The elements of mail fraud are broad, which is why these charges catch many defendants off guard. Many believe they promote a legitimate money-making opportunity until the day they are arrested.
To prove mail fraud, prosecutors must show the intent to defraud and the use of mail to execute that intent. Any scheme that attempts to secure money or property under false pretenses or sell counterfeit products can easily fall under mail fraud charges. Even if a prosecutor does not have proof that you actually had a fraudulent mindset, the results of the plans and proof of bad impacts can convince a jury of that fact easily.
Any type of mailing can fall under these charges. Even if the schemes started primarily through email, mailing a contract, receipt or letter will place the activity under mail fraud. The charges are not limited to the use of the United States Post Office either. If you use a commercial interstate carrier like Federal Express or UPS, you will still face mail fraud charges.
Activities must affect multiple states to fall under federal mail fraud laws. If the scheme remains in-state or documents are delivered by courier, a defendant may face state fraud charges but not mail fraud. The federal government does not jurisdiction until efforts cross state lines.
Penalties for Mail and Wire Fraud
Penalties for wire fraud are harsh. Up to 20 years in prison can be imposed along with a steep fine and an order for restitution. Each incident may be charged as a separate offense. This means that if a defendant made 20 phone calls (a wire communication), he or she could be charged with 20 separate counts of wire fraud. Twenty years could be imposed on each count and the defendant could receive the equivalent of a life sentence.
If a financial institution was involved, the sentence can be up to 30 years behind bars. A fine of not more than $1,000,000 may also be imposed along with an order for restitution.
The actual sentence imposed will depend on a number of factors, including but not limited to:
- The defendant’s criminal history.
- The defendant’s role in the offense.
- The nature of the victims. For example, were they elderly or particularly vulnerable?
- The number of victims involved.
- The total loss to the victims (although victim loss is not an element of the offense and not required in order for there to be a conviction).
Mail fraud has a five-year statute of limitations unless the scheme affected a financial institution, then it increases to 10 years. Even older schemes may leave you vulnerable to prosecution. Penalties can be steep, especially if you face multiple counts or the prosecutor can connect your efforts as working against a financial institution.
The minimum sentence is five years imprisonment, but you can face up to 20 years if your scheme was long-standing and affected many people. If the scheme arose from a presidentially declared national disaster or emergency or it affected a financial institution, you can face fines up to $1 million and 30 years in prison.
Extensive schemes may result in larger sentences, especially if they target vulnerable people. For example, the Bernie Madoff scandal defrauded victims up to $65 billion total and he now serves multiple prison terms which total to 150 years. To this day, courts continue to liquidate his his assets in an attempt to compensate victims. While most schemes do not work to this level, it shows prosecutors successfully pursue large sentences for this offense.
Negating an element of the offense is the natural defense. Other common defenses to the charge include:
- The defendant acted in good faith. Good faith is a complete defense and negates the fraud charge if the jury believes the defendant had “an honest, good faith belief in the truth of the specific misrepresentations” the government alleges were made in order to defraud the victim. If there was such a good faith belief, there was no intent to defraud and thus there was no crime.
- Puffery. The defendant was not making material a misrepresentation, but was only exaggerating. An example of puffery would be for a salesperson to claim a product is “the best ever made.” A material misrepresentation would be claiming the product was made out of 24-Karat gold when, in fact, the product is made out of tin.
- The statute of limitations has expired. The government must bring its charges of wire fraud within five years of the date the offense was committed, or within ten years if the fraud involved a financial institution. The time at which the statute begins to run is often blurred and an issue of contention. In an ongoing scheme, it may be difficult to determine the date when the last use of the wire occurred.
Contact a Las Vegas Criminal Defense Attorney
If you know you are under investigation for wire fraud, or have been arrested and charged with the offense, it is important not to speak to anyone except an attorney about your situation. This includes not talking about the charges with family members, friends, cell mates and especially law enforcement.
Unfortunately, it is far too common to have your words twisted and used against you than it is to have them help. Instead, you should call an attorney as soon as possible. Nevada Attorney Gabriel L. Grasso has more than 30 years of experience aggressively defending clients on wire fraud charges. Contact him for a free and confidential case evaluation.