Wire Fraud Defense Attorney
This page will give more information about mail fraud from the United States Court of Appeals Library for the Fifth Circuit (original source here in PDF format).
WIRE FRAUD; MONEY/PROPERTY OR HONEST SERVICES
18 U.S.C. § 1343
[18 U.S.C. § 1346]
Title 18, United States Code, Section 1343, makes it a crime for anyone to use interstate [foreign] wire [radio] [television] communications in carrying out a scheme to defraud.
For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That the defendant knowingly devised or intended to devise any scheme to defraud, that is
————— (describe scheme from the indictment);
Second: That the scheme to defraud employed false material representations [false material pretenses] [false material promises];
Third: That the defendant transmitted [caused to be transmitted] by way of wire [radio] [television] communications, in interstate [foreign] commerce, any writing [sign] [signal] [picture] [sound] for the purpose of executing such scheme; and
Fourth: That the defendant acted with a specific intent to defraud.
A “scheme to defraud” means any plan, pattern, or course of action intended to deprive another of money or property. [It can also involve any scheme to deprive an employer [shareholders] [citizens] [government agency] of the intangible right to honest services through soliciting or accepting bribes or kickbacks. [Define “bribery” pursuant to 18 U.S.C. §§ 201(b) or 665(a)(2) or state law; define “kickback” pursuant to 41
U.S.C. § 52(2) or state law].]
A “specific intent to defraud” means a conscious, knowing intent to deceive or cheat someone.
A representation [pretense] [promise] is “false” if it is known to be untrue or is made with reckless indifference as to its truth or falsity. A representation [pretense] [promise] would also be “false” if it constitutes a half truth, or eff omits or conceals a material fact, provided it is made with the intent to defraud.
A representation [pretense] [promise] is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to which it is addressed.
It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme. What must be proved beyond a reasonable doubt is that the defendant knowingly devised or intended to devise a scheme to defraud by means of false or fraudulent pretenses, representations, or promises that was substantially the same as the one alleged in the indictment.
It is also not necessary that the government prove that the material transmitted by wire [radio] [television] communications was itself false or fraudulent, or that the use of the interstate [foreign] wire communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud. What must be proved beyond a reasonable doubt is that the use of the interstate [foreign] wire communications facilities was closely related to the scheme because the defendant either wired something or caused it to be wired in interstate [foreign] commerce in an attempt to execute or carry out the scheme.
The alleged scheme need not actually succeed in defrauding anyone.
To “cause” interstate [foreign] wire [radio] [television] communications facilities to be used is to do an act with knowledge that the use of the wire [radio] [television] communications facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.
Each separate use of the interstate [foreign] wire [radio] [television] communications facilities in further- ance of a scheme to defraud by means of false or fraudulent pretenses, representations, or promises constitutes a separate offense.
On the elements of a wire fraud offense, see United States v. Radley, 632 F.3d 177, 184–85 (5th Cir. 2011); United States v. Dowl, 619 F.3d 494, 499–500 (5th Cir. 2010); and United States v. Valencia, 600 F.3d 389, 430–31 (5th Cir. 2010). See also United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009); United States
v. Ford, 558 F.3d 371, 375 (5th Cir. 2009); United States v. Brown, 459 F.3d 509, 518 (5th Cir. 2006); United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005); United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002).
In wire fraud schemes, “the wire need not be an essential element of the scheme; rather, it is sufficient for the wire to be incident to an essential part of the scheme or a step in the plot. The underlying question is whether the [use of the wire] somehow contributed to the successful continuation of the scheme—and, if so, whether [it was] so intended by the defendant.” United States v. Barraza, 655 F.3d 375, 383 (5th Cir. 2011) (citations omitted) (holding that an email was sufficient to sustain a wire fraud conviction); see also United States v. Phipps, 595 F.3d 243, 246–47 (5th Cir. 2010) (holding a single fax, not sent by the defendant and incidental to the scheme, to be sufficient to support a charge of wire fraud). The Committee notes that, as technology advances, the definition of what constitutes a “wire” becomes unclear and the instruction may need to be altered accordingly. See United States v. Nunez, 78 F. App’x 989, 991 (5th Cir. 2003) (upholding wire fraud conviction when scheme used cell phone).
“Once membership in a scheme to defraud is established, a knowing participant is liable for any wire communication which subsequently takes place or which previously took place in connection with the scheme.” United States v. Dula, 989 F.2d 772, 778 (5th Cir. 1993); see also United States v. Arledge, 553 F.3d 881, 892 (5th Cir. 2008).
The requirement of “materiality of falsehood” is derived from Neder v. United States, 119 S. Ct. 1827, 1841 (1999) (“[W]e hold that materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes.”). See also Radley, 632 F.3d at 185. “The test for materiality is whether a misrepresentation ‘has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed.’ ’’ Id. (quoting Valencia, 600 F.3d at 426).
This instruction incorporates 18 U.S.C. § 1346, which states that, “[f]or the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” That language should be in the jury charge only if the indictment alleges § 1346. See United States v. Griffin, 324 F.3d 330, 356 (5th Cir. 2003). In Skilling v. United States, the Supreme Court held that “honest services” fraud under § 1346 consists only of bribery and kickbacks, not undisclosed self-dealing. 130 S. Ct. 2896, 2931–32 (2010); see also United States v. Barraza, 655 F.3d 375, 382 (5th Cir. 2011). Section 1346 reaches both private and public sector fraud. See Skilling, 130 S. Ct. at 2934 n. 45. The Fifth Circuit has held that § 1346 prosecutions may involve bribery and kickbacks as defined by federal or state law. See United States v. Teel, 691 F.3d 578, 584 (5th Cir. 2012).
The Note to Instruction No. 2.56, 18 U.S.C. § 1341, Mail Fraud, should also be consulted generally. Because the language of the mail fraud and wire fraud statutes are so similar, cases construing one are applicable to the other. See Phipps, 595 F.3d at 245.
A fifth element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 U.S.C. § 2326. See Apprendi v. New Jersey, 120 S. Ct. 2348, 2351–63 (2000). If these are disputed is- sues, the court should consider giving a lesser included instruction. See Instruction No. 1.33.