Mail Fraud 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).

MAIL FRAUD; MONEY/PROPERTY OR HONEST SERVICES
18 U.S.C. § 1341
[18 U.S.C. § 1346]

Title 18, United States Code, Section 1341, makes it a crime for anyone to use the mails [any private or commercial interstate carrier] 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 a 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 mailed something [caused something to be [sent] [delivered]] through the United States Postal Service [a private or commercial interstate carrier] for the purpose of executing such scheme or attempting so to do; 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 [pre- tense] [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 mailed material [material sent by private or commercial interstate carrier] was itself false or fraudulent, or that the use of the mail [a private or commercial interstate carrier] 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 mails [private or commercial interstate carrier] was closely related to the scheme because the defendant either mailed something or caused it to be mailed [defendant either sent or delivered something or caused it to be sent or delivered by a private or commercial interstate carrier] in an attempt to execute or carry out the scheme.

The alleged scheme need not actually have succeeded in defrauding anyone.

To “cause” the mails [private or commercial inter-state carrier] to be used is to do an act with knowledge that the use of the mails [private or commercial inter-state carrier] will follow in the ordinary course of busi- ness or where such use can reasonably be foreseen even though the defendant did not intend or request the mails [private or commercial interstate carrier] to be used.

Each separate use of the mails [a private or commercial interstate carrier] in furtherance of a scheme to defraud by means of false or fraudulent pretenses, representations, or promises constitutes a separate offense.
Note

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 prosecu- tions 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 government need not establish that the defendant used the mails himself or that he actually intended that the mails be used. The government need only prove that the scheme depended for its success in some way upon the information and documents which passed through the mail.” United States v. Akpan, 407 F.3d 360, 370 (5th Cir. 2005); see also Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131, 2138 (2008) (“Any mailing that is incident to an essential part of the scheme satisfies the mailing element, even if the mailing itself contains no false information.”) (internal quota- tion marks omitted); United States v. Traxler, 764 F.3d 486, 488–91 (5th Cir. 2014); United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (discussing requirement that mail be “incidental” to an essential part of the scheme and the meaning of “causing” the mail to be used).

This may also include a post-purchase mailings “designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect.” See United States v. Strong, 371 F.3d 225, 230 n.3 (5th Cir. 2004); but see United States v. Evans, 148 F.3d 477, 483 (5th Cir. 1998) (a mailing after the scheme to defraud already “reached fruition” did not constitute mail fraud).

The Fifth Circuit has also held that there is no requirement that “the victim who loses money or property in a mail fraud scheme also be the party that was deceived by the defendant’s scheme.” United States v. McMillan, 600 F.3d 434, 449 (5th Cir. 2010). It is irrelevant to whom the misrepresentations are directly made, as long as the object of the fraud is the victim’s property and the victim’s property rights were aff by the misrepresentations. Id.; see also Ingles, 445 F.3d at 837 (“Both in- nocent mailings (i.e. those that do not contain a misrepresentation) and mailings between innocent parties can support a mail fraud conviction.”). Actual loss by the victim need not be proven. See McMillan, 600 F.3d at 450.

For the elements of mail fraud, see United States v. Imo, 739 F.3d 226, 236 (5th Cir. 2014); United States v. Read, 710 F.3d 219, 227 (5th Cir. 2012); McMillan, 600 F.3d at 447. See also United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009) (“To prove a scheme to defraud, the Government must show fraudulent activity and that the defendant had a conscious, knowing intent to defraud.”); United States v. Dillman, 15 F.3d 384, 392 (5th Cir. 1994) (stating defi of “false statement”); United States v. Restivo, 8 F.3d 274, 280 (5th Cir. 1993) (stating defi of “scheme to defraud” and “intent to defraud”).

Where use of private or commercial interstate carrier is involved, the government need not prove that state lines were crossed, only that the carrier engages in interstate deliveries. See United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001).

The requirement of “materiality of falsehood” is derived from Neder v. United States, 119 S. Ct. 1827, 1841 (1999) (“We hold that materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes.”). See also United States v. Radley, 632 F.3d 177, 185 (5th Cir. 2011). “The test for materiality is whether a misrepresentation ‘has a natural tendency to influ- ence, or is capable of influencing, the decision making body to which it was addressed.’ ’’ Radley, 632 F.3d at 185 (quoting United States v. Valencia, 600 F.3d 389, 426 (5th Cir. 2010)).

Because the language of the mail fraud and wire fraud statutes are so similar, cases construing one are applicable to the other. See United States v. Phipps, 595 F.3d 243, 245 (5th Cir. 2010). Accordingly, the Note to Instruction No. 2.57, 18 U.S.C. § 1343, Wire Fraud, should also be consulted.

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 issues, the court should consider giving a lesser included instruction. See Instruction No. 1.33.