Mail Fraud Crimes
Mail Fraud, which is committed through the U.S. Postal Service, may involve sending false written statements by mail for financial benefit. Black's Law Dictionary 687 (8th ed. 2005). As with wire fraud statutes, the U.S. Supreme Court recommends that the mail fraud statues, 18 U.S.C. §§ 1341 and 1342, be conservatively interpreted to ensure that they are not applied in ways unintended by the U.S. Congress. See Pasquantino v. United States, __ U.S. __, __, 125 S. Ct. 1766, 1784 (2005) (Ginsburg, J. dissenting). Additionally, in the case of United States v. Murphy, 323 F.3d 102, 116 (3d Cir. 2003), the Supreme Court found that 18 U.S.C. § 1346 (2005), which criminalizes the act of "depriv[ing] another of the intangible right of honest services," displaces the decision of McNally v. United States, 483 U.S. 350, 360 (1987).
Defendants accused of violating 18 U.S.C. §§ 1341 and 1342 are sometimes charged with additional criminal violations that fall under other statutes. Some examples include the following: The defendant in United States v. George, 477 F.2d 508 (7th Cir. 1973) was accused of committing mail fraud and receiving kickbacks for disloyalty and deceitfulness toward a manufacturer; the accused in the case of United States v. Martin, 195 F.3d 961 (7th Cir. 1999) was prosecuted for violating the mail fraud statues as well as bribing a public official; in United States v. Autuori, 212 F.3d 105 (2d Cir. 2000) and United States v. Haber, 251 F.3d 881 (10th Cir. 2001), the defendant in both cases was prosecuted for both mail fraud and wire fraud; and lastly, the accused in Neder v. United States, 527 U.S. 1 (1999) was charged with bank, mail, and wire fraud. The following descriptions outline the United States Code mail fraud statutes and pertinent cases pertaining to them.
18 U.S.C. § 1341 (2005).
Section 1341 is a rather dense and convoluted statute. Under this section, it is a crime
- for a person who has devised or intends to devise any scheme or artifice
- to defraud, or
- the Environmental Protection Agency; see United States v. White, 270 F.3d 356 (6th Cir. 2001);
- to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any
- counterfeit or spurious coin, obligation, security, or other article, or
- anything represented to be or intimated or held out to be such counterfeit or spurious article,
- for the purpose of executing such scheme or artifice,
- to place in any post office or authorized depository for mail matter,
- any matter or thing whatever to be sent or delivered by the Postal Service, or
- to deposit or cause to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or
- to take or receive therefrom, any such matter or thing, or
- to knowingly cause to be delivered by mail or such carrier according to the direction thereon, or
- at the place at which it is directed to be delivered by the person to whom it is addressed,
- any such matter or thing, 18 U.S.C. § 1341 (2005).
In many ways, it is just simpler to realize that mail fraud is primarily devising a scheme or artifice to defraud and then using the nation's mail system to carry that scheme out.
The punishment under section 1341 is
- a fine, imprisonment for not more than 20 years, or both.
If the violation affects a financial institution, the punishment is
- a fine of not more than $ 1,000,000, imprisonment for not more than 30 years, or both. 18 U.S.C. § 1341 (2005).
Case Law Interpreting Section 1341
As is plainly obvious, section 1341 is quite confusing. Thankfully, case law has narrowed the elements of what constitutes the elements of a violation of section 1341. Generally, the elements of an offense of mail fraud under section 1341 are a scheme or artifice to defraud, combined with a mailing for the purpose of executing the scheme. VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 701 (6th Cir. 2000). Furthermore, just like the wire fraud statute, where materiality is not facially a required element, the Supreme Court has determined that materiality is indeed a requirement for conviction. A matter is material if "a reasonable man would attach importance to its existence or nonexistence" in determining a course of action, or "the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important" in determining a course of action, even though a reasonable man might not. Neder v. United States, 527 U.S. 1, 22 n.5 (1999) (quoting RESTATEMENT (SECOND) OF TORTS § 538 (1976)). The court explains that based "solely on a 'natural reading of the full text,' materiality [is] not an element of the fraud statutes." Id. at 21 (1999) (internal citations omitted). However, because a statute is presumed to incorporate common-law understanding of an issue when it is codified, and fraud required a material misrepresentation in the common law, "under the rule that Congress intends to incorporate the well-settled meaning of the common-law terms it uses, [the Court] cannot infer from the absence of an express reference to materiality that Congress intended to drop that element from the fraud statutes." Id. at 21-23. Therefore, materiality is a requirement.
Furthermore, a number of courts require a specific intent to defraud. See United States v. Tarallo, 380 F.3d 1174, 1181 (9th Cir. 2004). The government, however, does not need to show intent to cause harm or injury; all that is required is simply an intent to defraud, which the government can establish in a number of manners. See United States v. Welch, 327 F.3d 1081, 1105 (10th Cir. 2003). Because direct proof of fraudulent intent is often unavailable, "courts have long permitted fact finders to rely on a variety of circumstantial evidence, including evidence of actual or contemplated harm, to infer such intent." Id. Reckless indifference to the truth of a representation may establish the intent to defraud. Id.
United States v. Frank, 354 F.3d 910 (8th Cir. 2004).
One of the defendants in this case were convicted on twenty-two counts of mail fraud. The court gives a slightly different, but still acceptable, statement of the required elements for conviction under section 1341. "These convictions require proof that [the defendant] voluntarily and intentionally devised or participated in a scheme to defraud the United States by concealing his assets, that he entered into the scheme with the intent to defraud, that he knew it was reasonably foreseeable that the mails would be used, and that he used the mails in furtherance of the scheme." Frank at 916. Seventeen of the defendant's mail fraud counts charged him with executing a scheme to defraud the United States, inhibiting its ability to collect on a financial judgment against the defendant, by mailing the probation office financial reports which did not accurately reflect his assets or income. Id. at 917. The defendant reported "virtually no assets" but the government had evidence that he actually had significant assets and income. Id. Because he used the mails to execute this scheme, the evidence "was sufficient to sustain [the defendant's] conviction" on those counts. Id. Three additional counts of mail fraud charged the defendant with mail fraud cased upon letters he sent to the United States Attorney's Office in which he asserted that a man, who allegedly owed the defendant a debt, did not have the money to pay the defendant. Id. However, the government introduced evidence that the defendant actually purchased vehicles with the money he allegedly lent the other man. Id. Again, by using the mails to defraud the United States-in this instance, the government, based on the letters sent by the defendant, "pursued the wrong avenue of collection and was impeded in its ability to garnish his income"-the court determined that the evidence showed mail fraud. Id. The final two mail fraud counts relate to the use of the mail to transfer titles for two vehicles which the defendant acquired under fraudulent pretenses. The court found that the elements of wire fraud had been met in these instances as well. Id. at 917-18.
18 U.S.C. § 1342 (2005).
Section 1342 is a much simpler statute, and is only somewhat related to the general notion of "mail fraud," but as concerns about identity theft mount, it is important to be aware of section 1342.
Under section 1342 it is a crime for a person
- for the purpose of
- conducting, promoting, or carrying on by means of the Postal Service, any scheme or device proscribed by section 1341, or any other unlawful business
- to use or assume, or request to be addressed by
- any fictitious, false, or assumed title, name or address or name other than his own proper name, or
- to take or receive from any post office or authorized depository or mail matter
- any letter, postal card, package, or other mail matter addressed to any such fictitious name or address or to any name or address not his own. 18 U.S.C. § 1342 (2005).
The punishment for a violation of section 1342 is
- a fine, imprisonment for not more than five years, or both. 18 U.S.C. § 1342 (2005).
Case Law Interpreting Section 1342
Because section 1342 incorporates by reference section 1341, a conviction for section 1342 requires proof of a violation of section 1341. United States v. Scott, 326 F. Supp. 272, 275 (W.D. Pa. 1972).
18 U.S.C. § 1346 (2005).
Section 1346 merely states that the term "scheme or artifice to defraud" includes a scheme or artifice to defraud another of the intangible right of honest services. Section 1346 was enacted to counter the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 360 (1987). See United States v. Sawyer, 239 F.3d 31, 39 (1st Cir. 2001).
According to United states v. Rybicki, 287 F.3d 257 (2d Cir. 2002), the elements necessary to establish the offense of honest services fraud are:
- a scheme or artifice to defraud
- for the purposes of depriving another of the intangible right of honest services
- where it is reasonably foreseeable that the scheme could cause some economic or pecuniary harm to the victim that is more than de minimis and
- use of the mails or wires in furtherance of the scheme. Rybicki at 266.
The enactment of section 1346 has greatly complicated statutory analysis of the mail fraud statute. "While the legislative history of § 1346 seems to indicate an intention to resurrect the pre-McNally case law relating to the deprivation of intangible rights by use of the mails," some case law has determined that "pre-McNally cases construing the prior statute are not binding, and that the new offense was defined by statute, … not by pre[-]McNally judicial decisions." United States v. Adler, 274 F. Supp. 2d 583, 586 (S.D.N.Y. 2003). In short, the effect of section 1346 remains to be seen, but there is general acceptance of the notion that "convictions under § 1346 that involved schemes … in which the defendant breached or induced the breach of a duty owed by an employee or agent to his employer or principal that was enforceable by an action at tort" must be upheld. Rybicki at 264.
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