"There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
941. 18 U.S.C. 1343?ELEMENTS OF
WIRE FRAUD
The elements of wire fraud under Section 1343 directly
parallel those of the mail fraud statute, but require the use of an interstate
telephone call or electronic communication made in furtherance of the
scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995)
(citing United States v. Ames Sintering Co., 927 F.2d 232,
234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d
795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except
that it speaks of communications transmitted by wire); see also, e.g., United
States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential
elements of the crime of wire fraud are: (1) that the defendant voluntarily and
intentionally devised or participated in a scheme to defraud another out of
money; (2) that the defendant did so with the intent to defraud; (3) that it
was reasonably foreseeable that interstate wire communications would be used;
and (4) that interstate wire communications were in fact used) (citing Manual
of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289
(1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994)
(two elements comprise the crime of wire fraud: (1) a scheme or artifice to
defraud; and (2) use of interstate wire communication to facilitate that
scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir.
1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2)
the use of, or causing the use of, interstate wire communications to execute
the scheme), cert. denied, 115 S.Ct. 193 (1995); United
States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud
government must show (1) scheme to defraud by means of false pretenses, (2)
defendant's knowing and willful participation in scheme with intent to defraud,
and (3) use of interstate wire communications in furtherance of scheme); United
States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) ("Wire fraud
requires proof of (1) a scheme to defraud; and (2) the use of an interstate
wire communication to further the scheme.").
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The
wire fraud statute was patterned after the mail fraud statutes. United
States v. Lemon, 941 F.2d 309, 316 (5th Cir. 1991); United States
v. Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987). Thus, the same principles
apply in defining "scheme to defraud" for mail and wire fraud prosecutions. See Carpenter
v. United States, 484 U.S. 19, 25 n. 6 (1987) ("The mail and wire
fraud statutes share the same language in relevant part, and accordingly we
apply the same analysis to both sets of offenses here."); United
States v. Lemire, 720 F.2d 1327, 1334-35 n. 6 (D.C. Cir. 1983) ("The
requisite elements of 'scheme to defraud' under the wire fraud statute
[§ 1343] and the mail fraud statute [§ 1341], are identical. Thus,
cases construing mail fraud apply to the wire fraud statute as well."), cert.
denied, 467 U.S. 1226 (1984).
The
mail fraud and wire fraud statutes do not define the terms "scheme"
or "artifice" and the courts have traditionally been reluctant to
offer definitions of either term except in the broadest and most general
terms. Lemire, 720 F.2d at 1335 ("Congress did not define
'scheme or artifice to defraud' when it first coined that phrase, nor has it
since. Instead that expression has taken on its present meaning from 111 years
of case law.").
The
fraudulent aspect of the scheme to defraud is to be measured by nontechnical
standards and is not restricted by any common-law definition of false
pretenses. "[T]he words 'to defraud' in the mail fraud statute have the
'common understanding' of '"wrongdoing one in his property rights by
dishonest methods or schemes," and "usually signify the deprivation
of something of value by trick, chicane, or overreaching."'" Carpenter,
484 U.S. at 27 (quoting McNally v. United States, 483 U.S. 350, 358
(1987) (quoting Hammerschmidt v. United States, 265 U.S. 182, 188
(1924))). "The concept of 'fraud' includes the act of embezzlement, which
is '"the fraudulent appropriation to one's own use of the money or goods
entrusted to one's own care by another."'" Id. (quoting Grin
v. Shine, 187 U.S. 181, 189 (1902)).
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943. NO LOSS OR GULLIBLE VICTIMS
"It is the scheme to defraud and not actual fraud that is required." United States v. Reid, 533 F.2d 1255, 1264 (D.C. Cir. 1976). "No particular type of victim is required . . . nor need the scheme have succeeded." United States v. Coachman, 727 F.2d 1293, 1302-03 n. 43 (D.C. Cir. 1984). No actual loss to the victims is required. See United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.) ("The fraud statutes speak alternatively of devising or intending to devise a scheme to defraud and do not require that the deception bear fruit for the wrongdoer or cause injury to the intended victim as a prerequisite to successful prosecution. [S]uccess of the scheme and loss by a defrauded person are not essential elements of the crime under 18 U.S.C. §§ 1341, 1343 . . . ."), cert. denied, 429 U.S. 924 (1976); see also United States v. Jordan, 626 F.2d 928, 931 (D.C. Cir. 1980) ("The amount of money realized as a result of the scheme is not an essential element of mail fraud. It was not even necessary to prove that the scheme succeeded.").
For a discussion of fraud loss computation in sentencing see Guidelines Sentencing (Federal Judicial Center, 1997), Section II.D.2. Offense Involving Fraud and Deceit.
"[I]t makes no difference whether the persons the scheme is intended to defraud are gullible or skeptical, dull or bright . . . . " United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990) (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980)). "[T]he monumental credulity of the victim is no shield for the accused . . ." Id. (quoting Deaver v. United States, 155 F.2d 740, 744-45 (D.C. Cir.), cert. denied, 329 U.S. 766 (1946)); cf. Pollack, 534 F.2d at 971 (To hold that actual loss to victim is required "would lead to the illogical result that the legality of a defendant's conduct would depend on his fortuitous choice of a gullible victim.") (quoted in Maxwell, 920 F.2d at 1036).
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944. PROOF OF SCHEME AND ARTIFICE TO DEFRAUD
To sustain a conviction the government must prove the existence of a scheme; it is not required, however, to prove all details or all instances of allegedly illicit conduct. See, e.g., United States v. Stull, 743 F.2d 439, 442 n. 2 (6th Cir. 1984) ("It is well established that proof of every allegation is not required in order to convict; the government need only prove that the scheme to defraud existed."), cert. denied, 470 U.S. 1062 (1985); United States v. Halbert, 640 F.2d 1000, 1008 (9th Cir. 1981) ("[T]he Government need not prove every misrepresentation charged conjunctively in the indictment."); United States v. Jordan, 626 F.2d 928, 930 (D.C. Cir. 1980) ("The Government is not required to prove the details of a scheme; it is, however, required to prove beyond a reasonable doubt . . . that the defendant . . . willfully and knowingly devised a scheme or artifice to defraud . . . .") (quoting with approval the trial court's instruction on § 1341); United States v. Amrep Corp., 560 F.2d 539, 546 (2d Cir. 1977) ("A scheme to defraud may consist of numerous elements, no particular one of which need be proved if there is sufficient overall proof that the scheme exists."), cert. denied, 434 U.S. 1015 (1978); Anderson v. United States, 369 F.2d 11, 15 (8th Cir. 1966) (all instances of illicit conduct need not be proved to sustain a conviction), cert. denied, 386 U.S. 976 (1967).
"All that is required is that [the defendant has] knowingly and willingly participated in the scheme; she need not have performed every key act herself." United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990). The "evidence need only show that defendant was a 'knowing and active participant' in scheme to defraud and that scheme involved interstate wire communications." Id. (quoting United States v. Wiehoff, 748 F.2d 1158, 1161 (7th Cir. 1984)).
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