Frequently, mail fraud is a standalone offense. This infraction is usually easier to prove than other kinds of fraud. For example, in the early 1970s, allegations surfaced that Otto Kerner, a federal judge, and former state governor, had taken bribes while in office, in the form of reduced-price stock options.

When Judge Kerner sold the options, he reported the income on his tax return. The government was unable to prove the bribery case, but it was able to prove mail fraud. An appeals court later overturned most of, but not all of, the mail fraud convictions. This result highlights the complexity of these cases.

Other times, mail fraud is a padding offense. Although there was only one suspect transaction, the government charged Judge Kerner with seventeen counts of mail fraud and conspiracy. Each charge carried a maximum of twenty years in prison. Prosecutors often request such multi-count indictments in order to intimidate and confuse defendants.

Quite frequently, the strategy works. Defendants are so frightened that they are not thinking clearly when the prosecutor makes a plea bargain offer. Then, if prosecutors agree to drop ten or fifteen of the charges, defendants think they are getting good deals.

At The Law Offices of Vadim A. Glozman, our Chicago mail and wire fraud defense lawyers are not easily intimidated or confused. Your case is not our professional team’s first rodeo. We know how prosecutors work and think. Many of our attorneys are former prosecutors themselves. Furthermore, we understand that confusion is our ally and not our enemy.

The prosecutor has the burden of proof in these cases. So, the fundamental question is usually not what the defendant “did” or “didn’t” do. Instead, the only question that truly matters is what can the government prove in court.

Elements of Mail/Wire Fraud

The aforementioned Kerner prosecution is significant for another reason. This matter was one of the first ones spearheaded by Martin McGee, the Chief Postal Inspector who was known as “Mr. Mail Fraud.” McGee felt the government was not taking full advantage of the mail/wire fraud statute. According to 18 U.S.C. § 1346, these offenses have only three basic elements:

• Wire or mail communication that involves interstate commerce.

• Scheme or artifice (intent) to defraud.

• Material deception.

The federal government only has jurisdiction over fraud matters in interstate commerce. Mailing an illegal letter from Schaumburg to Chicago is probably not a federal offense. The letter most likely never crossed state lines.

But a call, email, funds transfer, or any other electronic communication between Schaumburg and Chicago is a federal offense. Telephone switches, email servers, and other such things are all instruments of interstate commerce. Even if the communication itself didn’t cross state lines, the equipment used nearly always comes from out-of-state.

Note that the second element, the fraud portion of a mail/wire fraud charge, does not require actual fraud. Instead, the defendant must only try to defraud someone. Proving attempts is always much easier than proving deeds.

Finally, a material deception is normally a deception central to the incident. If Laura lies about her age in a business letter, that’s probably not a material deception. But if Laura lies about her position in a company, that’s different.

Mail Fraud Investigations

Once these cases get to court, mail/wire fraud matters are often clear-cut. However, getting to court is much more complex. Mail/wire fraud investigations are usually very long chains. If the chain has even one weak link, a Chicago mail & wire fraud defense lawyer can snap it into pieces.

Back in the day, mail/wire fraud cases were almost always mail fraud matters. Since the government controlled the mail, the evidence was technically government property. The rise of private mail carriers, like FedEx, started to change that dynamic. Today, very few people send sensitive information through the mail. They almost always use electronic communications.

From one perspective, the company owns communications that use its infrastructure. Many companies, especially wireless companies, freely cooperate with government agencies as a matter of policy. In other words, if the government wants to read your emails, it frequently only has to ask.

Sometimes, however, carrier companies dig in their heels in the name of privacy. There have been several high-profile cases in this area, mostly involving smartphones that belong to accused terrorists or deceased individuals. In these situations, if a search warrant exception doesn’t apply, government fraud investigators usually need search warrants.

Due to the aforementioned property ownership issues, consent is probably the most common search warrant exception in mail/wire fraud matters.

In the criminal law context, consent is voluntary and affirmative action. If investigators threaten to get search warrants or threaten to launch investigations about unrelated matters, any consent is coerced, at least to some extent, as opposed to voluntary. As for affirmative action, providing login information usually is not tantamount to providing consent. Instead, providing login data is like opening the door for a police officer to enter your home.

If authorities have search warrants, these warrants must be based on probable cause. The uncorroborated word of an informant usually is not probable cause. An officer’s evidence-based hunch is also usually not probable cause.

Furthermore, once the government obtains records, government lawyers must authenticate this information in court. Usually, this process involves securing a separate affidavit from the records custodian or arranging for this person to testify at trial. Either way, a Chicago mail & wire fraud defense lawyer may challenge this authentication. Affidavits do not always meet legal requirements and live witnesses are subject to cross-examination.

We aren’t done yet. After the government obtains and authenticates records, it must properly use them in court. Back in the day, jurors often gave federal investigators the benefit of the doubt in criminal cases. Those days are gone. Now, if anything, many jurors assume federal investigators are less than forthcoming in these matters. If jurors don’t believe the evidence is compelling, they may legally disregard it.

Mail Fraud Defenses

Any procedural error in the investigation could lead to a dismissal of charges at trial. If a Chicago mail & wire fraud defense lawyer reduces the amount of credible evidence available at trial, prosecutors often give up.

Overall lack of evidence is often an effective defense as well. Sometimes, there is simply not enough proof to establish guilt beyond a reasonable doubt.

Intent is often difficult to prove in these cases, especially given the way courts have interpreted Section 1346. This narrow interpretation often sets up the honest services defense. This doctrine has two major forms.

Over the years, Congress has tried to broaden Section 1436, so it applies to a wide range of nefarious schemes. Courts have consistently resisted these efforts.

In the 1980s, the government alleged that a trio of high-level Kentucky politicians had deprived the state’s citizens of “their right to have the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud.”

Similar to the Judge Kerner case discussed above, the government couldn’t prove the underlying official misconduct allegations. But it could prove the defendants used the mail, and prosecutors obtained several mail/wire fraud convictions.

The Supreme Court later overturned these convictions. The Justices ruled that the mail/wire fraud law only protected property. Congress amended the law, but courts have rejected these amendments in later cases.

Furthermore, the law is clear that the mail/wire fraud law only applies to legal interests. It’s legally impossible to commit wire fraud relating to illegal actions, like drug smuggling. Basically, evildoers can lie to other evildoers, and the government cannot stop them.

Possible Resolutions

Attorneys do not just leverage these defenses at trial. They also use them to obtain favorable plea bargain agreements. Because of some recent changes to the Federal Sentencing Act, these resolutions are easier to obtain.

Pretrial diversion and deferred disposition are usually available in nonviolent criminal cases, including fraud matters.

Basically, pretrial diversion is a conditional dismissal. If the defendant completes all program requirements within the allotted amount of time, prosecutors usually dismiss the case. These program requirements usually include restitution payment and community service. Pretrial diversion is risk-free. If the defendant doesn’t complete the program for whatever reason, prosecutors simply pick up where they left off.

Deferred disposition is a lot like regular probation. The defendant pleads guilty or no contest and is placed on probation. After the probation ends, if the defendant has had no major noncompliance or other issues, the judge dismisses the case. Deferred disposition is a high-risk and high-reward option that’s not a good idea in all cases.

In both situations, the criminal arrest record remains. A Chicago mail & wire fraud defense lawyer may be able to expunge or seal the arrest record in some cases. Furthermore, most employers and other private parties only care about conviction records. Legally, even if the arrest record remains, if defendants are asked if they have prior convictions, they may say “no.”

Connect with an Experienced Cook County Mail Fraud & Wire Fraud Attorney

Federal criminal charges are scary, but a number of successful resolutions are available. For a confidential consultation with an experienced white collar crimes lawyer in Chicago, contact The Law Offices of Vadim A. Glozman by calling 312-726-9015. Virtual, home, and jail visits are available.