Federal Bank, Mail and Wire Fraud

Federal Bank, Mail and Wire Fraud is one of the broadest basis for a RICO charge. 18 U.S.C. §1341, 18 U.S.C. §1343 and 18 U.S.C. §1344 are the statutes that comprise Bank, Mail and Wire Fraud. These statutes basically prohibit the use of any mails or interstate telephone calls, Internet, radio or TV in furtherance of any fraudulent scheme. This is one of many “predicate” acts that are necessary to find a RICO violation.

These violations different are that in that they do not require the pleading of misrepresentation, reliance or injury stemming directly from the conduct at issue (i.e., from the fraudulent mail, wire or TV communication). The communication need only be in furtherance of the scheme which intentionally or recklessly causes harm. In fact, past studies have shown that mail and wire fraud predicate acts were the primary reason for the majority of RICO complaints filed between 1970 and 1985.

Whether in New Jersey, or the rest of the country in Federal Court, in order for the Government to prove Bank, Mail or Wire Fraud under 18 U.S.C. §1341, 1343 and 1346 they must show:

  • A scheme or artifice to defraud or obtain money or property by means of false pretenses, representations or promises;
  • A use of the mails or interstate wires for the purpose of executing the schemes; and
  • A specific intent to defraud, either by devising, participating in or abetting a scheme.

The difference between Mail and Wire Fraud is that “Wire” Fraud requires proof of international or interstate communication through relevant media (TV, radio, Internet, etc.). “Mail” Fraud only needs to show that the U.S. Postal Service and mailing was involved. Private courier services such as Federal Express, UPS, etc. do not satisfy the mail fraud statute.

The Government can usually show a “scheme or artifice to defraud” if they can prove any trickery, deceit, concealment of material fact, affirmative misrepresentation or half truth. Also, the Government only needs to show that the use of the U.S. mails or wires were in furtherance of the scheme, or as a later act to lull the victim into a false sense of security. Therefore, almost any communication by person associated with the illegal enterprise (i.e., a Racketeering association) when made to a victim or any other member of the association (whatever its content) can be held to be in furtherance of the scheme. Even if there is an absence of the specific duty to disclose information, the omission of material fact can constitute mail fraud.

Possible Punishment for New Jersey Federal Bank, Mail and Wire Fraud

In 1987, the United States Sentencing Commission presented its Sentencing Guidelines. One of the goals of the Sentencing Commission was to bring about tougher sentencing for “White Collar crimes”. Even the most minor White Collar felonies would draw incarceration under the guidelines. Until 2005, these guidelines were mandatory, then the U.S. Supreme Court’s decision in U.S. v. Booker changed the rules and held that the sentencing guidelines are now advisory in nature (in other words, the judge has much more discretion).

The sentencing guidelines assign a numerical offense level (ranging from number one to number forty three) for every Federal offense. Level one is the lowest, and level forty three is the highest (i.e., a level forty three results in life imprisonment).

Federal Bank, Mail and Wire Fraud offenses are automatically given a base offense level of seven. In addition, there is an increase in a sentencing level depending on the amount of monetary loss (for example, $5,000 or more adds two levels; $10,000 or more adds four levels; etc. all the way up to $400,000 or more-which adds thirty levels. Also, additional levels are added for a multitude of other factors (such as number of victims, whether mass mailing was used, whether there was a misrepresentation that the defendant was acting on the behalf of a charitable group of Governmental agency, whether $1,000,000 in gross receipts were obtained from one or more financial institutions, whether it involved the violations of security law and the defendant was an officer or director of a publicly traded corporation, etc.). A standard example with minimum aggravators would involve a defendant with no prior significant record who was accused of taking more than $200,000, (but less than $400,000) would be assigned a base level of nineteen, which would result in a sentence of thirty to thirty seven months in prison. However, the guidelines also provide for a number of adjustments that can either increase or decrease an offense level. This means that a judge can tailor a particular sentence to a defendant based on the factors set forth in 18 U.S.C. §3553(a).

Since the advent of Booker, the court is obligated to consider the individual circumstances of each particular case and then render a sentence “sufficient, but not greater than necessary” for an individual defendant, both in light of the sentencing guidelines and the factors set forth in 18 U.S.C. §3553(a).

Although the judge cannot dictate where a sentence will be served, he can recommend to the Bureau of Prisons where the sentence should be carried out. They normally will attempt to follow the judge’s recommendation. Where a Defendant is incarcerated is obviously important due to access to family, medical treatment, and overall quality of life.

Other Types of Fraud Crimes in Federal District Court

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