Federal Mail Fraud Explained: Elements and Defenses

Mail fraud and wire fraud are twin statutes. They share elements, share defenses, and share the distinction of appearing in more federal indictments than any other pair of provisions in the white-collar criminal code.

18 U.S.C. 1341 prohibits the use of the mails, or any private or commercial interstate carrier, in furtherance of a scheme to defraud. Its elements mirror those of the wire fraud statute with the substitution of mail or carrier use for electronic transmission. A single mailing, a single FedEx package, a single piece of correspondence sent through any carrier that traverses state lines in connection with a fraudulent scheme satisfies the use element. The statute’s reach, like its wire fraud counterpart, is as broad as modern commerce.

The Scheme to Defraud

The scheme to defraud element in mail fraud cases is analyzed identically to the same element in wire fraud cases. It requires a plan involving material misrepresentations or omissions made with the intent to obtain money or property. The materiality standard applies. The honest services fraud extension under Section 1346 applies. The post-Skilling limitation to bribery and kickback schemes applies.

What distinguishes mail fraud cases from wire fraud cases in practice is frequently the nature of the conduct and the era in which it occurred. Schemes predating widespread electronic commerce were more likely to rely on postal mail and physical carriers. Schemes involving physical products, real property, and document-intensive transactions continue to generate mail fraud charges alongside wire fraud charges because the physical correspondence required by those transactions provides the use element.

Causation and the Mailing

The government must prove that the defendant caused the mailing or the use of a carrier. The causation standard is broad: a defendant causes a mailing if they take a step that they know will naturally result in a use of the mails. A defendant who sends a fraudulent inducement letter directly has obviously caused the mailing. A defendant who creates circumstances in which the victim naturally and predictably uses the mail in responding to the scheme has also caused a mailing, even if the defendant did not write or send the specific communication.

The mailing need not itself contain the fraudulent representation. It need only be in furtherance of the scheme. A mailing of a genuine document in connection with a transaction infected by fraud is a mailing in furtherance of the scheme. Courts have interpreted this broadly, and indictments frequently charge multiple counts of mail fraud based on separate mailings in connection with a single fraudulent transaction.

The Honest Services Dimension

Mail fraud prosecutions based on the honest services theory, section 1346, are most common in public corruption cases, where a government official uses their position for personal gain through bribery or kickbacks. The Skilling limitation has channeled honest services mail fraud cases toward conduct with a clear quid pro quo, and cases based on undisclosed conflicts of interest or self-dealing without a specific corrupt payment have faced greater difficulty post-Skilling.

Private sector honest services cases, involving employees or fiduciaries who accept kickbacks or bribes from counterparties, remain viable after Skilling. The critical element is the corrupt payment. An employee who fails to disclose a personal interest in a transaction but who does not receive a specific payment in exchange for a specific act is in a more defensible position than one who accepted money to steer business to a particular vendor.

Mail fraud and wire fraud are frequently charged together in the same indictment based on the same scheme. The defense strategy for one is generally the defense strategy for the other, but the use element for each requires separate analysis, and a mailing or transmission that the government counts as a separate count is a separate count for sentencing purposes.

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

NY Bar Admitted Multi-State Licensed Federal Courts

Meet the Full Team

Defense Considerations

The defenses available in mail fraud cases track those available in wire fraud: good faith belief in the accuracy of representations, absence of materiality, lack of specific intent to defraud, and absence of a scheme within the statute’s definition as narrowed by the relevant circuit’s interpretation. The additional defense specific to the mailing element is the argument that the defendant did not cause the mailing and that the use of the mail was not reasonably foreseeable.

Multiplicity, the charging of multiple counts based on separate uses of the mail in connection with a single scheme, is a defense consideration that affects both the trial strategy and the sentencing exposure. Each separate count carries a twenty-year maximum sentence. A defendant convicted of ten counts of mail fraud based on ten separate mailings in connection with a single fraud faces a guidelines calculation that counts each conviction and may produce a range that exceeds any reasonable estimate of what the conduct deserves.

The early retention of counsel in any matter that involves mailed or electronically transmitted communications in connection with alleged fraudulent conduct is the decision that permits these considerations to be addressed before they become features of an indictment.