Mail Fraud: What the Government Must Prove.

The core element is a scheme to defraud, which is simply “a plan or course of action” designed to cheat someone out of money or property. It is the broadest element in federal mail fraud cases.

• No actual harm required. The government does not have to prove the alleged fraudulent plan succeeded.
• No actual reliance required. Mail fraud does not require proof that a victim relied on the defendant’s deception to their detriment.
• No required identity. In many cases, the party deceived by the defendant is not the same party who suffered the actual loss.

3. Intent to Defraud

Criminal mail fraud requires intent, which prosecutors must prove beyond a reasonable doubt. The law defines intent broadly to encompass the “willful” or “conscious” pursuit of the fraudulent purpose.

• “Materially” is generally understood as having a “natural tendency to influence, or capable of influencing, the decision” of the potential victim.
• The intent element is usually the hardest to prove because defendants seldom (if ever) admit the alleged fraudulent purpose, or document the purpose in writing.
• With these complexities and the risks at stake, it is imperative to contact an experienced white-collar defense attorney as soon as possible if you are under investigation for federal mail fraud.

What kind of deception can qualify as federal mail fraud?

1. Money or Other Property

Federal mail fraud law, enacted in 1872, applies to schemes “to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, negotiated or transmitted by means of the mail.”

The Supreme Court has repeatedly been asked to define “money or property.” In McNally v. United States, 483 U.S. 350 (1987), the Court held that prior to enactment of the honest-services statute in 1988, federal mail fraud only prohibited schemes that threatened tangible money or property. Importantly, the Court held that the protection of citizens’ intangible “right to honest government services” does not fall within “money or property,” noting that “the alleged violation of these rights is not, however, to be counted as a ‘taking’ within the meaning of the Mail Fraud statute.”

In recent years, the Supreme Court has intervened to clarify the scope of mail fraud’s substantive protections. As the Court noted in Percoco v. United States (2023), these decisions are intended to limit “the breadth of the Mail Fraud and the Honest Services Fraud statutes,” with the Court reiterating, “the core of the mail fraud statute is to ‘prevent fraud, to stop the use of the mail for fraud, and to protect people’s money or property.’” The Court went on to explain that “the Honest Services statute also prohibits mail fraud executed with intent to defraud, to obtain money or property by means of false or fraudulent representations.”

• Federal courts have routinely held that state regulatory licenses (e.g., liquor licenses) and the government’s regulatory authority over traffic lanes do not constitute “money or property.”
• In Ciminelli v. United States (2023), the Supreme Court rejected the “right-to-control” theory of property fraud, finding that it could not authorize federal mail fraud prosecutions based on alleged fraud that does not result in a “tangible loss.”
• In Percoco v. United States (2023), the Court also rejected the theory that private citizens can face “honest-services” fraud liability based merely on “exercise of influence” over state government decisionmaking.
• The Supreme Court reaffirmed in Kousisis v. United States, 605 U.S. 114 (2025), that mail fraud does not require proof that the victim suffered economic loss, but rather, instead, a “property-fraud scheme” requires deception inducing the victim to part with money or property

2. Honest Services

Following the Supreme Court’s decision in McNally, Congress added a new element to federal mail fraud and wire fraud laws. 18 U.S.C. § 1346 now defines “scheme or artifice, including a scheme or artifice, to defraud” to include, “a scheme or artifice to deprive another of the intangible right of honest services.”

• This is referred to as “honest services” fraud.
• Initially, federal courts of appeals interpreted “honest services” very broadly, and this led to a wave of prosecutions involving various forms of conflicts of interest, quid-pro quo arrangements, and self-dealing by elected and appointed officials.
• However, the Supreme Court’s decision in Skilling v. United States (2010) significantly narrowed the scope of honest-services mail fraud. The Court held that “the honest-services statute’s prohibitions apply only to bribes or kickback schemes, and not to other forms of undisclosed conflicts of interest.”

When is a lie material enough for mail fraud?

1. What Does “Materially” Mean in This Context?

In the context of federal mail fraud, a false statement or misrepresentation is material if it is “materially” sufficient to influence the recipient. While not all material statements are subject to criminal penalties, the general rule is that for an alleged misrepresentation to have materiality, it must have the capacity to influence the potential victim’s decision, and that capacity is measured from the perspective of the party it was allegedly intended to influence.

This definition is extremely broad; and, as a result, virtually any type of misrepresentation can be material in the context of federal mail fraud. However, as noted above, proof of materiality is only one element. Prosecutors must also prove that the defendant, (i) intended to induce the victim to act in reliance on the misrepresentation, and, (ii) used the mail or an interstate wire transmission to execute the fraudulent scheme.

In Kousisis v. United States, 605 U.S. 114 (2025), the Supreme Court discussed materiality at length. The Court affirmed that the alleged false statement’s ability to “materially” influence the victim’s decision can be distinct from whether, (i) the false statement actually influenced the victim’s decision; (ii) any actual loss was sustained; and, (iii) the false statement was necessary to the transfer of money or property.

2. How Can a Misrepresentation be immaterial?

The Supreme Court also affirmed in Kousisis that materiality is an objective standard. In Kousisis, the defendant allegedly misrepresented that a project had “uninterrupted, fully continuous, and on-the-job experience” when, in fact, a different company, called “Markias, Inc.,” had acted as a mere pass-through. The plaintiff, the Commonwealth of Pennsylvania, had contracted for the work and had received satisfactory contract work, regardless of whether the misrepresentation was actually and substantially true. However, the Supreme Court refused to remand the case for further proceedings to determine the issue of materiality, instead noting that because Kousisis and Alpha did not contest the materiality of their misrepresentations, the Court had no occasion to resolve the parties’ debate over the proper materiality standard.

3. Are Misrepresentations Necessarily Material to Suspend a Victim’s Use of Their Property?

The Supreme Court also addressed whether a misrepresentation must have had “actual effect” on the recipient of the mail in order to meet the requirement of materiality. In Kousisis, the government failed to provide evidence that Pennsylvania’s contract award would not have been executed if not for the misrepresentations at issue. The Supreme Court also refused to remand the case to the district court for further proceedings on this issue, and that decision of the Supreme Court had the effect of allowing the government to proceed without proof that the misrepresentation influenced Pennsylvania’s award of the contract to the defendant.

However, it is also possible that “mere evidence” of the fact that Pennsylvania had not changed its mind about awarding the contract to the defendant could undermine a finding of “objective materiality” as to the Defendant’s alleged misrepresentations.

In Kousisis, the Supreme Court reiterated, “the fact that the alleged victim did not rely on the defendant’s statement is irrelevant.” The fact that Pennsylvania had not changed its mind about awarding the contract to the defendant does not necessarily mean that the misrepresentations were immaterial, and a court or jury should never automatically presume immateriality from the fact that a victim was not deceived.

There is a broad range of statements that do not have the capacity to “materially” influence the intended recipient’s decision.

• Vague, subjective, and puffery-type claims and representations may be immaterial because they do not convey concrete facts to the recipient.
• Omissions can, as discussed in detail below, make otherwise accurate statements materially misleading.
• However, the Supreme Court in Kousisis noted that this did not “alter the holding of Neder,” which established that for a misrepresentation to be material under federal mail fraud statutes, it must “have a natural tendency to influence, or be capable of influencing, the decision of the intended victim.”

4. Can Omissions Constitute Mail Fraud?

The federal mail fraud statute does not say “any writing that transmits a false statement.” However, a misleading statement is a false statement. If a statement is so incomplete as to mislead its reader and that is the party intended to be the victim of the fraudulent scheme, then the statement is materially misleading, and the mail transmission of the statement is subject to federal prosecution for mail fraud. As in the example of a property sale, if a person lists a home for sale and makes accurate statements about the home’s appearance and condition but leaves out the fact that the property is in a flood zone, then this is an omission that can potentially turn an otherwise accurate statement into a “half-truth,” and thus, potentially lead to a prosecution for federal mail fraud.

There is, however, a subtle but important difference between “fraud through a representation” (e.g., through a false statement) and “fraud through an omission.” When fraud by omission is at issue, in order to establish materiality, the federal government must establish that (i) the defendant had a “legal duty to disclose” information; and, (ii) the defendant made a misleading omission based on the information that the defendant was under a legal duty to disclose.

Again, this is why in federal criminal law, every case is uniquely different, and it is imperative to engage an experienced federal defense lawyer to assess your risk of liability.

When does an ordinary mailing further the alleged scheme?

1. Does the defendant have to personally place the item in the mail?

The federal mail fraud statute includes “knowingly causes to be delivered by mail,” and as a result, the defendant does not have to personally place the item in the mail to trigger prosecution under 18 U.S.C. § 1341. For example, if the defendant sends an email to the victim and the email is sent by the victim’s internet service provider, this “use” of a “means or facilitie[s]” of interstate communication may satisfy the statute.

Along the same lines, a defendant may be liable under the federal mail fraud statute even if he or she did not personally place an item in the mail, but instead, “knowingly or intentionally” caused someone else to put the item in the mail. In Pereira v. United States, 347 U.S. 1 (1954), the Supreme Court addressed the issue of third-party liability under Section 1341. The Court reasoned that “if a defendant uses the mails indirectly” he or she could be liable under the statute. However, for such a mailing to serve as the necessary second element of mail fraud, it must:

• Be caused by the defendant knowingly or intentionally;
• Accompany an essential part of the scheme to defraud;
• Be “reasonably foreseeable” based on the information available to the defendant; and,
• Exist before the scheme was fully consummated.

2. What types of mailings are considered “use” under federal mail fraud law?

The phrase “or knowingly or intentionally causing . .. to be transmitted” is also exceedingly broad. As a result, virtually any type of mailing or transmission can serve as the “use” that helps to trigger federal mail fraud liability under 18 U.S.C. § 1341. Examples of mailings and transmissions that may trigger liability include:

• Mailings that are necessary to facilitate the defendant’s execution of the alleged scheme.
• Mailings that accompany an important stage of the fraudulent scheme.
• Mailings made to help prolong a fraudulent scheme.
• Mailings made with the intent to conceal a fraudulent scheme.

While the “mailing” requirement is a crucial element, it is only the “mailing” requirement. To maintain a federal prosecution for mail fraud, there must be a “nexus” between the mailing and the fraudulent scheme at issue. The Supreme Court explained in Kann v. United States, 323 U.S. 88 (1944) that, “to qualify as ‘use of the mails’ it must advance the alleged fraudulent scheme in some way, not just as to timing, but as to substantive connection.”

• In Kann, the fraud had ended and the defendants had received the proceeds of the scheme. Further, there were no attempts to conceal the fraud or prolong the fraudulent scheme. Even though the defendants’ administrative mailings were sent within a reasonable time following the fraud, they lacked the requisite nexus to advance the scheme.

3. Does “Causing” a Mailing Establish that the Mailing Furthered the Alleged Fraudulent Scheme?

The statute includes the language “knowingly or intentionally causing . .. to be transmitted,” but this phrase only pertains to the defendant’s use of a “means or facilitie[s]” of interstate communication to transmit, “any false or fraudulent pretenses, representations, or promises,” or to “execute a scheme or artifice.” The government’s proof of the mailing requirement under Section 1341 does not establish the existence of a “nexus,” and the latter must be proved by the government independently.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

What evidence proves intent, and how does good faith help?

1. Specific Intent to Defraud vs. Negligence

Federal mail fraud is a specific intent crime. This means the government must prove the defendant had the “specific intent to defraud.” Negligence or carelessness is not sufficient; a defendant who acted out of ignorance or carelessness will not be criminally liable if his or her actions did not rise to the level of a specific intent to defraud.

It should also be noted that “intent” is an inferable state of mind. It is not enough for the government to show a “reckless” state of mind, that is, that the defendant “did not care if his or her actions would result in fraud,” but that he or she deliberately sought to defraud.

2. Good Faith Defenses

One of the best defenses to federal mail fraud is good faith. A defendant who acted in good faith generally does not have the specific intent to defraud. This can include good faith reliance on advice of counsel, good faith misunderstanding of the law, or good faith belief in the truth of an allegedly false statement.

Evidence of a good faith belief that is wholly inconsistent with the state of mind needed for a fraud conviction can defeat the government’s case entirely. While the government does not have to prove the defendant did not act in good faith, it must prove the defendant acted with a specific fraudulent intent beyond a reasonable doubt.

3. Evidence of Fraudulent Intent

Intent is an inferable state of mind, so the government can prove fraudulent intent solely through circumstantial evidence. In many cases, the government’s evidence of fraudulent intent will come in the form of communications among the alleged co-conspirators. Email, text messages, call logs, and social media posts can serve as powerful evidence of fraudulent intent when taken as a whole.

4. Evidence that Falsely or Misleadingly Implied Truth

Along the same lines, evidence that the defendant’s scheme was designed to falsely or misleadingly imply truth can also prove fraudulent intent. For example, using reputable consultants to review and approve the fraudulent materials could serve as evidence of the defendant’s intent to present false claims as true, while also being in the defendant’s possession in the form of contracts, fees paid, and other relevant records of the fraudulent engagement.

5. Advice of Counsel Defenses

Advice of counsel is another way of showing good faith. In order to use advice of counsel as a defense, the defendant must typically establish: (i) that he or she made a full disclosure of all pertinent information to his or her attorney; and, (ii) that the defendant relied on the attorney’s advice in good faith. Generally, the advice of counsel defense is subject to the same standards as the good-faith belief defense:

• The defense does not necessarily warrant acceptance at face value by the prosecution, and prosecutors can present evidence of fraudulent intent to counter it.
• Raising the advice of counsel defense usually triggers a waiver of the defendant’s attorney-client privilege for all communications related to the matter.

6. Defenses Related to Recklessness

Recklessness is not equivalent to fraudulent intent. While circumstantial evidence of recklessness could provide evidence of fraudulent intent, it cannot alone meet the standard of purposeful or intentional fraud.

7. Mistake of Fact Defense

Similar to a good-faith defense, the mistake of fact defense can be used to undermine the government’s argument that a defendant’s actions were intentional. If, on the balance of probabilities, a defendant’s alleged actions were a mistake rather than a deliberate attempt to deceive, the mistake of fact defense can establish that the Defendant did not act with specific fraudulent intent.

How Do Mailings Affect Charges, Deadlines, and Trial Location?

1. Charges

Each qualifying mailing under federal law may support a separate mail-fraud charge. In a federal mail fraud case with allegations of multiple mailings that meet all other criteria, the prosecution may present a multi-count federal indictment.

2. Deadlines

The general statute of limitations for mail fraud is five years. However, 18 U.S.C. § 3293 permits an extension of the statute of limitations to ten years if the mail fraud affects a financial institution. Since mail fraud charges are calculated based on the mailings involved, the limitations analysis is based on whether each charged mailing fell within the appropriate statute of limitations window.

3. Trial Location

The venue for a federal mail fraud case depends on where the qualifying mailings went through the mail stream. Federal mail fraud can potentially arise in:

• The location where the defendant sent the mailing;
• Any location that the mailing went through; or,
• The location where the mailing was received.

4. Investigations

The United States Postal Inspection Service plays a central role in federal mail fraud cases. The U.S. Postal Inspection Service collects evidence that can then lead to a federal grand jury proceeding and a federal mail fraud indictment. Postal inspectors work alongside other law enforcement personnel, including the FBI, IRS-CI, and federal prosecutors from the U.S. Attorney’s Office.

What penalties can follow a federal mail fraud conviction?

1. Prison Time

The ordinary maximum prison term for federal mail fraud is 20 years per charged count under 18 U.S.C. § 1341. Section 1341 contains no mandatory minimum prison sentence. However, under 18 U.S.C. § 1348, the maximum prison term becomes 30 years for cases in which a bank or other financial institution is affected.

The prison sentence in a federal mail fraud case will depend on the facts, the charges at issue, the results of the trial, and any mitigating and aggravating factors. While individual § 1341 counts can lead to substantial prison sentences, the statute’s counts are often deemed “related,” and, as a result, counts related to similar schemes may be grouped by defendants’ attorneys or judges under U.S.S.G. § 3D1.2(d). In that case, for the purpose of calculating a defendant’s advisory guidelines prison term, the courts only consider the most serious charge.

2. Probation

Although jail time and probation can both be forms of sentencing, they are different. While probation can be a sentence on its own, probation can also serve as a form of sentencing that accompanies the imprisonment term. In a federal court setting, the conditions of probation are subject to the presiding judge’s discretion.

3. Restitution

Under 18 U.S.C. § 3663A, restitution is mandatory in all cases where a convicted defendant caused pecuniary loss to a victim. While the U.S. Sentencing Guidelines measure intended loss for calculating a defendant’s advisory Guideline range, the mandatory victim restitution under the Mandatory Victims Restitution Act (MVRA) is calculated based on the defendant’s actual loss.

4. Supervised Release

Similar to probation, supervised release is an alternative to a custodial sentence, as well as a form of sentencing that can accompany the imprisonment term. Like probation, the conditions of supervised release are determined by the presiding judge.

5. Statutory Maximums vs. the U.S. Sentencing Guidelines

While statutory maximums are extremely important, they set the maximum possible sentence in a given federal case, but they do not determine a defendant’s advisory Guidelines range. The a U.S. sentencing court must also take into account the advisory guidelines, which take into account the specific circumstances of the defendant’s alleged fraudulent activity and any pertinent aggravating or mitigating circumstances that may apply.

6. Concurrent or Consecutive Sentences

While multiple § 1341 counts may carry separate, substantial penalties, separate counts do not necessarily lead to consecutive prison terms. Rather, a court may choose to hand down concurrent or consecutive prison sentences depending on the facts and the circumstances involved.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.