Mail and Wire Fraud: A Brief Overview of
Federal Criminal Law
Charles Doyle
Senior Specialist in American Public Law
July 21, 2011
Congressional Research Service
7-5700
www.crs.gov
R41930
CRS Report for Congress
P
repared for Members and Committees of Congress
Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
Summary
It is a federal crime to devise a scheme to defraud another of property, when either mail or wire
communications are used in furtherance of the scheme, 18 U.S.C. 1341, 1343. Mail or wire fraud
includes schemes to defraud another of honest services, when the scheme involves bribery or a
kick back, 18 U.S.C. 1346; Skilling v. United States, 130 S.Ct. 2896 (2010). In order to convict,
the government must prove beyond a reasonable doubt that the defendant (1) used either mail or
wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a
material deception, (4) with the intent to deprive another of, (5) either property or honest services.
Offenders face the prospect of imprisonment for not more than 20 years, a fine of not more than
$250,000 (not more than $500,000 for organizations), an order to pay victim restitution, and the
confiscation of any property realized from the offense.
Misconduct that constitutes mail or wire fraud may also constitute a violation of one or more
other federal crimes. Principal among these are predicate offense crimes, frauds based on
jurisdictional factors other than use of mail or wire communications, and other honest services
frauds in the form of bribery or kickbacks. The other federal bribery and kickback offenses
include bribery of public officials, federal program bribery, extortion under color of official right,
and Medicare/Medicaid kickbacks. Mail and wire fraud are money laundering and racketeering
predicate offenses. Numbered among the fraud offenses based on other jurisdiction grounds are
the false claims and false statement offenses, bank fraud, health care fraud, securities fraud, and
foreign labor contracting fraud.
This report is available in an abridged version as CRS Report R41931, Mail and Wire Fraud: An
Abridged Overview of Federal Criminal Law, by Charles Doyle, without the footnotes, appendix,
quotation marks, or citations to authority found here. Related CRS reports include CRS Report
R40852, Deprivation of Honest Services as a Basis for Federal Mail and Wire Fraud
Convictions, by Charles Doyle.
Congressional Research Service
Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
Elements ..................................................................................................................................... 2
Use of Mail or Wire Communications ................................................................................... 3
Scheme to Defraud................................................................................................................ 3
Materiality ............................................................................................................................ 4
Intent .................................................................................................................................... 5
Money, Property, or Honest Services ..................................................................................... 5
Aiding and Abetting, Attempt, and Conspiracy ...................................................................... 6
Sentencing ............................................................................................................................ 7
Sentencing Guidelines..................................................................................................... 7
Supervised Release and Special Assessments .................................................................. 9
Restitution .................................................................................................................... 10
Forfeiture...................................................................................................................... 10
Related Criminal Provisions ...................................................................................................... 11
Predicate Offense Crimes .................................................................................................... 11
RICO ............................................................................................................................ 11
Money laundering ......................................................................................................... 13
Fraud Under Other Jurisdictional Circumstances ................................................................. 14
Defrauding the United States......................................................................................... 14
Fraud Elsewhere in Chapter 63...................................................................................... 16
Honest Services Fraud Elsewhere.................................................................................. 19
Appendixes
Appendix. Mail and Wire Fraud Statutes ................................................................................... 24
Contacts
Author Contact Information ...................................................................................................... 24
Congressional Research Service
Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
Introduction
The federal mail and wire fraud statutes outlaw schemes to defraud that involve the use of mail or
wire communications.1 Both condemn fraudulent conduct that may also come within the reach of
other federal criminal statutes. Both may serve as racketeering and money laundering predicate
offenses. Both are punishable by imprisonment for not more than 20 years; for not more than 30
years, if the victim is a financial institution or the offense is committed in the context of major
disaster or emergency. Both entitle their victims to restitution. Both may result in the forfeiture of
property.
Background
The mail fraud statute was first enacted in the late nineteenth century in order to prevent city
slickers from using the mail to cheat guileless country folks.2 But for penalty increases and
amendments calculated to confirm its breath, the prohibition has come down to us essentially
unchanged.3 Speaking in 1987, the Supreme Court noted that “the last substantive amendment to
the statute . . . was the codification of the holding of Durland . . . in 1909 [that is, (Durland v.
United States, 161 U.S. 306 (1896)(rejecting the argument that the statute was limited to the
common law crime of false pretenses)].4 Congress did amend it thereafter to confirm that the
statute and the wire fraud statute reached schemes to defraud another of the right to honest
services 5 and to encompass the use of commercial postal carriers.6
The wire fraud statute is of more recent vintage. Enacted as part of the Communications Act
Amendments of 1952,7 it was always intended to mirror the provisions of the mail fraud statute.8
1 18 U.S.C. 1341(mail fraud), 1343(wire fraud).
2 The prohibition was thought necessary “to prevent the frauds which are mostly gotten up in the large cities . . . by
thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the
country,” McNally v. United States, 483 U.S. 350, 356 (1987), quoting, 43 Cong. Globe 35 (1870)(remarks of
Representative Farnsworth).
3 Act of June 8, 1872, ch. 335, §302, 17 Stat. 323 (1872): “That if any person having devised or intending to devise any
scheme or artifice to defraud, or be effected by either opening or intending to open correspondence or communication
with any other person (whether resident within or outside of the United States), by means of the post-office
establishment of the United States, or by inciting such other person to open communication with the person so devising
or intending, shall, in and for executing such scheme or artifice (or attempting so to do), place any letter or packet in
any post-office of the United States, or take or receive any therefrom, such person, so misusing the post-office
establishment, shall be guilty of a misdemeanor, and shall be punished with a fine of not more than five hundred
dollars, with or without such imprisonment, as the court shall direct, not exceeding eighteen calendar months. . . .”
4 McNally v. United States, 483 U.S. at 357 n.6. The penalty for general violations remained at imprisonment not more
than 18 months until the 1909 criminal code revision when it was increased to imprisonment for not more than 5 years,
Act of March 4, 1909, ch. 321, §217, 35 Stat. 1130 (1909). So it stayed until 2002, when it was increased to
imprisonment for not more than 20 years, P.L. 107-204, §903(a), 116 Stat. 805 (2002). The penalty enhancement for
defrauding a financial institution was added in 1989, P.L. 101-73, §961(i), 103 Stat. 500 (1989), and increased from a
maximum of imprisonment for not more than 20 years to its present maximum of imprisonment for not more than 30
years in 1990, P.L. 101-647, §2504(h), 104 Stat. 4861 (1990). The application of the 30-year maximum to disaster
related frauds appeared in 2008, P.L. 110-179, §4, 121 Stat. 2257 (2008).
5 18 U.S.C. 1346.
6 P.L. 103-322, §250006, 108 Stat. 2087 (1994).
7 Act of July 16, 1952, ch. 879, §18(a), 66 Stat. 722 (1952).
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Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
Since its inception, changes in the mail fraud statute have come with corresponding changes in
the wire fraud statute in most instances.9
Elements
The mail and wire fraud statutes are essentially the same, except for the medium associated with
the offense – the mail in the case of mail fraud and wire communication in the case of wire fraud.
As a consequence, the interpretation of one is ordinarily considered to apply to the other.10 In
construction of the terms within the two, the courts will frequently abbreviate or adjust their
statement of the elements of a violation to focus on the questions at issue before them.11 As
treatment of the individual elements makes clear, however, there seems little dispute that
conviction requires the government to prove:
1. the use of either mail or wire communications in the foreseeable furtherance
2. of a scheme to defraud
3. involving a material deception
4. with the intent to deprive another of
5. either property or honest services.
(...continued)
8 H. Rept. 82-388, at 1 (1951)(“The general object of the bill is to amend the Criminal Code . . . making it a Federal
criminal offense to use wire or radio communications as instrumentalities for perpetrating frauds upon the public. In
principal it is not dissimilar to the post fraud statute (18 U.S.C. 1341)”); S. Rept. 82-44, at 14 (1951)(“This section . . .
is intended merely to establish for radio a parallel provision now in the law for fraud by mail, so that fraud conducted
or intended to be conducted by radio shall be amenable to the same penalties now provided for fraud by means of the
mails”); H. Rept. 82-1750, at 22 (1952).
9 There was no need to amend the wire fraud statute, when commercial carriers were included in the mail fraud statute
or when references to the Postal Service were substituted to references to the Post Office, P.L. 103-322, §250006(1),
108 Stat. 2087 (1994); P.L. 91-375, §6(j)(11), 84 Stat. 778 (1970).
10 Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005)(“we have construed identical language in the wire and
mail fraud statutes in pari materia”), citing, Neder v. United States, 527 U.S. 1, 20 (1999) and Carpenter v. United
States, 484 U.S. 19, 25 and n.6 (1987); see also, United States v. Mullins, 613 F.3d 1273, 1281 n.2 (10th Cir. 2010)
(“[I]nterpretations of the mail fraud statute are, of course, authoritative on questions of wire fraud”); United States v.
McKanry, 628 F.3d 1010, 1017 (8th Cir. 2011)(“The elements of wire fraud are nearly identical except they involve the
use of interstate wiring instead of mail”).
11 E.g., United States v. Washington, 634 F.3d 1180, 1183 (10th Cir. 2011)(here and elsewhere internal quotation marks
and citations have usually been omitted)(“To establish guilt under the mail-fraud statute, the government had to prove
that (1) Mr. Washington engaged in a scheme or artifice to defraud or to obtain money by means of false and fraudulent
pretences; (2) he did so with the intent to defraud; and (3) he used a private or commercial interstate carrier to facilitate
that scheme”); United States v. Schmitz, 634 F.3d 1247, 1260 (11th Cir. 2011)(“Mail fraud consists of the following
elements: (1) an intentional participation in a scheme to defraud a person of money or property, and (2) the use of the
mails in furtherance of the scheme”); United States v. Jenkins, 633 F.3d 788, 804 (9th Cir. 2011)(“Wire fraud has three
elements: (1) a scheme to defraud; (2) use of wires in furtherance of the scheme; and (3) a specific intent to deceive or
defraud”); United States v. Radley, 632 F.3d 177, 184 (5th Cir. 2011)(“To prove wire fraud, the government must
prove: (1) a scheme to defraud and (2) the use of, or causing the use of, wire communications in furtherance of the
scheme”); United States v. McKanry, 628 F.3d 1010, 1017 (8th Cir. 2011)(“To establish mail fraud, the government
must prove: (1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3)
reasonable foreseeability that the mail would be used, and (4) that the mail was used in furtherance of some essential
step in the scheme”); United States v. Riley, 621 F.3d 312, 325 (3d Cir. 2010)(“In order to find a defendant guilty of
mail fraud under §1341, the prosecution must prove that (1) there was a scheme to defraud; (2) the defendant acted
with the intent to defraud; and (3) the defendant used the mails to further or carry out the scheme”).
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Use of Mail or Wire Communications
The wire fraud statute applies to anyone who “transmits or causes to be transmitted by wire,
radio, or television communication in interstate or foreign commerce any writings . . . for the
purpose executing [a]. . . scheme or artifice.”12 The mail fraud statute is similarly worded and
applies to anyone who “. . . for the purpose of executing [a] . . . scheme or artifice . . . places in
any post office . . . or causes to be delivered by mail. . . any . . . matter.”13
The statutes require that a mailing or wire communication be in furtherance of a scheme to
defraud. It need not be an essential element of the scheme, as long as it “is incident to an essential
element of the scheme.”14 A qualifying mailing or communication, standing alone, may be
routine, innocent or even self-defeating, because “[t]he relevant question at all times is whether
the mailing is part of the execution of the scheme as conceived by the perpetrator at the time,
regardless of whether the mailing later, through hindsight, may prove to have been
counterproductive.”15 The element may also be satisfied by mailings or communications
“designed to lull the victim into a false sense of security, postpone inquiries or complaints, or
make the transaction less suspect.”16
A defendant need not personally have mailed or wired a communication; it is enough that he
“caused” a mailing or transmission of a wire communication in the sense that the mailing or
transmission was the reasonable foreseeable consequence of his intended scheme.17
Scheme to Defraud
The mail and wire fraud statutes “both prohibit, in pertinent part, ‘any scheme or artifice to
defraud[,]’ or to obtain money or property ‘by means of false or fraudulent pretenses,
representations, or promises,”18 or deprive another of the right to honest services by such means.19
From the beginning, Congress intended to reach a wide range of schemes to defraud, and has
expanded the concept whenever doubts arose. It added the second prong – obtaining money or
property by false pretenses, representations, or promises – after defendants had suggested that the
term “scheme to defraud” covered false pretenses concerning present conditions but not
12 18 U.S.C. 1343.
13 18 U.S.C. 1341.
14 Schmuck v. United States, 489 U.S. 705, 712 (1989), quoting, Pereira v. United States, 347 U.S. 1, 8 (1954); United
States v. Washington, 634 F.3d 1183-184 (10th Cir. 2011); United States v. Dowl, 619 F.3d 494, 499 (5th Cir. 2010).
15 Schmuck v. United States, 489 U.S. at 715, citing by way of example, Carpenter v. United States, 484 U.S. 19, 28
(1987); United States v. Coughlin, 610 F.3d 89, 98 (D.C.Cir. 2010).
16 United States v. Lane, 474 U.S. 438, 451-52 (1986), quoting, United States v. Maze, 414 U.S. 395; 403 (1974);
United States v. Faulkenberry, 614 F.3d 573, 582 (6th Cir. 2010); United States v. Phipps, 595 F.3d 243, 246-47 (5th
Cir. 2010).
17 Pereira v. United States, 347 U.S. at 8-9 (“Where one does an act with knowledge that the use of the mails will
follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually
intended, then he ‘causes’ the mails to be used”); United States v. Dooley, 578 F.2d 582, 588 (7th Cir. 2009); United
States v. Weiss, 630 F.3d 1263, 1269-270 (10th Cir. 2010); United States v. Green, 592 F.3d 1057, 1069-70 (9th Cir.
2010).
18 Neder v. United States, 527 U.S. 1, 20 (1999).
19 18 U.S.C. 1346.
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Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
representations or promises of future conditions.20 More recently, it added Section 1346 to make
it clear the term “scheme to defraud” encompassed schemes to defraud another of the right to
honest services.21 Even before that adornment, the words were understood to “refer ‘to wronging
one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation
of something of value by trick, deceit, chicane or overreaching.’”22
The statutes condemn schemes to defraud – both the successful and the unsuccessful.23
Nevertheless, there may be some question whether the statutes reach those schemes designed to
deceive the gullible though they could not ensnare the reasonably prudent. It is not uncommon for
the courts to declare that to demonstrate a scheme to defraud the government needs to show that
the defendant’s “communications were reasonably calculated to deceive persons of ordinary
prudence and comprehension.”24 One court considered these statements no more than an
identification of a point at which the government has satisfied its burden in a particular case,
without addressing whether a lesser quantum of evidence might suffice in other cases.25 In any
event, the question may be more clearly present in the context of the defendant’s intent and the
materiality of deception, matters discussed below.
Materiality
Neither the mail nor the wire fraud statute include a reference to materiality. Yet materiality is an
element of each offense, because at the time of the statutes’ enactment, the word “defraud” was
understood to “require[] a misrepresentation or concealment of [a] material fact.”26 “[A]
20 McNally v. United States, 483 U.S. 350, 356-57 & n.6 (footnote 6 in brackets)(“Durland v. United States, 161 U.S.
306 (1986), the first case in which this Court construed the meaning of the phrase ‘any scheme or artifice to defraud,’
held that the phrase is to be interpreted broadly insofar as property rights are concerned. . . . the Court rejected the
argument that ‘the statute reaches only such as cases as, at common law, would come within the definition of false
pretences, in order to make out which there must be a misrepresentation as to some existing fact and not a mere
promise as to the future. Instead, it construed the statute to ‘include everything designed to defraud by representations
as to the past or present, or suggestions and promises as to the future.’ . . .Congress codified the holding of Durland in
1909. . . . [Prior to Durland Congress amended the statute to add language expressly reaching schemes of the period . . .
. The addition of this language appears to have been noting more than a reconfirmation of the statute’s original purpose
in the face of some disagreement among the lower federal courts as to whether the statute should be broadly or
narrowly read”].
21 18 U.S.C. 1346. The phrase “deprivation of the right to honest services” extends only to bribery and kick-back
schemes, Skilling v. United States, 130 S.Ct. 2896, 2931 (2010).
22 McNally v. United States, 483 U.S. at 358, quoting, Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).
23 Pasquantino v. United States, 544 U.S. 349, 371 (2005)(“[T]he wire fraud statute punishes the scheme, not its
success”); United States v. Warshak, 631 F.3d 266, 310 (6th Cir. 2010); United States v. Lupton, 620 F.3d 790, 805 (7th
Cir. 2010); United States v. Valencia, 600 F.3d 389, 429 (5th Cir. 2010).
24 United States v. Williams, 527 F.3d 1235, 1245 (11th Cir. 2008).
25 United States v. Svete, 556 F.3d 1157, 1168-169 (11th Cir. 2009)(“Svete and Girardot cite decisions that use the
‘ordinary prudence’ language as evidence that fraud requires a scheme capable of defrauding the reasonably prudent,
but none of the decisions cited by Svete and Girardot overturned a conviction on the ground that the scheme was
incapable of deceiving persons of ordinary prudence. The ‘ordinary prudence’ language was invoked instead to affirm
convictions. Two sister circuits have stated that ‘ordinary prudence’ has a place in the proof of mail fraud, but both held
that the jury instructions about materiality were sufficient to establish that the jury had found the fraudulent schemes
reliable. . . None of these decisions reversed a conviction of mail fraud for failure to instruct the jury that the alleged
scheme had to be capable of deceiving people of ordinary prudence, and none reached the perverse result of insulating
criminals who target those least likely to protect themselves”).
26 Neder v. United States, 527 U.S. 1, 22-3, 25 (1999).
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statement is material for [mail or] wire fraud purposes only if it has the natural tendency to
influence or be capable of influencing the person to whom it was addressed.”27
Intent
“Under both statutes, intent to defraud requires a willful act by the defendant with the intent to
deceive or cheat, usually [, but not necessarily,] for the purpose of getting financial gain for one’s
self or causing financial loss to another.”28 A defendant has a complete defense if he believes the
deceptive statements or promises to be true or otherwise acts in good faith.29 A defendant has no
such defense, however, if he blinds himself to the truth.30 Nor is it a defense if he intends to
deceive but feels his victim will ultimately profit or be unharmed.31
Money, Property, or Honest Services
The mail and wire fraud statutes speak of schemes to defraud or to obtain money or property.32
They clearly protect against deprivations of tangible property. Their protection of intangibles has
not always been as clear. They do protect intangible property rights,33 although they do not apply
to certain intangible rights in property that have no value in the hands of the victim of a scheme.34
Some time ago, the Supreme Court held in McNally v. United States that the protection does not
extend to “the intangible right of the citizenry to good government.”35 Soon after McNally,
Congress enlarged the mail and wire fraud statute coverage to include the intangible right to
honest services, by defining the “term ‘scheme or artifice to defraud’ [to] include[s] a scheme or
artifice to deprive another of the intangible right to honest services.”36 Lest the expanded
27 United States v. Jenkins, 633 F.3d 788, 802 n.3 (9th Cir. 2011)(parenthetical indications omitted); United States v.
Wetherald, 636 F.3d 1315, 1324 (11th Cir. 2011); United States v. Radley, 632 F.3d 177, 185 (5th Cir. 2011); United
States v. Weldon, 606 F.3d 912, 918 (6th Cir. 2010).
28 United States v. Howard, 619 F.3d 723, 727 (7th Cir. 2010); United States v. Phipps, 595 F.3d 243, (2010)(“Mail and
wire fraud are both specific intent crimes that require the Government to prove that a defendant knew the scheme
involved false representations”); United States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009).
29 United States v. Coughlin, 610 F.3d 89, 98 (D.C.Cir. 2010); cf., United States v. Maxwell, 579 F.3d 1282, 1301 (11th
Cir. 2009)(“[A]n intent to defraud is not present if the defendant knew that he could not deceive the recipient of his
statements”).
30 United States v. Alston-Graves, 435 F.3d 331, 336-38 (D.C.Cir. 2006); United States v. Ramirez, 574 F.3d 869, 876-
77 (7th Cir. 2009); United States v. Clay, 618 F.3d 946, 953 (8th Cir. 2010).
31 United States v. Hamilton, 499 F.3d 734, 736-37 (7th Cir. 2007); United States v. Chavis, 461 F.3d 1201, 1209 (10th
Cir. 2006)(“A defendant’s honest belief that a venture will ultimately succeed does not constitute good faith if, in
carrying out the plan, he knowingly uses false representations or pretenses with intent to deceive”).
32 18 U.S.C. 1341, 1343.
33 Carpenter v. United States, 484 U.S. 19, (1987)(“McNally did not limit the scope of §1341 to tangible as
distinguished from intangible property rights”); see also, Pasquantino v. United States, 544 U.S. 349, 356 (2005)
(“Canada’s right to uncollected excise taxes . . . is ‘property’ in its hands. This right is an entitlement to collect money.
. . Valuable entitlements like these are ‘property’ as that term ordinarily is employed”).
34 Cleveland v. United States, 531 U.S. 12, 20 (2000)(Section “1341 does not reach fraud in obtaining a state or
municipal license of the kind here involved, for such a license is not ‘property’ in the government regulator’s hands”)
35 McNally v. United States, 483 U.S. 350, 356 (1987).
36 18 U.S.C. 1346.
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definition be found unconstitutionally vague, the Court in Skilling v. United States limited its
application to cases of bribery or kickbacks.37
Aiding and Abetting, Attempt, and Conspiracy
Attempting or conspiring to commit mail or wire fraud or aiding and abetting the commission of
those offenses carries the same penalties as the underlying offense.38 “In order to aid and abet
another to commit a crime it is necessary that a defendant in some sort associate himself with the
venture, that he participate in it as in something that he wishes to bring about, that he seek by his
action to make it succeed.”39
To prove conspiracy to commit either wire or mail fraud, the government must establish that: “(1)
two or more persons, directly or indirectly, reached an agreement to devise and execute a scheme
to defraud; (2) the defendant knew the unlawful purpose of the agreement; and (3) the
defendant joined in the agreement willfully, that is, with the intent to further the unlawful
purpose.”40 The offense is complete upon agreement without the necessity of an overt act
committed in its furtherance.41 As a general rule, a conspirator is liable for any other offenses that
a co-conspirator commits in the foreseeable furtherance of the conspiracy.42 Such liability,
however, extends only until the objectives of the conspiracy have been accomplished or the
defendant has withdrawn from the conspiracy.43
37 Skilling v. United States, 130 S.Ct. 2896, 2907 (2010).
38 18 U.S.C. 2(a)(“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal”); 1349(“Any person who attempts or conspires to commit any
offense under this chapter shall be subject to the same penalties as those prescribed rot he offense, the commission of
which was the object of the attempt or conspiracy”).
39 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United States v. Devries, 630 F.3d 1130, 1133 (8th Cir.
23011); United States v. Mullins, 613 F.3d 1273, 1290 (10th Cir. 2010)(emphasis of the court)(“It’s enough that
someone [else] committed wire fraud, and that Ms. Edwards sought to make it succeed”); United States v. Reifler, 446
F.3d 65, 96-7 (2d Cir. 2006)(“[A] defendant may be convicted of aiding and abetting a given crime where the
government proves that the underlying crime was committed by a person other than the defendant, that the defendant
knew of the crime, and that the defendant acted with the intent to contribute to the success of the underlying crime. To
prove that the defendant acted with that specific intent, the government must show that he knew of the crime, but it
need not show that he knew all of the details of the crime, so long as the evidence shows that he joined the venture, that
he shared in it, and that his efforts contributed towards its success. A defendant may not properly be convicted of aiding
and abetting a crime that was completed before his accessorial acts were performed. However, where the crime has
more than one stage, the defendant may be convicted of aiding and abetting even if he did not learn of the crime at its
inception but knowingly assisted at a later stage. The latter principle has been applied to charges of wire fraud,
allowing a defendant to be convicted of that offense on an aiding-and-abetting theory even if the wire transmission
preceded his conduct, so long as the fraudulent scheme was ongoing at the time of his conduct. In United States v.
Phillips, for example, the court ruled that the defendant's act of cashing a money order that had been fraudulently wired
aided and abetted the wire fraud”).
40 United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009); see also, United States v. Brockenborrugh, 575 F.3d 726,
733-34 (D.C.Cir. 2009); United States v. Warshak, 631 F.3d 266, 308 (6th Cir. 2010); see generally, CRS Report
R41223, Federal Conspiracy Law: A Brief Overview, by Charles Doyle.
41 United States v. Fishman, ___ F.3d ___, ___ (10th Cir. May 27, 2011), citing, Whitfield v. United States, 543 U.S.
209 (2005), but see, United States v. Warshak, 631 F.3d 266, 308 (6th Cir. 2010).
42 Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States v. Vazquez-Castro, 640 F.3d 19, 24 (1st Cir.
2011); United States v. Luong, 627 F.3d 1306, 1308 (9th Cir. 2010).
43 United States v. Thornburgh, ___ F.3d ___, ___ (10th Cir. May 27, 2011).
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Where attempt has been made a separate offense, conviction ordinarily requires that the defendant
commit a substantial step towards the completion of the underlying offense with the intent to
commit it.44 It does not, however, require the attempt to have been successful.45 Unlike
conspiracy, a defendant may not be convicted of both the substantive offense and the lesser
included crime of attempt to commit it.46
Sentencing
A mail and wire fraud are punishable by imprisonment for not more than 20 years and a fine of
not more than $250,000 (not more than $500,000 for organizations), or fine of not more than $1
million and imprisonment for not more than 30 years if the victim is a financial institution or the
offense was committed in relation to a natural disaster.47 Conviction may also result in probation,
a term of supervised release, a special assessment, a restitution order, and/or a forfeiture order.
Sentencing Guidelines
Sentencing in federal court begins with the federal Sentencing Guidelines.48 The Guidelines are
essentially a score keeping system. A defendant’s ultimate sentence under the Guidelines is
determined by reference first to a basic guideline, which sets a base “offense level.” Offense
levels are then added or subtracted to reflect his prior criminal record as well as the aggravating
and mitigating circumstances attending his offense.49 One of two basic guidelines applies to mail
and wire fraud. Section 2C1.1 applies to mail and wire fraud convictions involving corruption of
public officials.50 Otherwise, Section 2B1.1 applies. Both sections include enhancements based
on the amount of loss associated with the fraud.51
44 United States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011); United States v. Farhane, 634 F.3d 127, 146-47 (2d Cir.
2011).
45 Pasquantino v. United States, 544 U.S. 349, 371 (2005); United States v. Warshak, 631 F.3d 266, 310 (6th Cir. 2010);
United States v. Lupton, 620 F.3d 790, 805 (7th Cir. 2010); United States v. Valencia, 600 F.3d 389, 429 (5th Cir. 2010).
46 United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006).
47 18 U.S.C. 1341, 1343, 3751. The maximum for both individuals and organizations may be increased to twice the
amount of gain or loss associated with the offense, 18 U.S.C. 3571(d). Both mail and wire fraud statutes contain the
financial institution and disaster enhancement (“. . . If the violation occurs in relation to, or involving any benefit
authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major
disaster or emergency (as those terms are defined in Section 102 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than
$1,000,000 or imprisoned not more than 30 years, or both”).
48 Gall v. United States, 552 U.S. 38, 49 (2007)(“[A] district should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range”).
49 See generally, CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.
50 U.S.S.G. §2C1.1 cmt. (“Statutory Provisions: . . . 18 U.S.C. . . . 1341 (if the scheme or artifice to defraud was to
deprive another of the intangible right of honest services of a public official) . . . 1343 (if the scheme or artifice to
defraud was to deprive another of the intangible right of honest services of a public official) . . .”).
51 U.S.S.G. §§2B1.1(b)(1); 2C1.1(b)(2). E.g., United States v. Martinez, 610 F.3d 1216, 1222 (10th Cir. 2010)(“[T]he
PSR [(presentence report)]determined Martinez's base offense level was 14 under U.S.S.G. §2C1.1(a)(1), applied a 16-
level enhancement under §2B1.1(b)(1) because Martinez was responsible for a loss between $ 1.5 and $ 2.5 million,
and applied a 4-level enhancement under §2C1.1(b)(3). When Martinez's base offense level was adjusted three levels
for acceptance of responsibility, his total offense level was 31, which when combined with Martinez's criminal history
category I, produced a guideline range of 108-135 months”); United States v. Skys, 637 F.3d 146, 150 (2d Cir. 2011)
(“The PSR’s calculation of Sky's advisory-Guidelines offense level began with a base offense level of 7 pursuant to
(continued...)
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After all the calculations, the final offense level determines the Guidelines’ recommendation
concerning probation, imprisonment, and fines. The Guidelines convert final offense levels into
43 sentencing groups, which are in turn each divided into 6 sentences ranges based on the
defendant’s criminal history.52 Thus, for instance, the recommended sentencing range for a first
time offender (i.e., one with a category I criminal history) with a final offense level of 15 is
imprisonment for between 18 and 24 months.53 A defendant with the same offense level 15 but
with a criminal record placing him in criminal history category VI, would face imprisonment
from between 41 and 51 months.54 The Guidelines also provide offense level determined fine
ranges for individuals and organizations.55
As a general rule, sentencing courts may place a defendant on probation for a term of from 1 to 5
years for any crime punishable by a maximum of term of imprisonment of less than 25 years.56
The Guidelines, however, recommend “pure” probation, that is probation without any term of
incarceration, only with respect to defendants with an offense level of 8 or below, i.e., levels
where the sentencing range is between 0 and 6 months.57
Once a court has calculated the Guideline recommendations, it must weigh the other statutory
factors found in 18 U.S.C. 3553(a) before imposing sentence.58 Sentences will be upheld on
(...continued)
§2B1.1(a)(1); it recommended increases for the following specific offense characteristics: 24 steps pursuant to
§2B1.1(b)(1)(M) for an intended loss amount of more than $50 million but not more than $100 million; two steps
pursuant to §2B1.1(b)(2)(A) for an offense involving 10 or more, but fewer than 50, victims; and two steps pursuant to
§2B1.1(b)(9)(C) for an offense that involved sophisticated means. The PSR also recommended a four-step upward
adjustment pursuant to §3B1.1(a) on the ground that Skys was an organizer or leader of criminal activity that involved
five or more participants or was otherwise extensive, and a two-step downward adjustment pursuant to §3E1.1(a) for
Skys’s acceptance of responsibility prior to the imposition of sentence. The total offense level was 37. Given Sky's
criminal history category of II, the Guidelines-recommended range of imprisonment was 235 to 293 months”).
52 U.S.S.G. ch.5A, Sentencing Table.
53 Id.
54 Id.
55 U.S.S.G. §§5E1.2, 8C12.4.
56 18 U.S.C. 3561, 3581(b).
57 U.S.S.G. §5B1.1. Probation in conjunction with some combination of incarceration is possible up to offense level 11,
U.S.S.G. §5B1.2.
58 18 U.S.C. §3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed,
shall consider – (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2)
the need for the sentence imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the
kinds of sentence and the sentencing range established for – (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines – (i) issued by the Sentencing Commission pursuant to
Section 994(a)(1) of Title 28, United States Code, subject to any amendments made to such guidelines by act of
Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into
amendments issued under Section 994(p) of Title 28); and (ii) that, except as provided in Section 3742(g), are in effect
on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing Commission pursuant to Section 994(a)(3) of Title
28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of
Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into
amendments issued under Section 994(p) of Title 28); (5) any pertinent policy statement – (A) issued by the Sentencing
Commission pursuant to Section 994(a)(2) of Title 28, United States Code, subject to any amendments made to such
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appeal if they are procedural and substantively reasonable. A sentence is reasonable procedurally
if it is free of procedural defects, such as a failure to accurately calculate the Guidelines
recommendations and to fully explain the reasons for the sentence selected.59 A sentence is
reasonable substantively if it is reasonable in light of circumstances which a case presents.60
Supervised Release and Special Assessments
Supervised release is form of parole-like supervision imposed after a term of imprisonment has
been served.61 Although imposition of a term of supervised release is discretionary in mail and
wire fraud cases,62 the Sentencing Guidelines recommend its imposition in all felony cases.63 The
maximum supervised release term for wire and mail fraud generally is 3 years – 5 years when the
defendant is convicted of the mail or wire fraud against a financial institution that carries a 30-
years maximum term of imprisonment.64 Release will be subject to a number of conditions,
violation of which may result in a return to prison for not more than 2 years (not more than 3
years if the original crime of conviction carried a 30-year maximum).65 There are three mandatory
conditions: (1) commit no new crimes; (2) allow a DNA sample to be taken; and (3) submit to
periodic drug testing.66 The court may suspend the drug testing condition,67 although it is under
no obligation to do so even though the defendant has no history of drug abuse and drug abuse
played no role in the offense.68
Most courts will impose a standard series of conditions in addition to the mandatory condition of
supervised release.69 The Sentencing Guidelines recommend that these include the payment of
(...continued)
policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under Section 994(p) of Title 28); and (B) that, except as provided in
Section 3742(g), is in effect on the date the defendant is sentenced. (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to
provide restitution to any victims of the offense”).
59 Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Schlueter, 634 F.3d 965, 967 (7th Cir. 2011).
60 Id.
61 United States v. Martin, 363 F.3d 25, 35 n.17 (1st Cir. 2004)(“‘Supervised release’ is a punishment in addition to
incarceration, served after completion of a prison term”). See generally, CRS Report RL31653, Supervised Release: A
Brief Sketch of Federal Law, by Charles Doyle and United States Sentencing Commission, Federal Offenders
Sentenced to Supervised Release (July 2010), available at
http://www.ussc.gov/Research/Research_Publications/Supervised_Release/20100722_Supervised_Release.pdf.
62 18 U.S.C. 3583(a)(emphasis added)(“The court, in imposing a sentence to a term of imprisonment for a felony . . .
may include as a part of the sentence as requirement that the defendant be placed on a term of supervised release after
imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on
a term of supervised release if such a term is required by statute. . .”). There are no statutory provisions requiring a term
of supervised release upon conviction for either mail or wire fraud, cf., 18 U.S.C. 1341, 1343.
63 U.S.S.G. §5D1.1(a)(emphasis added)(“The court shall order a term of supervised release to follow imprisonment
when a sentence of imprisonment of more than one year is imposed, or when required by statute”).
64 18 U.S.C. 3583(b), 3559(a), 1341, 1343.
65 18 U.S.C. 3583(e), 3559(a), 1341, 1343.
66 18 U.S.C. 3583(d).
67 18 U.S.C. 3583(d), 3563(a)(5).
68 United States v. Paul, 542 F.3d 596, 600-601(7th Cir. 2008)(the sentencing court did not abuse its discretion in
imposing the condition upon a defendant convicted of wire fraud who had not history of drug abuse but who did have a
history of alcohol abuse and “gambling problems”).
69 U.S.S.G. §5D1.3(a), (c).
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any fines, restitution, and special assessments that remain unsatisfied.70 Defendants convicted of
mail or wire fraud must pay a special assessment of $100.71
Restitution
Restitution is ordinarily required of those convicted of mail or wire fraud.72 The victims entitled
to restitution include those directly and proximately harmed by the defendant’s crime of
conviction, and “in the case of an offense that involves as an element a scheme, conspiracy, or
patterns of criminal activity” – like mail and wire fraud – “any person directly harmed by the
defendant’s conduct in the course of the scheme, conspiracy, or pattern.”73
Forfeiture
Property that constitutes the proceeds of mail or wire fraud is subject to confiscation by the
United States.74 It may be confiscated pursuant to either civil forfeiture or criminal forfeiture
procedures. Civil forfeiture proceedings are conducted treating the property itself as the
defendant.75 Criminal forfeiture proceedings are conducted as part of the criminal prosecution of
the property owner.76 The provision authorizing the civil confiscation of property associated with
mail or wire fraud is somewhat convoluted:
The following property is subject to forfeiture to the United States . . . (C) Any property, real
or personal, which constitutes or is derived from proceeds traceable to . . . any offense
constituting ‘specified unlawful activity’ (as defined in Section 1956(c)(7) of this title). . . .”
18 U.S.C. 981(a)(1)(C). “The term ‘specified unlawful activity’ means – any act or activity
constituting an offense listed in Section 1961(1). . . .” 18 U.S.C. 1956(c)(7)(A). “(1) As used
in this chapter – (1) ‘racketeering activity’ means . . . (B) any which is indictable under any
of the following provisions of Title 18, United States Code . . . Section 1341 (relating to mail
fraud), Section 1343 (relating to wire fraud). . . . 18 U.S.C. 1961(1)(B).77
Any property subject to civil forfeiture may be confiscated instead using criminal forfeiture
procedures, unless Congress has specifically provided otherwise.78
70 U.S.S.G. §5D1.3(a)(5), (6).
71 18 U.S.C. 3013(a)(2), 3559, 1341, 1343.
72 18 U.S.C. 3663A(“(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an
offense described in subsection (c), the court shall order . . . that the defendant make restitution to the victim of the
offense or, if the victim is deceased, to the victim’s estate. . . . (c)(1) This section shall apply in all sentencing
proceedings for convictions of, or plea agreements relating to charges for, any offense . . . (A) that is . . . (ii) an offense
against property under this title, . . . including any offense committed by fraud or deceit”); United States v. Dokich, 614
F.3d 314, 318 (7th Cir. 2010); see generally, CRS Report RL34138, Restitution in Federal Criminal Cases, by Charles
Doyle.
73 18 U.S.C. 3663A(a)(2); United States v. Gregoire, 638 F.3d 962, 972-73 (8th Cir. 2011); United States v. Matos, 611
F.3d 31, 44 (1st Cir. 2010).
74 See generally, CRS Report 97-139, Crime and Forfeiture, by Charles Doyle
75 E.g., 18 U.S.C. 983.
76 E.g., 18 U.S.C. 982.
77 United States v. Taylor, 582 F.3d 558, 565 (5th Cir. 2009)(rejecting the contention that civil forfeiture under
981(a)(1)(C), 1956(c)(7)(A), and 1961(1) is limited to cases in which a RICO (18 U.S.C. 1962) violation is shown).
78 28 U.S.C. 2461(c).
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A number of defendants, convicted of either mail or wire fraud, have argued to no avail that they
should not be held liable for restitution and forfeiture.79
Related Criminal Provisions
The mail and wire fraud statutes essentially outlaw dishonesty. Due to their breadth, misconduct
that constitutes mail or wire fraud may constitute a violation of one or more other federal criminal
statutes as well. This overlap occurs perhaps most often with respect to (1) crimes for which mail
or wire fraud are predicate offenses;80 (2) fraud proscribed under jurisdictional circumstances
other than mail or wire use;81 and (3) honest services fraud in the form of bribery or kick backs.82
Predicate Offense Crimes
Some federal crimes have as an element the commission of some other federal offense. The
money laundering statute, for example, outlaws laundering the proceeds of various predicate
offenses. The racketeering statute outlaws committing predicate offense to operate a racketeering
enterprise. Mail and wire fraud are predicate racketeering and money laundering predicate
offenses.
RICO
The Racketeering Influenced and Corrupt Organization (RICO) provisions outlaw acquiring or
conducting the affairs of an enterprise, engaged in or whose activities affect interstate commerce,
through loan sharking or the patterned commission of various other predicate offenses.83 The
79 United States v. Venturella, 585 F.3d 1013, 1019, 1020 (7th Cir. 2009)(“We have rejected the theory that forfeiture
and restitution cannot be imposed for the same offense. . . . Furthermore, outside the rare occasion where the same
party stands to benefit from both payments, Biks does not cite to any authority which holds that restitution must be
offset by the forfeiture amount; United States v. Hoffman-Vaile, 568 F.3d 1335, 1344 (11th Cir. 2009)(rejecting
defendant’s argument that forfeiture should be reduced because she paid restitution); United States v. Bright, 353 F.3d
1114, 1123 (9th Cir. 2004)(rejecting argument that the district court should have ‘offset his forfeited funds against his
restitution obligation.’)”); United States v. Taylor, 582 F.3d 558, 565-66 (5th Cir. 2009)(rejecting challenge of a
restitution order for the benefit of the Department of Homeland Security and a forfeiture order for the benefit of the
Department of Justice); but see, United States v. Martinez, 610 F.3d 1216, 1232 (10th Cir. 2010)(“Convinced by the
reasoning of our sister circuits, we conclude that the plain language of the [restitution statute] prohibits a district court
form considering the value of defendant’s forfeited property in initially determining the full amount of restitution.
Whether a defendant’s restitution obligation may be offset by the value of forfeited property a victim has received is an
issue we need not decide”).
80 E.g. United States v. Wetherald, 636 F.3d 1315, 1318 (11th Cir. 2011)(conviction for money laundering, mail and
wire fraud, and securities fraud); United States v. Whitfield, 590 F.3d 325, 335-36 (5th Cir. 2009)(convicted for
racketeering, mail and wire fraud, and federal program bribery).
81 E.g., United States v. Jones, 641 F.3d 706, 709 (6th Cir. 2011)(conviction for mail fraud and health care fraud);
United States v. Ford, 639 F.3d 718, 719 (6th Cir. 2011)(conviction for wire fraud and false statements in matter within
the jurisdiction of a United States agency or department); United States v. Skys, 637 F.3d 146, 148 (2d Cir.
2011)(conviction for securities fraud, wire fraud and bank fraud).
82 E.g., United States v. Siegelman, 640 F.3d 1159, 1164 (11th Cir. 2011)(conviction for mail fraud (honest services)
and federal program bribery); United States v. Inzunza, 638 F.3d 1006, 1012 (9th Cir. 2011)(convicted for wire fraud
and extortion under color of official right); Sotirion v. United States, 617 F.3d 27, 30 (1st Cir. 2010)(convicted for mail
and wire fraud (honest services), racketeering, bribery of public officials, and conspiracy).
83 18 U.S.C. 1962. See generally, CRS Report 96-950, RICO: A Brief Sketch, by Charles Doyle.
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elements under the more commonly prosecuted conduct prong are: (1) conducting the affairs; (2)
of an enterprise; (3) through a pattern; (4) of racketeering activity.84 “Racketeering activity”
means, among other things, any act which is indictable under either the mail or wire fraud
statutes.85 As for pattern, “a person cannot be subjected to the sanctions [of RICO] simply for
committing two widely separate and isolated criminal offenses. Instead, the term ‘pattern’ itself
requires the showing of a relationship between the predicates and of the threat of continuing
activity. It is this factor of continuity plus relationship which combines to produce a pattern.”86
The pattern of predicate offenses must be used by someone employed by or associated with a
qualified enterprise to conduct or participate in its activities. “The ‘conduct or participate’
element requires a defendant to have some part in directing those” activities.87 The element is not
satisfied unless “one has participated in the operation or management of the enterprise itself.”88
Nevertheless, an “enterprise is operated not just by upper management but also by lower rung
participants in the enterprise who are under the direction of upper management.”89
The enterprise may be either any group of individuals, any legal entity, or any group “associated
in fact.”90 An enterprise “associated in fact” “must have at least three structural elements: a
purpose, relationships among those associated with the enterprise, and longevity sufficient to
permit these associates to pursue the enterprise’s purpose.”91 Qualified enterprises are only those
that “engaged in, or the activities of which affect, interstate or foreign commerce.”92
RICO violations are punishable by imprisonment for not more than 20 years and a fine of not
more than $250,000 (not more than $500,000 for organizations).93 The crime is one for which
restitution must be ordered when one of the predicate offenses is mail or wire fraud.94 RICO has
one of the first contemporary forfeiture provisions covering property and interests acquired
through RICO violations.95 As noted earlier, any RICO predicate offense is by virtue of that fact a
84 Rezner v. Bayerische Hypo-Und Vereinsbank AG, 630 F.3d 866, 873 (9th Cir. 2010), citing, Sedima, S.P.R.L. v. Imrex
Co., Inc., 473 U.S. 479, 496 (1985); United States v. Shamah, 624 F.3d 449, 454 (7th Cir. 2010); United States v.
Burden, 600 F.3d 204, 216 (2d Cir. 2010).
85 18 U.S.C. 1961(1)(B).
86 H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989)(emphasis of the Court); US Airlines Pilots
Ass’n v. AWAPP,LLC, 615 F.3d 312, 318-20 (4th Cir. 2010); United States v. Bruden, 600 F.3d 204, 216-17 (2d Cir.
2010).
87 In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 371 (3d Cir. 2010), quoting, Reves v. Ernst & Young,
507 U.S. 170, 183-85 (1993).
88 Id.
89 Id.; United States v. Burden, 600 F.3d 204, 219 (2d Cir. 2010).
90 18 U.S.C. 1961(4).
91 United States v. Applins, 637 F.3d 59, (2d Cir. 2011), quoting, Boyle v. United States, 129 S.Ct. 2237, 2244 (2009);
United States v. Burden, 600 F.3d 204, 214-15 (2d Cir. 2010).
92 18 U.S.C. 1962(c).
93 18 U.S.C. 1963(a), 3571.
94 18 U.S.C. 3663A(c)(1)(A)(ii); United States v. Browne, 505 F.3d 1229, 1281 (11th Cir. 2007); United States v.
Reifler, 446 F.3d 65, 121 (2d Cir. 2006).
95 18 U.S.C. 1963(a), (b).
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money laundering predicate.96 Victims enjoy a cause of action for treble damages when injured in
their business or property by reason of a RICO violation.97
Money laundering
Mail and wire fraud are both money laundering predicate offenses.98 Among other things, the
most commonly prosecuted federal money laundering statute, 18 U.S.C. 1956, outlaws knowingly
engaging in a financial transaction involving the proceedings of a “specified unlawful activity”(a
predicate offense) for the purpose (1) of laundering the such proceeds or (2) of promoting further
predicating offenses.99
To establish the laundering or concealment offense, the government must establish that: “(1) [the]
defendant conducted, or attempted to conduct a financial transaction which in any way or degree
affected interstate commerce or foreign commerce; (2) the financial transaction involved proceeds
of illegal activity; (3) [the] defendant knew the property represented proceeds of some form of
unlawful activity; and (4) [the] defendant conducted or attempted to conduct the financial
transaction knowing the transaction was designed in whole or in part to conceal or disguise the
nature, the location, the source, the ownership or the control of the proceeds of specified unlawful
activity.”100
To prove the promotional offense, “the government must demonstrate that [the defendant]: (1)
conducted a financial transaction that involved the proceeds of unlawful activity; (2) knew the
property involved was proceeds of unlawful activity; and (3) intended to promote that unlawful
activity.”101
Nothing in the either provision suggests that the defendant must be shown to have committed the
predicate offense. Yet, simply establishing that the defendant spent or deposited the proceeds of
the predicate offense is not enough without proof of an intent to promote or conceal.102
Either offense is punishable by imprisonment for not more than 20 years and a fine of not more
than $500,000.103 Property involved in a transaction in violation of Section 1956 is subject to civil
and criminal forfeiture.104
96 18 U.S.C. 1956(c)(7)(A).
97 18 U.S.C. 1964(c).
98 18 U.S.C. 1956(c)(7)(A), 1961(1)(B).
99 18 U.S.C.1956(a)(1). See generally, CRS Report RL33315, Money Laundering: An Overview of 18 U.S.C. 1956 and
Related Federal Criminal Law , by Charles Doyle.
100 United States v. Dvorak, 617F.3d 1017, 1021-22 (8th Cir. 2010); see also, United States v. Baldridge, 559 F.3d 1126,
1141 (10th Cir. 2009); United States v. Quinones, 635 F.3d 590, 597 (2d Cir. 2011).
101 United States v. Warshak, 631 F.3d 266, 317 (6th Cir. 2010); see also, United States v. Lee, 558 F.3d 638, 641 (7th
Cir. 2009); United States v. Quinones, 635 F.3d 590, 597 (2d Cir. 2011).
102 United States v. Naranjo, 634 F.3d 1198, 1208 (11th Cir. 2011)(“The spending of illegal proceeds alone is
insufficient to prove concealment money laundering”); United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir.
2010)(“What is required, rather, is that concealment be an animating purpose of the transaction”); United States v.
Trejo, 610 F.3d 308, 314 (5th Cir. 2010)(emphasis of the court)(“Instead, there must be evidence of intentional
promotion”).
103 18 U.S.C. 1956(a)(1).
104 18 U.S.C. 981(a)(1)(A); 982(a)(1).
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Merely depositing the proceeds of a predicate offense does not alone constitute a violation of
Section 1956. It is enough for a violation of Section 1957, if more than $10,000 is involved.105
Section 1957 uses Section 1956’s definition of specified unlawful activities.106 Thus, mail and
wire fraud are predicate offenses for purposes of Section 1957.107 “Section 1957 differs from
Section 1956 in two critical respects: It requires that the property have a value greater than
$10,000, but it does not require that the defendant know of [the] design to conceal [or promote]
aspects of the transaction or that anyone have such a design.”108
Violations are punishable by imprisonment for not more than 10 years and a fine of not more than
$250,000 (not more than $500,000) for organizations.109 The property involved in a violation is
subject to forfeiture under either civil or criminal procedures.110
Fraud Under Other Jurisdictional Circumstances
This category includes the offenses that were made federal crimes because they involve fraud
against the United States, as well as, the other frauds that share chapter 63 with the mail and wire
fraud sections. The most prominent are the proscriptions against defrauding the United States by
the submission of false claims, conspiracy to defraud the United States, and material false
statements in matters within the jurisdiction of the United States.111 Bank fraud, health care fraud,
securities and commodities fraud, and fraud in foreign labor contracting are all chapter 63
companions of mail and wire fraud.112
Defrauding the United States
False claims
Section 287 outlaws the knowing submission of a false claim against the United States.113 “[T]o
sustain a conviction under §287, the government must prove: (1) that the defendant presented a
false or fraudulent claim against the United States; (2) that the claim was presented to an agency
of the United States; and (3) that the defendant knew that the claim was false or fraudulent.”114
The offense carries a sentence of imprisonment for not more than 5 years and a fine of not more
than $250,000 (not more than $500,000 for organizations).115 The crime is one for which
105 18 U.S.C. 1957(a)(“Whoever, in any of the circumstances set forth in subsection (d)[(including that the offense
takes place in the United States)], knowingly engages or attempts to engage in a monetary transaction in criminally
derived property of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as
provided in subsection (b)”).
106 18 U.S.C. 1957(f)(3).
107 18 U.S.C. 1957(f)(3), 1956(c)(7)(A), 1961(1)(B).
108 United States v. Wetherald, 636 F.3d 1315, 1325 n.2 (11th Cir. 2011)
109 18 U.S.C. 1957(b), 3571.
110 18 U.S.C. 981(a)(1)(A), 982(a)(1).
111 18 U.S.C. 287, 351, and 1001, respectively.
112 18 U.S.C. 1344, 1347, 1348, and 1351, respectively.
113 18 U.S.C. 287.
114 United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009); United States v. Refert, 519 F.3d 752, 757 (8th Cir. 2008).
115 18 U.S.C. 287, 3571.
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restitution must be ordered.116 There is no explicit authority for confiscation of property tainted
by the offense,117 but either a private individual or the government may bring a civil action for
treble damages.118 It is neither a RICO nor a money laundering predicate offense.119
Conspiracy to defraud the U.S.
The general conspiracy statute has two parts.120 It outlaws conspiracies to violate the laws of the
United States.121 More relevant here, it also outlaws conspiracies to defraud the United States.122
To prove conspiracy to defraud the United States, the government must show (1) an agreement
between two or more persons, (2) to defraud the United States, and (3) an overt act on the part of
one of them in furtherance of the conspiracy.123 The “fraud covered by the statute reaches any
conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any
department of the Government” by “deceit, craft or trickery, or at least by means that are
dishonest.”124 Unlike mail and wire fraud, the government need not show that the scheme was
designed to deprive another of money, property, or honest services; it is enough that to show that
the scheme is designed to obstruct governmental functions.125
Conspiracy to defraud the United States is punishable by imprisonment for not more than 5 years
and a fine of not more than $250,000 (not more than $500,000 for organizations).126 It is neither a
RICO nor a money laundering predicate offense.127 It is an offense for which restitution must be
ordered.128 There is no explicit authority for confiscation of property tainted by the offense.129
False statements
Section 1001 outlaws knowingly and willfully making a material false statement on a matter
within the jurisdiction of the executive, legislative, or judicial branch of the federal
government.130 A matter is material for purposes of Section 1001 when “it has a natural tendency
116 18 U.S.C. 3663A(c)(1)(A)(ii).
117 Cf., 18 U.S.C. 981, 982.
118 31 U.S.C. 3729-3733; see generally, CRS Report R40785, Qui Tam: The False Claims Act and Related Federal
Statutes, by Charles Doyle.
119 Cf., 18 U.S.C. 1956(c)(7), 1961(1).
120 18 U.S.C. 371; see generally, CRS Report R41223, Federal Conspiracy Law: A Brief Overview, by Charles Doyle.
121 “If two or more persons conspire either to commit an offense against the United States or to defraud the United
States, or any agency thereof in any manner or for any purpose. . . .” 18 U.S.C. 371(emphasis added).
122 “If two or more persons conspire either to commit an offense against the United States or to defraud the United
States, or any agency thereof in any manner or for any purpose. . . .” 18 U.S.C. 371(emphasis added).
123 United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009); United States v. Root, 585 F.3d 145, 157 (3d Cir. 2009);
United States v. World Wide Moving, N.V., 411 F.3d 502, 516 (4th Cir. 2005).
124 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); Glasser v. United States, 315 U.S. 60, 66 (1942);
Tanner v. United States, 483 U.S. 107, 128 (1987).
125 United States v. McKee, 506 F.3d 225, 238 (3d Cir. 2007); Hammerschmidt v. United States, 265 U.S. at 188;
Tanner v. United States, 483 U.S. at 128.
126 18 U.S.C. 371.
127 Cf., 18 U.S.C. 1961(1), 1956(c)(7).
128 18 U.S.C. 3663A(c)(1)(A)(ii).
129 Cf., 18 U.S.C. 981, 982.
130 18 U.S.C. 1001; United States v. Kieffer, 621 F.3d 825, 833 (8th Cir. 2010); United States v. Geisen, 612 F.3d 471,
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to influence, or is capable of influencing, the decision of” the individual or entity to whom it is
addressed.131 A matter is within the jurisdiction of a federal entity “when it has the power to
exercise authority in a particular matter” and “may exist when false statements [are] made to state
or local government agencies receiving federal support or subject to federal regulation.”132
A violation of Section 1001 is punishable by imprisonment for not more than 5 years and a fine of
not more than $250,000 (not more than $500,000 for organizations).133 It is neither a RICO nor a
money laundering predicate offense.134 It is an offense for which restitution must be ordered.135
There is no explicit authority for confiscation of property tainted by the offense, unless the
offense relates to the activities of various federal financial entities.136 However, in a situation
where the offense involves the submission of a false claim either a private individual or the
government may bring a civil action for treble damages.137
Fraud Elsewhere in Chapter 63
Chapter 63 contains four other fraud proscriptions in addition to mail and wire fraud: bank fraud,
health care fraud, securities and commodities fraud, and fraud in foreign labor contracting.138
Each relies on a jurisdictional base other than use of the mail or wire communications.
Bank Fraud
The bank fraud statute outlaws schemes to (1) defraud a federally insured financial institution, or
(2) to falsely obtain property from such an institution.139 To establish the scheme to defraud
(...continued)
489 (6th Cir. 2010); United States v. Moore, 612 F.3d 698, 700 (D.C.Cir. 2010).
131 United States v. Staad, 636 F.3d 630, 638 (D.C.Cir. 2011), quoting, Neder v. United States, 527 U.S. 1, 6 (1999);
United States v. Garcia-Ochoa, 607 F.3d 371, 375 (4th Cir. 2010); United States v. Boffil-Rivera, 607 F.3d 736, 741-42
(11th Cir. 2010)(“The government is not required to prove that the statute had actual influence. The false statement
must simply have the capacity to impair or pervert the functioning of a government agency. The statement does not
have to be relied upon and can be material even if it is ignored and never read”).
132 United States v. Ford, 639 F.3d 718, 720 (6th Cir. 2011), quoting, United States v. Rodgers, 466 U.S. 475, 479
(1984); see also, United States v. Jackson, 608 F.3d 193, (4th Cir. 2010), also quoting, Rodgers, 466 U.S. at 479 (“[T]he
‘within the jurisdiction’ language of the statute merely differentiates the official, or authorized functions of an agency
or department from matters that are peripheral to the business of that body”).
133 18 U.S.C. 1001. It is punishable by imprisonment for not more than 8 years if the offense involves international or
domestic terrorism as defined in 18 U.S.C. 2331 or if the matter relates to an offense under 18 U.S.C. 1591 (relating to
commercial sexual trafficking), ch. 109A (relating to sexual abuse), ch. 109B (relating to sex offender registration), ch.
110 (relating to sexual exploitation of children), or ch. 117 (relating to transportation for illicit sexual purposes).
134 Cf., 18 U.S.C. 1961(1), 1956(c)(7).
135 18 U.S.C. 3663A(c)(1)(A)(ii).
136 Cf., 18 U.S.C. 981, 982; but see, 18 U.S.C. 981(a)(1)(D)(civil forfeiture)(“(a)(1) The following property is subject
to forfeiture to the United States . . . (D) Any property, real or personal, which represents or is traceable to the gross
receipts obtained, directly or indirectly, from a violation of . . . (ii) Section 1001 (relating to fraud and false statements)
. . . if such violation relates to the sale of assets acquired or held by the Resolution Trust Corporation, the Federal
Deposit Insurance Corporation, as conservator or receiver for a financial institution, or any other conservator for a
financial institution appointed by the Office of the Comptroller of the Currency or the Office of Thrift Supervision or
the National Credit Union Administration, as conservator or liquidating agent for a financial institution”);
982(a)(3)(criminal forfeiture)(same).
137 31 U.S.C. 3729-3733.
138 18 U.S.C. 1344, 1347, 1348, and 1351, respectively.
139 18 U.S.C. 1344 (“Whoever knowingly executes, or attempts to execute, a scheme or artifice – (1) to defraud a
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offense, “the government must prove . . . (1) the defendant knowingly executed or attempted to
execute a scheme or artifice to defraud a financial institution; (2) the defendant had the intent to
defraud a financial institution; and (3) the bank involved was federally insured.”140
To establish the “falsely obtain” violation, “the government must show that: (1) a scheme existed
to obtain money, funds, or credit in the custody or control of a federally insured financial
institution; (2) the defendant participated in the scheme by means of a material false pretenses,
representations, or promises; and (3) the defendant acted knowingly.”141
Violation of either offense is punishable by imprisonment for not more than 30 years and a fine of
not more than $1 million.142 Bank fraud is both a RICO and a money laundering predicate
offense.143 Conviction also requires an order for victim restitution.144 Property constituting the
proceeds of a violation are subject to forfeiture under either civil or criminal procedure.145
Health Care Fraud
The health care fraud proscription in Section 1347 has two prongs as well. It outlaws knowingly
and willfully executing a scheme either (1) to defraud a health care benefit program, or (2) to
falsely obtain property from a health care benefit program – in connection with the delivery of, or
payment for, health care products or services.146 Construction of the two prongs mirrors the effort
elsewhere, e.g., “To obtain a conviction for health care fraud under 18 U.S.C. §1347, the
Government is required to prove beyond a reasonable doubt that [the defendant]: (1) knowingly
devised a scheme or artifice to defraud a health care benefit program in connection with the
delivery of or payment for health care benefits, items, or services; (2) executed or attempted to
(...continued)
financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or
under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or
promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both”).
18 U.S.C. 20 (“As used in this title, the term ‘financial institution’ means – (1) an insured depository institution (as
defined in Section 3(c)(2) of the Federal Deposit Insurance Act); (2) a credit union with accounts insured by the
National Credit Union Share Insurance Fund; (3) a Federal home loan bank or a member, as defined in Section 2 of the
Federal Home Loan Bank Act (12 U.S.C. 1422), of the Federal home loan bank system; (4) a System institution of the
Farm Credit System, as defined in Section 5.35(3) of the Farm Credit Act of 1971; (5) a small business investment
company, as defined in Section 103 of the Small Business Investment Act of 1958 (15 U.S.C. 662); (6) a depository
institution holding company (as defined in Section 3(w)(1) of the Federal Deposit Insurance Act; (7) a Federal Reserve
bank or a member bank of the Federal Reserve System; (8) an organization operating under Section 25 or Section 25(a)
of the Federal Reserve Act; (9) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and
(3) of Section 1(b) of the International Banking Act of 1978); or (10) a mortgage lending business (as defined in
Section 27 of this title) or any person or entity that makes in whole or in part a federally related mortgage loan as
defined in Section 3 of the Real Estate Settlement Procedures Act of 1974”).
See generally, CRS Report R40549, Mortgage Fraud: Federal Criminal Provisions, by Anna C. Henning.
140 United States v. Bowling, 619 F.3d 1175, 1181 (10th Cir. 2010); United States v. Hall, 613 F.3d 249, 252 (D.C.Cir.
2010); United States v. Jackson, 540 F.3d 578, 594 (7th Cir. 2008).
141 United States v. Hill, ___ F.3d ___, ___ (11th Cir. June 14, 2011); United States v. Williams, 390 F.3d 1319, 1324
(11th Cir. 2004); United States v. Crisci, 273 F.3d 235, 239-40 (2d Cir. 2001).
142 18 U.S.C. 1344.
143 18 U.S.C. 1961(1), 1956(c)(7)(A).
144 18 U.S.C. 3663A(c)(1)(A)(ii).
145 18 U.S.C. 981(a)(1)(C), 982(a)(2)(A).
146 18 U.S.C. 1347(a).
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execute this scheme or artifice to defraud; and (3) acted with intent to defraud.147 The intent
element, however, is a little different. Conviction requires a knowing and willful intent. “To
establish knowledge and willfulness, the Government must prove that the defendant acted with
knowledge that his conduct was unlawful,”148 but it need show that the defendant knew of or
intended to violation Section 1347 specifically.149
Section 1347’s penalty structure is also somewhat distinctive. General violations are punishable
by imprisonment for not more than 10 years and fines of not more than $250,000.150 If serious
bodily injury results, however, the maximum penalty is increased to imprisonment for not more
than 20 years, and to imprisonment for life or any term of years should death result.151 Section
1347 offenses are neither money laundering nor RICO predicate offenses.152 They do entitle the
government to restitution,153 but not to forfeiture of any tainted property.154
Securities and Commodities Fraud
The securities and commodities fraud prohibition in Section 1348 features the same two pronged
approach.155 It outlaws knowingly executing or attempt to execute a scheme (1) to defraud or (2)
to falsely obtain money or property – with respect to commodities or securities.156 “Under §
1348(1), the Government must provide sufficient evidence to establish that [the defendant] had
(1) ‘fraudulent intent’; (2) ‘a scheme or artifice to defraud’; and (3) ‘a nexus with a security.’
Alternatively, pursuant to § 1348(2), the Government can show that [the defendant] executed: (1)
a scheme or artifice; (2) ‘to obtain, by means of false or fraudulent pretenses, representations, or
promises, any money or property;’ while possessing (3) fraudulent intent. . . .” Moreover, “the
Government must also show that the false and misleading statements . . . were material.”157
147 United States v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009).
148 United States v. Franklin-el, 555 F.3d 1115, 1122 (10th Cir. 2009).
149 18 U.S.C. 1347(b).
150 18 U.S.C. 1347(a).
151 Id. In such cases, the government must show that the offense was the proximate cause of the injury or death, that is,
that the injury or death followed as the foreseeable and nature consequence of the offense, United States v. Martinez,
588 F.3d at 317-19.
152 Cf., 18 U.S.C. 1956(c)(7), 1961(1).
153 18 U.S.C. 3663A(c)(1); United States v. Mateos, 623 F.3d 1350, 1369-370 (11th Cir. 2010).
154 Cf., 18 U.S.C. 981, 982, 1347. Nevertheless, the same facts may constitute a violation either the mail or wire fraud
statute which would permit forfeiture under either civil or criminal forfeiture procedures, 18 U.S.C. 981(a)(1)(C),
1956(c)(7), 1961(1); 28 U.S.C. 2461(c).
155 18 U.S.C. 1348.
156 18 U.S.C. 1348 (“Whoever knowingly executes, or attempts to execute, a scheme or artifice –
(1) to defraud any person in connection with any commodity for future delivery, or any option on a commodity for
future delivery, or any security of an issuer with a class of securities registered under Section 12 of the Securities
Exchange Act of 1934 or that is required to file reports under Section 15(d) of the Securities Exchange Act of 1934; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in
connection with the purchase or sale of any commodity for future delivery, or any option on a commodity for future
delivery, or any security of an issuer with a class of securities registered under Section 12 of the Securities Exchange
Act of 1934 or that is required to file reports under Section 15(d) of the Securities Exchange Act of 1934;
shall be fined under this title, or imprisoned not more than 25 years, or both”).
157 United States v. Hatfield, 724 F.Supp.2d 321, 324 (E.D.N.Y. 2010); see also, United States v. Motz, 652 F.Supp.2d
284, 296 (E.D.N.Y. 2009)(“The parties agree that because the text and legislative history of 18 U.S.C. §1348 clearly
establish that it was modeled on the mail and wire fraud statutes, the Court’s analysis should be guided by the caselaw
construing those statutes”).
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Offenders face imprisonment for not more than 25 years and fines of not more than $250,000 (not
more than $500,000 for organizations).158 The offense is neither a money laundering nor a RICO
predicate offense.159 Victim restitution must be ordered upon conviction,160 but forfeiture is not
authorized.161
Fraud in Foreign Labor Contracting
The recently enacted fraud in foreign labor contracting, 18 U.S.C. 1351, provides that:
Whoever knowingly and with intent to defraud recruits, solicits or hires a person outside the
United States for purposes of employment in the United States by means of materially false
or fraudulent pretenses, representations or promises regarding that employment shall be fined
under this title or imprisoned for not more than 5 years, or both.
The offense is neither a money laundering nor a RICO predicate offense.162 A restitution order is
required at sentencing,163 but forfeiture is not authorized.164
Honest Services Fraud Elsewhere
After Skilling, honest services mail and wire fraud consists of bribery and kickback schemes
furthered by use of the mail or wire communications. Mail and wire fraud aside, the principal
bribery and kickback statutes include 18 U.S.C. 201 (bribery of public officials), 666 (bribery
relating to federal programs), 1951 (extortion under color of official right); 15 U.S.C 78dd-1 to
78dd-3 (foreign corrupt practices); and 42 U.S.C. 1320a-7b (Medicare/Medicaid anti-kickback).
Bribery of Public Officials
Conviction for violation of Section 201 “requires a showing that something of value was
corruptly . . . offered or promised to a public official . . . or corruptly . . . sought . . . or agreed to
be received by a public official with intent . . . to influence any official act . . . or in return for
‘being influenced in the performance of any official act.”165
The hallmark of the offense is a corrupt quid pro quo, “a specific intent to give or receive
something of value in exchange for an official act.”166 The public officials covered include federal
158 18 U.S.C. 1348.
159 Cf., 18 U.S.C. 1961(1), 1956(c)(7).
160 18 U.S.C. 3663A(c)(1)(A)(ii).
161 Cf., 18 U.S.C. 1348, 981, 982.
162 Cf., 18 U.S.C. 1956(c)(7), 1961(1).
163 18 U.S.C. 3663A(c)(1)(A)(ii).
164 Cf., 18 U.S.C. 1351, 981, 982.
165 United States v. Sun Diamond Growers, 526 U.S. 398, 404 (1999); United States v. Whitfield, 590 F.3d 325, 348 (9th
Cir. 2009); United States v. Harvey, 532 F.3d 326, 334-35 (4th Cir. 2008).
166 United States v. Sun Diamond Growers, 526 U.S. at 404; United States v. Peleti, 576 F.3d 377, 382 (7th Cir. 2009);
United States v. Valle, 538 F.3d 341, 346-47 (5th Cir. 2008).
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officers and employees, those of the District of Columbia, and those who perform tasks for or on
behalf the United States or any its departments or agencies.167 The official acts that constitute the
objective of the corrupt bargain include any decision or action relating to any matter coming
before an individual in his official capacity.168
Section 201 punishes bribery with imprisonment for up to 15 years, a fine of up to $250,000 (up
to $500,000 for an organization), and disqualification from future federal office or
employment.169 Section 201 is a RICO predicate offense and consequently also a money
laundering predicate offense.170 The proceeds of a bribe in violation of Section 201 are subject to
forfeiture under either civil or criminal procedure.171
Bribery Related to Federal Programs
Section 666 outlaws bribes offered to, or solicited by, agents of any state, local, tribal, or private
entity – that receives more than $10,000 in federal benefits – in relation to a transaction of $5,000
or more.172 Agents are statutorily defined as “person[s] authorized to act on behalf of another
person or a government and, in the case of an organization or government, includes a servant or
employee, and a partner, director, officer, manager, and representative.”173 “Where the bribe-giver
receives an intangible benefit, the bribe amount may be used as a proxy to stand for the value of
the business or transaction.”174 The circuits appear divided over whether the government must
establish a quid pro quo as in a Section 201 bribery case.175 The government, however, need not
establish that the tainted transaction involves federal funds.176
167 18 U.S.C. 201(a)(1); Dixon v. United States, 465 U.S. 482, 496 (1984); United States v. Franco, 632 F.3d 880, 884
(5th Cir. 2011).
168 18 U.S.C. 201(a)(3); United States v. Sun Diamond Growers, 526 U.S. at 404; United States v. Ozcelik, 527 F.3d 88,
96-7 (3d Cir. 2008).
169 18 U.S.C. 201(b), 3571.
170 18 U.S.C. 1961(1)(B), 1956(c)(7)(A).
171 18 U.S.C. 981(a)(1)(C), 1956(c)(7)(A); 28 U.S.C. 2461(c).
172 18 U.S.C. 666 (“(a) Whoever, if the circumstance described in subsection (b) of this section exists - (1) being an
agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof . . . (B) corruptly
solicits . . . or accepts . . . anything of value from any person, intending to be influenced or rewarded in connection with
any business, transaction, or series of transactions of such organization, government, or agency involving any thing of
value of $5,000 or more . . . [ or corruptly offers a thing of value to any such agent for any such purposes and in
relation to such matters] shall be fined under this title, imprisoned not more than 10 years, or both.
“(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency
receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of Federal assistance . . .”).
173 18 U.S.C. 666(d)(1).
174 United States v. Townsend, 630 F.3d 1003, 1011 (11th Cir. 2011).
175 United States v. McNair, 605 F.3d 1152, (11th Cir. 2010)(“In concluding §666 does not require a specific quid pro
quo, we align ourselves with the Sixth and Seventh Circuits. See, United States v. Abbey, 560 F.3d 513, 520 (6th Cir. . .
. 2009) . . . United States v. Gee, 432 F.3d 713, 714-15 (7th Cir. 2005)” ); but see, United States v. Redzic, 627 F.3d 683,
692 (8th Cir. 2010)(“To prove the payment of an illegal bribe, the government must present evidence of a quid pro quo,
but an illegal bribe may be paid with the intent to influence a general course of conduct. It was not necessary for the
government to link any particular payment to any particular action. . .”); United States v. Jennings, 160 F.3d 1006,
1014 (4th Cir. 1998); cf., United States v. Ganim, 510 F.3d 134, 141-42 (2d Cir. 2007).
176 Sabri v. United States, 541 U.S. 600, 605(2004).
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Violations of Section 666 are punishable by imprisonment for not more than 10 years and a fine
of not more than $250,000 (not more than $500,000 for organizations).177 Section 666 offenses
are money laundering predicate offenses.178 Section 666 offenses are not among the RICO federal
predicate offenses, although bribery in violation of state felony laws is a RICO predicate
offense.179 The proceeds of a bribe in violation of Section 666 are subject to forfeiture under
either civil or criminal procedure.180
Hobbs Act
The Hobbs Act, 18 U.S.C. 1951, outlaws obtaining the property of another under “color of
official right,” in a manner that has an effect on interstate commerce.181 Conviction requires the
government to prove that the defendant: “(1) was a government official; (2) who accepted
property to which she was not entitled; (3) knowing that she was not entitled to the property; and
(4) knowing that the payment was given in return for officials acts: (5) which had at least a de
minimis effect on commerce.”182 Conviction does not require that the public official sought or
induced payment, “the government need only show that a public official has obtained a payment
to which he was not entitled, knowing that the payment was made in return for official acts.”183
Hobbs Act violations are punishable by imprisonment for not more than 20 years and a fine of not
more than $250,000 (not more than $500,000 for an organization).184 Hobbs Act violations are
RICO predicate offenses and thus money laundering predicates as well.185 The proceeds of a
Hobbs Act violation are subject to forfeiture under either civil or criminal procedure.186
Foreign Corrupt Practices
The bribery provisions of the Foreign Corrupt Practices Act are three: 15 U.S.C. 78dd-1(trade
practices by issuers), 78dd-2 (trade practices by domestic concerns), 78dd-3 (trade practices by
others within the United States).187 Other than class of potential defendants, the elements of the
three are comparable. They “make[] it a crime to: (1) willfully; (2) make use of the mail or any
means or instrumentality of interstate commerce; (3) corruptly; (4) in furtherance of an offer,
177 18 U.S.C. 666(a), 3571.
178 18 U.S.C. 1956(c)(7)(D).
179 18 U.S.C. 1961(1).
180 18 U.S.C. 981(a)(1)(C), 1956(c)(7)(A); 28 U.S.C. 2461(c).
181 18 U.S.C. 1951(“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by . . . extortion or attempts or conspires so to do . . . shall be fined under this title
or imprisoned not more than twenty years, or both. (b) As used in this section . . . (2) The term ‘extortion’ means the
obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right . . .”).
182 United States v. Kincaid-Chauncey, 556 F.3d 923, 936 (9th Cir. 2009), citing, Evans v. United States, 504 U.S. 255,
268 (1992).
183 Evans v. United States, 504 U.S. at 268; United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2010); United
States v. Manzo, 636 F.3d 56, 60 (3d Cir. 2011).
184 18 U.S.C. 1951, 3571.
185 18 U.S.C. 1961(1)(B), 1956(c)(7)(A).
186 18 U.S.C. 981(a)(1)(C), 1956(c)(7)(A); 28 U.S.C. 2461(c).
187 See generally, CRS Report R41466, Foreign Corrupt Practices Act (FCPA): Congressional Interest and Executive
Enforcement, by Michael V. Seitzinger.
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payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to
give, or authorization of the giving of anything of value to; (5) any foreign official; (6) for
purposes of [either] influencing any act or decision of such foreign official in his official capacity
[or] inducing such foreign official to do or omit to do any act in violation of the lawful duty of
such official [or] securing any improper advantage; (7) in order to assist such [corporation] in
obtaining or retaining business for or with, or directing business to, any person.”188
None of the three proscriptions apply to payments “to expedite or to secure the performance of a
routine governmental action,”189 and each affords defendants an affirmative defense for payments
that are lawful under the applicable foreign law or regulation.190
Violations are punishable by imprisonment for not more than 5 years and by a fine of not more
than $100,000 (not more than $2 million for organizations).191 Foreign Corrupt Practices Act
violations are not RICO predicate offenses,192 but they are money laundering predicates.193 The
proceeds of a violation are subject to forfeiture under either civil or criminal procedure.194
Medicare Kickbacks
The Medicare/Medicaid kickback prohibition in 42 U.S.C. 1320a-7b(b)195 outlaws “knowingly
and willfully [offering or paying], soliciting [or] receiving, any remuneration (including any
kickback) . . . to induce the referral of[, or the purchase with respect to] Medicare [or] Medicaid
beneficiaries . . . any item or service for which payment may be made in whole or in part under
the Medicare [or] Medicaid programs. . . 42 U.S.C §1320a-7b(b)[(1), ](2).”196
Violations are punishable by imprisonment for not more than 5 years and by a fine of not more
than $25,000. Section 1320a-7b kickback violations are money laundering, but not RICO,
188 United States v. Kay, 513 F.3d 432, 439-40 (5th Cir. 2007).
189 15 U.S.C. 78dd-1(b), 78dd-2(b), 78dd-3(b).
190 15 U.S.C. 78dd-1(c), 78dd-2(c), 78dd-3(c).
191 15 U.S.C. 78dd-2(g), 78dd-3(e), 78ff(c).
192 Cf., 18 U.S.C. 1961(1).
193 18 U.S.C. 1956(c)(7)(D).
194 18 U.S.C. 981(a)(1)(C), 1956(c)(7)(D); 28 U.S.C. 2461(c).
195 See generally, CRS Report RS22743, Health Care Fraud and Abuse Laws Affecting Medicare and Medicaid: An
Overview , by Jennifer Staman.
196 United States v. Mauska, 557 F.3d 219, 226 (5th Cir. 2009); 42 U.S.C. 1320a-7b(“(1) Whoever knowingly and
willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly
or covertly, in cash or in kind – (A) in return for referring an individual to a person for the furnishing or arranging for
the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care
program, or (B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or
ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health
care program . . . . (2) Whoever knowingly and willfully offers or pays any remuneration (including any kickback,
bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person – (A)
to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which
payment may be made in whole or in part under a Federal health care program, or (B) to purchase, lease, order, or
arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may
be made in whole or in part under a Federal health care program, shall be guilty of a felony and upon conviction
thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both”).
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Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
predicate offenses.197 The proceeds of a violation are subject to forfeiture under either civil or
criminal procedure.198
197 18 U.S.C. 1956(c)(7)(E), 24(a)(1), 1961(1).
198 18 U.S.C. 981(a)(1)(C), 1956(c)(7)(E); 28 U.S.C. 2461(c).
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Mail and Wire Fraud: A Brief Overview of Federal Criminal Law
Appendix. Mail and Wire Fraud Statutes
18 U.S.C. 1341. Frauds and swindles (text)
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses, representations, or
promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or
procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or
anything represented to be or intimated or held out to be such counterfeit or spurious article, for
the purpose of executing such scheme or artifice or attempting so to do, places in any post office
or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by
the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such
matter or thing, or knowingly causes to be delivered by mail or such carrier according to the
direction thereon, or at the place at which it is directed to be delivered by the person to whom it is
addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20
years, or both. If the violation occurs in relation to, or involving any benefit authorized,
transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially
declared major disaster or emergency (as those terms are defined in Section 102 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial
institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30
years, or both.
18 U.S.C. 1343. Fraud by wire, radio, or television (text)
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds
for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned
not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit
authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a
presidentially declared major disaster or emergency (as those terms are defined in Section 102 of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects
a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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