Convicting an Individual or Business of Mail Fraud

New Jersey Criminal Lawyers Schwartz Posnock

A Federal Law Article

By NJ Criminal Lawyer, David A. Schwartz

What Must the Government Prove to Convict an Individual or a Business Entity of Mail Fraud?

The United States Court of Appeals has determined the legal requirements that the Government prove – beyond a reasonable doubt – in order to convict you of the crime of mail fraud. These proof requirements are commonly referred to as “the elements” of the crime. Here is what the government must prove in a federal mail fraud case:

The Elements of Mail Fraud

First, the Government must prove that you engaged in a “scheme to defraud or to obtain money or property”

The first element that the government must prove beyond a reasonable doubt is that you knowingly devised (or that you willfully participated in) a scheme to defraud an identifiable victim of money or property (or the intangible right of honest services) by materially false or fraudulent pretenses, representations or promises.

A ”scheme” is merely a plan for accomplishing an object.

”Fraud” is a general term which embraces all the various means by which one person can gain an advantage over another by false representations, suppression of the truth, or deliberate disregard for the truth.

Thus, a “scheme to defraud” is any plan, device, or course of action to deprive another of money or property (or the intangible right of honest services) by means of false or fraudulent pretenses, representations or promises reasonably calculated to deceive persons of average prudence.

An indictment charging mail fraud should allege – and the government must prove, that the scheme to defraud was carried out by making false or fraudulent statements or representations or claims. The representations which the government charges were made as part of the scheme to defraud will be set forth in the indictment. The government is not required to prove every misrepresentation charged in the indictment. It is sufficient if the government proves beyond a reasonable doubt that one or more of the alleged material misrepresentations were made in furtherance of the alleged scheme to defraud. However, you cannot be convicted of mail fraud unless it is proven that you made at least one of the material misrepresentation, statement or claim.

A statement, representation, claim is false if it is untrue when made and if the person making the statement, representation, claim or document or causing it to be made knew it was untrue at the time it was made.

A representation or statement is fraudulent if it was falsely made with the intention to deceive.

In addition, deceitful statements of half truths or the concealment of material facts or the expression of an opinion not honestly entertained may constitute false or fraudulent statements. The arrangement of the words, or the circumstances in which they are used may convey the false and deceptive appearance.

The deception need not be premised upon spoken or written words alone. If there is deception, the manner in which it is accomplished is immaterial.
The failure to disclose information may constitute a fraudulent representation if you were under a legal, professional or contractual duty to make such a disclosure, the you actually knew such disclosure ought to be made, and that you failed to make such disclosure with the intent to defraud.

The false or fraudulent representation (or failure to disclose) must relate to a material fact or matter. A material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision.

This means that for a jury to find that a particular statement of fact was false, it must determine whether that statement was one that a reasonable person might have considered important in making his or her decision. The same principle applies to fraudulent half truths or omissions of material facts.
In order to establish a scheme to defraud, the government must also prove that the alleged scheme contemplated depriving another of money or property (or of the intangible right of honest services).

However, the government is not required to prove that you originated the scheme to defraud. Furthermore, it is not necessary that the government prove that you actually realized any gain from the scheme or that the intended victim actually suffered any loss.

“Intent to Defraud” Defined:

The second element that the government must prove beyond a reasonable doubt is that you acted with the specific intent to defraud.

To act with an “intent to defraud” means to act knowingly and with the intention or the purpose to deceive or to cheat.

In considering whether you acted with an intent to defraud, a jury may consider, among other things, whether you acted with a desire or purpose to bring about some gain or benefit to yourself or someone else or with a desire or purpose to cause some loss to someone.

Mail Fraud – “Use of the Mails” Defined:

The third element that the government must prove beyond a reasonable doubt is that in advancing, furthering, or carrying out the scheme, you used the mails or a private or commercial interstate carrier, or caused the mails or a private or commercial interstate carrier to be used.

The government is not required to prove that you actually mailed anything or that you even intended that the mails would be used to further, or to advance, or to carry out the scheme.

However, the government must prove beyond a reasonable doubt, that the mails or a private or commercial interstate carrier were, in fact, used in some manner to further, or to advance, or to carry out the scheme to defraud. The government must also prove either that you used the mails, or that you knew the use of the mails or a private or commercial interstate carrier would follow in the ordinary course of business or events, or that you should reasonably have anticipated that the mails would be used.

It is not necessary that the item mailed or sent by carrier was itself false or fraudulent or contained any false or fraudulent statement, representation, or promise, or contained any request for money or thing of value.

However, the government must prove beyond a reasonable doubt that the use of the mails private or commercial interstate carrier in some way furthered, or advanced, or carried out the scheme.

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