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Mail and wire fraud: what do prosecutors have to prove? P.1

In our last post, we mentioned that federal prosecutors are currently considering the possibility of charging General Motors under federal mail and wire fraud statutes for misleading consumers concerning a product defect. As we noted, mail and wire fraud statutes do have a lot of flexibility, in general. Because of this, they are often added onto core fraud charges as a way for prosecutors to obtain greater penalties for defendants.

As with any criminal charge, prosecutors are required to provide enough evidence to demonstrate, beyond a reasonable doubt, that the defendant’s activity met each element of the crime. With mail and wire fraud charges, the elements are basically the same under federal law. In this and our next post, we’ll look briefly at these elements. 

The first requirement for mail and wire fraud charges is that the communication must have been used in “foreseeable furtherance” of a scheme to defraud. That term does not necessarily require that the communication was essential to the scheme, but only that it was part of an essential aspect of the scheme. Neither does the communication have to have been actually successful in furthering the scheme—it only has to have been intended to further it. This means that communications which were not intended to further a fraud scheme cannot fulfill the foreseeable furtherance element.

Another important element in mail and wire fraud cases is materiality, which refers to the requirement that the misrepresentation or concealment would natural be capable of influencing the addressee to make a decision one way or another. Whether or not a given communication was material is sometimes disputed, so it is important to work with an experienced advocate.

In our next post, we’ll continue looking at the elements of mail and wire fraud. 

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