Mail Fraud Defenses

Mail fraud defences share most of their structure with wire fraud, with one important difference. In a wire fraud case the transmission element is almost never worth contesting. In a mail fraud case the mailing element has real content, and it can be tested count by count.

Beyond that, the defences operate on the same elements: the existence of a scheme involving materially false pretences, the intent to defraud, and an object consisting of money or property. Law Offices Of SRIS, P.C. has been practicing since 1997. To discuss a mail fraud matter, request a consultation at (888) 437-7747.

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The Mailing Was Not in Furtherance of the Scheme

The statute requires that the mailing be for the purpose of executing the scheme. That is not satisfied merely because a mailing occurred somewhere in the course of a business in which fraud is alleged.

Mailings sent after the scheme had reached fruition are the clearest category. Where the money had already been obtained and nothing further was required, a subsequent mailing may fall outside the element even though it relates to the same transaction.

Routine business mailings are the second. Statements, invoices, renewal notices, and policy documents that would have been sent regardless of any scheme can be argued not to further it, and in modern cases many alleged mailings are exactly that kind of document.

Third, the defendant must have placed the item in the mail or caused it to be placed. Mailings made by third parties on their own initiative, without the defendant setting the process in motion, are open to challenge on that basis.

Because each qualifying mailing supports a separate count and because venue depends on where mailings occurred, this analysis is done count by count rather than in the abstract.

Absence of Intent to Defraud

As in every fraud prosecution this is the element most often genuinely in dispute. The intent to defraud means an intent to deceive for the purpose of causing financial or property loss, and it must have existed at the time rather than being inferred from how matters ended.

Good faith is a complete defence. A defendant who genuinely believed the representations were true lacked the required intent even if the belief was mistaken or unreasonable. Reliance on the advice of counsel or an accountant, sought in good faith on full disclosure and followed, operates through the same element and depends on the disclosure having been complete.

Intent is proved and disproved circumstantially, which in practice means documentary. Contemporaneous emails, drafts, internal memoranda, accounting entries, and correspondence with professionals establish what a person understood at the time, which is different from what a cooperating witness recalls afterward.

No Material Misrepresentation, No Money or Property

The false pretences must be material, meaning capable of influencing the decision of a reasonable person in the position of the alleged victim. Peripheral or technical inaccuracies are not material, and neither are puffery, optimistic projection, and statements of opinion about future performance.

Disclosure defeats a concealment theory. Where the allegedly withheld information was in fact provided, in a document the alleged victim received or in a filing, the theory fails. Establishing what was disclosed, and when, is usually the most productive documentary exercise available.

The scheme must also have money or property as its object. Theories resting on the deprivation of something else, such as accurate information or the ability to make a fully informed decision, are narrower than they were once asserted to be, and this matters most where no financial loss is identified or where the alleged victim received what it paid for.

Structural and Procedural Defences

The statute of limitations bars prosecution of conduct outside the applicable period, and in a scheme case when that period began running is frequently contested.

Venue in a mail fraud count depends on where the mailing occurred, which makes it a more concrete question than in wire fraud. Where the mailings supporting a count have no meaningful connection to the district, venue can be challenged.

Suppression applies where evidence was obtained in violation of the Fourth Amendment, which in fraud cases usually means a warrant for devices or business premises. Multiplicity is worth examining where one course of conduct has produced many counts, and the sufficiency of the indictment can be challenged where it fails to allege the elements adequately.

Frequently Asked Questions

Can the mailing element be challenged?

Yes, and this is the main difference from wire fraud. The mailing must be for the purpose of executing the scheme, so mailings sent after the scheme reached fruition, routine business documents that would have been sent regardless, and mailings the defendant neither made nor caused are all open to challenge. The analysis runs count by count.

What if the mailing was just a normal invoice?

That is a genuine argument. A document sent as a matter of ordinary business practice, which would have gone out whether or not any scheme existed, can be argued not to further the scheme. Many modern mail fraud counts rest on exactly this kind of routine document, which is why the “in furtherance” requirement deserves examination rather than concession.

Is good faith a defence to mail fraud?

Yes, and a complete one. Where a defendant genuinely believed the representations were true, the intent to defraud is absent even if the belief was mistaken or unreasonable. Reliance on professional advice sought in good faith on full disclosure and followed operates the same way. Both are established through contemporaneous documents rather than later testimony.

Does it help that nobody lost money?

It does not defeat the charge, since the statute does not require that the scheme succeeded. It matters substantially in two ways: the scheme must still have money or property as its object, and the loss amount drives the advisory Guidelines range at sentencing, so the absence of loss significantly reduces exposure even where the conviction stands.

Can venue be challenged in a mail fraud case?

Sometimes, and more concretely than in wire fraud. Venue depends on where the mailings supporting a count occurred, which is a more definite question than the routing of internet traffic. Where the alleged mailings have no meaningful connection to the district in which the case was brought, that is worth raising early.

Why are there so many counts?

Each qualifying mailing in furtherance of a scheme can support a separate count, so one course of conduct can generate many counts from the same facts. Multiplicity arguments and challenges directed at particular mailings can narrow an indictment. The effect on exposure varies, since the Guidelines range is driven by loss rather than by the number of counts.

Working With Law Offices Of SRIS, P.C.

The mailing element is the distinctive feature of a § 1341 defence and the one place this statute is more vulnerable than wire fraud. Examining each alleged mailing for timing, purpose, and who actually caused it, alongside the documentary record of intent, is where the work concentrates.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about defences to federal mail fraud charges and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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