Mail fraud and wire fraud are two of the most common crimes charged by federal prosecutors. Both mail and wire fraud require a scheme to defraud the victim of money or property. In other words, the defendant must have deployed a means of deception or deceit – for example, false statements, misrepresentations, or concealment – to deprive the victim of money or property.
The main difference between mail and wire fraud is the “jurisdictional hook” that allows the Department of Justice to prosecute this conduct as a federal crime. Under the mail fraud statute, the defendant must use the U.S. Postal Service or any private or commercial interstate carrier (like FedEx or UPS) to further the commission of the fraud. In contrast, the wire fraud statute requires the use of an interstate wire transmission such as an email, a fax, a phone call, a text message, or the use of an internet chat room.
The differing jurisdictional hooks are a reflection of the different sources of constitutional authority that allowed Congress to enact the mail and wire fraud statutes. The mail fraud statute is a product of Congress’s power to establish post offices and post roads under the Postal Clause. The wire fraud statute, on the other hand, is an exercise of Congress’s authority under the Commerce Clause.
That distinction is important. Because of its roots in the Postal Clause, the mail fraud statute can reach any use of the mails – even a mailing that occurs entirely within a single state. A wire fraud prosecution, however, requires an interstate wire transmission because the Commerce Clause gives Congress the authority to regulate only interstate commerce. So, to violate the wire fraud statute, a wire transmission must have crossed a state line.
Wire fraud is a favorite of prosecutors and has been charged with increasing frequency given the ubiquity of wire communications in modern American life. Wire fraud is a particularly common charge in cases involving public corruption and financial crimes. For example, former Virginia Governor Bob McDonnell – whose conviction was later overturned by the Supreme Court – was charged with wire fraud related to payments and gifts that he had accepted from a local businessman. And wire fraud was among the charges initially levied against Bernie Madoff arising from his billion-dollar Ponzi scheme.
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