The offense of mail fraud in Nevada is defined by federal statute 18 U.S.C. 1341. This section makes it a crime to defraud others into giving up something of value, such as money or property. The sentence is up to one million dollars in fines and/or 30 years in prison if the fraud involves a bank or federal disaster relief. Otherwise, the sentence is a fine and/or up to 20 years in prison.
The statute reads that:
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.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is mail fraud?
- 2. What are the penalties under 18 U.S.C § 1341?
- 3. How can defendants fight the charges?
- 4. Is the crime deportable?
- 5. Can the criminal record be sealed?
- 6. Related fraud crimes
1. What is mail fraud?
Mail fraud is using the mail in an attempt to defraud someone else. This federal crime has four elements:
- There was a fraudulent scheme meant to deprive another person or institution of money, property, or honest services (such as ethical conduct or trade secrets);
- The defendant had an intent to defraud;
- The fraud involved material misrepresentations of truth; and
- The defendant used the mail to carry out the scheme.
There are several types of federal mail fraud scheme cases, which range from phony charities to sweepstakes scams.
Example: John in Carson City sends out letters through the U.S. mail to random people that contain a list of several names. The instructions are to send $10 to the name at the top of the list, to then scratch out that person’s name, to write in his/her own name at the bottom, and finally to send the letter to several other people with instructions to do the same. The letter promises that the person will eventually receive several times more than the initial $10 investment once his/her name reaches the top of the list.
Here, the fraudulent scheme was to bilk people out of $10 on the false promise they would recoup more. John had intent to defraud because he falsely promised the letter recipients that they would multiply their investment through a “get rich scheme” if they sent in $10. John’s misrepresentations were material because it directly caused his victims to fall prey to the deception. And since John used the U.S. Postal Service to carry out the scheme, the case falls within the purview of 18 U.S. Code § 1341.
Note that people are allowed to use sneaky marketing practices to lure people as long as the trickery falls short of defrauding. Also note that people can still be prosecuted under 18 U.S.C. 1341 if the documents in question are never mailed out of state.1
2. What are the penalties?
The federal government punishes 18 U.S.C. 1341 violations with:
- Up to 20 years in Federal Prison, and/or
- A fine at the judge’s discretion
But if the case involves federal disaster relief – or if the victim is a bank or other financial institution – the sentence for a mail fraud conviction becomes:
- Up to 30 years in prison, and/or
- Up to $1,000,000 in fines
In addition, judges may order the defendant to pay restitution to the victim(s).2
Note that all mail fraud prosecutions in Nevada are heard in either one of the two federal courthouses in the state: The Lloyd D. George Federal Courthouse in Las Vegas, or the Bruce R. Thompson Federal Courthouse in Reno.
3. How can defendants fight the charges?
Three typical defenses in mail fraud cases are:
- No intent to defraud. A defendant’s state of mind – which is intangible – is often difficult for the U.S. Attorney’s Office to prove. Unless the prosecution can produce enough circumstantial evidence to show that the defendant was not acting in good faith and meant to harm the victims, then the mail fraud charges should be dropped.
- No use of the mail. 18 U.S.C. § 1341 applies only when the defendant used the mail in the course of – or in furtherance of – the alleged fraud. If prosecutors cannot show proof of this – such as tracking numbers, mail slips, or testimony by postal service workers – then the case should be dismissed.
- Illegal police search. A common defense in criminal cases has nothing to do with the defendant’s alleged misconduct but rather the U.S. Marshals Service‘s alleged misconduct. If law enforcement conducted an illegal search to obtain evidence, the defense attorney may file a motion to suppress evidence with the federal court. If the judge grants the motion and disregards all the evidence that may have been unlawfully obtained, then the prosecution may decide to drop the whole case for lack of proof.
4. Is the crime deportable?
Mail fraud that involves more than $10,000 in losses to the victim qualifies as an aggravated felony, which are deportable offenses.3 Non-citizens charged with violating 18 U.S.C. 1341 should consult with an attorney right away. The attorney may be able to persuade prosecutors to reduce or dismiss the charges.
5. Can the criminal record be sealed?
No. Federal criminal records for mail fraud may not be sealed. This is different than Nevada law, where the majority of criminal convictions are sealable after a waiting period.
6. Related fraud crimes
6.1. Wire Fraud
Wire fraud (18 USC 1343) is carrying out a fraudulent scheme by using wire communications, such as the phone or internet. Examples are telemarketing fraud or email scams asking people to turn over credit card information to collect a prize or to enter a lottery; then the fraudsters illegally use their financial information to make purchases without consent. Penalties are the same under the mail and wire fraud statutes.
6.2. Bank Fraud
Bank fraud (18 USC 1344) occurs when people defraud a financial institution. Examples include check-kiting, fund diversion, and phishing. Penalties are up to $1,000,000 in fines and/or up to 30 years in prison. This is considered a white-collar crime.
- 18 U.S. Code § 1341 (mail fraud statute); see also Shaw v. United States, 137 S. Ct. 462, 137 S. Ct. 462 (U.S. Supreme Court, 2016).; United States v. Laney, 881 F.3d 1100 (9th Cir. 2018).
- 18 U.S. Code § 1341.
- 8 U.S. Code § 1101(a)(43)(M).