Below, an attorney answers several questions about defenses and prosecution of federal mail and wire fraud charges.
Generally speaking, they will have to show that there was underlying illegal conduct. For instance, if there was a bribe or deprivation of honest services, they will have to prove the elements of that particular offense. In order to prove the mail fraud or the wire fraud, they’ll have to prove that in addition to all of the elements of the underlying offense, this person used the interstate mail system or they used the interstate wire system such as the telephone, cellular phone, internet, email, or things of that nature to facilitate this illegal activity. They will often put on records of recorded phone calls from one destination to another destination.
They will have evidence in the form of an expert who will testify that this impacts interstate commerce because in order to make a call from Richmond to Baltimore, you have to use the interstate wire system, or in order to send this email from an AOL account to a Yahoo! account, you have to use the interstate wire system in the form of the internet.
That is the kind of evidence that they’ll put on and, generally speaking, if they’ve established the evidence for the underlying conduct, it’s a short walk to show that that conduct was facilitated through the interstate mail system or the interstate wire system. That is the kind of evidence that you can expect the government to put on.
Wire fraud and mail fraud are not usually standalone offenses, so often times the defense that you have will be coupled with the underlying offense. For example, if the underlying offense is bribery or a conspiracy to commit bribery, one would show that the politician charged did not take the gift or if they did take that thing of value, they were entitled to it for some legitimate reason and not for public corruption-related reasons or that there was no quid pro quo, meaning there was no exchange of this particular thing of value for an official act.
In other words, the person took the thing but they didn’t take it with any intent on doing something official for the person that gave it to them. Often times, if you can defeat the underlying charge, in this case it would be bribery, then certainly the person would be not guilty, under most circumstances, of the alleged mail fraud and wire fraud because the theory of the case is so intertwined with the underlying offense.