Mail Fraud
| Statute: | 18 U.S.C. § 1341 |
| U.S. Code: | Title 18, Chapter 63 |
| Max Prison: | 20 years (30 if affecting financial institution) |
| Max Fine: | $250,000 ($500,000 for organizations) |
| Guidelines: | USSG §2B1.1 |
| Base Level: | 7 |
| Agencies: | U.S. Postal Inspection Service, FBI, DOJ |
| Related: | Wire Fraud, Bank Fraud, Securities Fraud |
Mail fraud is a federal crime under 18 U.S.C. § 1341 that prohibits the use of the United States Postal Service or any private or commercial interstate carrier to execute a scheme to defraud. Enacted in 1872, mail fraud is one of the oldest federal fraud statutes and has been called the "granddaddy" of federal fraud laws.[1]
Mail fraud carries a maximum sentence of 20 years imprisonment, which increases to 30 years if the offense affects a financial institution or is connected to a presidentially declared major disaster or emergency. The statute has been used to prosecute an extraordinarily broad range of fraudulent schemes.[2]
Historical Background
The mail fraud statute was enacted as part of the Act of June 8, 1872, to protect the integrity of the postal system and the public from fraudulent schemes that used the mail as an instrumentality. Over the following 150 years, the statute has been repeatedly amended and interpreted to reach an ever-expanding range of fraudulent conduct.
The Supreme Court has described mail fraud as a "stopgap" provision designed to cover the "ever-changing forms of fraud that have been devised by those who prey upon the gullible."[3] The statute's flexibility has made it a favorite tool of federal prosecutors for addressing novel forms of fraudulent conduct.
In 1988, Congress added 18 U.S.C. § 1346, which clarified that the statute protects the "intangible right of honest services," extending mail fraud to cover bribery and kickback schemes involving public officials and private sector fiduciaries.[4]
Elements of the Offense
To secure a mail fraud conviction, federal prosecutors must prove four elements beyond a reasonable doubt:
- Scheme to Defraud: The defendant devised or participated in a scheme to defraud another of money, property, or honest services.
- Materiality: The scheme involved material misrepresentations, false pretenses, or promises, or the concealment of material facts.
- Intent: The defendant acted with the specific intent to defraud.
- Use of Mails: The defendant used, or caused to be used, the mails or a private interstate carrier in furtherance of the scheme.[1]
The mailing need not itself contain the fraudulent statement—it is sufficient that the mailing was "incident to an essential part of the scheme."[5]
Scheme to Defraud
A "scheme to defraud" encompasses any plan or course of action intended to deprive another of money, property, or the intangible right of honest services through false or fraudulent pretenses, representations, or promises. The scheme need not succeed; the crime is complete when the defendant causes a mailing in execution of the fraudulent scheme.[6]
Use of Mails
The statute covers mailings through:
- United States Postal Service
- Federal Express, UPS, DHL, and other private interstate carriers
- Commercial interstate carriers
Each separate use of the mails can constitute a separate count of mail fraud, allowing prosecutors to charge multiple counts arising from a single scheme. Importantly, the defendant need not personally mail anything—causing another person to use the mails in furtherance of the scheme is sufficient.[2]
The "Mailing" Element
Courts have interpreted the mailing requirement broadly. A mailing is "in furtherance of" the scheme if it is "incident to an essential part of the scheme" or is a step in the plot. This includes mailings that:
- Communicate false representations
- Lull victims into a false sense of security
- Facilitate later fraudulent acts
- Cover up the fraud
However, mailings that occur after the fraud is complete typically do not satisfy the mailing element.[5]
Statutory Penalties
The statutory penalties for mail fraud are set forth in 18 U.S.C. § 1341:
| Category | Maximum Imprisonment | Maximum Fine |
|---|---|---|
| Standard mail fraud | 20 years | $250,000 (individual) / $500,000 (organization) |
| Affecting a financial institution | 30 years | $1,000,000 |
| Related to federal disaster/emergency | 30 years | $1,000,000 |
In addition to imprisonment and fines, defendants may be ordered to pay restitution to victims and may be subject to asset forfeiture of property obtained through the fraud.[2]
Federal Sentencing Guidelines
Mail fraud is sentenced under USSG §2B1.1, the same guideline that governs wire fraud and other theft and fraud offenses.
Base Offense Level
The base offense level for mail fraud under §2B1.1(a) is:
- 7 if the offense involved fraud or deceit
- 6 if the offense did not involve fraud or deceit[7]
Loss Amount Enhancements
The most significant enhancement typically comes from the amount of loss caused by the fraud. Under §2B1.1(b)(1), offense levels increase based on loss:
| Loss Amount | Level Increase |
|---|---|
| More than $6,500 | +2 |
| More than $15,000 | +4 |
| More than $40,000 | +6 |
| More than $95,000 | +8 |
| More than $150,000 | +10 |
| More than $250,000 | +12 |
| More than $550,000 | +14 |
| More than $1,500,000 | +16 |
| More than $3,500,000 | +18 |
| More than $9,500,000 | +20 |
| More than $25,000,000 | +22 |
| More than $65,000,000 | +24 |
| More than $150,000,000 | +26 |
| More than $250,000,000 | +28 |
| More than $550,000,000 | +30 |
Other Common Enhancements
Additional enhancements under §2B1.1 may apply based on:
- Number of victims: +2 to +6 levels depending on number (10+, 50+, 250+)
- Vulnerable victims: +2 levels if targeting elderly, disabled, or otherwise vulnerable persons
- Sophisticated means: +2 levels for especially complex or intricate schemes
- Mass marketing: +2 levels for schemes using mass marketing techniques
- Financial institution officer: +2 levels if defendant was an officer or employee of a financial institution[7]
Prosecutorial Considerations
Historical Significance
Mail fraud has been described by Chief Justice Warren Burger as the prosecutor's "Colt .45" or "true love" because of its versatility. Before the enactment of wire fraud in 1952 and other specialized fraud statutes, mail fraud was often the only federal charge available for fraud schemes that crossed state lines.
Relationship to Wire Fraud
Mail fraud and wire fraud are companion statutes with nearly identical elements. The primary difference is the medium of communication:
- Mail fraud: Use of postal service or private interstate carriers
- Wire fraud: Use of telephone, email, internet, or other electronic communications
Modern fraud prosecutions frequently include both mail and wire fraud counts, as most schemes involve both types of communications. The statutes have the same penalties and are sentenced under the same guidelines.[1]
Honest Services Fraud
Under 18 U.S.C. § 1346, mail fraud extends to schemes to deprive another of the "intangible right of honest services." Following the Supreme Court's decision in Skilling v. United States (2010), honest services fraud is limited to bribery and kickback schemes involving:
- Public officials who accept bribes or kickbacks
- Private sector employees who breach fiduciary duties through bribery or kickbacks[4]
Types of Mail Fraud Schemes
Lottery and Prize Fraud
Fraudulent schemes that notify victims they have won a lottery, sweepstakes, or prize and require them to pay fees or taxes to collect their winnings. These schemes disproportionately target elderly victims.
Romance Fraud
Schemes in which fraudsters develop fake romantic relationships with victims online, then solicit money for fictitious emergencies, travel expenses, or business ventures.
Charity Fraud
Fraudulent solicitations for fake charities, often exploiting current events such as natural disasters or public health emergencies.
Real Estate and Mortgage Fraud
Schemes involving fraudulent property sales, rental scams, or mortgage fraud, often using mailed documents to facilitate the fraud.
Insurance Fraud
Fraudulent insurance claims submitted through the mail, including fake accidents, inflated losses, or fraudulent policies.
Investment Fraud
Ponzi schemes and other investment frauds that use mailed solicitations, account statements, or distribution checks.
Notable Cases
Bernie Madoff (2009)
Bernie Madoff, perpetrator of the largest Ponzi scheme in history, pleaded guilty to 11 federal charges including mail fraud. The scheme defrauded investors of approximately $65 billion over decades. Madoff was sentenced to 150 years in federal prison.[8]
Allen Stanford (2012)
Allen Stanford was convicted of mail fraud and other charges in connection with a $7 billion Ponzi scheme involving fraudulent certificates of deposit sold by Stanford International Bank. He was sentenced to 110 years in federal prison.[9]
Lori Loughlin (2020)
Actress Lori Loughlin pleaded guilty to conspiracy to commit mail fraud in connection with the "Varsity Blues" college admissions scandal. She paid $500,000 in bribes to have her daughters designated as crew recruits at the University of Southern California. She was sentenced to two months in federal prison.[10]
Operation Varsity Blues (2019-2021)
The nationwide college admissions scandal resulted in mail fraud charges against dozens of parents, coaches, and administrators who participated in bribery and cheating schemes to gain admission to elite universities. The scheme was organized by Rick Singer, who pleaded guilty to racketeering conspiracy and other charges.[11]
Statistics
According to the United States Sentencing Commission:
- Mail fraud cases have declined as wire fraud has become more prevalent due to the shift to electronic communications
- In recent years, wire fraud charges outnumber mail fraud charges by approximately 3 to 1
- Mail fraud remains commonly charged in cases involving physical mailings such as fraudulent checks, lottery scams, and insurance fraud
- The median sentence for mail fraud is similar to wire fraud, typically 18-24 months imprisonment[12]
Defenses
Common defenses to mail fraud charges include:
Lack of Intent to Defraud
Mail fraud requires proof of specific intent to defraud. Defendants may argue that misrepresentations were made negligently or mistakenly rather than with fraudulent intent.
Good Faith
A defendant who genuinely believed in the truth of their representations or the legitimacy of their business may assert a good faith defense.
No Materiality
Following Neder v. United States, materiality is an element of mail fraud. If misrepresentations were not material to the victim's decision-making, no mail fraud occurred.[6]
No Use of Mails
Without proof that the defendant used or caused to be used the mails or a private interstate carrier in furtherance of the scheme, federal jurisdiction is lacking.
Mailing After Fraud Complete
Mailings that occur after the fraud is complete—such as purely confirmatory mailings—may not satisfy the mailing element of the offense.
Statute of Limitations
The general statute of limitations for mail fraud is 5 years from the last mailing in furtherance of the scheme. For offenses affecting financial institutions, the limitations period is 10 years.
Relationship to Other Offenses
Wire Fraud (18 U.S.C. § 1343)
Wire fraud is the electronic counterpart to mail fraud, covering schemes that use telephone, email, or internet communications. Most modern fraud prosecutions include both charges.
Bank Fraud (18 U.S.C. § 1344)
Bank fraud specifically targets schemes to defraud federally insured financial institutions. When mail fraud schemes also target banks, both charges may apply.
Conspiracy (18 U.S.C. § 1349)
The mail fraud conspiracy statute provides the same penalties as the substantive offense and does not require proof of an overt act.
See also
- Wire Fraud
- Bank Fraud
- Money Laundering
- Securities Fraud
- Federal Sentencing Guidelines and Offense Enhancements
- Bernie Madoff
- Lori Loughlin
Frequently Asked Questions
Q: What is mail fraud?
Mail fraud is a federal crime under 18 U.S.C. § 1341 that prohibits using the United States Postal Service or any private interstate carrier (such as FedEx or UPS) to carry out a scheme to defraud someone of money, property, or honest services. It is one of the oldest federal fraud statutes, enacted in 1872.
Q: What is the maximum sentence for mail fraud?
The maximum sentence for mail fraud is 20 years in federal prison. However, if the fraud affects a financial institution or is connected to a presidentially declared disaster or emergency, the maximum increases to 30 years.
Q: What is the difference between mail fraud and wire fraud?
Mail fraud and wire fraud have nearly identical elements—the primary difference is the medium of communication. Mail fraud covers use of the postal service or private carriers, while wire fraud covers electronic communications like phone calls, emails, and internet transactions. Most modern fraud prosecutions include both charges.
Q: What must prosecutors prove for a mail fraud conviction?
Prosecutors must prove four elements beyond a reasonable doubt: (1) a scheme to defraud, (2) material misrepresentations or concealment, (3) intent to defraud, and (4) use of the mails or a private interstate carrier in furtherance of the scheme.
Q: Do I have to personally mail something to be charged with mail fraud?
No. The statute covers anyone who causes another person to use the mails in furtherance of a fraudulent scheme. If the mailing was reasonably foreseeable as part of the scheme, the defendant can be charged even if someone else handled the mailing.
Q: What is honest services fraud?
Under 18 U.S.C. § 1346, mail fraud extends to schemes to deprive another of the "intangible right of honest services." Following the Supreme Court's 2010 decision in Skilling v. United States, this is limited to bribery and kickback schemes involving public officials or private sector employees who breach fiduciary duties.
References
- ↑ 1.0 1.1 1.2 U.S. Department of Justice, Criminal Resource Manual § 940, "18 U.S.C. § 1341—Elements of Mail Fraud."
- ↑ 2.0 2.1 2.2 18 U.S.C. § 1341.
- ↑ Durland v. United States, 161 U.S. 306 (1896).
- ↑ 4.0 4.1 Skilling v. United States, 561 U.S. 358 (2010).
- ↑ 5.0 5.1 Schmuck v. United States, 489 U.S. 705 (1989).
- ↑ 6.0 6.1 Neder v. United States, 527 U.S. 1 (1999).
- ↑ 7.0 7.1 United States Sentencing Commission, USSG §2B1.1 (2024).
- ↑ U.S. Department of Justice, "Bernard L. Madoff Pleads Guilty to Eleven Federal Felonies," March 12, 2009.
- ↑ U.S. Department of Justice, "R. Allen Stanford Convicted of Running $7 Billion Investment Fraud Scheme," March 6, 2012.
- ↑ U.S. Department of Justice, "Actress Lori Loughlin and Husband Mossimo Giannulli Plead Guilty," May 22, 2020.
- ↑ U.S. Department of Justice, "Charges Unsealed in Nationwide College Admissions Scam," March 12, 2019.
- ↑ United States Sentencing Commission, 2023 Annual Report and Sourcebook of Federal Sentencing Statistics.
White Collar Crimes: Wire Fraud · Mail Fraud · Tax Evasion · Money Laundering · Bank Fraud · Healthcare Fraud · Securities Fraud · Aggravated Identity Theft · Embezzlement · Bribery · Insurance Fraud · Mortgage Fraud
Other Federal Offenses: Drug Trafficking · Illegal Reentry · Felon in Possession · RICO · Conspiracy · False Statements · Obstruction of Justice · Child Exploitation