Federal Bank, Mail and Wire Fraud is one of the broadest basis for a RICO charge. 18 U.S.C. §1341, 18 U.S.C. §1343 and 18 U.S.C. §1344 are the statutes that comprise Bank, Mail and Wire Fraud. These statutes basically prohibit the use of any mails or interstate telephone calls, Internet, radio or TV in furtherance of any fraudulent scheme. This is one of many “predicate” acts that are necessary to find a RICO violation. What makes these violations different are that they do not require the pleading of misrepresentation, reliance or injury stemming directly from the conduct at issue (i.e., from the fraudulent mail, wire or TV communication). The communication need only be in furtherance of the scheme which intentionally or recklessly causes harm. In fact, past studies have shown that mail and wire fraud predicate acts were the primary reason for the majority of RICO complaints filed between 1970 and 1985.
Whether in the Phoenix area, or anywhere in Arizona, in order for the Government to prove Bank, Mail or Wire Fraud under 18 U.S.C. §1341, 1343 and 1346 they must show:
(1) A scheme or artifice to defraud or obtain money or property by means of false pretenses, representations or promises;
(2) A use of the mails or interstate wires for the purpose of executing the schemes; and
(3) A specific intent to defraud, either by devising, participating in or abetting a scheme.
The difference between Mail and Wire Fraud is that “Wire” Fraud requires proof of international or interstate communication through relevant media (TV, radio, Internet, etc.). “Mail” Fraud only needs to show that the U.S. Postal Service and mailing was involved. Private courier services such as Federal Express, UPS, etc. do not satisfy the mail fraud statute.
The Government can usually show a “scheme or artifice to defraud” if they can prove any trickery, deceit, concealment of material fact, affirmative misrepresentation or half truth. Also, the Government only needs to show that the use of the U.S. mails or wires were in furtherance of the scheme, or as a later act to lull the victim into a false sense of security. Therefore, almost any communication by person associated with the illegal enterprise (i.e., a Racketeering association) when made to a victim or any other member of the association (whatever its content) can be held to be in furtherance of the scheme. Even if there is an absence of the specific duty to disclose information, the omission of material fact can constitute mail fraud.
Possible Punishment for Arizona Federal Bank, Mail and Wire Fraud
In 1987, the United States Sentencing Commission presented its Sentencing Guidelines. One of the goals of the Sentencing Commission was to bring about tougher sentencing for “White Collar crimes”. Even the most minor White Collar felonies would draw incarceration under the guidelines. Until 2005, these guidelines were mandatory, then the U.S. Supreme Court’s decision in U.S. v. Booker changed the rules and held that the sentencing guidelines are now advisory in nature (in other words, the judge has much more discretion).
The sentencing guidelines assign a numerical offense level (ranging from number one to number forty three) for every Federal offense. Level one is the lowest, and level forty three is the highest (i.e., a level forty three results in life imprisonment). Federal Bank, Mail and Wire Fraud offenses are automatically given a base offense level of seven. In addition, there is an increase in a sentencing level depending on the amount of monetary loss (for example, $5,000 or more adds two levels; $10,000 or more adds four levels; etc. all the way up to $400,000 or more-which adds thirty levels. Also, additional levels are added for a multitude of other factors (such as number of victims, whether mass mailing was used, whether there was a misrepresentation that the defendant was acting on the behalf of a charitable group of Governmental agency, whether $1,000,000 in gross receipts were obtained from one or more financial institutions, whether it involved the violations of security law and the defendant was an officer or director of a publicly traded corporation, etc.). A standard example with minimum aggravators would involve a defendant with no prior significant record who was accused of taking more than $200,000, (but less than $400,000) would be assigned a base level of nineteen, which would result in a sentence of thirty to thirty seven months in prison. However, the guidelines also provide for a number of adjustments that can either increase or decrease an offense level. This means that a judge can tailor a particular sentence to a defendant based on the factors set forth in 18 U.S.C. §3553(a).
For an Arizona Federal Bank, Mail and Wire Fraud attorney to be successful with reducing a sentence, it is important to know the judge and his particular sentencing philosophy. It is also necessary to review the probation officer’s Presentencing Report and any Sentencing Memorandums submitted by the prosecutor. At DM Cantor, we often bring in an outside Mitigation Specialist who prepares his own mitigation report. We sometimes use a private investigator to research any questionable information contained in the Presentence Report writer’s file or the prosecutor’s Sentencing Memorandum. Since the advent of Booker, the court is obligated to consider the individual circumstances of each particular case and then render a sentence “sufficient, but not greater than necessary” for an individual defendant, both in light of the sentencing guidelines and the factors set forth in 18 U.S.C. §3553(a).
Not only will a skilled Bank, Mail and Wire Fraud defense attorney attack the length of the sentence, but also the place of incarceration. Although the judge cannot dictate where a sentence will be served, he can recommend to the Bureau of Prisons where the sentence should be carried out. They normally will attempt to follow the judge’s recommendation. Where a Defendant is incarcerated is obviously important due to access to family, medical treatment, and overall quality of life. Our skilled Bank, Mail and Wire Fraud defense attorneys will also address these issues during the sentencing procedure.
Possible Defenses for Arizona Federal Bank, Mail and Wire Fraud
There are four main defenses to Federal Bank, Mail and Wire Fraud. The first defense is that the communication itself was not related to the scheme. In other words, the use of the wires or mail must be “sufficiently close” in relation to the fraudulent scheme so that it can be fairly held that the mails and wires were used “for the purpose of executing the scheme”. Just because you use the U.S. mail for some other wire communication to communicate does not mean that it was for the direct purpose of furthering a scheme. A skilled Federal Bank, Mail and Wire Fraud defense attorney will thoroughly investigate the timing of any communications, and the content as it relates to the alleged scheme.
The second major defense is what is known as “foreseeability” of the communication by defendant. If the defendant did not actually participate in the communication, then the Government must show that the use of the U.S. mail or wires were necessarily “reasonably foreseeable” by the defendant. However, they need not show that the defendant actually knew what was contained in the communication. In reality, if the Government cannot show that the defendant personally made the communications (or would not have reasonably known about their content), then this can be a major defense.
The third major defense is what is known as “scienter”. Scienter is sometimes referred to as “evil intent”. This means that the Government must show that the defendant had an “intent to defraud”. In cases of Federal Bank, Mail and Wire Fraud the Government will often attempt to show scienter or demonstrating a pattern of conduct. Sometimes this is referred to as “recklessness” by some courts. Also, some courts have allowed the inference of scienter by the nature of the scheme itself. A skilled Federal Bank, Mail and Wire Fraud defense attorney will show “good faith” on the part of his client in making the communications. In other words, the attorney will need to show that the defendant did not intend to defraud anyone.
The fourth and final major defense to Federal Bank, Mail and Wire Fraud is that there was no real injury to an alleged victim. Usually, people think of injury as “loss of money”. However, it can be shown that is injury to intangible property such as confidential business information and (as amended in 1988) the deprivation of the intangible right of “honest services”. Obviously, if nobody lost any money then this could be a defense to the charge.
The “Common Defenses” which may apply in any criminal case are numerous and diverse. One of most common defenses we encounter is a “Miranda Rights Violation”. In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, “Denial of Right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their Attorney, but is denied and questioning continues. Other defenses for Federal Bank, Mail and Wire Fraud may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis/”cloning hard drive” procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also David Michael Cantor is a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®. At DM Cantor, the majority of our Attorneys are ex-Prosecutors, and all of our Arizona Federal Bank, Mail and Wire Fraud Defense Attorneys know the system well. For a Free Consultation, call us at 602-307-0808.
Contact DM Cantor and speak to an Arizona Federal Bank, Mail and Wire Fraud Defense Attorney. We will assist you with your Arizona Federal Bank, Mail and Wire Fraud case.