Wire Fraud

Wire fraud is a federal crime involving a scheme to defraud a third party by electronic communications. It can come in the form of internet scams, hacking, phishing, telemarketing fraud, or other type of fraudulent scheme.

The elements of wire fraud are similar to mail fraud’s elements. See 18 U.S.C. §§ 1341 and 1343. However, wire fraud requires the use of an interstate telephone call or electronic communication made in furtherance of the scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) The elements of wire fraud include: (1) defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used. (citing Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289 (1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990). So, in short, wire fraud requires proof of the following: (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.

The federal statute that defines wire fraud states 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, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, 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 under 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."

There are specific defenses to mail and wire fraud charges such as withdrawal from the scheme. So, in short, a defendant may be able to assert an affirmative defense by proving that he or she withdrew from the scheme by acting in contrary to the scheme’s objective and communicating the withdrawal to the co-defendants.