The Use (or Abuse?) of the Mail and Wire Fraud Statutes

Ask any fraud prosecutor what their bread-and-butter criminal statute is, and you’ll surely hear about mail fraud or wire fraud.  Taken together, they account for a significant percentage of fraud prosecutions at the federal level.  Both statutes are broad and malleable, requiring a fraudulent scheme to obtain money or property; a criminal intention to defraud someone; and either a mailing or interstate wire transmission.  And, properly drafted, just about every type of economic crime can be cabined into a charge of mail or wire fraud. Give prosecutors a broad tool, and you’ll surely have instances where the statute is pushed to its limits.  In most cases, the object of any fraud scheme is money, making it a natural fit for the mail and wire fraud statutes.  The challenge comes when the defendants are not after money but “property.”  Sometimes that’s simple: if I lie to you to get the deed to your house, that’s property fraud.  But defining the limits of “property” has always proved troublesome.  Creative prosecutors have deployed the statutes in a variety of scenarios, often in the context of public corruption cases, and usually with success.  That breadth, however, has always given the Supreme Court some level of…