Mail Fraud and Wire Fraud

November 2, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Mail and wire fraud are a frequent allegation in federal prosecutions.  The lynchpin of these charges is the utilization of interstate commerce to further whatever scheme the government is alleging is taking place.  The US Government obviously runs the postal service and heavily regulates other private postal carriers – and they also regulate interstate communications through instruments such as phones, fax machines and computers.

There are basically two components to both: a fraudulent scheme of some sort and then using the mail and/or wire as a furtherance to the scheme.  The Department of Justice has issued the following guidelines for mail fraud in 18 U.S.C. Section 1341 and you can read it here.  You can read the DOJ guidelines for Wire Fraud here, 18 U.S.C. Section 1343.

Why Does the Federal Government Care About the Mail So Much?

Because it gives them jurisdiction and because it allows them to have greater leverage in their prosecutions.

Mail and/or wire fraud prosecutions can often be a means to an end.  Let’s say the government thinks there is an illegal scheme of someone selling fake widgets in a newspaper ad.  It’s obviously a crime – but it may just be a State level offense.  But if that person is receiving payments in the mail, it allows the Federal government to step in and prosecute if they want.

Mail and wire fraud prosecutions also allows the government to potentially charge additional persons as conspirators if they choose if they had a part in the over-all scheme.

What is the Punishment for Mail or Wire Fraud?

The federal sentencing guidelines dictate potential punishment – as with all federal offenses.  The statutory punishment is punishment by fine and up to 20 years confinement, but this range is very deceptive.  Mail and wire fraud are often brought in multiple counts and often along with other charges.  The sentencing calculation will be unique in every case.

Are There Any Defenses?

You can always contest the search or manner in which the government attained the evidence.  If it was an illegal search you may be entitled to utilize the exclusionary rule to throw the evidence out of court.  Often intercepted mail or wire communications need federal authorization such as a search warrant.  The government is pretty good at this sort of stuff – but it’s always worth examining and evaluating.

If you had a good faith belief representations made by another person were true – it can be a defense if you are alleged to be a conspirator in mail or wire fraud.  But you can’t be willfully blind – that is – you can’t heavily suspect something is amiss and cross your fingers hoping what you were doing wasn’t helping do something illegal.

If you’re a minor player in the scheme – and were so minor as to not be “material” to the scheme, then this is a defense too.

You can also provide “substantial assistance” to the government as a way to lessen the potential penalties or avoid prosecution.  Providing assistance to the government isn’t necessarily a defense – but it can help you avoid or lessen charges in any event.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.


They Got the “Owner” Wrong on the Indictment

October 29, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A question I get from time to time in theft cases is the “owner” of the property as alleged by the prosecution is not really the owner at all.  Sometimes it is someone whose name the accused doesn’t recognize at all

So Who Is the Person They’re Saying is the Owner?

It is often a loss prevention officer of the store or often an office holder if the ‘victim’ of the theft is a company or organization of some type.

Tex.Code.Crim.P. 1.07(35) defines an owner as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

When the perpetrator is attaining property in an unauthorized manner — they have no interest in the property therefore any other person even with minimal control of the property can be considered an “owner.”

Does it Really Matter Who the State Lists as the Owner?

Not usually.  Take most shoplifting cases — the “owner” of the property is typically listed as a loss prevention person or in some instances even the store itself.  It often isn’t contested.

But Here’s Where This Issue Can Get Weird:

Let’s say the person listed as the owner of the property in the indictment (or information in a misdemeanor) normally has less interest in the property than the accused.  For instance, the treasurer of an organization is accused of theft and a regular member is listed as the owner (but was perhaps the informant).

In that instance, the prosecution would argue the treasurer was stealing – so therefore they have no interest in the money stolen whereas the regular member has minimal interest — but still more than the stealing treasurer.  But the counter-argument is Treasurer is presumed innocent as a matter of law, so what you get are “chicken & egg” arguments on either side.

Just a legal pit I’ve fallen into several times over the years!

*Jeremy Rosenthal is an Attorney Licensed in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a 2019 Super Lawyer as designated by Thomson Reuters.

White Collar Crime

September 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

“White Collar Crime” refers generally to corporate crimes including but not limited to fraud, bribery, insider trading, embezzlement, computer crimes, money laundering, identity theft and forgery.  White collar allegations can be particularly detail oriented both with the facts and with the law.

What Makes Charges Scary

Having Defended multiple cases — the pattern you sometimes see is the investigators decide you’re a criminal first and then go about putting their case together later.

White collar cases — with the often hundreds if not thousands of documents tend to be like huge mosaics.  Anyone can take a portion of the documents to paint a certain picture which may not reflect how a business or transaction was really conducted.

If you’re charged with a white collar crime you need a lawyer who can show investigators, prosecutors and juries the 40,000 foot view instead of a handful of cherry-picked documents.

Major Differences Between Other Charges

Unlike every-day “street” crimes, “white collar crimes” can be very document-intensive and require experienced counsel that is experienced in document review and analysis.  Prosecutors may take a 1,200 page stack of documents and breeze over them to make sure it fits their theory of the case — but a white collar criminal defense lawyer doesn’t have that luxury.  A white collar crimes lawyer has to understand that the key evidence that can lead to acquittal can be buried on page 1,034 in the third paragraph from the bottom.

Additionally, the prosecution in white collar cases can fall into many traps.  Charging crimes such as embezzlement and misappropriation of fiduciary property is tricky — and some prosecutors, for example, lazily try to prosecute these cases like it was shoplifting from a big-box store.  An experienced white collar defense lawyer can expose and utilize such prosecutorial errors.

If you’re accused of a white-collar crime you should involve counsel immediately.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For any legal advice for any specific situation you should directly consult an attorney.