Using a cell phone or a computer—or any device that sends information across state lines—in an attempt to defraud someone constitutes the federal offense of wire fraud.
What is Wire Fraud?
The crime of wire fraud occurs when someone voluntarily and intentionally uses an interstate communications device (such as a telephone) as a part of any scheme to defraud another of property, or anything else of value. Wire fraud is a federal crime with serious potential consequences. (To learn more about additional fraud crimes, see our topic page - Fraud and Financial Crimes.)
(18 United States Code section 1343)
Intent and the Scheme to Defraud
A person cannot accidentally commit wire fraud. In order to secure a conviction, federal prosecutors must show that a defendant acted with the intent to fraudulently deprive someone of money, property, or something of value.
Wire fraud crimes involve schemes to defraud. A scheme to defraud is a plan a person employs that uses a statement, promise, misrepresentation, deception, or any other kind of falsehood designed to deprive a victim of something of value.
For example, offering to sell someone land that you do not own in order to get that person to give you money is a scheme to defraud.
Use of an Interstate Wire Communications Device
To commit wire fraud a person must use some kind of interstate communications device. Interstate communications devices can be almost anything that send, receive, or otherwise transmit messages across state lines. Wire fraud charges can arise when someone uses a phone, a fax machine, e-mail, or any kind of Internet communication device to transmit messages.
For example, if you try to sell land you do not own, and in your attempt you use a computer to send an email to someone trying to convince that person to purchase the land, you commit wire fraud.
Pecuniary Loss and Honest Services
A conviction for wire fraud does not require that victim actually lost money. Because the wire fraud statute prohibits engaging in a “scheme to defraud,” a person can be convicted of wire fraud even if no victim suffers any actual loss. In other words, attempting to obtain the money is enough to be convicted of this crime.
Additionally, wire fraud charges can apply when a person engages in a scheme to defraud others of “honest services.” When someone, such as a public official, has a duty to provide honest or ethical services to others, that person can engage in wire fraud when using an interstate communications device to violate the duties the office requires.
For example, government officials who participate in bribery or kickback schemes can commit wire fraud because, even though they haven’t necessarily caused a victim to suffer a pecuniary loss, they have deprived the public of the honest services they have a duty to provide.
Separate and Additional Offenses
Every act of wire fraud constitutes a separate offense. For example, someone engaged in a scheme to defraud, who made 10 phone calls to victims as part of that scheme, committed 10 separate acts of wire fraud.
Federal prosecutors tend to use wire fraud as “catch all” type of crime that applies broadly, and especially in situations where prosecutors are unable to prove other, more serious crimes. For example, if federal prosecutors investigate someone for securities fraud, they may not believe they have the evidence needed to secure a conviction for that offense. However, if the securities fraud involved any interstate communications device, which it likely did, prosecutors can charge the defendant with wire fraud as well.
The defenses available to anyone charged with wire fraud will differ depending on the circumstances. The following defenses are often used in wire fraud cases, though they do not always apply in every situation, and do not represent all of the possible defenses available.
A scheme to defraud rests on intending to defraud someone of something of value. A person who acts in good faith doesn’t commit mail fraud because that person does not have the intent to enter into a scheme to defraud the victim.
For example, a person charged with wire fraud could show good faith by proving that he acted within the requirements imposed under state law, that he didn’t have any financial motive for depriving the victims of property, that he obtained legal advice from a lawyer before acting, or that he attempted to rectify the loss the victim suffered once learning of it.
Salespeople often use flattery, exaggerations, or opinionated statements in their attempts to persuade potential buyers. Such tactics are often known as “puffery” or “puffing,” and can be used as a defense against wire fraud.
For example, a salesman who states over the phone that a product is “the best ever made” is not likely committing wire fraud, because the average listener would not rely on that statement to make a purchase. However, stating that the product is made of “solid 24-karat gold,” when it’s merely gold colored, or making any other materially false claim, goes beyond puffery and can indicate an in tent to defraud.
Wire Fraud Penalties
A person convicted of wire fraud faces significant potential penalties. A single act of wire fraud can result in fines and up to 20 years in prison. However, if the wire fraud scheme affects a financial institution or is connected to a presidentially declared disaster or emergency, the potential penalties are fines of up to $1,000,000 and up to 30 years in prison.
You Should Find a Lawyer
Being charged with wire fraud is a serious situation. If you’re charged with this crime, or are asked questions by investigators, you need to talk to a defense attorney as soon as possible. Always talk to a lawyer before you make any statements to investigators. Your lawyer will be able to guide you through the criminal justice process and protect your interests at every stage.