Wire and mail fraud are the most flexible tools in federal white-collar practice, which is why they appear in almost every case. 18 U.S.C. § 1343 requires a scheme to defraud and the use of interstate wires; § 1341 is the postal analogue. Because an email or a payment can supply the wire, conduct that looks like a commercial dispute can be charged federally. Where a pattern is alleged, 18 U.S.C. § 1962(c) adds RICO.
Waxman Litigation acts for companies and their boards. Seth B. Waxman spent 13 years as an Assistant United States Attorney in the District of Columbia, roughly eight of them on fraud and public corruption.
§ 1343 — wire fraud
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 ( 42 U.S.C. 5122 )), or affects a financial institution, such person shall be
18 U.S.C. § 1343The scheme is the offense; the wire is the jurisdictional hook. That is the whole architecture.
§ 1341 — mail fraud
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, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing,
18 U.S.C. § 1341§ 1962(c) — RICO
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise ’s affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
18 U.S.C. § 1962RICO requires an enterprise and a pattern of racketeering activity. Its presence changes the scale of a case considerably.
Where the same facts are also a civil dispute
Much of what is charged as wire fraud began as a commercial disagreement. Where that is the position, the civil and criminal dimensions have to be handled together. See business litigation and parallel criminal and civil proceedings.
What do the mail and wire fraud statutes carry, and when does the maximum rise?
Mail and wire fraud both carry 20 years, and both rise to 30 years when the scheme affects a financial institution or relates to a federally declared disaster. The elements are near-identical; the mailing or the wire is the jurisdictional hook, not the fraud itself.
| Provision | Official heading | Maximum term |
|---|---|---|
| 18 U.S.C. § 1341 | Frauds and swindles (mail fraud) | 20 years — 30 if it affects a financial institution or relates to a federally declared disaster |
| 18 U.S.C. § 1343 | Fraud by wire, radio, or television | 20 years — 30 on the same aggravators |
| 18 U.S.C. § 1962 (penalty at § 1963) | Prohibited activities (RICO) | 20 years — life if the predicate racketeering activity carries life |
| 18 U.S.C. § 1001 | Statements or entries generally | 5 years (8 if terrorism-related) |
Frequently asked questions
Does receiving a subpoena mean the company is a target?
No. Witnesses, subjects and targets all receive subpoenas. Establishing which the company is tends to be an early priority.
Can we keep deleting emails on our normal schedule?
No — that is the most common way a document problem becomes a criminal one. 18 U.S.C. § 1519 reaches destruction of records with intent to impede a federal matter, including in contemplation of one, and carries up to 20 years.
Can we tell employees not to speak to investigators?
Instructing employees not to speak is dangerous territory. 18 U.S.C. § 1512(b) reaches corruptly persuading another person to withhold testimony or records from an official proceeding. Employees can be told they may seek their own counsel; instructing them what to say is a different matter.
Will we be told what the investigation is about?
The company is usually told very little. Grand jury secrecy under Fed. R. Crim. P. 6(e) binds the government, not the recipient, so what can be learned usually comes from the subpoena’s terms and the questions asked.
Do the company and its employees need different lawyers?
Sometimes, and the divergence can appear early. It is a question to raise at the first meeting rather than after interviews have started.
Whose records can a subpoena actually reach?
It reaches whatever the recipient holds. A subpoena may order the witness to produce any books, papers, documents, data or other objects it designates, which is why the first task is mapping what the company actually possesses — including material on personal devices and in third-party systems. See Fed. R. Crim. P. 17(c)(1).
When must an objection to a subpoena be raised?
It has to be raised promptly. The court may quash or modify a subpoena on a motion made promptly if compliance would be unreasonable or oppressive, so an objection developed over weeks of internal discussion can be too late even where it is sound. See Fed. R. Crim. P. 17(c)(2).
Where is a dispute about the subpoena decided?
In the court that issued it, rather than with the prosecutor who served it. Rule 17(c)(2) places the power to quash or modify with the court, so a negotiation with the government about scope runs in parallel with, and does not replace, that route.
How is a production made without conceding more than necessary?
By agreeing scope, format and a privilege protocol in writing before anything is handed over, and by keeping a record of what was searched and what was withheld. Where agreement is not reached, Rule 17(c)(2) is the mechanism for putting the dispute to the court.
What penalties attach to mishandling the response?
Serious ones, independent of the investigation itself. 18 U.S.C. § 1519 carries up to 20 years for knowingly altering, destroying or concealing a record with intent to impede a federal matter, and 18 U.S.C. § 1505 reaches obstruction of a pending proceeding before a department or agency.
Sources and legal authorities
General information about federal law, not legal advice, and not a substitute for advice on your own facts. If your company has received a subpoena, the response should be planned with counsel before documents are gathered or employees are interviewed.
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