When the FBI Comes Calling…®

MAIL FRAUD (Continued)

18 U.S.C. § 1342 (2007).

The Crime
Section 1342 is a much simpler statute, and is only somewhat related to the general notion of "mail fraud," but as concerns about identity theft mount, it is important to be aware of section 1342.

Under section 1342 it is a crime for a person

  • for the purpose of
    • conducting, promoting, or carrying on by means of the Postal Service, any scheme or device proscribed by section 1341, or any other unlawful business
  • to use or assume, or request to be addressed by
    • any fictitious, false, or assumed title, name or address or name other than his own proper name, or
  • to take or receive from any post office or authorized depository or mail matter
    • any letter, postal card, package, or other mail matter addressed to any such fictitious name or address or to any name or address not his own. 18 U.S.C. § 1342 (2007).

The Punishment
The punishment for a violation of section 1342 is

  • a fine, imprisonment for not more than five years, or both. 18 U.S.C. § 1342 (2007).

Case Law Interpreting Section 1342
Because section 1342 incorporates by reference section 1341, a conviction for section 1342 requires proof of a violation of section 1341. United States v. Scott, 326 F. Supp. 272, 275 (W.D. Pa. 1972).

18 U.S.C. § 1346 (2007).

Section 1346 merely states that the term "scheme or artifice to defraud" includes a scheme or artifice to defraud another of the intangible right of honest services. Section 1346 was enacted to counter the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 360 (1987). See United States v. Sawyer, 239 F.3d 31, 39 (1st Cir. 2001).

According to United states v. Rybicki, 287 F.3d 257 (2d Cir. 2002), the elements necessary to establish the offense of honest services fraud are:

  1. a scheme or artifice to defraud
  2. for the purposes of depriving another of the intangible right of honest services
  3. where it is reasonably foreseeable that the scheme could cause some economic or pecuniary harm to the victim that is more than de minimis and
  4. use of the mails or wires in furtherance of the scheme. Rybicki at 266.

The enactment of section 1346 has greatly complicated statutory analysis of the mail fraud statute. "While the legislative history of § 1346 seems to indicate an intention to resurrect the pre-McNally case law relating to the deprivation of intangible rights by use of the mails," some case law has determined that "pre-McNally cases construing the prior statute are not binding, and that the new offense was defined by statute, … not by pre[-]McNally judicial decisions." United States v. Adler, 274 F. Supp. 2d 583, 586 (S.D.N.Y. 2003). In short, the effect of section 1346 remains to be seen, but there is general acceptance of the notion that "convictions under § 1346 that involved schemes … in which the defendant breached or induced the breach of a duty owed by an employee or agent to his employer or principal that was enforceable by an action at tort" must be upheld. Rybicki at 264.

McNabb Associates has also written a white paper on this subject. To view it, click here.

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