The Scheme and Artifice to Defraud
The wire fraud statute was patterned after the mail fraud statutes.
United States v. Lemon, 941 F.2d 309, 316 (5th Cir. 1991); United
States v. Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987). Thus, the same
principles apply in defining "scheme to defraud" for mail and wire fraud
prosecutions. See Carpenter v. United States, 484 U.S. 19, 25
6 (1987) ("The mail and wire fraud statutes share the same language in
part, and accordingly we apply the same analysis to both sets of offenses
here."); United States v. Lemire, 720 F.2d 1327, 1334-35 n. 6 (D.C.
1983) ("The requisite elements of 'scheme to defraud' under the wire fraud
statute [§ 1343] and the mail fraud statute [§ 1341], are
Thus, cases construing mail fraud apply to the wire fraud statute as
cert. denied, 467 U.S. 1226 (1984).|
The mail fraud and wire fraud statutes do not define the terms
or "artifice" and the courts have traditionally been reluctant to offer
definitions of either term except in the broadest and most general terms.
Lemire, 720 F.2d at 1335 ("Congress did not define 'scheme or
defraud' when it first coined that phrase, nor has it since. Instead that
expression has taken on its present meaning from 111 years of case law.").
The fraudulent aspect of the scheme to defraud is to be measured by
nontechnical standards and is not restricted by any common-law definition of
false pretenses. "[T]he words 'to defraud' in the mail fraud statute have
'common understanding' of '"wrongdoing one in his property rights by
methods or schemes," and "usually signify the deprivation of something of
by trick, chicane, or overreaching."'" Carpenter, 484 U.S. at 27
McNally v. United States, 483 U.S. 350, 358 (1987) (quoting
Hammerschmidt v. United States, 265 U.S. 182, 188 (1924))). "The
of 'fraud' includes the act of embezzlement, which is '"the fraudulent
appropriation to one's own use of the money or goods entrusted to one's own
by another."'" Id. (quoting Grin v. Shine, 187 U.S. 181, 189
[cited in USAM 9-43.100]