Federal Wire Fraud Defense Lawyer Near You – 18 USC § 1343 (2024)

18 U.S.C. § 1343 criminalizes the devising of (or the intent to devise) any scheme to defraud or to acquire money or property under false pretenses, by use of some form of electronic communication (wire, radio, television, internet, or even instant messages and text messages) in interstate or foreign commerce.

Specifically, to convict an alleged offender under § 1343, a federal prosecutor must prove beyond a reasonable doubt that:

1. the defendant knowingly devised or participated in a scheme to defraud someone by using false or fraudulent pretenses, representations, or promises;
2. the false or fraudulent pretenses, representations, or promises were about a material fact;
3. the defendant had the intent to defraud; and,
4. the defendant transmitted or caused to be transmitted by [wire, radio, television or internet] some communication in interstate commerce to help carry out the scheme to defraud.

However, the government does not need to prove that the information itself was false or fraudulent, or contained any request for money, property, or something else of value. Nor does the government need to prove that wire communication was an essential part of the fraud scheme. The government or federal prosecutor only needs to prove that the use of wire communication furthered or somehow advanced the underlying scheme to defraud.

Additionally, each such wire transmission may count as a separate violation of the wire fraud statute.

Offenders convicted under § 1343 face up to 20 years in prison, fines up to $250,000, or both. If the violation affects a financial institution or involves any benefit related to a presidentially declared major disaster or emergency as defined by the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5122), the penalties for conviction increase to a maximum of 30 years in prison and up to $1,000,000 in fines, or both.

If the violations involve telemarketing or email marketing, convicted telemarketing or email marketing offenders face a 5-year sentence in addition to any prescribed sentence under the statute, or an additional 10 years in the mail and wire fraud violation if the victims are over the age of fifty-five, or if the defendant targeted individuals over this age.

The attempt or conspiracy to commit a mail and wire fraud offense is punishable under 18 U.S.C. § 1349 and carries the same conviction penalties as the underlying mail and wire fraud offense that was the object of the attempt or conspiracy.

The United States Sentencing Commission (USSC) publishes a federal sentencing Guidelines Manual in which an advisory sentence range for all federal offenses is listed. Sentencing judges use the Guidelines to determine the appropriate sentence for a defendant convicted of a particular offense. While judges are still bound by any mandatory sentences that apply to a given offense, they may depart from the sentencing range by increasing or decreasing the base offense level penalty for a given offense. For each offense, the Guidelines note certain factors that can either enhance (increase) or mitigate (decrease) an offender’s ultimate sentence.

For wire fraud violations, §2B1.1 of the Guidelines applies. The base offense level for a § 1343 violation is 7, which provides a range of 0 to 21 months in federal prison, depending on the offender’s criminal history. Certain characteristics of the specific offense can also increase the offense level—one of which is the loss amount.

Hypothetical Situation of Criminal Wire Fraud

An executive officer of a publicly traded company was convicted of wire fraud that included a securities law violation that involved $2,000,000 in losses.

Applicable Guidelines

• Base offense level for wire fraud crime – 7
• Loss amount greater than $1,500,000 (but less than $3,500,000) – add 16
• Involves a securities law violation where the defendant is an officer of a publicly traded company – add 4

With the two enhancements, the hypothetical defendant’s offense level is now 27 (7+16+4), which carries a sentencing range of 70 to 162 months (5 years, 10 months to 13 years, 6 months) in federal prison, representing a substantial difference from the base offense level range of 0 to 21 months.

18 U.S.C. § 3553(a) includes factors that sentencing judges should consider when determining a defendant’s sentence. These include certain mitigating circ*mstances that may result in a lesser sentence.

The breadth of the wire fraud statute is matched only by the equally diverse range of alleged offenders, representing a wide range of industries and individuals from the most highly ranked executives, to the those in entry-level roles.

In April of 2021, Kenneth Werkau, an associate in a Clarington, Ohio Walmart, was indicted on three counts of wire fraud. Werkau was accused of stealing over $123,000 in gift cards and activating them without paying for them. Werkau faces up to 20 years in prison and up to $250,000 in fines for each charge.

In October of 2017, Jay Edward Wilkins, chief financial officer (CFO) of a Baltimore, Maryland business, pleaded guilty to wire fraud crime and aggravated identity theft charges for a scheme to defraud his company of over $700,000. Wilkins had been accused of diverting corporate funds for his own personal use and using the personal information of current and former employees. On numerous occasions, Wilkins changed the direct deposit information on employee payroll accounts to cause the payroll company to send more than $700,000 in fraudulent payroll payments to his own account. In addition to fines, Wilkins faces up to 20 years in prison for the wire fraud count and another 2 years for aggravated identity theft.