October 12, 2011 Articles

Reconsidering the Extraterritorial Reach of the Mail and Wire Fraud Statutes

Defense lawyers are now armed with better arguments, following Morrison, for challenging the prosecution of cases that are extraterritorial.

By Norman Moscowitz

Assume the following scenario: A group located in England that orders goods from a company, also located in England, plans and executes a “bust-out” scheme. However, at some point during the execution of the scheme, to enhance its credibility or for lulling purposes, the schemers have a confederate in the United States send an email or mailing to the victim company.

Based on that communication, a federal prosecutor in the United States could indict the English participants in the scheme under the mail and wire fraud statutes substantively or, at a minimum, for conspiracy and, on the current state of the law, expect the indictment to survive a motion to dismiss. The reach of those statutes to certain kinds of frauds (i.e., fiduciary and honest services) has been cut back. (See Skilling v. United States, 130 S. Ct. 2896 (2010). See also Cleveland v. United States, 531 U.S. 12 (2000) (holding that a state-issued license is not property for purposes of the mail fraud statute.)) However, the courts have not set any comparable limitation on their use to prosecute frauds that are, at their essence, extraterritorial. To the contrary, these statutes have been given broad extraterritorial application, and motions to dismiss that have raised the issue have not been successful.

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