18 USC 1341 Mail Fraud: The Federal Prosecutor's Favorite Weapon

You send a thank you note to an investor. A holiday card. A monthly statement showing there account balance. Each one of those mailings just became a separate federal felony with a 20-year maximum sentence. That's not an exaggeration - that's exactly how 18 USC 1341 works, and its the reason defense attorneys call mail fraud the federal government's Swiss Army knife.

Here's what nobody tells you until your already facing charges: mail fraud doesn't mean the fraud happened through the mail. It means ANY mailing happened anywhere near your conduct, even if that mailing was completely routine, completely truthful, and had nothing to do with any deception. The federal government created mail fraud to give themselves jurisdiction over fraud cases by connecting them to the federal mail system. But what started as a jurisdictional hook has become a sentencing sledgehammer.

I'm Todd Spodek, founding partner of Spodek Law Group in New York City. We defend clients facing federal mail fraud charges, and we've seen how prosecutors weaponize this statute. Our mission is educational - we want you to understand what your actually up against before you make decisions that cant be undone. Call us at 212-300-5196 if your facing an investigation or charges. This article explains how mail fraud actually works, why the charges multiply so fast, and what you can do about it.

The Federal Statute That Turns Innocent Mailings Into 20-Year Felonies

18 USC 1341 makes it a federal crime to use the mail "for the purpose of executing" a scheme to defraud. Read that carefully - "for the purpose of executing." You'd think that means the mailing has to be central to the fraud, right? That the letter itself has to contain the lie?

The Supreme Court said otherwise. In Schmuck v. United States, the Court held that mailings which are "incident to an essential part of the scheme" satisfy the statute. What does that mean in practice? It means ANY mailing connected to the fraud counts. The confirmation letter you sent. The receipt. The thank you note. The monthly statement. Even if those documents were completely truthful.

Here's the trap: the statute was designed to give federal prosecutors jurisdiction over fraud cases. Mail crosses state lines, so using mail makes it a federal crime. But the mailing element got stretched so far from its original purpose that it's now just a multiplication device. Every mailing becomes a separate count. Every count carries a 20-year maximum. And prosecutors stack those counts to create astronomical exposure, then offer you a "generous" plea to something lower.

The statute itself says: "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... 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... knowingly causes to be delivered by the Postal Service... shall be fined under this title or imprisoned not more than 20 years, or both."

Notice what its NOT saying. Its not saying the fraud has to be IN the mail. Its not saying the mailing has to be essential. Its saying if you use mail while executing a scheme to defraud - even incidentally - you've committed mail fraud.

And here's were it gets worse: "mail" doesn't just mean the United States Postal Service. The statute covers "any private or commercial interstate carrier" - FedEx, UPS, DHL, all of them. You cant avoid mail fraud charges by switching to a private carrier. If it crosses state lines, it counts.

Defense attorneys call this the prosecutor's favorite weapon because its so broad that almost any fraud case can be charged as mail fraud. Securities fraud? Add mail fraud counts for the monthly account statements. Investment fraud? Add mail fraud for the welcome packets. Loan fraud? Add mail fraud for the mortgage documents mailed to the title company. The underlying conduct might be hard to prove, but if there were mailings, the prosecutor has backup charges that are easy to win.

What Makes a "Scheme to Defraud" Under 18 USC 1341

So what does the government actually have to prove to convict you of mail fraud? There's two elements, and they sound simple: (1) you devised or intended to devise a scheme to defraud, and (2) you used the mail to execute that scheme.

But each of those elements has layers that most people don't understand until there in a courtroom.

A "scheme to defraud" means a plan or course of action intended to deceive someone to obtain money or property. The scheme doesn't have to be sophisticated. It doesn't have to be successful. It doesn't even have to be completed. Attempt is enough.

The Supreme Court held in Neder v. United States that "materiality" is an essential element. That means the misrepresentation has to involve a material fact - something significant enough that it would influence the victim's decision. Sales puffery usually isn't material. But telling investors there money is going into real estate when its actually going into your personal bank account? That's material.

Here's what prosecutors don't have to prove: that anyone actually lost money, that the scheme was successful, that you personally benefited, or that the victims were actually deceived. They just have to prove you had a plan to deceive someone, and that plan involved material misrepresentations.

Mail fraud is a specific intent crime. The government has to prove beyond a reasonable doubt that you KNEW your representations were false or that you had reckless disregard for the truth. Negligence isn't enough. Mistake isn't enough.

But juries hear about victims losing money, and they infer intent from the circumstances. If you told investors there money was going into municipal bonds and it went into Bitcoin, the jury's going to assume you knew that was false. Even if you had some convoluted good-faith belief otherwise.

The Bernie Madoff case is instructive here. Madoff ran a $65 billion Ponzi scheme for decades. He sent monthly statements to investors showing fake profits. Each of those statements was a separate count of mail fraud. Madoff pleaded guilty to 11 federal felonies including mail fraud and got 150 years in prison. The scheme was so large and ran for so long that he racked up thousands of potential mail fraud counts.

But notice what happened: the monthly statements weren't lies. They showed account balances. Those balances were fake, yes, but the statements themselves didn't say "this is a Ponzi scheme." They were instruments of the scheme - mailings designed to lull victims into believing there investments were real. That's mail fraud.

The scope of mail fraud shifted recently with two Supreme Court cases. In Ciminelli v. United States (2023), the Court rejected the "right-to-control" theory - fraud requires targeting "traditional property interests." But in Kousisis v. United States (2025), the Court upheld the "fraudulent inducement" theory. The government can convict you for inducing someone to enter a transaction under materially false pretenses, even if you didn't intend to cause economic loss.

What does this mean practically? Prosecutors don't have to prove you intended to steal money. They just have to prove you lied about something material to get someone to do something. The economic harm is relevant for sentencing, not guilt.

The Incidental Mailing Doctrine - How Routine Letters Become Federal Crimes

This is were mail fraud gets truly dangerous. You'd think the mailing would have to be important - that it would have to be the mechanism of the fraud itself. But the Supreme Court said mailings that are merely "incident to an essential part of the scheme" are sufficient.

The case that established this is Schmuck v. United States. Schmuck was a used car dealer who rolled back odometers and sold the cars to dealers at auctions. Those dealers then mailed title applications to the state. Schmuck never mailed anything himself. But the Court held that causing the dealers to mail the title applications was enough for mail fraud.

Think about what that means. Schmuck committed fraud by rolling back odometers. That fraud was complete when he sold the car. But weeks later, when a third party mailed a form to the state that Schmuck didn't prepare and didn't send, that became a federal mail fraud charge.

Courts have applied this broadly. Any mailing that's "reasonably foreseeable" and "incident to" the scheme counts. It doesn't matter if you didn't personally mail it, if the mailing occurred after the fraud was complete, if the mailing itself was truthful, or if it was routine business correspondence.

I've seen prosecutors charge monthly account statements as mail fraud even though the statements accurately reflected what the account showed - it was the underlying account that was fraudulent. Thank you notes. Holiday cards. Routine confirmations.

Here's a real example from our practice: A client ran an investment fund. Investors got monthly statements showing there returns. The returns were fake - the fund was running at a loss. When federal prosecutors indicted him, they charged every monthly statement as a separate count of mail fraud. Four years of monthly statements to 30 investors = 1,440 counts. Each count carried a 20-year maximum. The prosecutor offered a plea to 3 counts with a sentencing recommendation of 8-10 years. That sounded "generous" compared to the exposure. But the underlying fraud might not have been provable - it was a complex investment strategy that went wrong. The mail fraud counts were what created the leverage.

The Lulling Doctrine - Mailings After Fraud Restart The Clock

Courts have held that mailings designed to "lull victims into a false sense of security" count as mail fraud even if those mailings occur AFTER the fraud is complete. This is called the lulling doctrine.

Here's how it works. You run a Ponzi scheme. Eventually the scheme collapses and you stop taking money. The fraud is over. But you keep sending monthly statements to investors showing fake account balances, because you don't want them to complain or investigate. Those statements are "lulling mailings."

Each of those lulling mailings is a separate count of mail fraud. And each one restarts the 5-year statute of limitations.

A scheme that ended in 2018 can be prosecuted in 2025 if lulling mailings continued through 2020. The last mailing in 2020 starts a new 5-year clock. So the government has until 2025 to bring charges. And they can charge not just the 2020 mailings, but all the mailings going back to the beginning of the scheme.

I've seen prosecutors use this to charge schemes that are a decade old. As long as any mailing occurred within the last 5 years - even a reassuring email, even a holiday card - the entire scheme is fair game.

Here's the insidious part: you might send those reassuring communications thinking your being KIND to victims. Your trying to keep them from panicking. But every one of those communications extends your federal criminal exposure.

Defense attorneys warn clients: once the scheme is over, STOP COMMUNICATING. Every email, every letter, every text that could be seen as lulling the victims restarts the clock and adds another count. But clients don't listen, because there not thinking like prosecutors.

Why Mail Fraud Charges Multiply Faster Than Any Other Federal Crime

Here's the multiplication effect in plain terms:

One scheme = potentially hundreds of counts.

Every mailing = separate count = 20-year maximum.

Example calculation:

• Investment fraud scheme
• 20 investors
• Monthly statements for 3 years
• 20 investors × 36 months = 720 potential mail fraud counts
• 720 counts × 20 years maximum = 14,400 years of exposure

Prosecutors don't charge all 720 counts. They charge enough to create overwhelming leverage. Maybe they charge 50 counts - that's still 1,000 years maximum. Then they offer a plea to 2-3 counts with a sentencing recommendation of 5-8 years. From the defendant's perspective, that looks like mercy.

But here's what actually happened: the prosecutor couldn't prove half the elements of the fraud. The intent was murky. The loss calculation was disputed. The case would be difficult to win at trial. But the mail fraud counts? Those are easy. You sent monthly statements. That's indisputable. So the prosecutor stacks up mail fraud charges to force a plea on conduct that might not otherwise be criminal.

This is why mail fraud is the prosecutor's favorite weapon. It turns evidentiary problems into plea leverage.

And it's not just Ponzi schemes. ANY fraud involving communication creates this multiplication:

• Healthcare fraud: Every claim form mailed to insurance = separate count
• Mortgage fraud: Every document sent to the lender = separate count
• Securities fraud: Every confirmation, statement, or prospectus = separate count
• Tax fraud: Every false return mailed = separate count

The more professional your fraud - the more documentation, the more communication, the more investor updates - the more counts stack up.

I've had clients tell me: "But I was trying to keep investors informed. I was being transparent." And I have to explain: every transparency communication is another federal felony.

The Loss Amount Calculation That Actually Determines Your Sentence

If your convicted of mail fraud, the statutory maximum is 20 years per count (30 years if the fraud affects a financial institution). But the actual sentence is determined by the Federal Sentencing Guidelines, and this is were the loss amount becomes everything.

Mail fraud is sentenced under USSG §2B1.1. Base offense level is 7. Then come the enhancements based on loss amount. Loss of $250,000+ adds 12 levels. Loss exceeding $65 million adds 24 levels. Going from level 7 to level 19 takes you from 0-6 months to 30-37 months.

The loss calculation is were mail fraud cases get fought. Because "intended loss" counts even if no actual loss occurred. If you promised investors there money would go into real estate but you spent it on personal expenses, the intended loss is the full amount invested - even if you paid some of it back.

Elizabeth Holmes is instructive. Holmes founded Theranos and raised over $100 million from investors with false claims about blood-testing technology. She was convicted of wire fraud and sentenced to 11 years. The loss amount drove that sentence.

Prosecutors also add enhancements for number of victims (10+ victims adds 2 levels, 50+ adds 4 levels), sophisticated means (+2 levels), vulnerable victims (+2 levels), and obstruction of justice (+2 levels). A fraud case with $500K in losses and 20 victims can easily generate a guidelines range of 8-12 years. Even for a first-time offender.

Defense strategy focuses on reducing the loss number - arguing for actual loss instead of intended loss, subtracting amounts paid back, excluding victims who didn't actually lose money. Every dollar you reduce the loss by potentially reduces the sentence.

Defense Strategies That Actually Work (And The Ones That Don't)

Let's be honest about mail fraud defenses. With an 88% conviction rate in federal court, your odds aren't great if the case goes to trial. But there are defenses that work if the facts support them.

Lack of Intent is the strongest defense because mail fraud requires specific intent. If you can show you actually believed the representations you made - even if they turned out to be false - you might prevail. But this requires contemporaneous evidence. Emails showing you questioned the numbers. Documents showing you did due diligence. You cant just claim good faith - you have to prove it.

No Fraudulent Scheme works in cases were business deals went bad but there was no deception. If you relied on accountants and the numbers were wrong due to accounting errors, that's not fraud.

Mailing Not Connected to Scheme is hard to win because courts interpret "incident to" so broadly. But in cases were the mailing occurred long after the scheme ended and wasn't designed to lull victims, you might prevail.

Here's what DOESN'T work:

"I didn't personally mail it" - Causing mail to be used is enough.

"The mailing was truthful" - Even truthful communications can be lulling mailings.

"I used FedEx, not USPS" - Private interstate carriers count as "mail."

"The fraud was already over" - Lulling mailings restart statute of limitations.

"Nobody actually lost money" - Intended loss counts for sentencing.

Most federal mail fraud cases end in guilty pleas because the evidence is usually strong, the counts stack up fast, and the trial penalty is real. The negotiation becomes about the NUMBER of counts you plead to, the LOSS calculation, and the SENTENCING recommendation.

What To Do The Moment You Learn You're Under Investigation

If you learn the FBI or federal prosecutors are investigating you for mail fraud, every decision you make in the next 48 hours can determine whether you spend the next decade in prison.

Don't talk to federal agents without a lawyer. Anything you say will be used against you. Agents are allowed to lie to you. Your statements will become evidence.

Don't destroy documents. Obstruction of justice is a separate federal felony under 18 USC 1512. Deleting emails, shredding documents, wiping hard drives - all of that makes everything worse.

Don't contact victims or witnesses. This looks like witness tampering. Even innocent communications will be interpreted as efforts to influence testimony.

Don't assume the investigation will go away. Federal investigations take months or years. Ignoring it doesn't make it disappear.

What TO do:

Hire a federal criminal defense attorney immediately. Not a state lawyer. Someone who handles federal white-collar cases regularly and knows the Assistant United States Attorneys in your district.

Preserve all documents. Emails, financial records, contracts, communications. Your attorney will need these to build a defense.

Stop communicating about the matter. Only communicate with your attorney. Those other communications aren't privileged and can be subpoenaed.

Consider whether cooperation makes sense. In some cases, early cooperation can lead to a non-prosecution agreement or a significant sentence reduction. In other cases, it just gives the government evidence they wouldn't otherwise have.

If you receive a target letter, that's the last opportunity to potentially avoid charges. Your attorney might submit a white paper explaining why the conduct wasn't criminal, proffer cooperation in exchange for immunity, or negotiate a plea agreement before indictment. But these are high-stakes decisions. Once you proffer, you cant take it back.

Why Spodek Law Group

At Spodek Law Group, we've defended clients in complex federal fraud cases for years. We understand how mail fraud charges are constructed, how loss amounts are calculated, and how to negotiate with federal prosecutors from a position of knowledge.

We know that prosecutors overcharge to create leverage. We know how to challenge loss calculations. We know when cooperation makes sense and when it doesn't. We know the Assistant United States Attorneys in the Southern District of New York and the Eastern District of New York, and we have working relationships that allow us to negotiate effectively.

Our approach is realistic. We don't promise outcomes we cant deliver. We analyze the evidence, identify viable defenses, and develop a strategy tailored to your situation. Sometimes that means fighting at trial. Sometimes it means negotiating the best possible plea. Sometimes it means cooperation to minimize exposure.

If your facing a mail fraud investigation or charges, call us at 212-300-5196. The initial consultation will give you a clear understanding of what your facing and what your options are. This isn't a situation were you wait and see. Federal mail fraud cases don't resolve themselves - they get worse the longer you wait.

Mail fraud is the federal prosecutor's favorite weapon because its so broad, so easy to prove, and so devastating in its sentencing consequences. But its not unbeatable. With the right defense strategy and experienced counsel, you can minimize exposure and sometimes avoid conviction entirely. The key is acting now, before decisions are made that cant be undone.