The phrase “scheme or artifice to defraud” gives the federal statute its teeth. A scheme to defraud can be almost any deception, and has been applied to more than a few omissions, whether malicious or not. The problem most cited is that the statute makes a scheme to defraud a federal crime without ever defining what a scheme to defraud actually is. There are federal circuit court splits on nearly every aspect of interpretation of the phrase. For instance, in some states the conduct must amount to a violation of state law, while in others a workplace violation will suffice. Of course, state laws vary greatly throughout the country, so requiring a state law violation to support a federal prosecution would make the criminality of certain conduct dependent upon the geographical location in which it occurred. A failure to disclose a conflict can alone support a conviction in some jurisdictions, while the prospect for a material economic benefit is required in others. There is considerable overlap among the mail and wire fraud statutes and other federal offenses, aptly demonstrated by the Racketeer Influenced and Corrupt Organizations (RICO) Act, for which two or more counts of mail or wire fraud can serve as predicate offenses. A scheme to defraud under the honest services provision covers official misconduct such as federal program bribery, extortion under color of official right, or Medicare/Medicaid kickbacks almost without exception.
Although having now been extended to “intangible rights,” a scheme or artifice to defraud has traditionally focused on a deprivation of some property interest of another by trick, chicane, or overreaching. As one court put it, perhaps acknowledging the lack guidance given by the statutes, such a scheme entails wrongdoing one in his property rights by dishonest methods or schemes. Normally it will not matter if the victim was particularly gullible or didn’t take every step possible to guard against the potential of such a deprivation. The focus is entirely on the state of mind of the accused: Did the defendant cause the mails or wires to be used with the specific intent to work a deprivation of a money, property, or intangible right? A popular formulation of an objective standard for determining whether activity constitutes a “scheme to defraud” is whether it is calculated to deceive persons of ordinary prudence and intelligence. Such a standard inherently requires a material misrepresentation regarding relevant aspects of a business. The evidence admissible to prove such a scheme existed can come in many forms, including whether it was in fact believed, whether it was effective in working a deprivation of a property interest, and whether the victim could have verified the truth of the representations independently.
A scheme to defraud usually connotes some degree of planning on the schemer’s part in most fraud contexts, but it is important to keep in mind that even a mere failure to disclose a conflict of interest can constitute the requisite “scheme.” In a few jurisdictions, courts apply an unreasonable victim standard. For example, in a land fraud case, where a realtor has secured a purchase price for a piece of property well above the industry standard by making misrepresentations about the physical features of the parcel, some courts might impose a duty on the purchaser to inspect the property rather than rely on those statements alone.