An argument often made, and almost invariably lost, by defense counsel seeking to dismiss charges under the mail fraud statute, 18 U.S.C. § 1341, and analogous wire fraud statute, 18 U.S.C. § 1343, is that the mailing (which can be intrastate or interstate) or wiring (which must be interstate) was so attenuated from the underlying scheme that it could not be said to “further” the execution or attempted execution of the scheme, as is required. United States v. Maze, 414 U.S. 395, 400 (1974). For example, in an embezzlement from an employer by which manual T&E checks are obtained by the employee through his submission of hand-completed expense reimbursement requests, the prosecution would argue -- likely with success -- that the scheme was furthered by a foreseeable interstate wiring, because the employer’s reimbursement check is drawn on an account at a bank with offices in other states, or whose checks clear through a regional institution. So an offense whose every meaningful activity appears to lack any interstate wiring, or any wiring at all, would arguably fall under the wire fraud statute.
But the recent case of United States v. Fiorito, 640 F.3d 338 (8th Cir. 2011) may have set a particularly low bar for the government to hurdle in proving mail fraud. Fiorito was convicted at trial of defrauding homeowners, who were behind on their mortgages, by convincing them to refinance or sell their homes, and then cheating them out of their equity, reflected in the proceeds of a refi or sale. Fiorito persuaded one charged victim to sell her house at a below-market price, so that he could resell it for full value; he even caused the victim-seller to give him, without her knowledge, a second mortgage to finance the purchase. However, Fiorito’s effort to resell the home and realize its full value was thwarted by the second mortgage of record.
So, Fiorito brought a quiet title action against the victim of his scheme, maintaining that the second mortgage had been paid off, in order to clear his fraudulently-obtained title of that encumbrance. In the course of the quiet title action, Fiorito’s attorney served discovery requests by mail to the victim’s attorney. The mailing of the discovery requests in the quiet title action was charged as one count in a multi-count indictment, and Fiorito was convicted of that mail fraud.
On appeal, Fiorito argued that the routine mailing by his attorney of discovery requests was not “in furtherance” of the fraud, which had seemingly been completed earlier when the victim unwittingly gave him a second mortgage and a below-market price on her house. The Eighth Circuit upheld the conviction, holding that the discovery requests -- not described in the opinion, so assumed to be routine interrogatories or document requests -- were mailed in furtherance of the fraud. The quiet title action was necessary to eliminate the obstacle to his resale of the house and so was undertaken in furtherance of the fraud, the court defensibly held. However, it is difficult to understand the further holding that the routine mailing of discovery requests advanced the fraud perpetrated on the victim or was meaningfully incidental to the scheme’s execution. Presumably, then, Fiorito’s attorney writing to a judge regarding a status conference or mailing in a notice of appearance would have “furthered” the fraud to the same extent, no matter how counterintuitive that may seem. The reasoning of Fiorito draws all meaning out of the phrase “in furtherance” and renders it instead as “mailings of indifferent importance which occurred at some point during the continuation of the underlying scheme.” That verbal attenuation from the Supreme Court’s formulation seems highly doubtful and at odds with controlling precedent.