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The 'Ordinary Prudence' Standard in Mail and Wire Fraud Cases

By Jefferson M. Gray

To the average layperson (and even to most criminal lawyers), it probably seems self-evident that the federal mail and wire fraud statutes (18 U.S.C. ” 1341 and 1343) protect not only the financially or commercially astute, but also the most credulous, na've, and unsophisticated members of our society. Federal prosecutors regularly file fraud charges in cases involving transparently suspect representations and promises, and these cases typically end with guilty pleas or convictions at trial. The federal courts of appeal have long emphasized that “the monumental credulity of the victim is no shield for the accused,” Deaver v. United States, 155 F.2d 740, 744-45 (D.C. Cir. 1946), or, indeed, that “the lack of guile on the part of those generally solicited may itself point with persuasion to the fraudulent character” of the scheme. Norman v. United States, 100 F.2d 905, 907 (6th Cir. 1939). The circuit courts therefore routinely uphold fraud convictions arising out of schemes that could be readily detected by anyone applying the maxim caveat emptor.

Co-existing with these decisions, however, is another line of authority which holds that to establish the required element of a scheme to defraud, it is necessary for federal prosecutors to prove that the scheme was “reasonably calculated to deceive persons of ordinary prudence and comprehension.” Silverman v. United States, 213 F.2d 405, 407 (5th Cir. 1954). See also, e.g., United States v. Jamieson, 427 F.3d 394, 415-16 (6th Cir. 2005); United States v. Shepard, 396 F.3d 1116, 1124 (10th Cir. 2005); United States v. Goodman, 984 F.2d 235, 240 (8th Cir. 1993).

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