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I. INTRODUCTION
In the past 130 years, the mail1 and wire2 fraud statutes have evolved and expanded into powerful prosecutorial tools.3 Despite the sparse legislative history,4 courts initially assumed the purpose of the mail fraud statute was to secure the integrity of the United States Postal Service ("USPS").5 Over time, courts have expanded the application of both the mail6 and wire7 fraud statutes to a number of modes of communication. In practice, the statutes are used not merely to secure the integrity of the USPS, but also to provide federal jurisdiction over a broad array of frauds.8
Today, the statutes "cover not only the full range of consumer frauds, stock frauds, land frauds, bank frauds, insurance frauds, and commodity frauds, but [also] . . . such areas as blackmail, counterfeiting, election fraud, and bribery."9 In addition, prosecutors use these statutes to prosecute money laundering and Racketeer Influenced and Corrupt Organizations Act ("RICO") violations.10
In 1994, both the mail and wire fraud statutes were expanded when Congress promulgated the Senior Citizens Against Marketing Scams Act ("SCAMS Act"). 'l The SCAMS Act responded to the ever-increasing threat of new schemes, which often utilized private carriers, by amending the federal mail fraud statute to cover not only the USPS, but also private interstate commercial carriers.12 The SCAMS Act also specifically criminalized telemarketing fraud.13 Finally, the SCAMS Act enhanced the penalties for conviction for mail and wire fraud schemes targeted at individuals age fifty-five and older.14
The mail and wire fraud statutes are used as a "first line of defense," or "stopgap" device, which permits prosecution of newly invented frauds until Congress enacts particularized legislation to cope with the new fraud.15 The mail and wire fraud statutes have consequently been referred to as a "secret weapon" of federal prosecutors.16
This Article concentrates on the mail fraud statute because historically it has been used more frequently than its wire fraud counterpart. The wire fraud statute, however, has been applied in recent years to an increasing variety of means of communication such as facsimile, telex, modem and Internet transmissions.17 As use of the Internet expands, the wire fraud statute may become increasingly important.18
Despite this Article's focus on the mail fraud statute, its analysis is generally applicable to both statutes...