Legal Memorandum: Asserting a Mail or Wire Fraud in a Civil RICO Action

Issue: Is a successful criminal prosecution or conviction required before a plaintiff can assert a mail or wire fraud claim in a civil RICO action?

Essentially there are two elements to these fraud crimes.  “Mail or wire fraud occurs when a person (1) intentionally participates in a scheme to defraud another of money or property and (2) uses the mails or wires in furtherance of that scheme.”  Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010).  The Supreme Court rejected the contention that there must be a successful criminal prosecution or conviction to satisfy the “criminal activity” requirement years ago.  Sedima v. Imrex, 473 U.S. 479, 493 (1985).  Sedmia held:

We can find no support in the statute’s history, its language, or considerations of policy for a requirement that a private treble-damages action under § 1964(c) can proceed only against a defendant who has already been criminally convicted.  To the contrary, every indication is that no such requirement exists.  Accordingly, the fact that Imrex and the individual defendants have not been convicted under RICO or the federal mail and wire fraud statutes does not bar Sedima’s action.

Id.

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