Continuing the series on Mr. Behr’s mortgage fraud prosecutions in Florida:
Defendants who find themselves within the prosecutorial jurisdiction of the federal government are not indicted under a particular mortgage fraud statute, but are prosecuted under a number of different statutes. Assistant United States Attorneys (ASA) apply one or more of the statutes to activity considered fraudulent. Usually, the wire fraud and mail fraud statutes are effectuated the most. An ASA may also use a conspiracy theory to prosecute mortgage fraud under either statute. However, specific statutes such as the wire and mail statutes themselves appear to take a backseat to the overall scheme and persons or entities defrauded by defendants.
ASA’s are specifically guided by a policy statement of when to initiate legal action which is conspicuously placed at the beginning of the Mail Fraud and Wire Fraud section of the United States Attorney Manuel. In particular the manual states:
Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.
Although there is this claimed safety net of policy consideration in place and no specific mortgage fraud statutes in affect, it does not stop the federal government from vigorously prosecuting defendants under the mail, wire or other fraud statutes as exemplified below in various federal cases of what a particular ASA considers to be substantial patterns of behavior.
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