SPAM—Nigerians Indicted

Just over a month ago, we mentioned that a number of Nigerian “419” email scammers had been arrested in the Netherlands with an expectation that the United States would seek to have the individuals extradited. Four of those individuals have been officially indicted by a federal grand jury in the Eastern District of New York.^[1]

The 11-count indictment alleges that the four individuals, one of whom “is a fugitive,” targeted “U.S. victims with promises of millions of dollars, including money from an estate and from a lottery.”^[2] Each of the defendants maintained a number of aliases; for example, Anthony Friday Ehis is also known as John J. Smith, Toni N. Amokwu, and Mr. T.^[3]

The investigation was actually “initiated by Dutch authorities,” and after some of the alleged victims were identified as Americans, the Dutch authorities notified the US Postal Inspection Service which “opening its own investigation.”^[4] The individuals “allegedly sent spam e-mail to thousands of potential victims in which they falsely claim to have control of millions of dollars located in a foreign country that belongs to an individual with a terminal illness.”^[5] If the alleged victims helped the defendants “collect and distribute the funds to charity,” the victims would be paid “a share of a large inheritance.”^[6] The alleged fraud occurred when the victims were informed that they “must pay a variety of advance fees for legal representation, taxes or bogus documentation. After the victims wire-transfer funds to pay the ‘required fees,’ the defendants do not deliver the funds as promised.”^[7] It is alleged that losses amounted to $1.25 million.^[8]

The interesting aspect of this case is that the indictment alleges conspiracy, wire fraud, mail fraud, and bank fraud, but not email fraud under the CAN-SPAM Act (15 U.S.C. § 7704). This is likely because the punishment for the first three offenses is far greater than the punishment for sending an email message knowing that the recipient would be misled by the subject heading of the email about material facts represented in the message, as proscribed by section 7704. The punishment for email fraud is up to five years in prison and a fine, while wire and mail fraud carry penalties of up to 20 years in prison and bank fraud carries a punishment of up to 30 years in prison.

As we have seen before, prosecutors are required to charge individuals under the most “serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.”^[9]

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[1] US DOJ, Four Defendants Indicted in Nigerian “Advance-Fee” Fraud Scam, Mar. 23, 2006; see also, Grant Gross, Four Indicted in Nigerian Email Scam, PC Advisor, Mar. 24, 2006; Four Indicted in Nigerian Advance-Fee Scam Spam, Spero News, Mar. 23, 2006; Four Nigerian (sic) Charged in Brooklyn in Advance Fee E-Mail Scam, Africa News Dimension, Mar. 24, 2006; Four Charged in Brooklyn in “Advance Fee” E-Mail Scam, AP (via The Detroit News), Mar. 24, 2006.
[2] US DOJ, supra note 1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] USAM, Principles of Federal Prosecution; Selecting Charges – Charging Most Serious Offense, 9-27.300 (August 2002)