4.18.1341 Mail Fraud, 18 U.S.C. § 1341 See Statute

[Defendant] is charged with violating the federal statute making mail fraud illegal.

For you to find [defendant] guilty of mail fraud, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, a scheme, substantially as charged in the indictment, to defraud [or to obtain money or property by means of false or fraudulent pretenses];

Second, [defendant]’s knowing and willful participation in this scheme with the intent to defraud [or to obtain money or property by means of false or fraudulent pretenses]; and

Third, the use of the United States mail, on or about the date charged, in furtherance of this scheme.

The mailings do not themselves have to be essential to the scheme, but must have been made to carry it out. There is no requirement that [defendant] [him/herself] was responsible for the mailings.

A scheme includes any plan, pattern or course of action. The term “defraud” means to deceive another in order to obtain money or property by misrepresenting or concealing a material fact. It includes a scheme to deprive another of the intangible right of honest services.

[The term “false or fraudulent pretenses” means any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to their truth and that were made with the intent to defraud. They include actual, direct false statements as well as half-truths and the knowing concealment of facts.]

A “material” fact or matter is one that has a natural tendency to influence or be capable of influencing the decision of the decisionmaker to whom it was addressed.

[Defendant] acted “knowingly” if [he/she] was conscious and aware of [his/her] actions, realized what [he/she] was doing or what was happening around [him/her], and did not act because of ignorance, mistake or accident.

An act or failure to act is “willful” if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. Thus, if [defendant] acted in good faith, [he/she] cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.

Intent or knowledge may not ordinarily be proven directly because there is no way of directly scrutinizing the workings of the human mind. In determining what [defendant] knew or intended at a particular time, you may consider any statements made or acts done or omitted by [defendant] and all other facts and circumstances received in evidence that may aid in your determination of [defendant]’s knowledge or intent. You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence received during this trial.

It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme or that the material transmitted by mail was itself false or fraudulent or that the alleged scheme actually succeeded in defrauding anyone or that the use of the mail was intended as the specific or exclusive means of accomplishing the alleged fraud.

What must be proven beyond a reasonable doubt is that [defendant] knowingly devised or intended to devise a scheme to defraud that was substantially the same as the one alleged in the indictment, and that the use of the mail on or about the date alleged was closely related to the scheme because [defendant] either received something in the mail or caused it to be mailed in an attempt to execute or carry out the scheme. To “cause” the mail to be used is to do an act with knowledge that the use of the mail will follow in the ordinary course of business or where such use can reasonably be foreseen.

Comment(s)

(1) The definition of defraud comes from United States v. Kenrick, 221 F.3d 19, 26-27 (1st Cir. 2000) (en banc). We have dropped the statutory term “artifice” as archaic. It adds nothing to “scheme,” a term more understandable to most jurors. The mailings element comes from United States v. Sawyer, 239 F.3d 31, 39-40 (1st Cir. 2001).

(2) The “false or fraudulent pretenses” part of the statute extends it to “false promises and misrepresentations as to the future.” McNally v. United States, 483 U.S. 350, 359 (1987).

(3) Schemes to deprive others of the intangible right of honest services are included by virtue of 18 U.S.C. § 1346. Two kinds of intent must be proven: intent to deprive the public of honest services, and intent to deceive the public. United States v. Sawyer, 239 F.3d 31, 41 (1st Cir. 2001). Specific language should be drafted to deal with the particular charge. Consult Sawyer, supra; United States v. Woodward, 149 F.3d 46, 54-55 & n.6 (1st Cir. 1998); and United States v. Sawyer, 85 F.3d 713, 723-25 (1st Cir. 1996). Except for the honest services fraud, a fraud charge must involve “property.” Cleveland v. United States, 531 U.S. 12, 15, 20-25 (2000) (statute does not extend to fraud in obtaining state or municipal licenses because, although they are valuable, they are not “property” in the government regulators’ hands).

(4) Materiality must go to the jury. Neder v. United States, 527 U.S. 1, 4, 25 (1999).

(5) “It is not necessary to establish that the intended victim was actually defrauded.” United States v. Allard, 926 F.2d 1237, 1242 (1st Cir. 1991). Mail fraud does “not require that the victims be pure of heart.” United States v. Camuti, 78 F.3d 738, 742 (1st Cir. 1996).

(6) Good faith is an absolute defense. United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991). Although good faith is included in this charge, “[a] separate instruction on good faith is not required in this circuit where the court adequately instructs on intent to defraud.” Camuti, 78 F.3d at 744 (citing United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991)).

(7) There is no requirement that the person deceived be the same person who is deprived of money or property. United States v. Christopher, 142 F.3d 46, 53-54 (1st Cir. 1998).

(8) The First Circuit has approved the following instruction in a duty to disclose case:

A failure to disclose a material fact may also constitute a false or fraudulent misrepresentation if, one, the person was under a general professional or a specific contractual duty to make such a disclosure; and, two, the person actually knew such disclosure ought to be made; and, three, the person failed to make such disclosure with the specific intent to defraud.

. . . .

The government has to prove as to each count considered separately, that the alleged misrepresentation as charged in the indictment was made with the intent to defraud, that is, to advance the scheme or artifice to defraud. Such a scheme in each case has to be reasonably calculated to deceive a lender of ordinary prudence, ordinary care and comprehension.

. . . .

[I]t is not a crime simply to be careless or sloppy in discharging your duties as an attorney or a[s] an appraiser. That may be malpractice, but it’s not a crime.

United States v. Cassiere, 4 F.3d 1006, 1022 (1st Cir. 1993) (alterations in original).

(9) In United States v. Blastos, 258 F.3d 25, 27 (1st Cir. 2001), the defendant argued that the previous pattern charge was inadequate under Neder v. United States, 527 U.S. 1 (1999), because the instruction did not identify materiality as a separate element of the offense. (Neder had not yet been decided when the first patterns were published.) The First Circuit assumed arguendo that was so, but found it harmless error in light of the rest of the charge on materiality, noting “that the district court gave an instruction on materiality that, although it did not meet the specific requirements of Neder, accomplished the same purpose.” Blastos, 258 F.3d at 29. The revised pattern still does not list materiality as a separate element because it seems most logical to treat it as part of the definition of “defraud” or “false or fraudulent pretenses.” An argument can be made in light of Blastos, however, that it is safer to separate out materiality as a separate numbered element of the offense. The instruction then presumably would add a new “Second” namely, “The use of false statements, assertions, half-truths, or knowing concealments, concerning material facts or matters;” and the other elements would be renumbered accordingly.