4.18.1343 Wire Fraud, 18 U.S.C. § 1343 See Statute

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

For you to find [defendant] guilty of wire 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; and

Third, the use of interstate [or foreign] wire communications, on or about the date alleged, in furtherance of this scheme.

“Interstate [or foreign] wire communications” include telephone communications from one state to another [or between the United States and a foreign country.] [The term also includes a wire transfer of funds between financial institutions.]

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.

Phone calls designed to lull a victim into a false sense of security, postpone injuries or complaints, or make the transaction less suspect are phone calls in furtherance of a scheme to defraud.

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 wire was itself false or fraudulent or that the alleged scheme actually succeeded in defrauding anyone or that the use of wire communications facilities in interstate commerce 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 wire communications facilities in interstate [or foreign] commerce on or about the date alleged was closely related to the scheme because [defendant] either made or caused an interstate [or foreign] telephone call to be made in an attempt to execute or carry out the scheme. To “cause” an interstate [or foreign] telephone call to be made is to do an act with knowledge that an interstate [or foreign] telephone call will follow in the ordinary course of business or where such a call can reasonably be foreseen.

Comment(s)

(1) See the Comments to Instruction 4.18.1341 (Mail Fraud). “The mail and wire fraud statutes share the same language in relevant part” and are therefore subject to the same analysis. Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987); accord McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 n.8 (1st Cir. 1990) (same). “Accordingly, . . . caselaw construing § 1341 is instructive for purposes of § 1343.” United States v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987).

(2) “[U]se of the wires must be ‘incident to an essential part of the scheme.’” United States v. Lopez, 71 F.3d 954, 961 (1st Cir. 1995) (quoting Pereira v. United States, 347 U.S. 1, 8 (1954)). That concept is construed broadly, however, and includes use of the wires to “‘lull victims into a sense of false security, [and] postpone their ultimate complaint to the authorities.’” Id. (quoting United States v. Lane, 474 U.S. 438, 451-52 (1986) (Lane actually reads “false sense of security”)).

(3) 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.