PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003
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Offense Instructions (OI 49 - OI 70.6)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1201 (a)(1), makes it a Federal crime or offense for anyone to kidnap [seize] [confine] [inveigle] [decoy] [abduct] [carry away] another person and then transport that person in interstate commerce.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly and willfully kidnapped [seized] [confined] [inveigled] [decoyed] [abducted] [carried away] the person described in the indictment, as charged;

    Second: That the Defendant held such person for ransom or reward or other benefit which the Defendant intended to derive from the kidnapping; and

    Third: That such person was thereafter transported in interstate commerce while so kidnapped [seized] [confined] [inveigled] [decoyed] [abducted] [carried away].

    To "kidnap" a person means to forcibly and unlawfully hold, keep, detain and confine the person against his or her will. So,
involuntariness or coercion in connection with the victim's detention is an essential part of the offense.

    [To "inveigle" a person means to lure, or entice, or lead the person astray by false representations or promises, or other deceitful means.]

    It need not be proved, however, that a kidnapping was carried out for ransom or personal monetary gain so long as it is proved that the Defendant acted willfully, intending to gain some benefit from the kidnapping.

    "Interstate commerce" means commerce or travel between one state and another state. A person is transported in interstate commerce whenever that person moves across state lines from one state into another state. The Government does not have to prove that the Defendant knew of the crossing of state lines, but only that it was done while the Defendant was intentionally transporting the victim.

ANNOTATIONS AND COMMENTS

    18 USC 1201(a)(1) provides:

    Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person [and willfully transports such person in interstate or foreign commerce] [shall be guilty of an offense against the United States].

    Maximum Penalty: Imprisonment for any term of years or for life or if the death of any person results, shall be punished by death or life imprisonment.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges that the kidnapping resulted in the death of a person and the prosecution is seeking the death penalty. Hernandez v. United States, 226 F.3d
839, 841 (7th Cir. 2000). If a disputed issue is whether a death resulted, the Court should consider giving a lesser included offense instruction. 

    Inveiglement or decoying someone across state lines is not in and of itself conduct proscribed by the federal kidnapping statute. “Inveiglement” becomes unlawful under the federal kidnapping statute, “when the alleged kidnapper interferes with his
victim’s action, exercising control over his victim through the willingness to use forcible action should his deception fail.” United States v. Boone, 959 F.2d 1550, 1555 & n.5 (11th Cir. 1992). However, the mere fact that physical force was not ultimately necessary does not take such conduct outside of the statute. See id. at 1556.

    See United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997) (setting forth elements of crime of kidnapping and transporting in interstate commerce under 18 USC 1201): (1) “the transportation in interstate commerce (2)of an unconsenting person who is (3) held for ransom, reward, or otherwise, (4) with such acts being done knowingly and willfully.” “Knowledge of crossing state lines is not an essential element . . . . The requirement that an offender cross state lines merely furnishes a basis for the exercise of federal jurisdiction.” Id.; United States v. Broadwell, 870 F.2d 594, 601 & n.16 (11th Cir. 1989) (recognizing that crime of kidnapping is complete upon transportation across state lines).

    Note that Section 1201 also sets out four other jurisdictional circumstances in subparts (a)(2) through (a)(5), and this instruction will need to be modified to fit those if the charge is not under subpart (a)(1).

[For 1997 Version of this instruction, see below]

18 USC 1201(a)(1) provides:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person [and willfully transports such person in interstate or foreign commerce] [shall be guilty of an offense against the United States].

Maximum Penalty: Imprisonment for any term of years or for life.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1341, makes it a Federal crime or offense for anyone to [use the United States mails] [transmit something by private or commercial interstate carrier] in carrying out a scheme to defraud.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly devised or participated in a scheme to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises;

    Second: That the false or fraudulent pretenses, representations or promises related to a material fact; 

    Third: That the Defendant acted willfully with an intent to defraud; and

    Fourth: That the Defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with such carrier] some matter or thing for the purpose of executing the scheme to defraud.

    [A “private or commercial interstate carrier” includes any business engaged in the transmission, transportation or delivery of messages or other articles in interstate commerce, that is, from any place in one state to any place in another state. If a message or other article is deposited with such a carrier it need not be proved that the message or article thereafter moved in interstate commerce from one state to another.]

    The term "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.

    A statement or representation is "false" or "fraudulent" if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, provided it is made or caused to be made with intent to defraud. A statement or representation may also be "false" or "fraudulent" when it constitutes a half truth, or effectively conceals a material fact, provided it is made with intent to defraud. 

    A “material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false.

    To act with "intent to defraud" means to act knowingly and with the specific intent to deceive or cheat someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

    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 [mailed] [deposited with an interstate carrier] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of [the mail] [the interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant did the actual [mailing] [depositing].

    What must be proved beyond a reasonable doubt is that the Defendant, with the specific intent to defraud, knowingly devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment, and that the use of [the United States mail] [an interstate carrier] was closely related to the scheme because the Defendant either [mailed] [deposited] something or caused it to be [mailed] [deposited] in an attempt to execute or carry out the scheme.

    To "cause" [the mails] [an interstate carrier] to be used is to do an act with knowledge that the use of [the mails] [such carrier] will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of [the mails] [an interstate carrier] in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1341 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. (If the violation affects a financial institution, thirty (30) years imprisonment and $1 million fine).

    If the offense involved telemarketing, 18 USC 2326 requires enhanced imprisonment penalties:

    A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - - -

    (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections, respectively; and

    (2) in the case of an offense under any of those sections that - - -

    (A) victimized ten or more persons over the age of 55; or

    (B) targeted persons over the Age of 55, shall be imprisoned for a term of up to 10 years in addition to any term
of imprisonment imposed under any of those sections, respectively.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1341 or 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme:

    If you find beyond a reasonable doubt that the Defendant is guilty of using the mails in carrying out a scheme to defraud, then you must also determine whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution].

    The 1994 amendment to Section 1341 now also applies it to the use of “any private or commercial interstate carrier.” Where such private carriers are involved, the statute requires the government to prove only that the carrier engages in interstatedeliveries and not that state lines were crossed. See United States v. Marek, 238 F.3d 310, 318 (5th Cir.) cert. denied U.S. , 122 S.Ct. 37, 151 L.Ed.2d 11 (2000).

    Mail fraud requires a showing of “(1) knowing participation in a scheme to defraud, and (2) a mailing in furtherance of the scheme.” United States v. Photogrammetric Data Svcs., Inc. 259 F.3d 229, 253 (4th Cir. 2001). The mailing, however, need only “be incident to an essential part of the scheme or a step in the plot,” and does not have to be an essential element of the scheme to be part of the execution of the fraud. Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 103
L.Ed.2d 734 (1989).

    Materiality is an essential element of the crime of mail fraud, wire fraud, and bank fraud to be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The definition of materiality used here comes from
that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-29 (11th Cir. 1999), cert. denied 530 U.S. 1261, 120 S.Ct. 2727, 147 L.Ed.2d 982 (2000).

    In mail fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal
licenses in general are not “property” for the purposes of Title 18, United States Code, Section 1341. Cleveland v. United States, 531 U.S. 12, 15, 121 S.Ct. 365, 369, 148 L.Ed.2d 221 (2000).

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 41.2, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC ALERT: See also NCJIC 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element].

    Title 18, United States Code, Sections 1341 and 1346, make it a Federal crime or offense for anyone to [use the United States mails] [transmit something by private or commercial interstate carrier] in carrying out a scheme to fraudulently deprive another of an intangible right of honest services.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly devised or participated in a scheme to fraudulently deprive [the public] [another] of the intangible right of honest services, as charged;

    Second: That the Defendant did so willfully with an intent to defraud; and 

    Third: That the Defendant used [the United States Postal Service by mailing or by causing to be mailed] [a private or commercial interstate carrier by depositing or causing to be deposited with such carrier] some matter or thing for the purpose of executing the scheme to defraud.

    [A “private or commercial interstate carrier” includes any business engaged in the transmission, transportation or delivery of messages or other articles in interstate commerce, that is, from any place in one state to any place in another state. If a message or other article is deposited with such a carrier it need not be proved that the message or article thereafter moved in interstate commerce from one state to another.]

    The word "scheme" includes any plan or course of action intended to deceive or cheat someone; and to act with "intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self. 

    To "deprive another of the intangible right of honest services" means to violate, or to cause [a public official or employee] [an employee or agent of another person] to violate, the employee's or agent's duty to provide honest services to the employer. 

    [Public officials and public employees inherently owe a duty to the public to act in the public’s best interest. If, instead, the [official] [employee] acts or makes [his] [her] decision based on the official’s own personal interests - - such as accepting a bribe, taking a kickback or receiving personal benefit from an undisclosed conflict of interest - - the official has defrauded the public of the official’s honest services even though the public agency involved may not suffer any monetary loss in the transaction.]

    [With regard to employers in the private sector, the Government must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw, or reasonably should have foreseen, that the employer might suffer an economic harm as a result of that breach.]

    Under the law, every agent or employee representing or working for someone else - - the employer - - has a duty (called a fiduciary duty) to act honestly and faithfully in all of his or her dealings with the employer, and to transact business in the best interest of the employer, including a duty to make full and fair disclosure to the employer of any personal interest or profit [or "kickback"] the employee expects to derive or has derived from any transaction in which he or she participates in the course of the employment.

    [A "kickback" includes any kind of undisclosed payment or reward to an employee for dealing in the course of employment with the person making the payment so that the employee's personal financial interest interferes with the employee's duty to secure the most favorable bargain for the employer.]

    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 [mailed] [deposited with an interstate carrier] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of [the mail] [the interstate carrier] was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant did the actual [mailing] [depositing].

    What must be proved beyond a reasonable doubt is that the Defendant, with the specific intent to defraud, knowingly devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of [the United States mail] [the interstate carrier] was closely related to the scheme because the Defendant either [mailed] [deposited] something or caused it to be [mailed] [deposited] in an attempt to execute or carry out the scheme.

    To "cause" [the mails] [an interstate carrier] to be used is to do an act with knowledge that the use of [the mails] [an interstate carrier] will follow in the ordinary course of business or where such use can reasonably be foreseen. Each separate use of [the mails] [an interstate carrier] in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1341 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [by any private or commercial interstate carrier] [shall be guilty of an offense against the laws of the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    18 USC 1346 provides:

    For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

    In addition to property rights, the statute protects the intangible right to honest services as a result of the addition of 18 USC 1346 in 1988. The Supreme Court had ruled in McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 2882, 97 L.Ed.2d 292 (1987), that Section 1341 was limited in scope to the protection of property rights and did not prohibit schemes to defraud citizens of their intangible right to honest and impartial government. Thus, Congress passed Section 1346 to overrule McNally and reinstate prior law. Defrauding one of honest services typically involves government officials depriving their constituents of honest governmental services. Such “public sector” fraud falls into two categories: first, “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud;” second, “an individual without formal office may be held to be a public fiduciary if others rely on him because of a special relationship in the government and he in fact makes governmental decisions.” United States v. deVegter, 198 F.3d 1324, 1328 n.3 (11th Cir. 1999) (quoting McNally and addressing wire fraud); United States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir. 1997) (addressing mail fraud). Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. “If the official instead secretly makes his decision based on his own personal interests - - as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest - - the official has defrauded the public of his honest services.” Lopez-Lukis, 102 F.3d at 1169).

    Although the typical case of defrauding one of honest services is the bribery of a public official, section 1346 also extends to defrauding some private sector duties of loyalty. Since a strict duty of loyalty ordinarily is not part of private sector relationships, it is not enough to prove that a private sector defendant breached the duty of loyalty alone. In the private sector context, the breach of loyalty must inherently harm the purpose of the parties’ relationship. deVegter, 198 F.3d at 1328-29. “‘The prosecution must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach.’” Id. at 1329 (quoting United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997)). Federal law governs the existence of a fiduciary duty owed under this statute. Id. at 1329 & n.5.

    The mail fraud and wire fraud statutes are “given a similar construction and are subject to the same substantive analysis.” Belt v. United States, 868 F.2d 1208, 1211 (11th Cir. 1989).

[For 1997 Version of this instruction, see below]

18 USC 1341 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [shall be guilty of an offense against the laws of the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

18 USC 1346 provides:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC ALERT: See also NCJIC 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

    Title 18, United States Code, Section 1343, makes it a Federal crime or offense for anyone to use interstate [wire] [radio] [television] communications facilities in carrying out a scheme to defraud.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly devised or participated in a scheme to defraud, or for obtaining money or property by means of false pretenses, representations or promises;

    Second: That the false pretenses, representations or promises related to a material fact; 

    Third: That the Defendant did so willfully and with an intent to defraud; and

    Fourth: That the Defendant transmitted or caused to be transmitted by [wire] [radio] [television] in interstate commerce some communication for the purpose of executing the scheme to defraud.

    The term "scheme to defraud" includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.

    A statement or representation is "false" or "fraudulent" if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be "false" or "fraudulent" when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud. 

    A “material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction. A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false.

    To act with "intent to defraud" means to act knowingly and with the specific intent to deceive or cheat someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

    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] [radio] [television] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of interstate [wire] [radio] [television] communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant personally used the [wire] [radio] [television] communication facility.

    What must be proved beyond a reasonable doubt is that the Defendant, with intent to defraud, knowingly and willfully devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the interstate [wire] [radio] [television] communications facilities was closely related to the scheme because the Defendant either used, or caused to be used, [wire] [radio] [television] communications facilities in interstate commerce in an attempt to execute or carry out the scheme.

    To "cause" interstate [wire] [radio] [television] communications facilities to be used is to do an act with knowledge that the use of such facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of the interstate [wire] [radio] [television] communications facilities in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1343 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice [shall be guilty of an offense against the laws of the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine. (If the violation affects a financial institution, thirty (30) years imprisonment and $1 million fine.)

    If the offense involved telemarketing, 18 USC 2326 requires enhanced imprisonment penalties:

    A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or 1344, or a conspiracy to commit such an offense, in connection with the conduct of telemarketing - -

    (1) shall be imprisoned for a term of up to 5 years in addition to any term of imprisonment imposed under any of those sections respectively; and (2) in the case of an offense under any of those sections that - -

    (A) victimized ten or more persons over the age of 55; or

    (B) targeted persons over the age of 55, shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment imposed under any of those sections, respectively.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 1343 or 2326. If the alleged offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over age 55 or targeted persons over age 55, or the scheme affected a financial institution, the Court should consider including a fourth element for that part of the offense and giving a lesser included offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with a special interrogatory on the verdict form) can address those statutory variations of the scheme:

    If you find beyond a reasonable doubt that the defendant is guilty of using interstate [wire] [radio] [television] communications facilities in carrying out a scheme to defraud, then you must also determine whether the Government has proven beyond a reasonable doubt that [the scheme was in connection with the conduct of telemarketing] [the scheme was in connection with the conduct of telemarketing and (a) victimized ten or more persons over the age of 55, or (b) targeted persons over the age of 55] [the scheme affected a financial institution].

    Wire fraud requires a showing (1) that the Defendant knowingly devised or participated in a scheme to defraud; (2) that the Defendant did so willfully and with an intent to defraud; and (3) that the Defendant used interstate wires for the purpose of executing the scheme. Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 (11th Cir. 2000). Materiality is an essential element of the crime of mail fraud, wire fraud, and bank fraud to be decided by the jury. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The definition of materiality used here comes from that decision and the Eleventh Circuit’s decision in the case upon remand. United States v. Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999),
cert. denied 530 U.S. 1261 (2000).

    In wire fraud cases involving property rights, “the Government must establish that the defendant intended to defraud a victim of money or property of some value.” United States v. Cooper, 132 F.3d 1400, 1405 (11th Cir. 1998). State and municipal licenses in general are not “property” for the purposes of this statute. Cleveland v. United States, 531 U.S. 12, 15, 121 S.Ct. 365, 369, 148 L.Ed.2d 221 (2000) (addressing “property” for purposes of mail fraud statute).

    The mail fraud and wire fraud statutes are “given a similar construction and are subject to the same substantive analysis.” Belt v. United States, 868 F.3d 1208, 1211 (11th Cir. 1989).

[For 1997 Version of this instruction, see below]

(See Annotations and Comments following Offense Instruction 42.2, infra.)

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

NCJIC ALERT: See also NCJIC 103.7.2.4 [Mail Theft And Mail Fraud: Materiality Is An Element]. 

    Title 18, United States Code, Sections 1343 and 1346, make it a Federal crime of offense for anyone to use interstate [wire] [radio] [television] communications facilities in carrying out a scheme to fraudulently deprive another of an intangible right of honest services.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly devised or participated in a scheme to fraudulently deprive [the public] [another] of the intangible right of honest services, as charged;

    Second: That the Defendant did so willfully and with an intent to defraud; and

    Third: That the Defendant transmitted or caused to be transmitted by [wire] [radio] [television] in interstate commerce some communication for the purpose of executing the scheme to defraud.

    The word "scheme" includes any plan or course of action intended to deceive or cheat someone; and to act with "intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.

    To "deprive another of the intangible right of honest services" means to violate, or to cause [a public official or employee] [an employee or agent of another person] to violate, the employee's or agent's duty to provide honest services to the employer. 

    [Public officials and public employees inherently owe a duty to the public to act in the public’s best interest. If, instead, the [official] [employee] acts or makes [his] [her] decision based on the official’s own personal interests - - such as accepting a bribe, taking a kickback or receiving personal benefit from an undisclosed conflict of interest - - the official has defrauded the public of the official’s honest services even though the public agency involved may not suffer any monetary loss in the transaction.] 

    [With regard to employers in the private sector, the Government must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw, or reasonably should have foreseen, that the employer might suffer an economic harm as a result of that breach.] 

    Under the law, every agent or employee representing or working for someone else - - the employer - - has a duty (called a fiduciary duty) to act honestly and faithfully in all of his or her dealings with the employer, and to transact business in the best interest of the employer, including a duty to make full and fair disclosure to the employer of any personal interest or profit [or "kickback"] the employee expects to derive or has derived from any transaction in which he or she participates in the course of the employment.

    [A "kickback" includes any kind of undisclosed payment or reward to an employee for dealing in the course of employment with the person making the payment so that the employee's personal financial interest interferes with the employee's duty to secure the most favorable bargain for the employer.]

    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] [radio] [television] was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone; or that the use of interstate [wire] [radio] [television] communications facilities was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant personally used the [wire] [radio] [television] communication facility.

    What must be proved beyond a reasonable doubt is that the Defendant, with intent to defraud, knowingly and willfully devised, intended to devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the interstate [wire] [radio] [television] communications facilities was closely related to the scheme because the Defendant either used, or caused to be used, [wire] [radio] [television] communications facilities in interstate commerce in an attempt to execute or carry out the scheme. 

    To "cause" interstate [wire] [radio] [television] communications facilities to be used is to do an act with knowledge that the use of such facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.

    Each separate use of the interstate [wire] [radio] [television] communications facilities in furtherance of a scheme to defraud constitutes a separate offense.

ANNOTATIONS AND COMMENTS

    18 USC 1343 provides:

    Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    18 USC 1346 provides:

    For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

    (See the Annotations and Comments following Offense Instruction 50.2, supra).

[For 1997 Version of this instruction, see below]

18 USC 1343 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

18 USC 1346 provides:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

OI 52
Bank Fraud 
(18 USC 1344) 

    Title 18, United States Code, Section 1344, makes it a Federal crime or offense for anyone to execute, or to attempt to execute, a scheme to defraud a financial institution, or to obtain any money, assets, or other property owned by or under the control of a financial institution by means of false or fraudulent pretenses, representations, or promises.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant executed or attempted to execute a scheme [to defraud a financial institution] [to obtain money, assets, or property from a financial institution by means of false or fraudulent pretenses, representations, or promises relating to a material fact], as charged;

    Second: That the Defendant did so willfully with an intent to defraud; 

    Third: That the false or fraudulent pretenses, representations, or promises were material; and 

    Fourth: That the financial institution was federally [insured] [chartered].

    The term “scheme to defraud” includes any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises relating to a material fact.

    A statement or representation is “false” or “fraudulent” if it is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be “false” or “fraudulent” when it constitutes a half truth, or effectively conceals a material fact, with intent to defraud, provided it is made with intent to defraud. 

    A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to whom or to which it is addressed. A false or fraudulent statement, representation, or promise can be material even if the decision maker did not actually rely on the statement, or even if the decision maker actually knew or should have known that the statement was false. 

    To act with “intent to defraud” means to act knowingly and with the specific intent to deceive or cheat someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self.

    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 alleged scheme actually succeeded in defrauding anyone. What must be proved beyond a reasonable doubt is that the Defendant knowingly executed or attempted to execute a scheme that was substantially similar to the scheme alleged in the indictment.

ANNOTATIONS AND COMMENTS

    18 USC 1344 provides:

    Whoever knowingly executes, or attempts to execute, a scheme or artifice - -

    (1) to defraud a financial institution; or

    (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

    See 18 USC 20 for an enumeration of the financial institutions covered by 1344.

    An additional element, prompted by the Apprendi doctrine, is required when the indictment alleges any facts that would result in enhanced penalties under 18 USC 2326.

    Proof that the financial institution is federally chartered or insured is an essential element of the crime, as well as necessary to establish federal jurisdiction. United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998). Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

    There are two separate offenses possible under Section 1344: (1) defrauding a financial institution, or (2) obtaining money or funds from the financial institution by means of material false or fraudulent pretenses, representations, or promises. United States v. Dennis, 237 F.3d 1295, 1303 (11th Cir. 2001) (discussing elements of bank fraud under section 1344); United States v. Mueller, 74 F.3d 1152, 1159 (11th Cir. 1996). In the case of defrauding a financial institution, the Government must establish “that the defendant (1)intentionally participated in a scheme or artifice to defraud another of money or property; and (2) that the victim of the scheme or artifice was an insured financial institution.” United States v. Goldsmith, 109 F.3d 714, 715 (11th Cir. 1997). Under the alternative theory, the Government must prove “(1) that a scheme existed in order to obtain money, funds, or credit in the custody of the federally insured institution; (2) that the defendant participated in the scheme by means of false pretenses, representations or promises, which were material; and (3) that the defendant acted knowingly.” Id.

    While materiality is an element of the bank fraud offense under Neder, the Supreme Court has held (pre-Neder) that materiality is not an element of the offense in a prosecution under 18 USC 1014, a similar statute which prohibits making a false statement to a federally insured bank or designated financial institution. United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1461, makes it a Federal crime or offense for anyone to use the United States mails to transmit obscene material.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly used or caused the mails to be used for the conveyance or delivery of certain material, as charged;

    Second: That the Defendant knew at the time of such mailing the general nature of the content of the material so mailed; and

    Third: That the material so mailed was "obscene" as defined in these instructions.

    While the Government must prove that the Defendant knew the general sexual nature of the material that was transported in the mails, the Government does not have to prove that the Defendant knew that such material was legally obscene.

    Therefore, if you find beyond a reasonable doubt that the Defendant transmitted the material in question through the mails and that the Defendant knew the general sexual nature of the material - - that the Defendant knew what the material actually was - - and if you then find beyond a reasonable doubt that the material was in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.

    Freedom of expression is fundamental to our system, and has contributed much to he development and well being of our free society.  In the exercise of the constitutional right of free expression that all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is “obscene.”

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to “prurient” interest is an appeal to a morbid, degrading, and unhealthy interest in sex, as distinguished form a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change and that the community as a whole may from time to time find acceptable that which was formerly not acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to say whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met, then the material would not be obscene within the meaning of the law.

    To “cause” the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary cause of business or where such use can reasonably be foreseen.

ANNOTATIONS AND COMMENTS

    18 USC 1461 provides:

    Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . . Is declared to be nonmailable matter and shall not be conveyed in the mails [and] . . . Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared . . . to be nonmailable [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    A Defendant charged under 18 USC 1461 has the requisite scienter if the Defendant knows of the nature and character of the allegedly obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See United States v. Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Friedman, 528 F.2d 784 (10th Cir. 1976) vacated by, 430 U.S. 925, 97 S.Ct. 1541, 51 L.Ed.2d 769 (1977); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 331, 42 L.Ed.2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmeltzer, 20 F.3d 610, 612 (5th Cir. 1994), cert. denied, 513 U.S. 1041, 115 S.Ct. 634, 130 L.Ed.2d 540 (1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). See Devitt & Blackmar, Federal Jury Practice and Instructions 40A.05; 40A.17. The only questions as to intent are whether the Defendant knowingly used (or caused to be used) the mail for the transmission or delivery of the material, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

    The “statute’s intent is to punish for the use of the mails, not the mere possession of obscene materials”. Therefore, the prohibition in Section 1461 against knowingly using the mails for obscene materials applies to “persons who order obscene materials through the mails for personal use, and thus cause the mails to be used for delivery of those materials.” United States v. Carmack, 910 F.2d 748, (11th Cir. 1990).

    The three-part test used in this instruction for determining whether a matter is legally obscene is set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See United States v. Bagnell, 679 F.2d 826, 835-37 (11th Cir. 1982) (applying Miller test for obscenity), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983). Although the first two prongs of the Miller test are to be judged by the community standards, the third prong is to be objective - - a “reasonable person” standard. See, Pope v. Illinois, 481 U.S. 497, 500-01, 107 S.Ct. 1918, 1921, 95 L.Ed.2d 439 (1987).

[For 1997 Version of this instruction, see below]

18 USC 1461 provides:

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . .

Is declared to be nonmailable matter and shall not be conveyed in the mails [and] . . .

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared . . . to be nonmailable [shall be guilty of an offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

A Defendant charged under 18 USC 1461 has the requisite scienter if the Defendant knows of the nature and character of the allegedly obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). See United States v. Johnson, 855 F.2d 299, 306 (6th Cir. 1988); United States v. Friedman, 528 F.2d 784 (10th Cir. 1976); United States v. Grassi, 602 F.2d 1192, 1195 n.3 (5th Cir. 1979); United States v. Groner, 494 F.2d 499 (5th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 331, 42 L.Ed.2d 285 (1975). It is not necessary to prove that the Defendant knew the material was obscene under legal standards. United States v. Schmeltzer, 20 F.3d 610, 612 (5th Cir. 1994); United States v. Hill, 500 F.2d 733, 740 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). See Devitt & Blackmar, Federal Jury Practice and Instructions 40A.05; 40A.17. The only questions as to intent are whether the Defendant knowingly sent the material through the mail, and whether the Defendant was aware of the nature of the material sent through the mail. See United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). A specific intent to mail something known to be obscene is not required. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1462, makes it a Federal crime or offense for anyone to use a common carrier to transmit obscene materials in interstate commerce.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly used or caused to be used a common carrier to transport certain materials as described in the indictment in interstate commerce, as charged;

    Second: That the Defendant knew, at the time of such transportation, the general sexual nature of the content of the materials; and 

    Third: That the materials were "obscene" as defined in these instructions.

    A “common carrier” includes any person or corporation engaged in the business of carting, hauling or transporting goods and commodities for members of the public for hire.

    The term "interstate commerce" includes any movement of goods or articles from one state into another state.

    While the Government must prove that the Defendant knew the general sexual nature of the materials that were transported in interstate commerce. The Government does not have to prove that the Defendant knew that such materials were in fact legally obscene. 

    Therefore, if you find beyond a reasonable doubt that the Defendant transported by common carrier in interstate commerce the articles in question, and that the Defendant knew the general sexual nature of the materials - - that the Defendant knew what they actually were - - and if you then find beyond a reasonable doubt that the materials were in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.

    Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is "obscene."

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change, and that the community as a whole may from time to time find acceptable that which was formerly not acceptable or find unacceptable that which was formerly acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to determine whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met, then the material would not be obscene within the meaning of the law.

    To “cause” the common carrier to be used is to do an act with knowledge that the use of the common carrier will follow in the ordinary course of business or where such use can reasonably be foreseen.

ANNOTATIONS AND COMMENTS

    18 USC 1462 provides:

    Whoever . . . knowingly uses any express company or other common carrier . . . for carriage in interstate . . . commerce - -

    (a) any obscene . . . book, pamphlet, picture [or] motion picture film [shall be guilty of an offense against the United States].

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The scienter requirement for this offense is the same as for 18 USC 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

    (See Annotations and Comments following Offense Instruction 53, supra.)

[For 1997 Version of this instruction, see below]

18 USC 1462 provides:

Whoever . . . knowingly uses any express company or other common carrier . . . for carriage in interstate . . . commerce --

(a) any obscene . . . book, pamphlet, picture [or] motion-picture film [shall be guilty of an offense against the United States].        

Maximum Penalty: Five (5) years imprisonment and applicable fine.

The scienter requirement for this offense is the same as for 18 USC 1861: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

PATTERN JURY INSTRUCTIONS – ELEVENTH CIRCUIT – 2003

    Title 18, United States Code, Section 1465, makes it a Federal crime or offense for anyone to transport obscene materials in interstate commerce for the purpose of selling or distributing them.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant knowingly transported in interstate commerce certain materials as described in the indictment, as charged;

    Second: That the Defendant transported such materials for the purpose of selling or distributing them;

    Third: That the Defendant knew, at the time of such transportation, the general sexual nature of the content of the materials; and

    Fourth: That the materials were "obscene" as defined in these instructions.

    The term "interstate commerce" includes any movement of goods or articles from one state into another state.

    To transport "for the purpose of sale or distribution" means to transport, not for personal use, but with the intent to ultimately transfer possession of the materials involved to another person or persons, with or without any financial interest in the transaction.

    [The transportation of two or more copies of any publication or two or more of any article of the kind described in the indictment, or a combined total of five such publications and articles, creates a presumption that such publications or articles are intended for sale or distribution, but such presumption is "rebuttable," which means that it may be overcome or outweighed by other evidence.]

    While the Government must prove that the Defendant knew the general sexual nature of the materials that were transported in interstate commerce, the Government does not have to prove that the Defendant knew that such materials were in fact legally obscene.

    Therefore, if you find beyond a reasonable doubt that the Defendant transported in interstate commerce the materials in question, and that the Defendant knew the general sexual nature of the materials - - that the Defendant knew what they actually were - - and if you then find beyond a reasonable doubt that the materials were in fact "obscene" within the meaning of these instructions, you may then find that the Defendant had the requisite knowledge, or scienter as we call it in the law.    

    Freedom of expression is fundamental to our system, and has contributed much to the development and well being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly. Material is not to be condemned merely because it contains passages or sequences that are descriptive of sexual activity. However, the constitutional right to free expression does not extend to that which is "obscene."

    To prove beyond a reasonable doubt that material is “obscene,” the Government must satisfy a three-part test:

    (1) that the work appeals predominantly to "prurient" interest;

    (2) that it depicts or describes sexual conduct in a patently offensive way; and

    (3) that it lacks serious literary, artistic, political or scientific value.

    The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, [or the prurient interest of members of a deviant sexual group, as the case might be]. An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

    The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences. 

    Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment that must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

    [In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if you find, beyond a reasonable doubt, that the material was intended to appeal to the prurient interest of such a group as, for example, homosexuals.]

    The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals. In making that judgment, however, you must not condemn by your own standards, regardless of whether you believe them to be less strict or more strict than those generally held. Rather, you must measure whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of public tolerance as to be clearly offensive.

    I emphasize that both the first test regarding prurient interests and the second test regarding patently offensive depictions or descriptions are to be evaluated by applying contemporary community standards. This means that the question is not how the material impresses you as an individual juror, but how it would be considered by the average person in the community, with an ordinary and normal attitude toward - - and interest in - - sex and sexual matters. Contemporary community standards are those accepted in this community as a whole; that is to say, by society at large or people in general, and not by what some segments or groups of persons may believe this community ought to accept or refuse to accept. It is a matter of common knowledge that customs and standards change, and that the community as a whole may from time to time find acceptable that which was formerly not acceptable or find unacceptable that which was formerly acceptable.

    The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct, and it is for you to determine whether the material in this case has such value. The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community. Therefore, unlike the first two tests, you should not apply the contemporary community standards to the third test. Instead, you should make this determination on an objective basis: whether a reasonable person considering the material as a whole would find that it has, or does not have, serious literary, artistic, political, or scientific value.

    All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

ANNOTATIONS AND COMMENTS

    18 USC 1465 provides:

    Whoever knowingly transports [in interstate commerce] for the purpose of sale or distribution of any obscene . . . book, pamphlet, picture [or] film [shall be guilty of an offense against the United States].

    The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

    Maximum Penalty: Five (5) years imprisonment and applicable fine.

    The scienter requirement for this offense is the same as for 18 USC 1461: It is not necessary to prove that the Defendant knew the material was obscene under legal standards.

    (See Annotations and Comments following Offense Instruction 53, supra.)

[For 1997 Version of this instruction, see below]