7th CIRCUIT FEDERAL INSTRUCTIONS 1999

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
Go to Federal Model Instructions Table of Contents - Go to 7th Circuit Table of Contents

Title 18 Offenses (18 USC 892 - 18 USC 1344)

        087    Extortionate Extension Of credit--Elements (18 USC 892)
        088    Definition Of "Debtor" (18 USC 892)
        089    Extortionate Collection Of Debt--Elements (18 USC 894)
        090    Definition Off Threat (18 USC 894)
        091    Felon In Possession Of Firearm--Elements (18 USC 922(g))
        092    Definition Of Commerce (18 USC 922(g))
        093    Definition Of Possession (18 USC 922(g))
        094    Using / Carrying Firearm In Drug Or Violent Crime--Elements (18 USC 924(c))
        095    Definition Of "Carry" (18 USC 924(c))
        096    Definition Of "Use" (18 USC 924(c))
        097    Concealing A Material Fact--Elements (18 USC 1001)
        098    Making A False Statement Or Representation--Elements (18 USC 1001)
        099    Making Or Using A False Writing Or Document--Elements (18 USC 1001)
        100    Definition Of Scheme And Device (18 USC 1001)
        101    Definition Of False, Fictitious (18 USC 1001)
        102    Definition Of Fraudulent (18 USC 1001)
        103    Materiality--Definition (18 USC 1001)
        104    Willfully--Definitions (18 USC 1001)
        105    Department Or Agency (18 USC 1001)
        106    Fraudulently Benefiting From A Loan By A Federally Insured Institution) (18 USC 1005, Para. 4)
        107    Insider Fraud On A Federally Insured Financial Institution (18 USC 1006)
        108    False Statements To Influence The FDIC (18 USC 1007)
        109    False Statement To Financial Institution--Elements (18 USC 1014)
        110    Access Device Fraud--Elements (18 USC 1029(a)(2))
        111    Access Device Fraud--Definitions (18 USC 1029(a)(2))
        112    Possession Of Multiple Fraudulent Access Devices--Elements (18 USC 1029(a)(3))
        113    Possession Of Access Device- Making Equipment- Elements
        114    Access Device-Making Equipment -- Definition (18 USC 1029(a)(4))
        115    Access Devices Issued To Others--Elements (18 USC 1029(a)(4))
        116    Mail / Wire / Carrier Fraud--Elements (18 USC 1341 & 1343)
        117    Definition Of Scheme To Defraud (18 USC 1341 & 1343)
        118    Definition Of Intent To Defraud (18 USC 1341 & 1343)
        119    Loss (18 USC 1341 & 1343)
        120    Use Of Mails / Interstate Carrier / Interstate Communication Facility (18 USC 1341 and 1343)
        121    Interstate Communication (18 USC 1343)
        122    Financial Institution Fraud – Elements (18 USC 1344)
        123    Scheme--Definition (18 USC 1344)

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[087] Extortionate Extension of Credit--Elements

(18 USC 892)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Extortionate Extension Of Credit--Elements (18 USC 892)

To sustain the charge of making an extortionate extension of credit, the government must prove the following propositions:

First, that the defendant knowingly made an extension of credit to any person, including the making [or extending] of any loan or other thing of value for which repayment is expected[, or the deferring of repayment of any debt][, whether valid or invalid][, whether disputed or acknowledged]; and

Second, that the defendant and the debtor understood, at the time the extension of credit was made, that delay in making repayment or failure to make repayment could result in the use of violence [or other criminal means] to cause harm to the [person] [reputation] [property] of anyone.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

See United States v. Scotti, 47 F.3d 1237, 1245 (2d Cir. 1995); United States v. Natale, 526 F.2d 1160, 1168 (2d Cir. 1975).

The statute contains a list of possible factors to consider in determining whether an extension of credit was extortionate (e.g. legal enforceability, interest rate); the court should point out any that may be applicable in individual cases.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[088] Definition of "Debtor"

(18 USC 892)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Extortionate Extension Of Credit--Elements (18 USC 892)

The term "debtor" includes a person to whom an extension of credit was made and any other person who guarantees repayment or otherwise agrees or attempts to cover any loss to the defendant because of a failure to repay that extension of credit.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[089] Extortionate Collection of Debt--Elements

(18 USC 894)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Extortionate Collection of Debt--Elements (18 USC 894)

To sustain the charge of collection of an extension of credit by extortionate means, the government must prove the following propositions:

[First, that there was a[n] [attempt to collect] [collection of] an extension of credit, including [inducing] [attempting to induce] in any way the repayment by anyone of any loan or other thing of value for which repayment was expected[, or the deferring of repayment of any debt][, whether valid or invalid][, whether disputed or acknowledged];] [or]

[First, that a person was punished for the nonrepayment of an extension of credit, including any loan or other thing of value for which repayment was expected,[ or the deferring of repayment of any debt][, whether valid or invalid][, whether disputed or acknowledged];]

Second, that the [attempt to collect] [collection] [punishment] involved the use of extortionate means, that is, the[, or [express or implied] threat of the use] of violence [or other criminal means] to cause harm to the [person] [reputation] [property] of anyone; and

Third, that the defendant knowingly participated in some way in the use of such extortionate means in that [attempted] [collection] [punishment].

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[090] Definition of Threat

(18 USC 894)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Extortionate Collection of Debt--Elements (18 USC 894)

Acts or statements constitute a threat if they would reasonably induce fear of such harm in an ordinary person[, but the government need not prove that the recipient of a threat actually feared its consequences].

Committee Comment

Although there is no Seventh Circuit case on point, the cases to discuss the issue have held that the production of actual fear in the recipient is not an element of the offense. See, e.g., United States v. DiSalvo, 34 F.3d 1204, 1211 (3d Cir.1994); United States v. Polizzi, 801 F.2d 1543, 1547- 48 (9th Cir.1986); United States v. Joseph, 781 F.2d 549, 553 (6th Cir. 1986); United States v. Natale, 526 F.2d 1160, 1168 (2d Cir.1975). Instead, the government must prove that the defendant intended to take actions which would reasonably induce fear in an ordinary person. Natale, supra at 1168. It is the nature of the actions of the person seeking to collect the indebtedness, not the mental state produced in the debtor, that is the focus of the inquiry for the jury. Polizzi, supra at 1548. Thus, a simple demand for money is not a threat under this section. United States v. Joseph, 781 F.2d 549, 554 (6th Cir.1986).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[091] Felon in Possession of Firearm--Elements

(18 USC 922(g))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of A Firearm Or Ammunition In Or Affecting Commerce By A Convicted Felon (18 USC 922(g))

To sustain the charge of unlawful possession of a firearm, the government must prove the following propositions:

First, that, prior to [date of the charged possession] the defendant had been convicted of a crime that was punishable by a term of imprisonment of more than one year;

Second, that on [date of the charged possession] the defendant knowingly possessed a firearm; and

Third, that the firearm possessed by the defendant had traveled in interstate commerce prior to defendant's possession of it on that date.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

In a prosecution for the receipt of firearms in commerce and affecting commerce after conviction of a felony, it was required only that the defendant be shown knowingly to have received or possessed the firearm, despite his contention that the evidence failed to show that the defendant knew that he had been convicted of a felony. United States v. Sutton, 521 F.2d 1385, 1391 (7th Cir.1975).

Possession by the defendant who was a convicted felon of a shotgun that previously had moved in interstate commerce satisfied the requirement of in commerce or affecting commerce, and the government was not required to show that the defendant knew the gun had traveled in interstate commerce or that the defendant intended to violate this section. United States v. Horton, 503 F.2d 810, 813 (7th Cir.1974). There is no requirement in the statute that a defendant must know the weapon traveled interstate. United States v. Castor, 937 F.2d 293, 298 (7th Cir.1991).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[092] Definition of Commerce

(18 USC 922(g))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of A Firearm Or Ammunition In Or Affecting Commerce By A Convicted Felon (18 USC 922(g))

A firearm has traveled in interstate commerce if it has traveled between one state and any other state [or country], or across a state [or national] boundary line. [The government need not prove [how the firearm traveled in interstate commerce] [or] that the firearm's travel was related to the defendant's possession of it] [or] [that the defendant knew the firearm had traveled in interstate commerce].]

Committee Comment

What is required to satisfy the in commerce or affecting commerce element is proof that the firearm traveled at some time in interstate commerce. Proof of that nature satisfies the required nexus between possession and commerce. Scarborough v. United States, 431 U.S. 563 (1977). Only a minimal nexus that firearm at some time had been in interstate commerce is required. United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.), cert. denied, 490 U.S. 1005 (1988). See also United States v. Maloney, 71 F.3d 645 (7th Cir.1995); United States v. Bell, 70 F.3d 495, 497 (7th Cir. 1995); and United States v. Bradford, 78 F.3d 1216, 1222 (7th Cir.), cert. denied, 517 U.S. 1174 (1996).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[093] Definition of Possession

(18 USC 922(g))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of A Firearm Or Ammunition In Or Affecting Commerce By A Convicted Felon (18 USC 922(g))

Possession of an object is the ability to control it. Possession may exist even when a person is not in physical contact with the object, but knowingly has the power and intention to exercise direction or control over it, either directly or through others.

Committee Comment

The possession instruction is based upon that approved in United States v. Lloyd, 71 F.3d 1256, 1266-67 (7th Cir.1995), with two changes. First, instead of "dominion", a rather non-ordinary word, we have used "direction". Second, the Committee has eliminated use of the term "constructive possession," though the concept remains within the instruction. This instruction may also be used in connection with other possession statutes, such as 21 USC 841(a)(1).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[094] Using / Carrying Firearm in Drug or Violent Crime--Elements

(18 USC 924(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

See FORECITE National™ Federal Models By Offense: Using Or Carrying A Firearm During And In Relation To Drug Trafficking Or Crime Of Violence (18 USC 924(c))

See FORECITE National™ Federal Models By Offense: Firearms - Crime Of Violence/Drug Trafficking (18 USC 924(c))

To sustain the charge of [using] [carrying] a firearm during or in relation to a [drug] [violent] crime, the government must prove the following propositions:

First, that the defendant committed the crime of [title of offense] [as charged in Count ___]; and

Second, that the defendant knowingly [used] [or] [carried] a firearm during and in relation to that crime.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[095] Definition of "Carry"

(18 USC 924(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

See FORECITE National™ Federal Models By Offense: Using Or Carrying A Firearm During And In Relation To Drug Trafficking Or Crime Of Violence (18 USC 924(c))

See FORECITE National™ Federal Models By Offense: Firearms - Crime Of Violence/Drug Trafficking (18 USC 924(c))

A defendant carries a firearm when he/she transports the firearm on his/her person [or in a vehicle] and does so during and in relation to the [drug] [violent] crime that he/she is committing.

[A defendant may carry a firearm even when the firearm is not immediately accessible because it is contained in a locked case or compartment.]

Committee Comment

This instruction reflects the Supreme Court's holding in Muscarello v. United States, 118 S.Ct. 1911 (1998) which in turn approved United States v. Molina, 102 F.3d 928 (7th Cir.1996).

In some cases, it might be advisable to define vehicle as including motor vehicles, boats, airplanes and other means of transport.

The bracketed language should be used only when there is evidence the firearm was in a locked place.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[096] Definition of "Use"

(18 USC 924(c))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ 117.2.1 [Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))].

See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

See FORECITE National™ Federal Models By Offense: Using Or Carrying A Firearm During And In Relation To Drug Trafficking Or Crime Of Violence (18 USC 924(c))

See FORECITE National™ Federal Models By Offense: Firearms - Crime Of Violence/Drug Trafficking (18 USC 924(c))

A defendant uses a firearm when he/she actively employs it in some way that is related to the [drug] [violent] crime that he/she is committing. ["Use" may include [brandishing] [displaying] [trading or attempting to trade] [striking with] [firing or attempting to fire] a firearm] [making reference to a firearm in the defendant's possession.] [Mere presence of a firearm at the scene of the crime without active employment of that kind is not sufficient to constitute use of that firearm.]

Committee Comment

This instruction reflects the Supreme Court's holding in Bailey v. United States, 516 U.S. 137 (1995) regarding the term "use." The bracketed language is from post-Bailey Seventh Circuit cases, as is the mere presence line. See United States v. Abdul, 75 F.3d 327 (7th Cir.1996); United States v. Booker, 73 F.3d 706, 709 (7th Cir.1996).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[097] Concealing a Material Fact--Elements

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

To sustain the charge of concealing a material fact, the government must prove the following propositions:

First, the defendant [concealed; covered up] a fact by trick, scheme or device;

Second, the fact was material;

Third, the defendant did so knowingly and willfully; and,

Fourth, the material fact related to a matter within the jurisdiction of the [executive] [legislative] [judicial] branch of the government of the United States.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

The language of the fourth element results from an amendment to § 1001 that became effective on October 11, 1996. The amended statute includes certain exceptions which may require the drafting of an additional instruction in an appropriate case. In cases involving conduct occurring prior to the amendment, the language of the former instruction, "a federal department or agency," should be used.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[098] Making a False Statement or Representation--Elements

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

To sustain the charge of making a [false; fictitious] [statement; representation], the government must prove the following propositions:

First, the defendant made a [false; fictitious; fraudulent] [statement; representation];

Second, the [statement; representation] was material;

Third, the [statement; representation] was made knowingly and willfully; and,

Fourth, the [statement; representation] was made in a matter within the jurisdiction of the [executive] [legislative] [judicial] branch of the government of the United States.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[099] Making or Using a False Writing or Document--Elements

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

To sustain the charge of [making; using] a false [writing; document] knowing it to contain any [false; fictitious; fraudulent] [statement; entry], the government must prove the following propositions:

First, the defendant [made; used] a false [writing; document];

Second, the defendant knew the [writing; document] contained a [false; fictitious; fraudulent] [statement; entry];

Third, the [statement; entry] was material;

Fourth, the defendant [made; used] the [document; writing] knowingly and willfully; and

Fifth, the [writing; document] was [made; used] in a matter within the jurisdiction of the [executive] [legislative] [judicial] branch of the government of the United States.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

The language of the fifth element results from an amendment to § 1001 that became effective on October 11, 1996. The amended statute includes certain exceptions which may require the drafting of an additional instruction in an appropriate case. In cases involving conduct occurring prior to the amendment, the language of the former instruction, "a federal department or agency," should be used.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[100] Definition of Scheme and Device

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

A scheme or device includes any plan or course of action intended to deceive others.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[101] Definition of False, Fictitious

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

A statement is false or fictitious if untrue when made and then known to be untrue by the person making it [or causing it to be made].

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[102] Definition of Fraudulent

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

A statement or representation is fraudulent if known to be untrue, and made [or caused to be made] with intent to deceive.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[103] Materiality--definition

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

A statement is material if it had the effect of influencing the action of the [body or agency], or was capable of or had the potential to do so. [It is not necessary that the statement actually have that influence or be relied on by the [body or agency], so long as it had the potential or capability to do so.]

Committee Comment

See United States v. Gaudin, 115 U.S. 506, 510 (1995)

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[104] Willfully--Definitions

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

An act is done willfully if done voluntarily and intentionally, and with the intent to do something the law forbids.

Committee Comment

If used for § 1001, part 3, these instructions apply to the fourth element.

See 4.09 of these Instructions for the Committee's recommendation on the use of an instruction defining "willfully." See 4.06 of these Instructions for a definition of "knowingly."

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[105] Department or Agency

(18 USC 1001)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Federal Agencies And Agents (18 USC 1001)

The (name of department, agency, or office) is a part of the [executive] [legislative] [judicial] branch of the government of the United States, and [statements; representations; facts] concerning (specify) are within the jurisdiction of that branch.

Committee Comment

The statement need not be made directly to a United States agency. If made to a local entity administering a totally or partially federally funded program then such a statement may also be within the jurisdiction of a federal agency. See United States v. Petullo, 709 F.2d 1178, 1180 (7th Cir. 1983). See also United States v. Ross, 77 F.3d 1525, 1544 (7th Cir. 1996) ("This court has repeatedly found the submission of a fraudulent statement to a private (or non federal government) entity to be within the jurisdiction of a federal agency where the agency has given funding to the entity and fraudulent statements cause the entity to utilize the funds improperly.")

Whether or not the government has suffered monetary loss or in fact was deceived by the acts charged is of no consequence to the jury's determination of the case.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[106] Fraudulently Benefitting From a Loan by a Federally Insured Institution

(18 USC 1005, para. 4)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statement In Bank Records (18 USC 1005)

See FORECITE National™ Federal Models By Offense: False Statements In Bank Records (18 USC 1005) (Third Paragraph)

See FORECITE National™ Federal Models By Offense: Fraudulently Benefitting From A Loan By A Federally Insured Institution) (18 USC 1005)

To sustain the charge of fraudulently benefitting from a loan made by a financial institution as charged in Count ___ of the indictment, the government must prove the following propositions:

First, that the defendant received or otherwise benefitted, directly or indirectly, from a loan made by a financial institution as described in the indictment;

Second, that the defendant did so with the intent to defraud the financial institution; and

Third, that the deposits of the [name the financial institution] were then insured by the Federal Deposit Insurance Corporation.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

For the definition of intent to defraud, see pattern instruction applicable to 18 USC 1341 and 1343.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[107] Insider Fraud on a Federally Insured Financial Institution

(18 USC 1006)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Insider Fraud On A Federally Insured Financial Institution (18 USC 1006)

See FORECITE National™ Federal Models By Offense: Participation In Federal Credit Institution Transactions (18 USC 1006) (Third Paragraph)

To sustain the charge of defrauding a federally insured financial institution as charged in Count ___ of the indictment, the government must prove the following propositions:

First, the defendant was an [officer, agent or employee of or connected in some capacity with] [name of qualifying institution as listed in the statute];

Second, the defendant [choose one of these three]:

(A) made a false entry in a book, report or statement of (name of institution);

(B) without authorization drew an [order] or [bill of exchange], [made an acceptance], [issued, put forth or assigned a note], debenture, bond, draft, bill of exchange, mortgage, judgment, or decree;

(C) participated or shared in or received directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of the institution; and

Third, the defendant acted with the intent to defraud the [name of defrauded institution, corporation, association, or individual].

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

For the definition of intent to defraud, see pattern instruction applicable to 18 USC 1341 and 1343.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[108] False Statements to Influence the FDIC

(18 USC 1007)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: False Statements To Influence The FDIC (18 USC 1007)

To sustain the charge of making [or inviting reliance on] a false statement [document or other thing] to influence the Federal Deposit Insurance Corporation, the government must prove the following propositions:

First, the defendant knowingly made [invited reliance on] a [false; forged; or counterfeit] [statement; document, or thing] as alleged in Count ___ of the indictment;

Second, the defendant did so for the purpose of influencing in any way an action of the Federal Deposit Insurance Corporation.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[109] False Statement to Financial Institution--Elements

(18 USC 1014)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Making A False Statement Or Report (18 USC 1014)

To sustain the charge of making a false statement to a [bank] [financial institution], the government must prove the following propositions:

First, that the defendant made a false statement to a [bank] [financial institution], [orally or in writing];

Second, that the defendant knew the statement was not true at the time it was made;

Third, that the defendant made the statement with the intent to influence the action of the [bank] [financial institution] with respect to a[n] [describe type of action: application, loan, etc.]; and

Fourth, that the accounts of the [bank] [financial institution] were insured by the Federal Deposit Insurance Corporation].

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

There are several types of institutions listed in the statute for which this instruction should be modified, but the vast majority of § 1014 cases are based on statements to banks.

Proof of materiality is not required under this section. See United States v. Wells, 519 U.S. 482 (1997)

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[110] Access Device Fraud--Elements

(18 USC 1029(a)(2))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Access Device Or Credit Card Fraud (18 USC 1029(a)(2))

To sustain the charge of fraud in connection with the [use] [attempt to use] [a] [an] [credit card[s]] [access device[s]], the government must prove the following propositions:

First, that the defendant knowingly [used] [trafficked in] one or more unauthorized [credit cards] [other specified access devices] to obtain any [money] [good[s]] [or] service[s]] [or any other thing of value] with a total value of at least $1,000 during a one-year period;

Second, that the defendant did so with the intent to defraud; and

Third, that the defendant's conduct affected interstate [or foreign] commerce.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[111] Access Device Fraud--Definitions

(18 USC 1029(a)(2))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Access Device Or Credit Card Fraud (18 USC 1029(a)(2))

Interstate [or foreign] commerce involves business, trade, travel, transportation or communication between any place in a state and any place outside that state[, or any two places within a state but through any place outside that state]. A defendant's conduct affects commerce if the natural consequences of the defendant's actions were some effect on commerce, however minimal.

[An access device is a card, plate, code or combination of letters and/or numbers, including account numbers, or other means of gaining access to an account that can be used[, alone or in combination with some other device,] to obtain money, goods, services or anything else of value.]

A[n] [credit card] [access device] is unauthorized if it has been [lost] [stolen] [expired] [revoked] [cancelled] [obtained with intent to defraud].

A person acts with intent to defraud if they intend to deceive some person or entity in order to cause [the loss of [money] [goods] [services]] [a financial gain].

Committee Comment

The "access device" definition should only be used if the nature of the charged device is an issue at trial. In other cases courts ought to specify which access device type is involved; most cases will involve credit cards.

There are no cases construing the commerce requirement in § 1029. The language here is derived from the arson statute and the Hobbs Act instructions, which use the same phrase "affect commerce." The Committee encourages courts to craft particularized instructions tailored to specific effects on commerce in appropriate cases.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[112] Possession of Multiple Fraudulent Access Devices--Elements

(18 USC 1029(a)(3))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of Multiple Fraudulent Access Devices--Elements (18 USC 1029(a)(3))

To sustain the charge of possession of multiple access devices with intent to defraud, the government must prove the following propositions:

First, that the defendant knowingly possessed fifteen or more access devices;

Second, that those devices were [counterfeit] [or] [unauthorized];

Third, that the defendant possessed those devices with the intent to defraud; and

Fourth, that the defendant's conduct affected interstate [or foreign] commerce.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[113] Possession of Access Device-Making Equipment--Elements

(18 USC 1029(a)(4))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of Access Device-Making Equipment--Elements (18 USC 1029(a)(4))

To sustain the charge of fraud involving access device-making equipment, the government must prove the following propositions:

First, that the defendant knowingly [produced] [or] [trafficked in] [or] [had] [control] [or] [custody] [of] [or] [possessed] access device-making equipment;

Second, the defendant possessed that equipment with the intent to defraud; and

Third, that the defendant's conduct affected interstate [or foreign] commerce.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[114] Access Device-Making Equipment–Definition

(18 USC 1029(a)(4))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of Access Device-Making Equipment--Elements (18 USC 1029(a)(4))

Access device-making equipment consists of any piece of equipment, mechanism or impression that is designed for us in making [a counterfeit] [an] access device.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

[115] Access Devices Issued to Others--Elements

(18 USC 1029(a)(4))

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession Of Access Device-Making Equipment--Elements (18 USC 1029(a)(4))

To sustain the charge of fraud in connection with access devices issued to others, the government must prove the following propositions:

First, that the defendant knowingly caused or conducted transactions with one or more access devices that had been issued to someone other than [himself] [herself] to obtain any [money] [good(s)] [or] [service(s)] [or any other thing of value with a total value of at least $1,000 during a one year period;

Second, that the defendant did so with the intent to defraud; and

Third, that the defendant's conduct affected interstate [or foreign] commerce.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[116] Mail / Wire / Carrier Fraud--Elements

(18 USC § 1341 & 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

See FORECITE National™ Federal Models By Offense: Wire Fraud Depriving Another Of Intangible Right Of Honest Services (18 USC 1343 and 1346)

To sustain the charge of [mail] [wire] [carrier] fraud, the government must prove the following propositions:

First, that the defendant knowingly [devised] [or] [participated in] the scheme [to defraud] [or] [to obtain money or property by means of false pretenses, representations or promises], as described in Count[s] ____ of the indictment;

Second, that the defendant did so knowingly and with the intent to defraud; and

Third, that for the purpose of carrying out the scheme or attempting to do so, the defendant [used [or caused the use of]] [the United States Mails] [a private or commercial interstate carrier]] [caused interstate wire communications to take place] in the manner charged in the particular count.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

This instruction combines the mail and wire fraud instructions, which were previously offered separately. The substantive change involves the addition of private carrier language in § 1341 (effective September 13, 1994).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[117] Definition of Scheme to Defraud

(18 USC 1341 & 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

See FORECITE National™ Federal Models By Offense: Wire Fraud Depriving Another Of Intangible Right Of Honest Services (18 USC 1343 and 1346)

A scheme is a plan or course of action formed with the intent to accomplish some purpose.

In considering whether the government has proven a scheme to [defraud] [obtain money or property by means of false pretenses, representations or promises,] it is essential that one or more of the [false pretenses, representations, promises and] acts charged in the portion of the indictment describing the scheme be proved establishing the existence of the scheme beyond a reasonable doubt. However, the government is not required prove all of them.

[A scheme to defraud is a scheme that is intended to deceive or cheat another and [to obtain money or property or cause the [potential] loss of money or property to another] [or] [to deprive another of [description of honest services, including source text of rule or statute]].

Committee Comment

The case law says that, although "scheme to defraud" and "intent to defraud" substantially overlap, they are not the same; in fact, one case specifically rejects the previous "scheme to defraud" instruction because it treats the two as the same. United States v. Doherty, 969 F.2d 425, 429 (7^th Cir. 1992). The scheme to defraud definition set forth here, and included in part in the following instruction on intent, is from United States v. Moede, 48 F.3d 238, 241 and n. 4 (7th Cir.1995).

Unanimity as to facts should be explicitly required in cases where there is a danger that jurors may disagree on the facts of the case, e.g. where the facts are particularly complex, where multiple schemes are charged, where there is a variance between charge and proof.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[118] Definition of Intent to Defraud

(18 USC 1341 & 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

See FORECITE National™ Federal Models By Offense: Wire Fraud Depriving Another Of Intangible Right Of Honest Services (18 USC 1343 and 1346)

The phrase "intent to defraud" means that the acts charged were done knowingly with the intent to deceive or cheat the victim in order to cause [[a gain of money or property to the defendant] [or] [the [potential] loss of money or property to another] [or] [to deprive another of [description of honest services, including (insert definition taken from rule or statute)]].

Committee Comment

This instruction includes the concept of deprivation of honest services as expressed in 18 USC 1346. Courts are urged to draft specific instructions tailored to particular statutes or rules defining the honest services duty at issue.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[119] Loss

(18 USC § 1341 & 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

See FORECITE National™ Federal Models By Offense: Wire Fraud Depriving Another Of Intangible Right Of Honest Services (18 USC 1343 and 1346)

The [Mail] [Interstate Carrier] [Wire] Fraud Statute Can Be Violated Whether or Not There Is Any [Loss or Damage to the Victim of the Crime] [Or] [Gain to the Defendant].

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[120] Use of Mails / Interstate Carrier / Interstate Communication Facility

(18 USC 1341 and 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Mail Fraud (18 USC 1341)

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

See FORECITE National™ Federal Models By Offense: Wire Fraud Depriving Another Of Intangible Right Of Honest Services (18 USC 1343 and 1346)

The government must prove that [the United States mails] [[a] private or commercial interstate carrier[s]] [interstate communication facilities] [was] [were] used to carry out the scheme, or [was] [were] incidental to an essential part of the scheme.

In order to [use [or cause the use of]] [the United States mails] [a private or commercial interstate carrier] [cause interstate wire communications to take place], the [a] defendant need not actually intend that use to take place. You must find that the defendant knew this use would actually occur, or that the defendant knew that it would occur in the ordinary course of business, or that the defendant knew facts from which that use could reasonably have been foreseen. [However, the government does not have to prove that [the/a] defendant knew that [the wire communication was of an interstate nature][the carrier was an interstate carrier].

[The defendant need not actually or personally use [the mail] [an interstate carrier] [interstate communication facilities].]

[Although an item [mailed] [sent by interstate carrier] [communicated interstate] need not itself contain a fraudulent representation or promise or a request for money, it must further or attempt to further the scheme.]

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

Committee Comment

A defendant does not actually have to use the mail or wire or a carrier to violate § 1341; he /she only needs to cause mailing to be done as a part of the scheme. The two essential elements are a scheme to defraud and that mailing or wiring or use of a carrier occurred as a part of that scheme. Pereira v. United States, 347 U.S. 1, 8-9 (1954). The use of mail need not be intended but must be reasonably foreseeable and follow in the course of business of furthering the scheme. United States v. Ashman, 979 F.2d 469, 481-84 (7th Cir.1992); United States v. Draiman, 784 F.2d 248, 251 (7^th Cir.1986) United States v. Briscoe, 65 F.3d 576,583 (7th Cir.1995) United States v. Hickok, 77 F.3d 992, 1004 (7th Cir.), cert. denied,517 U.S. 1200. (1996). See also United States v. Kenofskey, 243 U.S. 440 (1917); United States v. Calvert, 523 F.2d 895 (8th Cir.1975), cert. denied, 424 U.S. 911 (1976); and Hart v. United States, 112 F.2d 128 (5th Cir.), cert. denied, 311 U.S. 684 (1940).

In United States v. Briscoe, 65 F.3d 576, 583 (7th Cir.1995) it was held that wire fraud parallels mail fraud. Consequently, the government is not required to prove the scheme was successful, but only that use of a wire communication was reasonably foreseeable, and actual wiring occurred in furtherance of the scheme. See also United States v. Kenofskey, 243 U.S. 440 (1917); United States v. Clavert, 523 F.2d 895 (8th Cir.1975), cert. denied, 424 U.S. 911 (1976); and Hart v. United States, 112 F.2d 128 (5th Cir.), cert. denied, 311 U.S. 684 (1940).

The Committee has combined separate mail and wire instructions, and has added interstate carrier language. It has also added the "incidental to" line in response to Schmuck v. United States, 489 U.S. 705, 710-11 (1989). The Committee has also amended the knowledge requirement to conform with Pereira v. United States, 347 U.S. 1 (1954) and, in the case of interstate wire / interstate carrier communications, with United States v. Lindemann, 85 F.3d 1232 (7th Cir.1996). Finally, it has merged the last line, in brackets, for use in multiple count cases.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[121] Interstate Communication

(18 USC 1343)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Wire Fraud (18 USC 1343)

(Nature of the communication) constitutes a transmission by means of wire communication in interstate commerce within the meaning of the wire fraud statute.

Committee Comment

This instruction can be adapted for other communication facilities and for foreign transmissions.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[122] Financial Institution Fraud–Elements

(18 USC 1344)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bank Fraud (18 USC 1344)

To sustain the charge of [bank] [financial institution] fraud, the government must prove the following propositions:

First, that there was a scheme [to defraud a [bank] [financial institution]] [or] [to obtain moneys, funds, credits, assets, securities, or other property owned by, or in the custody or control of, a [bank] [financial institution] by means of false or fraudulent pretenses, representations or promises] as charged in the indictment;

Second, that the defendant [attempted to] execute[d] the scheme;

Third, that the defendant did so knowingly and with the intent to defraud; and

Fourth, that at the time of the charged offense the deposits of the [bank] [financial institution] were insured by the Federal Deposit Insurance Corporation.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

Committee Comment

As with the false-statement-to-bank statute (§ 1014, see above), there are many specified types of institutions covered by the statute, and courts should draft particularized language for appropriate non-bank cases. To the extent that a case involves a dispute over whether an entity is a "financial institution," see 18 USC 20, which defines the term.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

[123] Scheme--Definition

(18 USC 1344)

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Bank Fraud (18 USC 1344)

A scheme is a plan or course of action formed with the intent to accomplish some purpose.

[In considering whether the government has proven a scheme to obtain moneys, funds, credits, assets, securities, or other property from a [bank] [financial institution] by means of false pretenses, representations or promises, the government must prove at least one of the [false pretenses, representations, promises, or] acts charged in the portion of the indictment describing the scheme. However, the government is not required to prove all of them.]

[A scheme to defraud a [bank] [financial institution] means a plan or course of action intended to deceive or cheat that [bank] [financial institution] and [to obtain money or property or to cause the [potential] loss of money or property by the [bank] [financial institution] [to deprive the [bank] [financial institution] of [description of honest services, including source text of rule or statute]. [A scheme to defraud need not involve any false statement or misrepresentation of fact.]]

Committee Comment

This follows the instructions offered for the mail/wire fraud statutes, 18 USC § 1341 and 1343.

The first bracketed paragraph should be given in a case in which a scheme to obtain money from a bank by means of false pretenses, representations or promises is charged. The second bracketed paragraph should be given in a case in which a scheme to defraud a bank is charged. Where both methods of violating the statute are charged, both paragraphs should be given.