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 VOLUME 13 - CHAPTER 273
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273.10 Juror Unanimity: Specific Offenses

    273.10.8 Fraud

    273.10.8.1 Jury Unanimity: Fraud

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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 13 - CHAPTER 273

PRACTICE NOTE: Jury unanimity may be required as to multiple acts of fraud. For example the Sixth Circuit has held that jurors must agree unanimously as to which false statements defendant made on an income tax return. (U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104, 1112.) Similarly the D.C. Circuit has held that trial courts should employ special unanimity instruction without the defendant’s request in a case involving multiple fraudulent statements on a loan application. (See U.S. v. Mangieri (DC Cir. 1982) 694 F2d 1270, 1279; People v. Ferguson (CA 1982) 129 CA3d 1014, 1020-21 [181 CR 593] [failure to instruct that jurors must agree unanimously as to which of 35 check fraud instances alleged in single count constituted defendant's guilt was reversible error].)

    In the context of bank fraud (18 USC 1344), U.S. v. De La Mata (11th Cir. 2001) 266 F3d 1275 held that the "unit of the offense" is "each execution or attempted execution of the scheme to defraud, not each act in furtherance thereof." (266 F3d at 1287.) This means that the bank fraud offense is complete upon the execution or attempted execution of the scheme. However, a scheme can be executed several times. For example, in U.S. v. Sirang (11th Cir. 1995) 70 F3d 588, the court upheld multiple convictions for depositing checks drawn on insufficient funds.

    There is no bright-line rule for determining whether a specific transaction is an "execution" of a scheme or merely a component act. Factors to be considered include the ultimate goal of the scheme, the nature of the scheme, the benefits intended, the interdependence of the acts, and the number of parties involved.

    A number of courts have held that the two subsections of the bank fraud law (18 USC 1344(1) and 18 USC 1344(2), describe two ways of committing the same crime, not two separate crimes and, therefore, the jury need not unanimously agree as to which subsection was violated.  (See U.S. v. LeDonne (7th Cir. 1994) 21 F3d 1418; U.S. v. Crisci (2nd Cir. 2001) 273 F3d 235.)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].