THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
False Statements or Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act of 1974 (18 USC 1027)
1. Conspiracy To Commit
Mail Fraud By Cheating Pension Fund; Elements
2. 18 USC 1027: Definition
Of "Scheme To Defraud"
3. 18 USC 1027: Defendant
Must Have Intent To Defraud Pension Fund
4. 18 USC 1027:
Prosecution Must Show Knowledge Of Each Defendant And Act In Participate Of
Scheme
5. 18 USC 1027: Requires
Agreement To Carry Out Illegal Act
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Conspiracy To Commit Mail Fraud By Cheating Pension Fund; Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government has accused each defendant of engaging in a conspiracy to commit mail fraud by cheating the Pension Fund. First, I will instruct you as to what constitutes a conspiracy.
A conspiracy is a combination of two or more parties to accomplish some unlawful purpose or to accomplish some lawful purpose by unlawful means. The gist of the offense is the agreement among the conspirators to commit the offense, along with an act by one or more of the conspirators to achieve the object of the conspiracy.
The evidence must prove beyond a reasonable doubt that the alleged conspiracy was knowingly formed, that one or more of the methods or means described in the indictment was used in an effort to effect or accomplish some object or purpose of the conspiracy charged, and that two or more parties, including at least one of the accused, were knowing and intentional members of the conspiracy. Mere similarity of conduct among various parties, and the fact that they may have been associated with each other and may have assembled together and discussed common aims and interests, do not, without more, establish the existence of a conspiracy.
AUTHORITIES:
United States v. Kehm, No. 84-3028 (7th Cir. 1986); United States v. Van DeCarr, 343 F. Supp. 993 (C.D. Cal. 1972).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Circumstantial Evidence: False Statements.
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 34.4 [False Statements].
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. 18 USC 1027: Definition Of "Scheme To Defraud"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to convict a defendant, the government must prove beyond a reasonable doubt that each defendant specifically intended to enter into an agreement to defraud the Pension Fund. The subject of the charged conspiracy is a "scheme to defraud" the Pension Fund. A "scheme to defraud" connotes planning in advance and involves a planned misrepresentation of a material fact. A scheme to defraud must involve a statement or representation which is calculated to deceive.
AUTHORITIES:
United States v. Bane, 433 F. Supp. 1286 (E.D. Mich.), cert. denied, 439 U.S. 1127 (1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. 18 USC 1027: Defendant Must Have Intent To Defraud Pension Fund
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to convict, you must find beyond a reasonable doubt that the defendant specifically intended to enter into an agreement to defraud the Pension Fund. An issue is whether the defendant intended to defraud the Pension Fund, regardless of whether third persons shared (his/her) intent. A defendant cannot be convicted if (his/her) intent was not to defraud the Pension Fund.
AUTHORITIES:
United States v. Seymour, 590 F.2d 398 (8th Cir.), cert. denied, 439 U.S. 857 (1979).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981)
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. 18 USC 1027: Prosecution Must Show Knowledge Of Each Defendant And Act In Participate Of Scheme
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A conspiracy is a combination or agreement to violate the law, in this case an alleged scheme to defraud the Pension Fund involving use of the United States mails. Since a conspiracy by its very nature is a clandestine offense, proof of the agreement must ordinarily rest upon inferences drawn from competent circumstantial evidence. However, the use of circumstantial evidence to support a conviction does not relieve the prosecution from showing some knowledge, explicit or implied, in each defendant of the principal purpose of the conspiracy, and some act or action indicating participation therein.
AUTHORITIES:
Miller v. United States, 382 F.2d 583 (9th Cir.), cert. denied, 390 U.S. 984 (1967).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
See NCJIC Chapter 256: Mitigation Of Culpability By Mental Psychological, Medical And/Or Physical Impairment Of The Defendant.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. 18 USC 1027: Requires Agreement To Carry Out Illegal Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order to convict, you must find beyond a reasonable doubt that each defendant agreed to defraud the Pension Fund. The law requires more than a conspiracy to attempt to arrange to defraud the Pension Fund; it requires an agreement to carry out the illegal act.
AUTHORITY:
United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.