THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Mail Fraud (18 USC 1341)
1. 8 USC 1341 (Mail Fraud): Elements
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. 18 USC 1341 (Mail Fraud): Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In this case the government charges that the defendant(s) are guilty of using the United States mail to commit a fraud. To find the defendants guilty as charged, you must believe beyond a reasonable doubt that the following things are true:
1. That the defendants deliberately participated in a plan to cause someone else to act upon a false impression about a state of facts; or
2. The defendants intended to cause someone to act on a false impression of a state of facts; and
3. The United States mail was used in an important way to execute the fraud, and the defendants knew or reasonably should have known that the fraud would involve the use of the United States mail.
Unless you believe beyond a reasonable doubt that all of these things are true, you must find the defendants not guilty.
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Mail Fraud: First Element – Existence Of Scheme Or Artifice To Defraud
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The first element the government must prove beyond a reasonable doubt with regard to each count is that there was a scheme or artifice to defraud ______________ (name of company) of money or property by means of false or fraudulent pretenses, representations or promises.
A "scheme or artifice" is merely a plan for the accomplishment of an object. A scheme to defraud is any plan, device, or course of action to deprive another of money or property, by means of false or fraudulent pretenses, representations or promises reasonably calculated to deceive persons of average prudence.
It is not necessary that the government prove all of the false pretenses, representations and acts charged in the portion of the indictment charging the scheme. It is essential, however, that the government prove one or more of them showing the existence of the scheme to defraud.
The mail fraud statute protects only property rights. Thus, the government must prove beyond a reasonable doubt that the scheme or artifice was directed toward defrauding Anheuser-Busch of its money or property. A scheme directed toward financial gain for a defendant but not financial loss to ______________ (name of company) is insufficient.
An employer's right to the honest and faithful services of its employees does not constitute property and thus does not fall within the protection of the mail fraud statute. The mere violation of work place rules similarly does not amount to deprivation of the employer's property. Likewise, neither the mere receipt of secret profits, bribes, kickbacks or gifts, nor an employee's withholding or concealment of information from his employer concerning his receipt of such items alone deprives his employer of property. Schemes limited to such activities thus do not fall within the mail fraud statute.
AUTHORITIES:
United States v. Lance, 848 F.2d 1497 (10th Cir. 1988) (en banc); United States v. Shelton, 848 F.2d 1485, 1491-97 (10th Cir. 1988) (en banc); Ward v. United States, 845 F.2d 1459 (7th Cir. 1988); United States v. Ochs, 842 F.2d 515, 525-26 (1st Cir. 1988); United States v. Holzer, 840 F.2d 1343, 1347 (7th Cir. 1988); United States v. Covino, 837 F.2d 65, 71 (2d Cir. 1988); McNally v. United States, 107 S.Ct. 2875 (1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Mail Fraud: Second Element – Participation In Scheme With Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The second element that the government must establish beyond a reasonable doubt with regard to each count is that the defendant participated in the scheme to defraud knowingly, willfully and with intent to defraud.
"Knowingly" means to act voluntarily and intentionally, rather than mistakenly or inadvertently or for other innocent reason.
The purpose of adding the word "knowingly" is to insure that no one will be convicted for an act done because of mistake, or accident, or other innocent reason.
"Willfully" means to act voluntarily and intentionally, with the specific intent to do something the law forbids, that is to say, with bad purpose either to disobey or to disregard the law.
"Intent to defraud" means to act knowingly and with the specific intent to deceive, for the purpose of causing some financial loss to the deceived party. To be convicted of mail fraud, the defendant must either have devised the fraudulent scheme himself or have willfully participated in it with knowledge of its fraudulent nature.
The question of whether a person acted knowingly, willfully and with intent to defraud is a question of fact for you to determine, like any other fact question.
AUTHORITIES:
United States v. Evans, 844 F.2d 36, 38-40 (2d Cir. 1988); McNally v. United States, 107 S.Ct. 2875 (1987); United States v. Massa, 740 F.2d 629, 643 n.8 (8th Cir. 1984); United States v. Pearlstein, 576 F.2d 531, 537 (3d Cir. 1978).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED MATERIALS:
See NCJIC 45.1 [Requirement Of Criminal Intent Or Culpable Mental State].
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Mail Fraud: Third Element – Use Of The Mails
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The third element that the government must establish beyond a reasonable doubt with regard to each count is that the defendant caused the use of the official United States mails.
It is not necessary for the defendant to be directly or personally involved in any mailing, as long as it is reasonably foreseeable that the alleged scheme to defraud in which the defendant is accused of participating would cause the mails to be used.
In this regard, it would be sufficient to establish this element of the crime if the testimony justifies a finding that the defendant caused the mailing by others; and this does not mean that the defendant himself specifically have authorized others to do the mailing. When one does an act with knowledge that the use of the mails will follow in the ordinary course of business or where such use of the mails can reasonably be foreseen, even though not actually intended, then he causes the mails to be used.
The mailing, however, must result from the defendants' actions. A mailing which would be sent regardless of any actions on the part of any defendant is not caused by them.
The mails used must be those of the United States Post Office. Use of so-called interoffice mails within ______________ (name of company) or private delivery services such as Federal Express is insufficient.
AUTHORITIES:
United States v. Leyden, 842 F.2d 1026, 1028 (8th Cir. 1988); United States v. Freitag, 768 F.2d 240, 242 (8th Cir. 1985).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Mail Fraud: Fourth Element – Use Of Mails For Purpose Of Executing The Scheme
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The fourth and final element that the government must establish beyond a reasonable doubt with regard to each count is that the use of the mails was for the purpose of executing the scheme to defraud ______________ (name of company) of property.
Under the mail fraud statute, it is not enough that the United States mails in fact be used during the time period of a fraudulent scheme. Temporal proximity is not enough to satisfy the "in furtherance" requirement. Rather, the mailing must actually further the fraud. A mailing which itself opposes the scheme, or which serves to put the defrauded party on notice, or which makes execution of the fraud less likely, is not covered by the mail fraud statute because it is not for the purpose of executing the scheme.
While the mailed matter need not disclose on its face a fraudulent representation or purpose or request for money, it must be intended to assist in carrying out the scheme to defraud.
AUTHORITIES:
United States v. Leyden, 842 F.2d 1026, 1028, 1030 (8th Cir. 1988); McNally v. United States, 107 S.Ct. 2875, 2881 (1987); United States v. Iorizzo, 786 F.2d 52, 60 (2d Cir. 1986); United States v. Maze, 414 U.S. 395, 405 (1974).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Mail Fraud: "Intent To Defraud" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The phrase "intent to defraud" means that the acts was done knowingly with the specific purpose to deceive in order to cause financial loss to another or financial gain to the defendants.
SAMPLE INSTRUCTION # 2:
"Intent to defraud" means to act knowingly and with the specific intent to deceive, for the purpose of causing some financial loss to the deceived party.
AUTHORITIES:
United States v. Evans, 844 F.2d 36, 38-40 (2d Cir. 1988); McNally v. United States, 107 S.Ct. 2875 (1987).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED MATERIALS:
See generally NCJIC Chapter 45: Criminal Intent.
See also NCJIC 86.1.3.1 [Forgery: Requirement Of Intent To Defraud].
See also NCJIC 86.2.2.3 [Bad Checks: Post-Dated Check Does Not Violate Statute That Requires Intent To Defraud When Check Is Written].
See also NCJIC 103.1.2.10 [Theft/Larceny: Intent To Defraud Defined].
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See also NCJIC 252.5.13 [Claim of Right: Good Faith As Complete Defense To Charge Involving Intent To Defraud Or Willfulness].
See also NCJIC 252.10.2.1 [Good Faith Defense: General Willfulness And "Intent To Defraud" Instructions Inadequate For Good Faith Defense].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Mail Fraud: Knowledge Element
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One of the elements of this offense is that the defendants had to have known that the mails or wire communication facilities would be used in furtherance of the alleged agreement. This knowledge of the intended use of such facilities is an element of the offense and must be proven by the government, as it must prove all elements, that is, beyond a reasonable doubt.
AUTHORITIES:
Pereira v. United States, 347 U.S. 1, 12-13 (1954) [conspiracy to violate §2314]; United States v. Edwards, 366 F.2d 853, 869 (2d Cir. 1966) [same]; United States v. Fellabaum, 408 F.2d 220, 223-24 (7th Cir. 1969) [conspiracy to violate §1952]; United States v. Barnes, 383 F.2d 287 (6th Cir. 1967) [same].
SAMPLE INSTRUCTION # 2:
The requisite mental state in a prosecution such as this is specific intent to defraud and not merely knowledge of shadowy dealings. While intent to defraud may be inferred from one's knowledge that a scheme operates in a deceitful manner, the latter knowledge must be possessed by any individual whom the government asserts is guilty of a conspiracy to defraud. Mere involvement in an unsavory scheme is not sufficient to establish knowing participation in a scheme to defraud.
AUTHORITIES:
United States v. Piepgrass, 425 F.2d 194, 199 (9th Cir. 1970) [fraud in the sale of securities (15 USC 77q(a)) case], citing, Phillips v. United States, 356 F.2d 297 (9th Cir. 1966) [18 USC 1341/371 case], and Windsor v. United States, 384 F.2d 535 (9th Cir. 1967) [18 USC 1341/371 case].
SAMPLE INSTRUCTION # 3:
Periodically during the course of these instructions I will refer to knowledge that a defendant must have before he can be proven guilty of a crime. Sometimes I will refer to it as knowledge. Sometimes I will just say that the defendant must know or believe. Each of these means the same thing. The knowledge that a defendant must have in order to be convicted of a conspiracy is actual knowledge. It is not enough that the defendant should have known the existence of the fact or that others knew the existence of the fact who were close to the defendant, associates of the defendant, or perhaps even conspirators of the defendant. No defendant may be found guilty of the crime charged in this indictment unless he had actual knowledge that there was a conspiracy to defraud . I have previously instructed you that before any defendant can be found guilty of this conspiracy it must be proven beyond a reasonable doubt that he had knowledge of the existence of a conspiracy to defraud _______ and that he had the specific intent to join that conspiracy. The relationship of knowledge and specific intent is not an easy one to understand and in many instances they are quite similar. Knowledge means that a person actually was aware that a group of persons had entered into an agreement to defraud and at least had a general familiarity with the means which they would use to accomplish that fraud. Specific intent means more than knowledge. It means that the defendant joined the conspiracy for the purpose of making it succeed; he made the venture his own. Specific intent is that evil state of mind necessary for a criminal responsibility.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED MATERIALS:
See NCJIC Chapter 47: Knowledge.
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Mailing Must Further The Fraud
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under the mail fraud statute, it is not enough that the United States mails were in fact used as a result of a fraudulent scheme. Rather, the United States must prove beyond a reasonable doubt that the mailing at issue, if you believe there was a mailing, had the purpose of executing the scheme or artifice to defraud. The mailing must actually further the fraud. A mailing that opposes the scheme in some way is inadequate because it is not for the purpose of executing the scheme.
If, based on all the evidence, you conclude that there was a mailing under a particular count, and that such mailing was foreseeable and actually furthered a fraud planned by defendants, then you may find defendants guilty on that count. If, on the other hand, you conclude that there were mailings in this case, but you also conclude that those mailings were not for the purpose of executing a scheme or artifice to defraud, then you must find the defendants not guilty.
AUTHORITIES:
United States v. Leyden, 842 F.2d 1026, 1028-29 (8th Cir. 1988); McNally v. United States, 107 S.Ct. 2875, 2881 (1987); United States v. Maze, 414 U.S. 395, 405 (1974).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Mail Fraud: Must Defraud Victim Of Money Or Other Actual Property
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In this case, the government alleges that the defendant(s) schemed to defraud ______________ (name of company), which employed _________ (name of defendant(s)). To sustain that charge under the mail fraud statute, the government must prove that the defendants planned to defraud ______________ (name of company) of more than its contractual right to the honest and faithful service of its employees. The government must prove beyond a reasonable doubt that any scheme to defraud sought as its object to defraud ______________ (name of company) of actual property, in this case money.
If the United States persuades you beyond a reasonable doubt that the defendants intended to defraud ______________ (name of company) of their honest and ethical services, such as by entering into conflicts of interest, but you are not so persuaded that the defendants planned to defraud ______________ (name of company) of money or other actual property, then you must find the defendants not guilty.
AUTHORITIES:
McNally v. United States, 107 S.Ct. 2875, 2880-82 (1987); Carpenter v. United States, 108 S.Ct. 316, 320-22 (1987).
SAMPLE INSTRUCTION # 2:
The mail fraud statute protects only property rights. Thus, the government must prove beyond a reasonable doubt that the scheme or artifice to defraud is directed toward defrauding ______________ (name of company) of its money or property. A scheme directed toward financial gain for a defendant but not financial loss to ______________ (name of company) is insufficient.
AUTHORITIES:
United States v. Shelton, 848 F.2d 1485, 1496 (10th Cir. 1988) (en banc); United States v. Lance, 848 F.2d 1497, 1500-01 (10th Cir. 1988) (en banc); McNally v. United States, 107 S.Ct. 2875, 2882 (1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Right Of Honest And Faithful Services Of Employees Not Protected Under Mail Fraud Statute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The contractual right of ______________ (name of company) to the honest and faithful services of its employees is not a property right which falls within the protection of the mail fraud statute.
AUTHORITIES:
United States v. Covino, 837 F.2d 65, 70-72 (2d Cir. 1988); Carpenter v. United States, 108 S.Ct. 316, 320 (1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Violation Of Work Place Rules By Employee Not Within Mail Fraud Statute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere violation of work place rules by an employee does not deprive his employer of money or property, and thus does not fall within the mail fraud statute.
AUTHORITY:
Carpenter v. United States, 108 S.Ct. 316, 321 (1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Mere Receipt Of Secret Profits, Kickbacks, Bribes Or Gifts By Employee Not Within Mail Fraud Statute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere receipt of secret profits, kickbacks, bribes or gifts by an employee does not deprive his employer of money or property, and thus does not fall within the mail fraud statute.
AUTHORITIES:
United States v. Lance, 848 F.2d 1497 (10th Cir. 1988) (en banc); United States v. Shelton, 848 F.2d 1485, 1491-97 (10th Cir. 1988) (en banc); Ward v. United States, 845 F.2d 1459 (7th Cir. 1988); United States v. Ochs, 842 F.2d 515, 525-26 (1st Cir. 1988); United States v. Holzer, 840 F.2d 1343, 1347 (7th Cir. 1988); McNally v. United States, 107 S.Ct. 2875 (1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Concealment Of Information From Employer Not Within Mail Fraud Statute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An employee's withholding or concealment of information from his employer concerning his receipt of secret profits, kickbacks, bribes or gifts does not alone deprive his employer of property and thus does not fall within the mail fraud statute.
AUTHORITIES:
United States v. Ochs, 842 F.2d 515, 525-26 (1st Cir. 1988); United States v. Covino, 837 F.2d 65, 71 (2d Cir. 1988); see United States v. Gimbel, 830 F.2d 621, 627 (7th Cir. 1987).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Temporal Proximity Of Mailing To Scheme To Defraud Insufficient For "In Furtherance" Requirement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is insufficient that the United States mails in fact be used during the time period of the fraudulent scheme. Temporal proximity of a mailing to an alleged scheme to defraud is not enough to satisfy the "in furtherance" requirement.
AUTHORITIES:
United States v. Leyden, 842 F.2d 1026, 1028 n.3 (8th Cir. 1988); United States v. Iorizzo, 786 F.2d 52, 60 (2d Cir. 1986).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Defendant Must Devise Fraudulent Scheme Or Have Knowingly And Willfully Participated
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To be convicted of mail fraud, the defendant must either have devised the fraudulent scheme himself or have willfully participated in it with knowledge of its fraudulent nature.
AUTHORITY:
United States v. Pearlstein, 576 F.2d 531, 537 (3d Cir. 1978).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED MATERIALS:
See NCJIC Chapter 47: Knowledge.
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Mails Used Must Be That Of United States Post Office
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government must prove beyond a reasonable doubt that the mails used were those of the United States Post Office. Use of so-called interoffice mails within ______________ (name of company) or private delivery services such as Federal Express is insufficient.
AUTHORITIES:
Utz v. Correa, 631 F. Supp. 592, 596 (S.D.N.Y. 1986); United States v. Scott, 730 F.2d 143, 147 (4th Cir. 1984).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Mailing Must Further Purpose Of Executing The Scheme
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A mailing which itself opposes the scheme, or which serves to put the defrauded party on notice, or which makes execution of the fraud less likely, is not covered by the mail fraud statute because it is not for the purpose of executing the scheme.
AUTHORITIES:
United States v. Leyden, 842 F.2d 1026, 1028, 1030 (8th Cir. 1988).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Multiple Counts/Victims: Jury Must Consider Each Independently
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You must remember that the defendants are charged under the mail fraud counts with a scheme to defraud ______________ (name of company) . This is not the conspiracy to defraud the United States that is alleged in the conspiracy charge, Count ____. These are two entirely separate charges, and two entirely alleged schemes, and you must consider each independently of the other. In other words, a scheme to defraud ______________ (name of company) is not a conspiracy to defraud the United States, and you will not consider any scheme to defraud ______________ (name of company) in your deliberations under the conspiracy charge, Count ____.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Multiple Counts.
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Chapter 274: Multiple Offenses: Propriety Of Instruction.
See NCJIC 276.8 [Multiple Counts].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Scheme To Defraud: Government Must Prove Scheme Was Established
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
While a number of representations are alleged in the indictment, it is not incumbent upon the government to prove each and every one of them. It is, however, incumbent upon the government to prove one or more, or a sufficient number of them to indicate and show to you beyond a reasonable doubt that the scheme alleged was actually set up. [Object to the use of "one or more" language in the pattern instruction that says "the government need only prove one or more of the representations to establish that the scheme was established." This language might indicate that the jury must find a scheme from a finding of any one of the alleged parts. In fact, the jury has to find enough to show that the scheme was actually set up.]
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Conflicts Of Interest: Gifts From Vendors
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering whether __________ (name of defendant[s]) violated the ______________ (name of company) conflict of interest policy by accepting gifts from vendors, you may consider how other ______________ (name of company) executives acted with respect to the receipt of similar gifts.
AUTHORITIES:
United States v. Steffen, 641 F.2d 591, 596 (8th Cir. 1981); United States v. Riley, 550 F.2d 233, 236-38 (5th Cir. 1977); United States v. Callahan, 551 F.2d 733, 736 (6th Cir. 1977).
SAMPLE INSTRUCTION # 2:
If you find from the evidence that Anheuser-Busch executives ignored the company policy which prohibited gifts from vendors, you may consider this in determining whether defendants __________ (name of defendant[s]) violated that policy, or schemed to defraud ______________ (name of company).
AUTHORITIES:
United States v. Steffen, 641 F.2d 591, 596 (8th Cir. 1981); United States v. Riley, 550 F.2d 233, 236-38 (5th Cir. 1977); United States v. Callahan, 551 F.2d 733, 736 (6th Cir. 1977).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Plan To Cause Someone To Act Upon False Impression About A State Of Facts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The government claims the defendants deliberately participated in a plan to cause someone else to act upon a false impression about a state of facts.
The government has tried to prove a plan existed by showing a number of things were done as part of a plan. For you to find that such a plan existed, you do not have to believe beyond a reasonable doubt that each of these things happened; but, you do have to believe enough of these things happened so that you also believe beyond a reasonable doubt that there was a plan to cause someone else to act upon a false impression about a state of facts.
A plan can be formed or carried out by one person or by many persons.
To find the defendants guilty as charged, you do not have to believe the plan succeeded or that anyone lost money or that anyone profited from the plan.
SAMPLE INSTRUCTION # 2:
The government claims the defendants deliberately participated with in a plan to cause someone to act upon a false impression about a state of facts.
To find the defendants guilty as charged, you must believe beyond a reasonable doubt that such a plan existed and that the defendants deliberately participated in the plan. A person may participate in a plan even though he does not know all the details of the plan and even though he does not do anything himself to implement the plan.
(A person who participates in a plan with others is responsible for the actions of other participants done as part of the plan.)
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. "Material Fact" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government charges the defendants with (making a false statement of material fact; leaving a false impression by omitting a material fact). I will now explain how you decide whether a particular fact is "material."
A fact is material if a reasonable person would attach importance to the fact in making a decision.
RELATED MATERIALS:
See NCJIC 95.2.1 [Perjury: Definition Of "Material Matter"].
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Fraud Must Be Deliberate
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To find that the defendants committed a fraud "deliberately," you must believe beyond a reasonable doubt that either (he/she):
1. knew (he/she) was causing or was likely to cause a person to act upon a false impression of a state of facts; or
2. had serious doubts about whether or not (he/she) was causing or was likely to cause a person to act upon a false impression of a state of facts; or
3. deliberately closed his eyes to what would otherwise be obvious to (him/her) and in this way avoided determining whether or not (he/she) was causing or was likely to cause a person to act upon a false impression of a state of facts.)
The defendants did not act deliberately if (he/she) caused a false impression by an honest or careless or inadvertent mistake.
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Defendants Must Know Mails Would Be Used To Carry Out The Fraud
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To find the defendants guilty as charged, you must believe beyond a reasonable doubt that the United States mail was used in an important way to execute the fraud, and the defendants knew or reasonably should have known that the mails would be used to help carry out the fraud.
(The fraud involved the use of the mails if you believe beyond a reasonable doubt that .)
(The use of the mails is important if the use is more than incidental or collateral to execution of the fraud.)
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 48: Objective Unreasonableness (Reasonable Person Standard).
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC 253.4.11 [Reasonable Person In Defendant’s Situation As Standard For Objective Reasonableness].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Fraud: General Considerations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Fraud does not exist in a commercial transaction when the customer gets exactly what he expected and at the price he expected to pay. False representations do not constitute fraud in the absence of evidence of tangible harm suffered by the alleged victim of the fraud, or proof that a defendant intended such harm.
None of the defendants can be convicted in this case of the crime charged in this indictment unless the government proves beyond a reasonable doubt that some actual harm or injury to the was contemplated by the defendants, or that the was economically injured.
Merely because false representations were made by the defendants or their agents with knowledge of such falsehood and as a result of such false representations money changed hands, does not constitute proof of either a conspiracy to defraud or a fraud itself.
False representations in the context of commercial transactions are not fraudulent in and of themselves in the absence of a proof of actual injury to the victim or contemplated injury to the victim.
AUTHORITIES:
United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-81 (2d Cir. 1970).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC 252.10.2 [Good Faith].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. 18 USC 1341 (Mail Fraud): Good Faith Defense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Defendants have offered evidence of their good faith in making the representations alleged in the indictment. Good faith is a complete defense to the crime of mail fraud. In determining whether defendants acted in good faith or with the intent to defraud, the jury should consider all the facts and circumstances in the case. If the jury finds that defendants acted in good faith, they should be found not guilty.
SAMPLE INSTRUCTION # 2:
If the evidence in this case leaves the jury with a reasonable doubt whether the defendants in good faith believed the documents to be true at the time they were mailed, then the jury should acquit the defendants.
SAMPLE INSTRUCTION # 3:
Since an essential element of the crime charged is intent to defraud, it follows that good faith on the part of a defendant is a complete defense to a charge of mail fraud. A defendant, however, has no burden to establish a defense of good faith. The burden is on the government to prove fraudulent intent and consequent lack of good faith beyond a reasonable doubt.
AUTHORITIES:
United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir. 1985); United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981); United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988 (1972).
SAMPLE INSTRUCTION # 4:
The government must prove beyond a reasonable doubt with regard to each count that the defendants intended to defraud ______________ (name of company) of its money or property.
Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.
AUTHORITIES:
United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir. 1985); United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988 (1972).
SAMPLE INSTRUCTION # 5:
A person does not commit a deliberate fraud if his words and actions are done in good faith. A person speaks or acts in good faith if
1. (He/She) honestly believes that what he says is true; or
2. (He/She) honestly believes that his business idea is practical and has a reasonable chance of success even though you might believe with the benefit of hindsight that the plan was impractical and unlikely to succeed; or
3. (He/She) honestly intends to carry out (his/her) promises.
SAMPLE INSTRUCTION # 6:
Good faith is a complete defense to a charge of having entered into a scheme to defraud.
AUTHORITIES:
Hawley v. United States, 133 F.2d 966 (10th Cir. 1943); see generally United States v. Baker, 19 F.3d 605, 612 (11th Cir. 1994) (quoting expansive "good faith" theory of defense instruction); Rudd v. United States, 173 F. 912, 913-14 (8th Cir. 1909).
SAMPLE INSTRUCTION # 7:
Good faith is a complete defense to a charge of having entered into a scheme to defraud. It matters not how unreasonable prospects of success might be where defendants actually believe in them. Promises made in good faith are not criminal.
[In this case there must be proof beyond a reasonable doubt of a scheme to defraud the ________ (agency, e.g., Pension Fund). There must be intent to defraud the ________ (agency, e.g., Pension Fund). The significant element is this intent. Even if false representations were made, the defendants must have known them to be false and must have intended to defraud the ________ (agency, e.g., Pension Fund) in order for them to be found guilty. No one can be convicted for an act done because of mistake, inadvertence or other innocent reason.
If you believe or if you entertain a reasonable doubt upon the question that the representations made by the defendants, or any of them, were made in good faith, and not as a part of a deliberate plan or scheme to defraud, then it is your duty to find that defendant not guilty.]
AUTHORITIES:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981) [bracketed areas deleted]; Hawley v. United States, 133 F.2d 966 (10th Cir. 1943).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See also NCJIC 252.10.2 [Good Faith].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
27. Misrepresentation Of Fact As Element Of Fraud
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Not every misrepresentation of fact is an element of fraud. It is only a misrepresentation, knowingly made, which would in the normal course of events lead to a defrauding of the alleged victim which constitutes such a misrepresentation of fact that is an element of the crime of fraud.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See also NCJIC 252.10.2 [Good Faith].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
28. Conspiracy To Defraud: Defendant Must Have Personal Knowledge Of Purpose Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for any defendant to be found guilty of the crime charged in this indictment, it must not only be shown that (he/she) was a member of the conspiracy charged in the indictment but that (he/she) had personal knowledge that it was the purpose of this conspiracy to defraud.
AUTHORITIES:
United States v. Allied Asphalt Paving Co., 451 F. Supp. 804, 812 (N.D. Ill. 1978) [violation of the Sherman Act, for engaging in a conspiracy to suppress and eliminate competition in an airport runway resurfacing project].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED MATERIALS:
See NCJIC Chapter 47: Knowledge.
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
29. Conspiracy: Object Of Fraud Must Be Specified And Proven
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If the evidence you have heard in this case tends to show that there was a conspiracy or agreement or concerted effort to defraud the ________ rather than to defraud the , then the government cannot secure a conviction of any of the defendants on this indictment. The reason for this is that a conviction on a conspiracy different from that charged in the indictment would be a conviction for an offense not considered by the grand jury and would deprive the defendants of fundamental constitutional rights to such grand jury consideration.
AUTHORITIES:
Jeffers v. United States, 392 F.2d 749, 753 (9th Cir. 1968) [mail fraud under 18 USC 1341].
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
30. Conspiracy To Defraud: Impossibility
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In a conspiracy to defraud a victim it is not necessary that the victim actually be defrauded but only that the parties who are the defendants have met and agreed that the victim would be defrauded. An exception arises in any circumstance in which the agreement of the defendant could not, as a matter of law, have defrauded the alleged victim.
Thus, if the defendants agreed to pay fees but the payment of these fees did not and could not impair the collateral to which the was entitled, the defendants must be found not guilty for no matter what the contours or specifics of their agreement, it was impossible for them to have defrauded the by impairing the collateral to its mortgage.
RELATED MATERIALS:
See NCJIC 66.3 [Attempt: Defense Of Impossibility].
See NCJIC 83.3.1.1 [Conspiracy: Impossibility As Defense Theory].
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
31. "Scheme To Defraud" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
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 subject of the charged conspiracy is a "scheme to defraud" ______________. 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)
SAMPLE INSTRUCTION # 2:
A scheme to defraud means some plan or course of action intended to deceive another and to deprive another of something of value by means of false pretenses, representations, or promises.
Although it is not necessary that the government prove all of the false pretenses, representations, or promises, and acts charged in the portion of the indictment describing the scheme, it is essential that one or more of them be proved beyond a reasonable doubt establishing the existence of the scheme to defraud.
AUTHORITIES:
II Federal Jury Instructions of the Seventh Circuit 117 [formerly 90 (1983)].
RELATED MATERIALS:
See generally NCJIC 103.7 [Mail Theft And Mail Fraud].
See also NCJIC 252.10.2 [Good Faith].
See NCJIC Federal Model Instructions by Offense: 18 USC 1341: Mail Fraud.