10th Cir. Crim. Pattern Jury Instr. 2.56

The defendant is charged in count _________ with a violation

of 18 U.S.C. section 1341.

This law makes it a crime to use the mails in carrying out a

scheme to defraud [a scheme to obtain money or property by

means of false or fraudulent pretenses, representations, or

promises] [a scheme or artifice to deprive another of the intangible

right to honest services].

T o fi n d t h e d e f e n d a n t g u i l t y o f t h i s c r i m e y o u m u s t b e

convinced that the government has proved each of the following

beyond a reasonable doubt:

First: the defendant devised or intended to devise a scheme to

defraud, as alleged in the indictment [or describe the scheme

alleged in the indictment];

Second: the defendant acted with specific intent to defraud;

Third: the defendant mailed something [caused another

person to mail something] through the United States Postal

Service [a private or commercial interstate carrier] for the purpose

of carrying out the scheme;

Fourth : the scheme employed false or fraudulent

pretenses, representations, or promises that were material.

[Fifth: the scheme was in connection with the conduct of

telemarketing.]

or

[Fifth: the scheme was in connection with the conduct of

telemarketing and

(a) victimized ten or more persons over the age of 55, or

targeted persons over the age of 55.] or

(b) targeted persons over the age of 55.] or

[Fifth: the scheme was related to a presidentially declared

major disaster or emergency.]

or

[Fifth: the scheme affected a financial institution.]

PATTERN CRIMINAL JURY INSTRUCTIONS

182

A “scheme to defraud” is conduct intended to or reasonably

calculated to deceive persons of ordinary prudence or

comprehension.

An “intent to defraud” means an intent to deceive or cheat

someone.

A representation is “false” if it is known to be untrue or is

made with reckless indifference as to its truth or falsity. A

representation would also be “false” when it constitutes a half

truth, or effectively omits or conceals a material fact, provided it

is made with intent to defraud.

A false statement is “material” if it has a natural tendency to

influence, or is capable of influencing, the decision of the person or

entity to which it is addressed.

What must be proved beyond a reasonable doubt is that the

defendant devised or intended to devise a scheme to defraud that

was substantially the same as the one alleged in the indictment,

and that the use of the mails was closely related to the scheme, in

that the defendant either mailed something or caused it to be

mailed in an attempt to execute or carry out the scheme. To

“cause” the mails to be used is to do an act with knowledge that

the use of the mails will follow in the ordinary course of business

or where such use can reasonably be foreseen even though the

defendant did not intend or request the mails to be used.