11th Cir. Pattern Jury Instr. (Criminal) O50.2

Depriving Another of an Intangible

Right of Honest Services

18 U.S.C. §§ [1341] and 1346

Public Official/Public Employee

It’s a Federal crime to use [the United States mail] [a private or commercial

interstate carrier] to carry out a scheme to fraudulently deprive someone else of a

right to honest services.

The Defendant can be found guilty of this crime only if all the following

facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly devised or participated in a scheme to

fraudulently deprive the public of the right to honest services of

the Defendant through bribery or kickbacks;

(2) t he Defendant did so with an intent to defraud th e public of the

right to the Defendant’s honest services; and

(3) the Defendant used [the United States Postal Service by mailing

or by causing to be mailed] [a private or commercial interstate

carrier by de positing or causing to be deposited with the

carrier or transmitting or causing to be transmitted] some

matter, communication or item to carry out the scheme to

defraud.

A “scheme” means any plan or course of action intended to deceive or cheat

someone.

To “deprive someone else of the right of honest services” is to violate a duty

to provide honest services to the public by participating in a bribery or kickback

scheme.

Public officials and public employees have a duty to the public to provide

honest services. If an [official] [employee] does something or makes a decision

that serves the [official’s] [employee’s] personal interests by taking or soliciting a

bribe or kickback, the official or employee defrauds the public of honest services,

even if the public agency does not suffer any monetary loss.

Bribery and kickbacks involve the exchange of a thing or things of value for

an official act by a public official. Bribery and kickbacks also include solicitations

of things of value in exchange for an official act, even if the thing of value is not

accepted or the official act is not performed. That is, bribery and kickbacks include

the public [official’s] [employee’s] solicitation or agreement to accept something

of value, whether tangible or intangible, in exchange for an official act, whether or

not the payor actually provides the thing of value, and whether or not the public

official or employee ultimately performs the requested official act or intends to do

so.

To qualify as an official act, the public official must have [made a decision

or taken an action] [agreed to make a decision or take an action] on a question,

matter, cause, suit, proceeding, or controversy. Further, the question, matter, cause,

suit, proceeding, or controversy must involve the formal exercise of governmental

power. It must be similar in nature to a lawsuit before a court, a determination

before an agency, or a hearing before a committee. It must also be something

specific which requires particular attention by a public official.

The public official’s [decision or action] [agreement to make a decision or

take an action] on that question, matter, cause, suit, proceeding, or controversy

may include using [his/her] official position to exert pressure on another official to

perform an official act, or to advise another official, knowing or intending that

such advice will form the basis for an official act by another official. But setting

up a meeting, talking to another official, or organizing an event (or agreeing to do

so) – without more – is not an official act.

[It is not necessary that the public official actually make a decision or take

an action. It is enough that [he/she] agrees to do so. The agreement need not be

explicit, and the public official need not specify the means [he/she] will use to

perform [his/her] end of the bargain. Nor must the public official in fact intend to

perform the official act, so long as [he/she] agrees to do so.]

To act with “intent to defraud” means to act knowingly and with the specific

intent to

use false or fraudulent pretenses, representations, or promises to cause loss

of honest services. Proving intent to deceive alone, without the intent to cause loss

of honest services, is not sufficient to prove intent to defraud . [A “private or

commercial interstate carrier” includes any business that transmits, carries, or

delivers matters, communications or items from one state to or through another

state. It doesn’t matter whether a matter, communication or item ac tually

moves from one state to or through another as long as the matter, communication

or item is delivered to the carrier.]

The Government does not have to prove all the details alleged in the

indictment about the precise nature and purpose of the scheme. The Government

doesn’t have to prove the matter, communication or item [mailed] [deposited

with or transmitted by an interstate carrier] was itself false or fraudulent; or that

the use of the [mail] [interstate carrier] was intended as the specific or exclusive

way to carry out the a lleged fraud; or that the Defendant actually [mailed]

[deposited] [transmitted] the matter, communication or item. And the Government

doesn’t have to prove that the alleged scheme ac tually succeeded in defrauding

anyone.

To “cause” [the mail] [an interstate carrier] to be used is to do an a ct

knowing that the use of [the mail] [an interstate carrier] will follow in the ordinary

course of business or where that use can reasonably be expected to follow.

Each separate use of [the mail] [an interstate carrier] as a part of the scheme

to defraud is a separate crime.