11th Cir. Pattern Jury Instr. (Criminal) O53

18 U.S.C. § 1347

It’s a Federal crime to knowingly and willfully execute, or attempt to

execute, a scheme or artifice to defraud a health-care benefit program, or to get any

of the money or property owned by, or under the custody or control of, a health-care benefit program by means of false or fraudulent pretenses, representations, or

promises.

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

facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly e xecuted, or attempted to execute, a

scheme or artifice to defraud a health-care benefit program, [or to

obtain money or property owned by, or under the custody or

control of, a health-care benefit program] by using false or

fraudulent pretenses, representations, or promises;

(2) the health care benefit program affected interstate commerce;

(3) the false or fraudulent pretenses, representations, or promises

related to a material fact;

(4) the Defendant acted willfully and intended to defraud; and

(5) the Defendant did so in connection with the delivery of or

payment for health-care benefits, items, or services.

“Health-care benefit program” means any public or private plan or contract,

affecting commerce, under which any medical benefit, item, or service is provided

to any individual, and includes any individual or entity that is providing a medical

benefit, item, or service for which payment may be made under the plan or

contract.

A health care program affects interstate commerce if the health care program

had any impact on the movement of any money, goods, services, or persons from

one state to another [or between another country and the United States]. The

Government need only prove that the health care program itself either engaged in

interstate commerce or that its activity affected interstate commerce to any degree.

The Government need not prove that [the] [a] Defendant engaged in interstate

commerce or that the acts of [the] [a] Defendant affected interstate commerce.

A “scheme to defraud” includes any plan or course of action intended to

deceive or cheat someone out of money or property by using false or fraudulent

pretenses, representations, or promises relating to a material fact.

A statement or rep resentation is “false” or “fraudulent” if it is about a

material fact that the speaker knows is untrue or makes with reckless indifference

as to the truth and makes with intent to defraud. A statement or representation may

be “false” or “fraudulent” when it’s a half truth or effectively conceals a material

fact and is made with the intent to defraud.

A “material fact” is an important fact that a reasonable person would use to

decide whether to do or not do something. A fact is “material” if it has the capacity

or natural tendency to influence a person’s decision. It doesn’t matter whether the

decision-maker actually relied on the statement or knew or should have known that

the statement was false.

To act with “intent to defraud” means to do something with the specific

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

loss or injury. Proving intent to deceive alone, without the intent to cause loss or

injury, is not sufficient to prove intent to defraud.

The Government doesn’t have to prove a ll the details alleged in the

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

also doesn’t have to prove that the alleged scheme actually succeeded in

defrauding anyone. What must be proved beyond a reasonable doubt is that the

Defendant knowingly attempted or carried out a scheme substantially similar to

the one alleged in the indictment.