5th Cir. Pattern Jury Instr. (Criminal) 2.56

18 U.S.C. § 1341 [18 U.S.C. § 1346]

Title 18, United States Code, Section 1341, makes it a crime for anyone to use the mails

[any private or commercial interstate carrier] in carrying out a scheme to defraud.

For you to find the defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: That the defendant knowingly devised or intended to devise a scheme to defraud,

that is _________________ (describe scheme from the indictment);

Second: That the scheme to defraud employed false material representations [false material

pretenses] [false material promises];

Third: That the defendant mailed something [caused something to be [sent] [delivered]]

through the United States Postal Service [a private or commercial interstate carrier] for the purpose

of executing such scheme or attempting so to do; and

Fourth: That the defendant acted with a specific intent to defraud.

A “scheme to defraud” means any plan, pattern, or course of action intended to deprive

another of money or property or bring about some financial gain to the person engaged in the

scheme. [It can also involve any scheme to deprive an employer [shareholders] [citizens]

[government agency] of the intangible right to honest services through soliciting or accepting

bribes or kickbacks.]

[Define “bribery” pursuant to 18 U.S.C. §§ 201(b) or 665(a)(2) or state law; define

“kickback” pursuant to 41 U.S.C. § 52(2) or state law.]

A “specific intent to defraud” means a conscious, knowing intent to deceive and cheat

someone.

A representation [pretense] [promise] is “false” if it is known to be untrue or is made with

reckless indifference as to its truth or falsity. A representation [pretense] [promise] would also be

“false” if it constitutes a half truth, or effectively omits or conceals a material fact, provided it is

made with the intent to defraud.

A representation [pretense] [promise] 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.

It is not necessary that the government prove all of the details alleged in the indictment

concerning the precise nature and purpose of the scheme. What must be proved beyond a

reasonable doubt is that the defendant knowingly devised or intended to devise a scheme to defraud

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by means of false or fraudulent pretenses, representations, or promises that was substantially the

same as the one alleged in the indictment.

It is also not necessary that the government prove that the mailed material [material sent

by private or commercial interstate carrier] was itself false or fraudulent, or that the use of the mail

[a private or commercial interstate carrier] was intended as the specific or exclusive means of

accomplishing the alleged fraud. What must be proved beyond a reasonable doubt is that the use

of the mails [private or commercial interstate carrier] was closely related to the scheme because

the defendant either mailed something or caused it to be mailed [defendant either sent or delivered

something or caused it to be sent or delivered by a private or commercial interstate carrier] in an

attempt to execute or carry out the scheme.

The alleged scheme need not actually have succeeded in defrauding anyone.

To “cause” the mails [private or commercial interstate carrier] to be used is to do an act

with knowledge that the use of the mails [private or commercial interstate carrier] 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 [private or commercial interstate carrier] to be used.

Each separate use of the mails [a private or commercial interstate carrier] in furtherance of

a scheme to defraud by means of false or fraudulent pretenses, representations, or promises

constitutes a separate offense.