5th Cir. Pattern Jury Instr. (Criminal) 2.57

18 U.S.C. § 1343 [18 U.S.C. § 1346]

Title 18, United States Code, Section 1343, makes it a crime for anyone to use interstate

[foreign] wire [radio] [television] communications 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 any 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 transmitted [caused to be transmitted] by way of wire [radio]

[television] communications, in interstate [foreign] commerce, any writing [sign] [signal] [picture]

[sound] for the purpose of executing such scheme; 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 material transmitted by wire

[radio] [television] communications was itself false or fraudulent, or that the use of the interstate

[foreign] wire communications facilities was intended as the spec ific or exclusive means of

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

of the interstate [foreign] wire communications facilities was closely related to the scheme because

the defendant either wired something or caused it to be wired in interstate [foreign] commerce in

an attempt to execute or carry out the scheme.

The alleged scheme need not actually succeed in defrauding anyone.

To “cause” interstate [foreign] wire [radio] [television] communications facilities to be

used is to do an act with knowledge that the use of the wire [radio] [television] communications

facilities will follow in the ordinary course of business or where su ch use can reasonably be

foreseen.

Each separate use of the interstate [foreign] wire [radio] [television] communications

facilities in furtherance of a scheme to defraud by means of false or fraudulent pretenses,

representations, or promises constitutes a separate offense.