5th Cir. Pattern Jury Instr. (Criminal) 2.59

18 U.S.C. § 1347(a)

Title 18, United States Code, Section 1347(a), makes it a crime for anyone to knowingly

and willfully execute or attempt to execute a scheme or artifice (1) to defraud any health care

benefit program, or (2) to obtain any of the money or property owned by or under the custody or

control of any health care benefit program by means of false or fraudulent pretenses,

representations, or promises.

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 and willfully executed [attempted to execute] a

scheme or artifice to defraud a health care benefit program, ____________ (name the health care

benefit program) [to obtain money or property from a health care benefit program, ____________

(name the health care benefit program )], by means of false or fraudulent pretenses [false or

fraudulent representations] [false or fraudulent promises] in connection with the delivery of or

payment for health care benefits, items, or services;

Second: That the defendant acted with a specific intent to defraud a health care benefit

program;

Third: That the false or fraudulent pretenses [representations] [promises] that the defendant

used were material; and

Fourth: That the operation of the health care benefit program affected interstate commerce.

[Fifth: That serious bodily injury [death] resulted from the defendant’s conduct.]

The word “knowingly” as used in these instructions means that the act was done voluntarily

and intentionally, not because of mistake or accident.

The word “willfully” as used in these instructions means that the act was committed

voluntarily and purposefully, with the specific intent to do something that the law forbids; that is

to say, with bad purpose either to disobey or disregard the law.

A “scheme or artifice” means any plan, pattern, or course of action involving a false or

fraudulent pretense, representation, or promise intended to deceive others in order to obtain

something of value, such as money, from the institution to be deceived.

A “health care benefit program” is defined as “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 who is providing a medical benefit, item, or

service, for which payment may be made under the plan or contract.”

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A defendant acts with the requisite “intent to defraud” if the defendant acted knowingly

and with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to

another or bringing about some financial gain to the defendant.

The government does not have to prove that the defendant had actual knowledge of the

applicable health care fraud statute or a specific intent to violate it.

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 is also “false” when it constitutes a half -truth, or

effectively omits or conceals a material fact, provided it is made with the intent to defraud.

A false representation is “material” if it has a natural tendency to influence, or is capable

of influencing, the institution to which it is addressed.

“Affecting commerce” means that there is any effect at all on interstate or foreign

commerce, however minimal.

“Interstate commerce” means commerce or travel between one state, territory, or

possession of the United States and an other state, territory, or possession of the United States,

including the District of Columbia. “Commerce” includes travel, trade, transportation, and

communication. Only a minimal effect is required in order to show that the health care benefits

program “affected interstate commerce.” Proof that the money obtained through execution of the

scheme was paid through a financial institution insured by the FDIC, for example, is sufficient to

establish that the activity “affected interstate commerce.”

[“Serious bodily injury” means bodily injury which involves a substantial risk of death,

extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of

the function of a bodily member, organ, or mental faculty.]

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

concerning the precise nature of the alleged scheme, or that the alleged scheme actually succeeded

in defrauding someone. What must be proven beyond a reasonable dou bt is that the accused

knowingly executed or attempted to execute a scheme that was substantially similar to the scheme

alleged in the indictment.