6th Cir. Pattern Crim. Jury Instr. 10.02

(1) Count ___ of the indictment charges the defendant with wire fraud. For you to find the defendant guilty of wire fraud, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First, that the defendant [knowingly participated in] [devised] [intended to devise] a scheme to defraud in order to deprive another of money or property, that is ________________ [describe scheme from indictment];

(B) Second, that the scheme included a material misrepresentation or concealment of a material fact;

(C) Third, that the defendant had the intent to defraud; and

(D) Fourth, that the defendant [used wire, radio or television communications] [caused another to use wire, radio or television communications] in interstate [foreign] commerce in furtherance of the scheme.

(2) Now I will give you more detailed instructions on some of these terms.

(A) A “scheme to defraud” includes any plan or course of action by which someone intends to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.

(B) The term “false or fraudulent pretenses, representations or promises” means any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to their truth. They include actual, direct false statements as well as half-truths and the knowing concealment of material facts.

(C) An act is “knowingly” done if done voluntarily and not because of mistake or some other innocent reason.

(D) A misrepresentation or concealment is “material” if it has a natural tendency to influence or is capable of influencing the decision of a person of ordinary prudence and comprehension.

(E) To act with “intent to defraud” means to act with an intent to deceive or cheat for the purpose of depriving another of money or property.

(F) To “cause” wire, radio or television communications to be used is to do an act with knowledge that the use of the communications will follow in the ordinary course of business or where such use can reasonably be foreseen.

(G) The term “interstate [foreign] commerce” includes wire, radio or television communications which crossed a state line.

(3) [It is not necessary that the government prove [all of the details alleged concerning the precise nature and purpose of the scheme] [that the material transmitted by wire, radio or television communications was itself false or fraudulent] [that the alleged scheme actually succeeded in defrauding anyone] [that the use of the wire, radio or television communications was intended as the specific or exclusive means of accomplishing the alleged fraud] [that someone relied on the misrepresentation or false statement] [that the defendant obtained money or property for his own benefit].]

(4) If you are convinced that the government has proved all of the elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of the elements, then you must find the defendant not guilty of this charge.

Use Note

If the prosecution is based on a violation of § 1343 that relates to a major disaster or affects a financial institution, the maximum penalty is increased; the court should modify the instruction and consider using special verdict forms like those included with Instructions 14.07(A) and (B).

If the prosecution is based on a violation of § 1343 in connection with telemarketing, the maximum penalty is increased under 18 U.S.C. § 2326. Because the jury must unanimously agree on any fact (other than a prior conviction) that increases the maximum penalty, the telemarketing must be proved to the jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000). In this situation, the Committee recommends that the court give an instruction like Instruction 14.07(A) or (B) and use a special verdict form like those following Instructions 14.07(A) and (B).

In paragraph (2)(D), the word “person” should be replaced with entity or corporation or agency if the facts warrant. Also, if the prosecution’s theory of fraud is based on concealment of required reports, the court should consider instructing that a failure to file required reports may be a material omission. This provision is discussed in the commentary below.

The provisions of paragraph (3) should be used only if relevant.

See also Instruction 2.09 Deliberate Ignorance.

If there is any evidence at all of good faith, the court should refer to Instruction 10.04 Fraud – Good Faith Defense.

Brackets indicate options for the court. Brackets with italics are notes to the court.

Committee Commentary Instruction 10.02

(current through May 29, 2026)

The wire fraud statute provides:

18 U.S.C. § 1343 Fraud by wire, radio, or television

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $ 1,000,000 or imprisoned not more than 30 years, or both.

This instruction does not cover wire fraud based on a deprivation of the intangible right to honest services as provided in 18 U.S.C. § 1346.

The wire fraud statute was modeled after the mail fraud statute, and therefore the same analysis should be used for both. Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987); United States v. Kennedy, 714 F.3d 951, 958 (6th Cir. 2013) (citing United States v. Bibby, 752 F.2d 1116, 1126 (6th Cir. 1985)). “The wire fraud statutory language should be interpreted with the same breadth as the analogous language in the mail fraud statute.” Hofstetter v. Fletcher, 905 F.2d 897, 902 (6th Cir. 1988). The only difference in the two offenses is the jurisdictional element.

The elements of wire fraud in paragraph (1) are based on the statute and case law. In paragraph (1)(A), the terms “devised,” “intended to devise” and “scheme to defraud” are drawn from the statute. The term “knowingly participated in” is based on United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003); United States v. Gold Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999); United States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998); and United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997). This term is discussed further below. The phrase “deprive another of money or property” is based on numerous Supreme Court and Sixth Circuit cases. In the Supreme Court, see Ciminelli v. United States, 143 S. Ct. 1121, 1124 (2023) (holding that the “right to control” theory is not a valid basis for mail and wire fraud liability because potentially valuable economic information necessary to make discretionary economic decisions is not a traditional property interest); Cleveland v. United States, 121 S. Ct. 365, 379 (2000) (quoting McNally v. United States, 107 S. Ct. 2875, 2880 (1987)); and Carpenter v. United States, 108 S. Ct. 316, 321 (1987). In the Sixth Circuit, see, e.g., United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019) (quoting United States v. Faulkenberry, 614 F.3d 573, 580-81 (6th Cir. 2010)); and United States v. Kennedy, 714 F.3d 951, 957-58 (6th Cir. 2013). This phrase requiring “money or property” is discussed further below.

In paragraph (1)(B), the element that the scheme included a material misrepresentation or concealment is based on Neder v. United States, 527 U.S. 1, 16 (1999) (quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)) and Maddux, 917 F.3d 437, 448 (6th Cir. 2019).

In paragraph (1)(C), the element that the defendant had the “intent to defraud” is drawn from United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003) (referring to “the requisite intent to defraud”); United States v. Gold Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999); United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997); United States v. Smith, 39 F.3d 119, 122 (6th Cir. 1994); and United States v. Stull, 743 F.2d 439, 442 (6th Cir. 1984).

In paragraph (1)(D), the phrase “wire, radio or television communications” is drawn from the statute. Some Sixth Circuit cases use the term “electronic communications,” see, e.g., United States v. Daniel, 329 F.3d 480, 489 (6th Cir. 2003); VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696, 701 (6th Cir. 2000), overruled on other grounds, Bridge v. Phoenix Bond & Indemnity Co., 128 S.Ct. 2131 (2008); United States v. Smith, 39 F.3d 119, 122 (6th Cir. 1994).

The definition of “scheme to defraud” in paragraph (2)(A) was quoted with approval in United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019) (quoting United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010)). In United States v. Daniel, 329 F.3d 480, 486 (6th Cir. 2003), the court elaborated, “The scheme to defraud element required under 18 U.S.C. § 1341 is not defined according to a technical standard. The standard is a ‘reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.’” Daniel, id. (cleaned up), quoting United States v. Van Dyke, 605 F.2d 220, 225 (6th Cir. 1979). A pyramid scheme is a scheme to defraud. See United States v. Gold Unlimited, Inc., 177 F.3d 472, 484-85 (6th Cir. 1999).

In paragraph (2)(B), the definition of “false or fraudulent pretenses, representations or promises” is supported by United States v. Maddux, 917 F.3d 437, 443-444 (6th Cir. 2019) citing United States v. Kurlemann, 736 F.3d 439, 445, 446 (6th Cir. 2013). The Kurlemann court quoted the complete definition in paragraph (2)(B) with approval for the offense of mail fraud in a case based on false statements to a lending institution under § 1014. See Kurlemann at 449. The phrase “reckless indifference to the [] truth” in the instruction is further supported by Kennedy, 714 F.3d at 958 (“The government met the mail- and wire-fraud statutes' intent requirements through proof that K. Kennedy was reckless in his disregard for the truth of the statements that he made to victims to obtain their money.”) (citations omitted). The reference to

“concealment of material facts” at the end of paragraph (2)(B) is supported by Maddux, where the court stated that, “Specifically, for purposes of the fraud statutes, fraudulent pretenses or representations can include ‘concealment’ – where one says nothing ‘but has a duty to speak.’ ” Maddux at 443-444, quoting Kurlemann and citing, inter alia, Pasquantino v. United States, 544 U.S. 349, 357 (2005) and United States v. Perry, 757 F.3d 166, 176 (4th Cir. 2014)). The Maddux court concluded that the indictment sufficiently alleged a conspiracy to commit mail and wire fraud where it alleged the defendants had a duty to file reports under the Jenkins Act, 15 U.S.C. §§ 376(a) and 377, and failed to do so. Maddux at 441, 444, 445.

The definition of “knowingly” in paragraph (2)(C) (“An act is done knowingly if it is done voluntarily and not because of mistake or some other innocent reason.”) is drawn from the jury instructions given in United States v. McGuire, 744 F.2d 1197, 1201 (6th Cir. 1984) with one modification. The full definition of knowingly in McGuire stated, “An act is ‘knowingly’ done if done voluntarily and intentionally, and not because of mistake or some other innocent reason.” (emphasis added). This instruction on wire fraud deletes the italicized words referring to “intentionally” to avoid confusion with the mens rea element of intent to defraud stated in paragraph (1)(C). Another possible definition of knowingly is, “An act is done knowingly if it is done with awareness, understanding or consciousness.” See Arthur Andersen v. United States, 125 S.Ct. 2129, 2135-36 (2005) (“‘[K]nowledge’ and ‘knowingly’ are normally associated with awareness, understanding, or consciousness.”) (citations omitted) (construing term “knowingly” in 18 U.S.C. § 1512).

In paragraph (2)(D), the definition of “material” is based on Neder v. United States, 527 U.S. 1, 16 (1999) (quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)) and Maddux, 917 F.3d at 448 (characterizing this definition as “fine”). The definition of materiality for concealment cases is discussed further below.

The “intent to defraud” definition in paragraph (2)(E) requires the defendant to intend both to deceive or cheat another and to deprive him of money or property. The “intent to deprive” another of money or property is, as noted above, based on many Supreme Court and Sixth Circuit cases. Supreme Court cases include Cleveland v. United States, 121 S. Ct. 365, 379 (2000) (“Reviewing the history of § 1341, we concluded that ‘the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.’”) (quoting McNally v. United States, 107 S.Ct. 2875, 2880 (1987)); Carpenter v. United States, 108 S. Ct. 316, 321 (1987) (“Sections 1341 and 1343 reach any scheme to deprive another of money or property . . . .”); see also Shaw v. United States, 137 S. Ct. 462, 469 (2016) (construing the phrase “scheme to defraud” in the bank fraud statute, § 1344(1) and stating, “The parties agree, as do we, that the scheme must be one to deceive the bank and deprive it of something of value.”).

Numerous Sixth Circuit cases also identify the intent to “deprive” another of money or property as an element of wire fraud. See United States v. Turner, 465 F.3d 667, 680 and note 18 (6th Cir. 2006) (mail fraud requires “intent to deprive a victim of money or property”); United States v. Jamieson, 427 F.3d 394, 402 (6th Cir. 2005) (scheme to defraud includes depriving someone else of money); United States v. Daniel, 329 F.3d 480, 485-486, 488 (6th Cir. 2003) (scheme to defraud includes any plan to deprive another of money or property) (quoting Gold Unlimited, Inc., 177 F.3d 472, 479 (6th Cir. 1999)); and United States v. Prince, 214 F.3d 740, 747-748 (6th Cir. 2000) (intent to deprive a victim of money or property is an element of wire fraud) (citing United States v. Merklinger, 16 F.3d 670, 678 (6th Cir. 1994) and United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990)).

The mail and wire fraud statutes criminalize only schemes to deprive people of “traditional property interests.” See Ciminelli v. United States, 143 S. Ct. 1121, 1124 (2023) (holding that the “right to control” theory is not a valid basis for mail and wire fraud liability because potentially valuable economic information necessary to make discretionary economic decisions is not a traditional property interest); see also the Supreme Court cases cited supra. As the Court noted in Ciminelli, this limit on liability to deprivations of money or property had been the law in the Sixth Circuit since 2014. See Ciminelli, 143 S. Ct. at 1127 note 3 (identifying two circuits which had expressly repudiated the right-to-control theory and citing United States v. Sadler, 750 F.3d 585, 590-592 (6th Cir. 2014), abrogated on other grounds, Kousisis v. United States, 2025 WL 1459593)). See also Maddux, 917 F.3d at 443 (6th Cir. 2019) (quoting United States v. Faulkenberry, 614 F.3d 573, 580-81 (6th Cir. 2010)); and U.S. v. Kennedy, 714 F.3d 951, 957-58 (6th Cir. 2013) (same). The instruction includes this limit to traditional property interests in several paragraphs by requiring “money or property,” see paragraphs (1)(A), (2)(A) and (2)(E).

The Sixth Circuit noted the requirement of the intent to “deprive” another of money or property in Maddux, 917 F.3d at 443 (6th Cir. 2019) (quoting United States v. Faulkenberry, 614 F.3d 573, 580-81 (6th Cir. 2010)); see also U.S. v. Kennedy, 714 F.3d 951, 957-58 (6th Cir. 2013) (same). But cf. Kousisis v. United States, 2025 WL 1459593 (May 22, 2025) (holding that a defendant violates the wire fraud statute by scheming to obtain a victim’s money or property regardless of whether he seeks to leave the victim economically worse off, resolving a circuit split and abrogating United States v. Sadler, 750 F.3d 585 (6th Cir. 2014)).

In describing the intent to defraud, the court has sometimes referred to the mens rea as the “specific” intent to defraud, see, e.g., Daniel, 329 F.3d at 487; Frost, 125 F.3d at 354 (“A defendant does not commit mail fraud unless he possesses the specific intent to deceive or defraud . . . .”); United States v. Smith, 39 F.3d 119, 121-22 (6th Cir. 1994). The instruction omits the word “specific.” See also Committee Commentary to Instruction 2.07 Specific Intent.

The definition of “cause” in paragraph (2)(F) is based on Frost, 125 F.3d at 354 (citing United States v. Oldfield, 859 F.2d 392, 400 (6th Cir. 1988)).

Paragraph (3) lists some but not all items the government is not required to prove. Many pattern instructions include such a provision. This language is patterned after First Circuit Instruction 4.12; Fifth Circuit Instruction 2.59; Eighth Circuit Instruction 6.18.1341; and Eleventh Circuit Instruction 50.1. These provisions should be used only if relevant. The final bracketed provision, that the government need not prove that the defendant obtained money or property for his own benefit, is based on United States v. Kennedy, 714 F.3d 951, 958 (6th Cir. 2013).

In paragraph (1)(A), the instruction provides that the defendant must have devised, intended to devise, or “knowingly participated” in a scheme to defraud. For participation, Sixth Circuit cases often describe the mental state as “knowing.” See United States v. Sadler, 750 F.3d 585, 590 (6th Cir. 2014) (“the government had to prove [defendant] knowingly used an interstate wire communication”), abrogated on other grounds, Kousisis v. United States, 2025 WL 1459593); United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003) (“defendant must knowingly make a material misrepresentation or knowingly omit a material fact”); United States v. Gold Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999) (“defendant knowingly devised a scheme to defraud . . . with the intent to defraud”); United States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998) (“defendant must knowingly make a material misrepresentation or knowingly omit a material fact”); United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997) (it is a crime to “knowingly devise” a scheme to defraud; a scheme to defraud includes “knowing concealment of facts and information done with the intent to defraud”).

In contrast, some Sixth Circuit authority provides that the participation must be “willful.” See United States v. Maddux, 917 F.3d 437, 443 (6th Cir. 2019) (defendant “willfully participated in a scheme to defraud”); United States v. Kennedy, 714 F.3d 951, 957 (6th Cir. 2013) (same); United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010) (same) (citing United States v. Stull, 743 F.2d 439, 442 (6th Cir. 1984)). The instruction continues to use the term “knowing” rather than “willful” to describe the participation based on the weight of Sixth Circuit authority and to avoid any suggestion that knowledge of illegality is an element of mail fraud.

For the requirement that the scheme to defraud must deprive the victim of “money or property,” in McNally v. United States, 483 U.S. 350 (1987), the Court noted that based on the disjunctive phrasing of the mail fraud statute, which refers to “a scheme to defraud, or for obtaining money or property,” it was arguable that the two phrases should be construed independently. However, the Court then rejected this construction, explaining that the second phrase merely modifies the first. McNally, 483 U.S. at 358-59. In Cleveland v. United States, 531 U.S. 12 (2000), the Court reiterated this interpretation of the statute:

We reaffirm our reading of § 1341 in McNally. . . . Were the Government correct that the second phrase of § 1341 defines a separate offense, the statute would appear to arm federal prosecutors with power to police false statements in an enormous range of submissions to state and local authorities. . . . [W]e decline to attribute to § 1341 a purpose so encompassing where Congress has not made such a design clear.

Cleveland, 531 U.S. at 25-26. Accord, Kelly v. United States, 140 S. Ct. 1565, 1571 (2020) (describing the disjunctive language as a “unitary whole”).

In Neder v. United States, supra at 25, the Court held that materiality is an element of a “scheme or artifice to defraud” under mail, wire and bank fraud. Although this element is not found in a “natural reading” of the statute, the court relied on the rule of construction “‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’”527 U.S. at 21. At common law, the word “fraud” required proof of materiality. Because Congress did not indicate otherwise, the Court presumed that Congress intended to incorporate “materiality.”

The definition of materiality is as follows: “In general, a false statement is material if it has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the decision making body to which it was addressed.’” Neder at 16, quoting Gaudin, 515 U.S. at 509.

In Maddux, 917 F.3d 437, 448-49 (6th Cir. 2019), the court reviewed an instruction defining materiality when the government’s theory of fraud was based on concealment. The instruction provided:

A misrepresentation or concealment is “material” if it has a natural tendency to influence or is capable of influencing the decision of a person of ordinary prudence and comprehension. A material omission, such as a failure to file required reports, may constitute a misrepresentation or concealment under the Mail and Wire Fraud statutes.

The court concluded that, “By all accounts the first sentence of this instruction was fine.” Maddux at 448. As for the second sentence, the court stated it did not rise to the level of plain error but implied that it was error because as a grammatical matter, it “tells the reader that such a failure is always material.” Maddux, id. The court explained, “By way of contrast, the instruction would have been fine if it had said, ‘A failure to file required reports may be a material omission.’ ” Maddux, id. This sentence suggested by the court is identified in the Use Note for cases involving fraud by omission of required reports.

As to whether the fraud must be capable of deceiving persons based on a subjective (“however gullible”) standard or an objective (“person of ordinary prudence”) standard, case law supports the objective standard provided in paragraph (2)(D) of the instruction. See United States v. Petlechkov, 922 F.3d 762, 766 (6th Cir. 2019) (citing United States v. Jamieson, 427 F.3d 394, 415-16 (6th Cir. 2005)).

As to the required connection between the scheme to defraud or obtain property and the use of the wires, the Supreme Court has stated: “The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud . . . .” Schmuck v. United States, 489 U.S. 705, 710 (1989). The Court explained: “To be a part of the execution of the fraud . . . the use of the mails need not be an essential element of the scheme. It is sufficient for the mailing to be ‘incident to an essential part of the scheme,’ or ‘a step in [the] plot.’” Schmuck, 489 U.S. at 710 (internal citations and quotation marks omitted). The Court then stated: “The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the fraud.” Id. at 715.

Intent and knowledge need not be proved directly. Pattern Instruction 2.08 Inferring Required Mental State states this principle and should be given in appropriate cases. In addition, Pattern Instruction 2.09 Deliberate Ignorance explains one approach to proving knowledge.

If the prosecution is based on a violation of § 1343 that relates to a major disaster or affects a financial institution, the maximum penalty is increased. Because the jury must unanimously agree on any fact (other than a prior conviction) that increases the maximum penalty, the major disaster or effect on a financial institution must be proved to the jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000). In this situation, the Committee recommends that the court give an instruction like Instruction 14.07(A) or (B) and use a special verdict form like those following Instructions 14.07(A) and (B). See also 18 U.S.C. § 2326 (maximum penalty increased for violation in connection with telemarketing).

It is also a crime to conspire to violate § 1343. Conspiracy can be charged under either 18 U.S.C. §§ 371 or 1349. The Committee did not draft a separate instruction for conspiracy to commit wire fraud because an instruction may be compiled by combining the wire fraud instruction with the instructions in Chapter 3 Conspiracy with one caveat. Conspiracies under § 371 require an overt act whereas conspiracies under § 1349 do not require an overt act. See United States v. Rogers, 769 F.3d 372, 379-82 (6th Cir. 2014). Thus if the conspiracy to commit wire fraud is charged under § 371, Instruction 3.01A Conspiracy to Commit an Offense (§ 371) – Basic Elements should be used as is, but if the conspiracy is charged based on § 1349, Instruction 3.01A should be modified to omit paragraph (2)(C) on overt acts. All other references to overt acts should be deleted as well.