March 26, 2008
11th Circuit Pattern Jury Instruction for Mail Fraud Has Problems
The Eleventh Circuit Court of Appeals in United States v. Svete reversed and remanded 5 counts in a case where the defendants were "convicted of conspiracy, mail fraud, money laundering, and interstate transportation of money obtained by fraud, all charges being related to their dealings with viaticals." Additionally, the court sent the entire case back for resentencing as a result of this holding. The court stated:
"In this Circuit, mail fraud requires the government to prove that the defendant intended to create a scheme 'reasonably calculated to deceive persons of ordinary prudence and comprehension.' . . .This burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud. Pattern Instruction 50.1 merely states that a 'scheme to defraud' is 'any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.' Pattern Jury Instructions (Criminal Cases), No. 50.1 (11th Cir. Jud. Council 2003 rev.) (Mail Fraud). Because the definition does not include the reasonable person standard as articulated in Brown, Pattern Instruction 50.1 is deficient. (some citations omitted)."
(esp)(w/ congratulations to Attorney Peter Goldberger)
Addendum - July, 2008 - The 11th Circuit vacates this decision for en banc review. (see here)
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