July 8, 2008
11th Circuit Grants Rehearing En Banc in Mail Fraud Case
The 11th Circuit Court of Appeals granted a rehearing en banc in a case involving a mail fraud issue. (see here) The initial panel had 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." The panel had also sent the entire case back for re-sentencing as a result of this holding. (see here) The decision to go en banc vacates that ruling, leaving the matter for review by the entire circuit court.
One issue likely to be discussed is the pattern jury instruction, which 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." Should the word "someone" be replaced with language that requires a reasonable person standard? Prior cases emphasize the importance of requiring that the scheme be "intended to deceive or cheat a person of ordinary prudence and comprehension." (see here)
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