8.121 MAIL FRAUD—SCHEME TO DEFRAUD OR TO OBTAIN MONEY OR PROPERTY BY FALSE PROMISES
(18 U.S.C. § 1341)
The defendant is charged in [Count _______ of] the indictment with mail fraud in violation of Section 1341 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly [participated in] [devised] [intended to devise] a scheme or plan to defraud, or a scheme or plan for obtaining money or property by means of false or fraudulent pretenses, representations, or promises;
Second, the statements made or facts omitted as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, a person to part with money or property;
Third, the defendant acted with the intent to defraud; that is, the intent to deceive or cheat; and
Fourth, the defendant used, or caused to be used, the mails to carry out or attempt to carry out an essential part of the scheme.
In determining whether a scheme to defraud exists, you may consider not only the defendant’s words and statements, but also the circumstances in which they are used as a whole.
A mailing is caused when one knows that the mails will be used in the ordinary course of business or when one can reasonably foresee such use. It does not matter whether the material mailed was itself false or deceptive so long as the mail was used as a part of the scheme, nor does it matter whether the scheme or plan was successful or that any money or property was obtained.
Use this instruction with respect to a crime charged under the second clause of 18 U.S.C. § 1341.
Much of the language in this instruction is taken from the instructions approved in United States v. Woods, 335 F.3d 993 (9th Cir.2003). Materiality is an essential element of the crime of mail fraud. Neder v. United States, 527 U.S. 1 (1999). Materiality of statements or promises must be established, United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981), but the jury need not unanimously agree that a specific material false statement was made. United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir.2007). Materiality is a question of fact for the jury. United States v. Carpenter, 95 F.3d 773, 776 (9th Cir.1996). The common-law test for materiality in the false-statement statutes, as reflected in the second element of this instruction, is the preferred formulation. United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.2008).
Success of the scheme is immaterial. United States v. Rude, 88 F.3d 1538, 1547 (9th Cir.1996); United States v. Utz, 886 F.2d 1148, 1150-51 (9th Cir.1989).
"[M]ailings designed to avoid detection or responsibility for a fraudulent scheme"—even if sent after the proceeds of the fraud have been obtained—may satisfy the fourth element of the instruction if "they are sent prior to the scheme’s completion." United States v. Tanke, 743 F.3d 1296, 1305 (9th Cir.2014). To determine when the scheme ends, the jury must look to the scope of the scheme as devised by the perpetrator. Id. But allowance must be made for the reality that fraudulent schemes "may evolve over time, contemplate no fixed end date or adapt to changed circumstances." Id. See also Schmuck v. United States, 489 U.S. 705, 712 (1989) (mailing that is "incident to an essential part of the scheme" or "a step in the plot" satisfies mailing element of offense); United States v. Hubbard, 96 F.3d 1223, 1228–29 (9th Cir.1996) (same).
See United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir.2002) (government-issued license does not constitute property for purposes of § 1341).
A charge of mail fraud can be premised on a mailing that, although not sent by the defendant, was "incident to an essential part of the scheme." See United States v. Eglash, No. 14-30132, 2016 WL 625226, at *3 (9th Cir. Feb. 17, 2016) (quoting Schmuck v. United States, 489 U.S. 705, 721 (1989) (affirming conviction for mail fraud premised on Social Security Administration’s mailing of notice of disability award); see also United States v. Brown, 771 F.3d 1149, 1158 (9th Cir. 2014) (affirming conviction for mail fraud based on mailings by bankruptcy court of Notice of Chapter 7 Bankruptcy Case and Notice of Discharge).