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8.124 Wire Fraud

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8.124 WIRE FRAUD

(18 U.S.C. § 1343)

The defendant is charged in [Count _______ of] the indictment with wire fraud in violation of Section 1343 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, a wire communication 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 wiring is caused when one knows that a wire will be used in the ordinary course of business or when one can reasonably foresee such use.

It need not have been reasonably foreseeable to the defendant that the wire communication would be interstate in nature. Rather, it must have been reasonably foreseeable to the defendant that some wire communication would occur in furtherance of the scheme, and an interstate wire communication must have actually occurred in furtherance of the scheme.

Comment

See also Comment to Instruction 8.121 (Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises). For cases involving wire fraud by deprivation of honest services, see Instruction 8.123 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services).

The only difference between mail fraud and wire fraud is that the former involves the use of the mails and the latter involves the use of wire, radio, or television communication in interstate or foreign commerce. Much of the language of this instruction is taken from the instructions approved in United States v. Jinian, 712 F.3d 1255, 1265-67 (9th Cir.2013).

As with mail fraud, materiality is an essential element of the crime of wire fraud. Neder v. United States, 527 U.S. 1 (1999); United States v. Milovanovic, 678 F.3d 713, 726-27 (9th Cir.2012) (en banc).

In a case involving wire fraud that "affects a financial institution" within the meaning of 18 U.S.C. § 1343, see United States v. Stargell, 738 F.3d 1018, 1022-23 (9th Cir.2013) (defining term "affects").

Approved 2/2014