8.125 BANK FRAUD—SCHEME TO DEFRAUD BANK (18 U.S.C. § 1344(1))
The defendant is charged in [Count _______ of] the indictment with bank fraud in violation of Section 1344(1) 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 beyond a reasonable doubt:
First, the defendant knowingly executed a scheme to defraud a financial institution as to a material matter;
Second, the defendant did so with the intent to defraud the financial institution; and
Third, the financial institution was insured by the Federal Deposit Insurance Corporation.
The phrase "scheme to defraud" means any deliberate plan of action or course of conduct by which someone intends to deceive, cheat, or deprive a financial institution of something of value. It is not necessary for the government to prove that a financial institution was the only or sole victim of the scheme to defraud. It is also not necessary for the government to prove that the defendant was actually successful in defrauding any financial institution. Finally, it is not necessary for the government to prove that any financial institution lost any money or property as a result of the scheme to defraud.
An intent to defraud is an intent to deceive or cheat.
Much of the language in this instruction is taken from the instructions approved in United States v. Shaw, 781 F.3d 1130 (9th Cir.2015). When the scheme or artifice to defraud is a scheme or artifice to deprive another of the intangible right to honest services under 18 U.S.C. § 1346, use Instruction 8.126 (Bank Fraud—Scheme to Deprive Bank of Intangible Right of Honest Services).
In a prosecution under 18 U.S.C. § 1344(1), the government is not required to prove that the defendant intended the bank to suffer a financial loss. See Shaw, 781 F.3d at 1135 (rejecting defendant’s argument that because intended victims were PayPal and individual’s bank account, defendant lacked requisite intent to defraud bank).