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8.128 Attempted Bank Fraud—Scheme to Defraud by False Promises

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8.128 ATTEMPTED BANK FRAUDSCHEME TO DEFRAUD BY FALSE PROMISES (18 U.S.C. § 1344)

The defendant is charged in [Count _______ of] the indictment with attempted bank fraud in violation of Section 1344 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 devised a plan or scheme to obtain money or property from the [specify financial institution] by false promises or statements;

Second, the promises or statements were material; that is, they had a natural tendency to influence, or were capable of influencing, a financial institution to part with money or property;

Third, the defendant acted with the intent to defraud;

Fourth, the defendant did something that was a substantial step toward carrying out the plan or scheme; and

Fifth, [specify financial institution] was federally [chartered] [insured].

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

Comment

In United States v. Molinaro, 11 F.3d 853, 863 (9th Cir.1993), the Ninth Circuit approved the following instruction in a case involving the crime of bank fraud:

You may determine whether a defendant had an honest, good faith belief in the truth of the specific misrepresentations alleged in the indictment in determining whether or not the defendant acted with intent to defraud. However, a defendant's belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime.

The government need not prove the defendant knowingly made false representations directly to a bank. United States v. Cloud, 872 F.2d 846, 851 n.5 (9th Cir.1989).

Materiality is an essential element of the crime of bank fraud. Neder v. United States, 527 U.S. 1 (1999). 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).

For a definition of "financial institution," see 18 U.S.C. § 20.

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).