15.40 Attempted Bank Fraud—Scheme 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.  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].

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

           Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  

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. 

          “To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9^th Cir. 1995)).

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

             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). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). 

Revised May 2023