Fill and Sign the Jury Instruction Mail Fraud Depriving Another of Intangible Right of Honest Services Form

41.2 Mail Fraud Depriving Another Of Intangible Right Of Honest Services 18 USC §§ 1341 and 1346 Title 18, United States Code, Sections 1341 and 1346, make it a Federal crime or offense for anyone to use the United States mails in carrying out a scheme to fraudulently deprive another of an intangible right of honest services. The Defendant can be found guilt y of that offense only if all of the following facts are proved beyond a reasonable doubt: First: That the Defendant knowingly devised or participated in a scheme to fraudulently deprive another of the intangible right of honest services, as charged; Second: That the Defendant did so willfully with an intent to defraud; and Third: That the Defendant used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing f or t he purpose of executing the scheme to defraud. The word " scheme" includes any plan or course of action intended to deceive or cheat someone; and to act with " intent to defraud" means to act knowingly and with the specific intent to deceive someone, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self. To " deprive another of the intangible right of honest services" means to violate, or to cause an employee or agent of another person to violate, the employee' s or agent' s duty to provide honest services to the employer. Under the law, every agent or employee representing or working for someone else - - the employer - - has a duty to act honestly and faithfully in all of his or her dealings with the employer, and to transact business in the best interest of the employer, including a duty to make full and fair disclosure to the employer of any personal interest or profit [or " kickback"] the employee expects to derive or has derived from any transaction in which he or she participates in the course of the employment. [A " kickback" includes any kind of undisclosed payment or reward to an employee for dealing in the course of employment with the person making the payment so that the employee' s personal financial interest interferes with the employee's duty to secure the most favorable bargain for the employer.] It is not necessary that t he Government prove all of the details alleged in the indictment concerning the precise nature and purpose of the scheme; or that the material mailed was itself false or fraudulent ; or that the alleged scheme actually succeeded in defrauding anyone or that the use of the mail was intended as the specific or exclusive means of accomplishing the alleged fraud; or that the Defendant did the actual mailing. What must be proved beyond a reasonable doubt is that the Defendant, wit h t he specific intent to defraud, knowingly devised, intended t o devise, or participated in, a scheme to defraud substantially the same as the one alleged in the indictment; and that the use of the United States mail w as closely related to the scheme because the Defendant either mailed something or caused it to be mailed in an attempt to execute or carry out the scheme. To " cause" the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary course of business or where such use can reasonably be foreseen. Each separate use of the mails in furtherance of a scheme to defraud constitutes a separate offense. ANNOTATIONS AND COMMENTS 18 USC § 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . f or the purpose of executing such scheme or art if ice or attempting so t o do, places in any post off ice or authorized depository for mail matter, any matter or thing w hat ever to be sent or delivered by t he Postal Service [shall be guilt y of an offense against t he law s of t he United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. 18 USC § 1346 provides: For the purposes of this chapter, the term " scheme or art if ice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.