Wednesday, December 3, 2014

Seventh Circuit Finds Error in Mail Fraud Jury Instruction -- Remands for Retrial

Before the government can obtain a mail fraud conviction (18 U.S.C. § 1341), it must prove, among other things that the defendant knowingly devised or participated in a scheme to defraud or to obtain money or property by means of false pretenses.  A defendant can be innocent of mail fraud even though he devised or participate in a scheme in which he used false pretenses to deprive a victim of something of value – so long as that something of value was not property of money.  A recent Seventh Circuit case illustrates the point.  In this case, the district court instructed the jury that the government could prove this element by demonstrating beyond a reasonable doubt that the defendant had participated in a scheme to cause the state of Indiana to issue car titles and license plates by falsely representing that the purchasers had car insurance as required by law.  That instruction was reversible error since causing a state to issue a car title or license plate does not deprive it of any money or property.  The court remanded for a retrial on this count since there was evidence that the defendants had deprived the state of tax money by underreporting sales prices.  A new trial was necessary, because on the current record is was impossible to determine whether the jury convicted the defendant on a valid legal theory.  United States v. Borrero,2014 WL 5841263 (7th Cir. Nov. 12, 2014)

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