Recently, the Eleventh Circuit (which is headquartered here in Atlanta, Georgia) identified the issues that it will address in a federal criminal appeal involving the federal mail fraud statute. As both Paul Kish and I have discussed here and here, one of the main issues in the case is whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.
In Paul's previous post, he noted that, initially, the court of appeals concluded that the pattern jury instruction is deficient in that it failed to require the government to prove that the defendant participated in a scheme that was "reasonably calculated to deceive persons of ordinary prudence and comprehension." Therefore, since the pattern instruction failed to include this important language, the Eleventh Circuit reversed the fraud convictions in the Svete case.
Svete's victory, however, was short lived. As I previously discussed, not long after this ruling, the Eleventh Circuit vacated its opinion and ordered that the case be heard by the entire court, rather than just the three judges that sat on the panel. I also noted that although the opinion vacating the initial ruling did not identify the issues that the Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue would in fact be the focus.
Recently, the Court confirmed that it will indeed focus on the jury instruction issue when the case is heard by the entire court. According to a letter recently sent to the parties in the case, the Court will focus on "whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension." In addition, however, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. As noted previously, this is an important case, and one that should be followed closely by attorneys that defend individuals charged with white collar crimes.