In a case that is being closely watched by federal criminal defense attorneys, the Eleventh Circuit vacated its prior opinion in a federal fraud case. In the initial opinion, the Court concluded that the pattern jury instruction for federal mail fraud cases is deficient in that it fails to require the Government to prove that the defendant intended to create a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. According to the Court, this burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud. For this reason, the Court vacated the defendants’ convictions on the mail fraud charges.
Earlier today, however, the Court entered an Order vacating its prior opinion and directing that the case be reheard by the entire Court. Although today’s Order did not identify the issues that Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue will in fact be the focus.
Our firm has been following this case very closely. In fact, shortly after the initial decision was handed down, my law partner Paul Kish outlined the significance of the decision in a previous post. As he pointed out, the decision had the potential to impact a whole host of other cases, including those that involved other varieties of alleged fraud. We will certainly continue to follow the case, as it develops.