949
Proof of Fraudulent Intent
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"The requisite intent under the federal mail and wire fraud
statutes
may be inferred from the totality of the circumstances and need not be
proven by
direct evidence." United States v. Alston, 609 F.2d 531, 538 (D.C.
Cir.
1979), cert. denied, 445 U.S. 918 (1980). Thus, intent can be
inferred
from statements and conduct. United States v. Cusino, 694 F.2d 185,
187
(9th Cir. 1982) (citing United States v. Beecroft, 608 F.2d
753,
757 (9th Cir. 1979)), cert. denied, 461 U.S. 932 (1983). Impression
testimony, that is, testimony of victims as to how they had been misled by
defendants, is admissible to show an intent to defraud. See
Phillips
v. United States, 356 F.2d 297, 307 (9th Cir. 1965), cert.
denied, 384
U.S. 952 (1966). Also consider complaint letters received by defendants as
relevant to the issue of intent to defraud. The inference might be drawn
that,
since the defendant knew victims were being misled by solicitation
literature and
other representations, the continued operation of the business despite this
knowledge showed the existence of a scheme to defraud.
Fraudulent intent is shown if a representation is made with
reckless
indifference to its truth or falsity. Cusino, 694 F.2d at 187. In
addition, "[f]raudulent intent may be inferred from the modus operandi of
the
scheme." United States v. Reid, 533 F.2d 1255, 1264 n. 34 (D.C. Cir.
1976) ("[T]he purpose of the scheme 'must be to injure, which doubtless may
be
inferred when the scheme has such effect as a necessary result of carrying
it
out.") (quoting United States v. Regent Office Supply Co., 421 F.2d
1174,
1180-81 (2d Cir. 1970) (quoting Horman v. United States, 116 F. 350,
352
(6th Cir.), cert. denied, 187 U.S. 641 (1902))). "Of course proof
that
someone was actually victimized by the fraud is good evidence of the
schemer's
intent." Id. (quoting Regent Office Supply Co., 421 F.2d at
1180-81). In United States v. D'Amato, the court explained the
government's burden of proving fraudulent intent as follows:
The scheme to defraud need not have been successful or
complete.
Therefore, the victims of the scheme need not have been injured. However,
the
government must show "that some actual harm or injury was contemplated by
the
schemer." Because the defendant must intend to harm the fraud's victims,
"[m]isrepresentations amounting only to a deceit are insufficient to
maintain a
mail or wire fraud prosecution." "Instead, the deceit must be coupled with
a
contemplated harm to the victim." In many cases, this requirement poses no
additional obstacle for the government. When the "necessary result" of the
actor's scheme is to injure others, fraudulent intent may be inferred from
the
scheme itself. Where the scheme does not cause injury to the alleged victim
as
its necessary result, the government must produce evidence independent of
the
alleged scheme to show the defendant's fraudulent intent.
39 F.3d 1249, 1257 (2d Cir. 1994) (citations and footnote omitted) (holding
that
the government failed to produce legally sufficient evidence of criminal
intent).
[cited in USAM 9-43.100] | |