Chicago Sun-Times
Inside the Rod Blagojevich investigation and related cases

#Blagojevich jury sends note with question on instructions involving 10 wire fraud counts

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Reporting with Natasha Korecki

Jurors have sent a note asking for clarification on a jury instruction involving 10 of the 20 counts against former governor Rod Blagojevich.

They specifically asked about the third part of the instruction which says: "Third, that the scheme to defraud involved a materially false and fraudulent pretense, representation, promise, or concealment."

That's interesting, because to find Blagojevich guilty of wire fraud, jurors must find that the government has proven, beyond a reasonable doubt, all four elements of wire fraud -- including the third proposition that they are asking about.

(Click here to read the proposed jury instructions.)

Blagojevich is charged with 10 counts of wire fraud, nearly all having to do with the Senate seat. The jury instruction in question is about one-third of the way through the 70 or so pages they received.

The jurors will get a note back asking them to further clarify what specifically in that sentence they want detailed.

The note from Judge James Zagel tells the panel of 11 women and one man to review all of the instructions again. Then he said, if still necessary, jurors should specify which part of that phrase they want clarified. He told the lawyers in the parties to stay nearby -- and encouraged them to visit a library -- so if and when jurors want further clarification, it can be offered.

This is the instruction that jurors are reviewing:

Counts 1 through 10 of the indictment charge the defendant with wire fraud.
To sustain the charge of wire fraud, as charged in Counts 1 through 10, the government must prove the following propositions beyond a reasonable doubt: First, that the defendant knowingly devised or participated in a scheme to defraud the public of its right to the honest services of Rod Blagojevich or John Harris by demanding, soliciting, seeking, asking for, or agreeing to accept, a bribe in the manner described in the particular Count you are considering;

Second, that the defendant did so with the intent to defraud;

Third, that the scheme to defraud involved a materially false and fraudulent pretense, representation, promise, or concealment; and

Fourth, that for the purpose of carrying out the scheme or attempting to do so, the defendant used or caused the use of interstate wire communications to take place in the manner charged in the particular Count you are considering.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty of the particular count you are considering. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty of the particular count you are considering.

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5 Comments

It refers to defauding the citizen of Illinois of honest services.

"The wire fraud statutes criminalize the fraudelent acts undertaken to secure illicit gains, not their ultimate successes." See US vs Lupton, 620 F.3d 790

On reading through the proposed jury insructions and reading the wire fraud statute USC Title 18, Section 1343 I cannot reconcile the following:

Is there something wrong with the third element of wire fraud jury instructions? Statute USC Title 18 Section 1343 has two either or conditions:

a. Whoever, having devised or intending to devise any scheme or artifice to defraud,

or

b. scheme for ‘obtaining money or property by means of false or fraudulent pretenses, representations, or promises’

Proposed instructions only had the second condition “that the scheme to defraud involved a materially false and fraudulent pretense, representation, promise, or concealment” which, if I were a jury member, I will find hard to apply in this case; whereas, application of the first from the above two conditions will be obvious from the evidence and Definition in Section 1346.

Section 1343. Fraud by wire, radio, or television

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, transmits…….

Section 1346. Definition of “scheme or artifice to defraud”

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

How does third element of the Wire Fraud apply to Blago's conversation with his associates? His communication with them did not defraud them of anything since he was not asking them to give him anything on a false pretense, representation, promise or concealment. The recepient of the communication has to be defrauded - like a tour fleecinfg money from some one on false promise. No wonder the jury is having trouble with this element. Charge is defrauding the public but the communication as evidence is between his associates where there is no misrepresentation or promise from him to his associates.

I can understand if the charge is conspiring to defraud the public but wire fraud - how?

May be some one can explain how a layman is to apply element 3 of wire fraud in this case.

Element 3:
scheme to defraud involved a materially false and fraudulent pretense, representation, promise, or concealment
4u4cv4

How does third element of the Wire Fraud apply to Blago's conversation with his associates? His communication with them did not defraud them of anything since he was not asking them to give him anything on a false pretense, representation, promise or concealment. The recepient of the communication has to be defrauded - like a tout fleecinfg money from some one on false promise. No wonder the jury is having trouble with this element. Charge is defrauding the public but the communication as evidence is between his associates where there is no misrepresentation or promise from him to his associates.

I can understand if the charge is conspiring to defraud the public but wire fraud - how?

May be some one can explain how a layman is to apply element 3 of wire fraud in this case.

Element 3:
scheme to defraud involved a materially false and fraudulent pretense, representation, promise, or concealment

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This page contains a single entry by Lark Turner published on June 16, 2011 12:28 PM.

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