United States District Court, N.D. Georgia, Gainesville Division
REPORT AND RECOMMENDATION
J. CLAY FULLER, Magistrate Judge.
This case is before the Court on Defendant Elizabeth Wood's Motion For A Ruling That The Government Must Prove That Ms. Wood Acted Willfully. (Doc. 94). For the reasons discussed below, it is RECOMMENDED that Defendant's motion be DENIED.
Counts One through Twenty-Two of the Superseding Indictment (Doc. 63) charge Defendant, along with co-defendant Stanley J. Kowalewski, with violations of the wire fraud statute, 18 U.S.C. § 1343. The Superseding Indictment charges that between August 2009 until January 2011 Defendants:
knowingly devised and intended to devise a scheme and artifice to defraud, and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, and by omission of material facts, well knowing and having reason to know that said pretenses, representations, and promises were and would be false and fraudulent when made and caused to be made and that said omissions were and would be material.
(Doc. 63 at 1).
Defendant now asks the Court to rule that the Government must prove that she acted "willfully." ( See Doc. 94). The undersigned finds that Defendant's motion should be denied.
In the first place, the wire fraud statute itself does not expressly include "willfully" as an element of that offense:
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 or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 1343. While Defendant contends that the wire fraud statute "does not set forth any particular mens rea requirement, " (Doc. 94 at 2), the Eleventh Circuit has held that "[w]ire fraud is a specific intent' crime, " United States v. Conner, 752 F.2d 566, 574 (11th Cir. 1985), and that specific intent "is the intent to defraud." United States v. Maxwell, 579 F.3d 1282, 1302 (11th Cir. 2009); see also United States v. Bradley, 644 F.3d 1213, 1239 n.58 (11th Cir. 2011) (explaining that the "required mens rea element" for wire fraud is "a conscious knowing intent to defraud'" (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir. 1991))).
Moreover, in setting out the elements the Government must prove to establish wire fraud, the Eleventh Circuit does not include a requirement that the Government must prove that the defendant "acted willfully." Instead, "[t]o establish wire fraud pursuant to § 1343, the government has to prove beyond a reasonable doubt that the defendant: (1) intentionally participated in a scheme to defraud; and (2) used the interstate wires in furtherance of that scheme." United States v. Louis, No. 14-11420, 2015 U.S. App. LEXIS 2478, at *4 (11th Cir. Feb. 19, 2015) (unpublished decision) (citing United States v. Robinson, 493 F.3d 1322, 1331 (11th Cir. 2007)); see also United States v. Derosa, 544 Fed.Appx. 830, 834 (11th Cir. 2013) (unpublished decision) (explaining that the "knowledge and intent elements" of the wire fraud statute "require proof that Derosa (1) knowingly devised or participated in a scheme to defraud someone or obtained money or property using false or fraudulent pretenses, representations, or promises; and (2) intended to defraud someone.").
It is true that, as the parties point out, the Eleventh Circuit's 2003 Pattern Jury Instructions included a wire fraud instruction stating the defendant must have acted "willfully and with an intent to defraud." ( See Doc. 94 at 3-4; Doc. 99 at 3). As both parties acknowledge, however, the 2010 Pattern Instructions state the Government must prove, among other things, that the defendant "knowingly devised or participated in a scheme to defraud" and "acted with an intent to defraud, " and no longer require that the Government prove that the defendant acted "willfully." ( See Doc. 94 at 3-4; Doc. 99 at 5). As the Government notes, the Eleventh Circuit explained why it omitted the term "willfully" from its instructions on certain crimes:
[B]ecause of the developing Supreme Court and Eleventh Circuit case law concerning the definition of the mens rea required for particular crimes, including the movement away from the traditional dichotomy of general and specific intent crimes and the variety of meanings attributed to "willfully" depending on the context of a statute, the Committee recommends the ...