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United States v. Wecht

January 22, 2008

UNITED STATES OF AMERICA
v.
CYRIL H. WECHT



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

ORDER OF COURT REGARDING DEFENDANT'S NOTICE OF OBJECTIONS/ COMMENTS (DOC. NO. 676) TO RECENT COURT ORDER, PRELIMINARY JURY INSTRUCTIONS, AND FINAL JURY SELECTION AND VOIR DIRE PROCEDURE (DOCS. NO. 671, 672 AND 673, RESPECTIVELY)

Before the Court are the defendant's "Notice of Objections/ Comments to Revised Preliminary Jury Instructions (Doc. 672); Final Jury Selection and Voir Dire Procedure (Doc. 673); and Order Regarding Notice of Issues/Objections (Doc. 671)" (doc. no. 676), and the government's Notice ("Government's Request to Delete, or Alternatively to Add Language to, Proposed Preliminary Materiality Instruction") (doc. no. 677). The Court finds that it is not necessary to order responses to these Notices, and will make the following rulings.

Preliminary Jury Instructions Regarding Materiality

Defendant and the government each object to the Court's preliminary jury instruction as to materiality in the instructions on mail and wire fraud. Both parties request this Court to inform the jury that an element of mail and wire fraud includes concealment of a material fact, although they suggest different, but similar, language to convey this principle. The Court agrees that the Revised Preliminary Jury Instructions (doc. no. 672) should have included language about omissions or concealment of material facts, and will substitute the following preliminary jury instructions, with additions underscored, for the corresponding instructions at pp. 17-19 of the Revised Preliminary Jury Instructions (doc. no. 672):

Mail Fraud -- Elements of the Offense

The indictment charges the defendant with simple mail fraud, and "theft of honest services" mail fraud, in violation of title 18 United States Code section 1341 and section 2.

In order to find the defendant guilty of these offenses, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That defendant knowingly devised a scheme to defraud or to obtain money or property, or the intangible right of honest services, by materially false or fraudulent pretenses, representations or promises, or by omissions or concealment of material facts, or that he wilfully participated in such a scheme with knowledge of its fraudulent nature;

Second: That defendant acted with the intent to defraud; and Third: That in advancing, furthering, or carrying out the scheme, defendant used the mails or caused the mails to be used.

Wire Fraud -- Elements of the Offense

The indictment also charges Dr. Wecht with simple wire fraud and "theft of honest services" wire fraud, in violation of title 18 United States Code section 1343 and section 2. The elements of wire fraud are similar to the elements of mail fraud.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That Dr. Wecht devised a scheme to defraud or to obtain money or property, or the intangible right of honest services, by materially false or fraudulent pretenses, representations or promises, or by omissions or concealment of material facts, or wilfully ...


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