Eleventh Circuit Court of Appeals - Published Opinions

Thursday, March 27, 2008

Svete: Mail Fraud Instruction Defective

In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants’ challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits.
Citing U.S. v. Brown, 40 F.3d 1218 (11th Cir. 1994), the Court rejected challenges to the sufficiency of the evidence, pointing out that both defendants had testified in their defense, and that the jury was therefore free to believe of the opposite of their testimony.
The Court, however, agreed that the mail fraud jury instruction was defective because, though directly copied from the Pattern Jury Instruction, it failed to instruct, as the caselaw provided, that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." The inaccuracy impaired the defendants ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. The Court therefore reversed the mail fraud convictions.
The Court rejected Giglio-based challenges to the trial. A prosecution witness lied on the witness stand about not having been previously incarcerated. However, the Court found that the violation was not "material," because the defendant decided not to pursue this line of impeachment, and because other impeachment of the witness was successful, and because this witness’ testimony was otherwise corroborated by other witnesses.
Finally, the Court rejected the challenge to the determination of a loss over $80 million for sentencing purposes.