The 'Ordinary Prudence' Standard in Mail and Wire Fraud Cases

Co-existing with these decisions, however, is another line of authority which holds that to establish the required element of a scheme to defraud, it is necessary for federal prosecutors to prove that the scheme was “reasonably calculated to deceive persons of ordinary prudence and comprehension.” Silverman v. United States, 213 F.2d 405, 407 (5th Cir. 1954). See also, e.g., United States v. Jamieson, 427 F.3d 394, 415-16 (6th Cir. 2005); United States v. Shepard, 396 F.3d 1116, 1124 (10th Cir. 2005); United States v. Goodman, 984 F.2d 235, 240 (8th Cir. 1993).

The widely used pattern jury instructions authored by Judge Leonard Sand and his co-authors likewise define a “scheme to defraud” as a plan or course of action that involves the use of “false or fraudulent pretenses, representations or promises reasonably calculated to deceive persons of average prudence.” See L. Sand, J. Siffert, et al., Modern Federal Jury Instructions: Criminal, Instruction 44-4. This instruction ' which has also been adopted by the Third Circuit ' further defines material facts and statements as those “which would reasonably be expected to be of concern to a reasonable and prudent person ' in making a decision.” The Eighth and Tenth Circuits' pattern jury instructions defining a scheme to defraud also respectively use the “reasonable person” and “ordinary prudence” language, while the Sixth Circuit's pattern instructions use this language when defining a “material” misrepresentation.