United States v. Perez-Gorda

In United States v. Perez-Gorda, —- F.4th —-, No. 23-50218 (5th Cir. Sept. 19, 2024), the Fifth Circuit agreed with the defendant that her jury had received incorrect jury instructions on mail and wire fraud, but it affirmed her conviction anyway because she had not objected to the instructions at trial and there was “no reasonable possibility that a jury would have acquitted under the proper instructions.”

Important Takeaway: The Fifth Circuit recently clarified the law regarding federal mail and wire fraud charges. United States v. Greenlaw, 84 F.4th 325, 351 (5th Cir. 2023). As a result, older Pattern Jury Instructions now contain a misstatement of the law as to those charges. The Fifth Circuit Pattern Jury Instructions now reflect the change, but they did not at the time of Perez-Gorda’s trial.

Under 18 U.S.C. §§ 1341 and 1343, the Government must prove that the defendant acted with “specific intent to defraud,” which requires an intent to both “deceive and cheat” someone. Greenlaw, 84 F.4th at 351. Older pattern instructions (and caselaw) indicated that the requirement was disjunctive, so the Government need only prove either an intent to deceive or an intent to cheat.

Result: Unfortunately for Ms. Perez-Gorda, her trial occurred before Greenlaw, and her counsel did not object to the now-incorrect jury instructions. And on appeal, she failed to prove that a correct instruction would have had a reasonable probability of changing the outcome, which is required under plain-error review. Indeed, her counsel only argued that the jury “could” have reached a different result, without attempting to prove a “reasonable probability” of a different result. Regardless, the Fifth Circuit noted evidence that Ms. Perez-Gorda had intended to both deceive and cheat, so she would likely have been convicted even under a correct instruction.

Ms. Perez-Gorda also raised other challenges to her convictions and sentence, but those were all rejected.