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823. Intent

Section 1005 of Title 18, United States Code, requires a specific intent to defraud as an element of the offense. See United States v. Pollack, 503 F.2d 87, 91 (9th Cir. 1974). see also Harrison v. United States, 279 F.2d 19, 23 (5th Cir.), cert. denied, 364 U.S. 864 (1960). It is not essential, however, that the indictment allege a specific intent to defraud as long as it tracks the statutory language. See United States v. Fusaro, 708 F.2d 17, 23 (1st Cir.), cert. denied, 464 U.S. 1007 (1983). However, a showing of "recklessness" alone is not a sufficient showing of intent. United States v. Adamson, 665 F.2d 649, 657 (5th Cir. 1982), rev'd on other grounds, 700 F.2d 953 (5th Cir. 1983)(en banc), cert. denied, U.S. 464 U.S. 833 (1983).

Three criminal intents are expressed disjunctively in 18 U.S.C. §§ 1005 and 1006: the intent to injure, the intent to defraud or the intent to deceive. It is sufficient to prove any one of the intents though all are cumulatively charged in the indictment.

It is not necessary that actual damages be shown in order to constitute fraud. See Baiocchi v. United States, 333 F.2d 32 (5th Cir. 1964); Harrison v. United States, 279 F.2d 19 (5th Cir.), cert. denied, 364 U.S. 864 (1960). The fact that a false entry was made is prima facie evidence of intent to defraud. See Phillips v. United States, 218 F.2d 385 (9th Cir. 1935).

[cited in USAM 9-40.000]

Updated December 18, 2015