The BIA has long held that a theft-type offense is considered to involve moral turpitude only when an intent to steal, i.e., to permanently deprive the owner of the property, is required as an essential element of the offense.[50]  An intent to deprive the owner only temporarily is insufficient to constitute a crime of moral turpitude.

 

Criminal acts involving intentional dishonesty for the purpose of personal gain are acts involving moral turpitude.[51]  Receiving stolen property, for example, will constitute a crime involving moral turpitude as long as the recipient knew the property was stolen.[52]

 

On the other hand, the BIA has held that an intent to permanently deprive the owner of the property is not an essential element of “theft” for aggravated felony purposes.[53]  The BIA made clear, however, that the definition of “theft” for CMT and aggravated felony purposes was not the same: “An offense involving the taking of property need not be a crime involving moral turpitude in order to be considered a ‘theft’ offense [as an aggravated felony].”[54] 

[50] Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973) (“Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended”).  But see Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (Pennsylvania conviction of retail theft in violation of title 18, § 3929(a)(1) of the Pennsylvania Consolidated Statutes, is a crime involving moral turpitude, even though there is no element requiring specific intent permanently to deprive the owner of the property, because the BIA found it reasonable to assume that the taking was with the intent to retain the merchandise permanently where the elements of the conviction require taking merchandise offered for sale by a store without paying for it and with the intention of depriving the owner of the goods). 

[51] Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892, 78 S.Ct. 265 (1957).

[52] De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. June 11, 2002).

[53] Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000) (a taking of property constitutes a “theft offense” within the definition of an aggravated felony, whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent, and a California conviction for violating Vehicle Code § 10851 constitutes an aggravated felony). 

[54] Id. at n.12 (“We distinguish the present case from our decision in Matter of D, 1 I. & N. Dec. 143 (BIA 1941), where we held that a conviction under a predecessor statute to section 10851 was not a crime involving moral turpitude because the statute in question could include a mere temporary taking, as well as a permanent deprivation of the vehicle. Id. at 145. An offense involving the taking of property need not be a crime involving moral turpitude in order to be considered a “theft” offense. More pertinent to this case, however, is our finding in Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973), that a taking could constitute “theft” even if it did not include the turpitudinous element of intent to permanently deprive the owner of his or her property.  In Grazley, we reviewed section 283 of the Criminal Code of Canada, which provided for a theft conviction whether the taking was permanent or temporary. Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”).

BIA

CRIMES OF MORAL TURPITUDE " THEFT " ATTEMPT
Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (California conviction for grand theft is a crime involving moral turpitude for purposes of triggering deportability under INA 237(a)(2)(A)(ii)).

CRIME OF MORAL TURPITUDE - THEFT - FARE EVASION
Santos-Gonzales v. Reno, 93 F.Supp. 2d 286, 288 n.3 (E.D.N.Y. 2000) (New York conviction of fare evasion, a.k.a. turnstile jumping, when punished under New York Penal Law 165.15(03) (With intent obtains or attempts to obtain [taxi or public transportation] service or avoids or attempts to avoid payment therefor by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay) is a crime of moral turpitude).

First Circuit

CRIMES OF MORAL TURPITUDE " LARCENY
Patel v. Holder, 707 F.3d 77 (1st Cir. Feb. 1, 2013) (Connecticut conviction of fourth degree larceny under Conn. Gen.Stat. 53a"125, is not categorically a crime of moral turpitude because the offense may be committed without intent to permanently deprive).

CRIMES OF MORAL TURPITUDE " THEFT " THEFT OFFENSES INVOLVE MORAL TURPITUDE ONLY IF THEY REQUIRE AN ELEMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER OF THE PROPERTY
Patel v. Holder, 707 F.3d 77, ___ (1st Cir. Feb. 1, 2013) (It is common ground among the parties that theft offenses can meet this definition, and that not all theft offenses do so. As noted above, the BIA generally distinguishes between turpitudinous thefts and their less depraved counterparts by asking whether the defendant intended to permanently deprive the owner of the purloined property.); citing In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).

CRIMES OF MORAL TURPITUDE " LARCENY
Patel v. Holder, 707 F.3d 77 (1st Cir. Feb. 1, 2013) (Connecticut conviction of fourth degree larceny under Conn. Gen.Stat. 53a"125, is not categorically a crime of moral turpitude because the offense may be committed without intent to permanently deprive).

CRIMES OF MORAL TURPITUDE " THEFT " THEFT OFFENSES INVOLVE MORAL TURPITUDE ONLY IF THEY REQUIRE AN ELEMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER OF THE PROPERTY
Patel v. Holder, 707 F.3d 77, ___ (1st Cir. Feb. 1, 2013) (It is common ground among the parties that theft offenses can meet this definition, and that not all theft offenses do so. As noted above, the BIA generally distinguishes between turpitudinous thefts and their less depraved counterparts by asking whether the defendant intended to permanently deprive the owner of the purloined property.); citing In re Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973).

Second Circuit

CRIME OF MORAL TURPITUDE - BURGLARY - ENTRY WITH INTENT TO COMMIT LARCENY REQUIRED FOR BURGLARY CMT
Wala v. Mukasey, ___ F.3d ___ (2d Cir. Dec. 12, 2007) (Connecticut conviction for third-degree burglary, in violation of Conn. Gen.Stat. section 53a-103, did not constitute a crime involving moral turpitude within the meaning of IONA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I), for immigration purposes; although the IJ and BIA properly concluded that Wala pled to a burglary with the intent to commit larceny, it was improper for the BIA to have inferred from the plea colloquy that petitioner intended to commit a larceny offense involving a permanent, rather than a temporary, taking of property).

CRIMES OF MORAL TURPITUDE - LARCENY - ONLY LARCENY REQUIRING INTENT TO PERMANENTLY DEPRIVE CONSTITUTES CMT
Wala v. Mukasey, ___ F.3d ___ (2d Cir. Dec. 12, 2007) (larceny constitutes a crime of moral turpitude only if it requires the intent permanently to deprive: "Under BIA precedent, however, not all larcenies are CIMTs. The BIA has held that "[o]rdinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended."), quoting Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973); see also In re R, 2 I. & N. Dec. 819, 828 (BIA 1947) ("It is settled law that the offense of taking property temporarily does not involve moral turpitude.").

Ninth Circuit

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " taking with intent temporarily to deprive the owner " was not categorically a crime of moral turpitude and does not render respondent ineligible for non-LPR cancellation of removal under 8 U.S.C. 1229b(b) in the context of removal proceedings for inadmissibility); see Castillo-Cruz v. Holder, 581 F.3d 1154, 1159 (9th Cir. 2009) (a theft offense is not categorically a crime of moral turpitude if the statute of conviction is broad enough to criminalize a taking with intent to deprive the owner of his property only temporarily.).

CRIMES OF MORAL TURPITUDE " IDENTITY THEFT
Ibarra-Hernandez v. Holder, 770 F.3d 1280 (9th Cir. Nov. 5, 2014) (Arizona conviction of identity theft, in violation of Arizona Revised Statutes 13-2008(A), is a crime involving moral turpitude, under the modified categorical analysis, since the statute is divisible and the record shows that petitioner stole a real person's identity without their consent for the purpose of obtaining employment, which is inherently fraudulent and involves moral turpitude).

CRIMES OF MORAL TURPITUDE " THEFT OFFENSES " REQUIREMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER AS DISTINGUISHED FROM DEFINITION OF AGGRAVATED FELONY THEFT OFFENSE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.20 (9th Cir. Jul. 7, 2011) (A generic attempted theft offense for CIMT purposes is defined slightly differently than in the aggravated felony context. Whereas the latter, as we noted earlier, requires the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent, Carrillo-Jaime, 572 F.3d at 750 (citation and quotation marks omitted), a permanent taking [must be] intended for a conviction to qualify as a CIMT.); quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omitted).

CRIMES OF MORAL TURPITUDE " BURGLARY " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute a crime of moral turpitude under the categorical or modified categorical analysis: To hold otherwise would mean that someone who did what Hernandez- Cruz admitted doing"walking into a commercial building with the intent to commit larceny"but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT.).

CRIMES OF MORAL TURPITUDE " ROBBERY
Mendoza v. Holder, 623 F.3d 1299 (9th Cir., Oct. 27, 2010) (California conviction of robbery, in violation of Penal Code 211, was a crime involving moral turpitude), deferring to Matter of G-R-, 2 I. & N. Dec. 733, 734 (BIA 1946); Matter of Kim, 17 I. & N. Dec. 144, 145 (BIA 1979)).

CRIME OF MORAL TURPITUDE - SAFE HAVEN - MAIL THEFT
U.S. v. Monday, 614 F.3d 983 (9th Cir. Aug. 2, 2010) (prosecution is not required to prove intent to permanently deprive in order to convict defendant for violation of 18 U.S.C. 1709, theft of mail by postal employee).

CRIMES OF MORAL TURPITUDE - THEFT - RECEIPT OF STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009) (California "conviction for receipt of stolen property under [Penal Code] 496(a) is not categorically a crime of moral turpitude because it does not require an intent to permanently deprive the owner of property. Castillo-Cruz's conviction is not a crime of moral turpitude under the modified categorical analysis, as the government conceded at oral argument that there is no evidence in the record establishing that his offense involved an intent to deprive the owner of possession permanently.").

AGGRAVATED FELONY - THEFT OFFENSE - RECEIVING STOLEN PROPERTY CRIME OF MORAL TURPITUDE - RECEIVING STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009)

There is no inconsistency between Castillo-Cruz v. Holder, 581 F.3d 1154 9th Cir. Sept. 17, 2009), holding a California conviction of receiving stolen property, under Penal Code 496(a), is not categorically a crime of moral turpitude, and Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009), holding that a California conviction for receiving stolen property, under Penal Code 496(a), does qualify as a categorical match as a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)):

In this respect, there is a clear distinction between the standard applied to determine whether a theft offense is an "aggravated felony" and the standard applied to determine whether a theft offense is a "crime of moral turpitude." As we recently held in Verdugo-Gonzalez v. Holder, 06-73733, there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense aggravated felony. See Gonzalez v. Duenas-Alvarez, 549 U.S. at 189 (defining a generic theft offense as "the taking of property or an exercise of control over property ... even if such deprivation is less than total or permanent.") (emphasis added). There cannot however, be a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense crime of moral turpitude. See Matter of Grazley, 14 I. & N. Dec. at 333 ("a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.") (emphasis added). Thus, there is no inconsistency between Verdugo-Gonzalez and our present decision.

Tenth Circuit

CRIME OF MORAL TURPITUDE " THEFT " RETURN OF PROPERTY
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017) (conviction under Westminster, Colo., Municipal Code 6-3-1(A) did not categorically qualify as a crime involving moral turpitude because the statute was divisible, since one portion of the statute " demanding consideration for return of property " did not involve a permanent taking; because it was unclear from the record of conviction whether he committed a CIMT, he did not sustain his burden to prove eligibility for cancellation of removal). NOTE: The court found that Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 849-52 (BIA 2016), expanding what constitutes CMT theft, was prospective only.

Other

CRIMES OF MORAL TURPITUDE " THEFT " DE MINIMIS CONDUCT DOES NOT QUALIFY AS MORAL TURPITUDE
Jordan v. De George, 341 U.S. 223, 231-32, 71 S. Ct. 703, 708 (1951) (We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. . . . Whatever else the phrase crime involving moral turpitude may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. We have recently stated that doubt as to the adequacy of a standard in less obvious cases does not render that standard unconstitutional for vagueness.); Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1069 (9th Cir. 2007) (Judge Pregerson, concurring) (Take the example of a welfare mother who falsely endorses and then cashes a social security check mistakenly issued to her deceased father. The woman knows that she does not have the right to the money. She forges her father's signature. But, she needs money to feed her hungry children. Although such conduct is illegal, it is not base, vile, or depraved.); overruled by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011); Matter of T, 2 I&N Dec 22 ((BIA, A.G. 1944) (Boardmember Jack Wassermans dissent) (It should be noted that if the alien's crime were stretched, without legal warrant, into a petty larceny, the view has been forcefully expressed that not all petty larcenies involve moral turpitude. Lord Bacon said that it is not even larceny to steal viands to satisfy hunger (Bacon, Law Tracts, 2d Ed. (1741) Reg. 5, p. 55). Yet this would generally be considered a crime although the act itself would not indicate moral turpitude. Judge Thomas in U.S. ex rel. Rizzio v. Kenny, 50 F.(2d) 418, 419 (D.C. Conn., 1931) recognized that larceny in some circumstances did not involve moral turpitude. In Tillinghast v. Edmead, 31 F.(2d) 81, 84 (C.C.A.1st, 1929), Judge Anderson said in a dissenting opinion: `It seems to me monstrous to hold that a mother stealing a bottle of milk for her hungry child, or a foolish college student stealing a sign or a turkey, should be tainted as guilty of a crime of moral turpitude.' In the lower court opinion, Judge Morton said (27 F.(2d) 438, at 439): `While there is authority that all larceny involves moral turpitude * * * I am not prepared to agree that a boy who steals an apple from an orchard is guilty of `inherently base, vile, or depraved conduct.' Where the larceny is petty, I think that the circumstances must be inquired into.' In a discussion with reference to petty offenses and moral turpitude, Mr. Prichard, special assistant to the Attorney General, said in a memorandum dated Apr. 5, 1941, in the case of Re G, 56040/601: `* * * in connection with some offenses at least, doubt should be resolved against exclusion of deportation upon this ground. Certainly it would seem harsh and oppressive to hold that a crime for which only a fine or a suspended jail sentence was involved is the proper basis for excluding from the United States one who seeks admission.' id, n.10); Castillo v. Holder, 776 F.3d 262, 266 (4th Cir. 2015) (The BIA thus construed the term theft offense to encompass the taking of property when there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Id. at 1346. Notably, however, in articulating this construction of the statute, the BIA emphasized that [n]ot all takings of property ... will meet this standard[,] because some takings entail a de minimis deprivation of ownership interests and constitute only a glorified borrowing of property. Id.); Tillinghast v. Edmead, 31 F.2d 81, 84 (1st Cir. 1929) (Anderson, Circuit Judge, dissenting) (It seems to me monstrous to hold that a mother stealing a bottle of milk for her hungry child, or a foolish college student stealing a sign or a turkey, should be tainted as guilty of a crime of moral turpitude. But such is the logical result of the majority opinion.); Marciano v. Immigration & Naturalization Serv., 450 F.2d 1022, 1028 (8th Cir. 1971) (District Judge Garnett, dissenting) (There are the cases cited by Judge Anderson in his dissent in Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929), of a mother stealing milk for her hungry child, of a foolish college student stealing a sign, and of a boy stealing an apple from an orchard; and there is the situation posed by Judge Learned Hand of a boy's forcing his way into a vacant building, United States ex rel. Guarino v. Uhl, supra. There are, of course, literally hundreds of other examples that could be given. All of these hypothetical situations are crimes, involving criminal intent and criminal culpability. All of them could result in deportation under the rule of Pino v. Nicolls, and of the majority here, because such crimes as larceny, burglary, and breaking and entering usually, commonly and generally involve moral turpitude. None of them can be said to involve moral turpitude, however; not, at least, without further examination into the factual context. It might be that today some crimes would be held to involve moral turpitude which judges writing in past years did not think contravened the moral standards of that time. The converse might be true with regard to other types of offenses. The point is that I do not believe Congress intended for all aliens in these, and many other hypothetical situations, be deported. The statute says deportation shall follow when the crime committed involves moral turpitude, not when that type of crime commonly or usually does.); Quilodran-Brau v. Holland, 232 F.2d 183, 184 (3d Cir. 1956) (Whether there is a possible exception in an extreme case such as that instanced by troubled judges where a man takes the property of another to provide for his starving family is not a problem we need to worry about here.); see K. Brady, et al., Defending Immigrants in the Ninth Circuit (2008) (Theft. Despite case law to the contrary, immigration counsel at least can argue that conviction for theft under Calif. Penal Code 484 or 487 should be held a divisible statute for moral turpitude purposes, because the offense of larceny, noted in the statute as steal[ing], tak[ing], carry[ing], lead[ing], or driv[ing] away the personal property of another does not require in every case the intent to carry away or to deprive the owner of the property permanently. . . . . In fact, it is possible to be convicted of this section where the intent is to deprive only temporarily. The California Jury Instructions, CALJIC 14.02 states that theft by larceny under PC 487 is committed by every person who steals, takes, carries . . . with the specific intent to deprive the owner permanently of property. However, CALJIC 14.03 says the specific intent is satisfied by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment. Advocates can therefore argue that theft under these statutes should not categorically be crimes of moral turpitude, similar to a joyriding statute, such as California Vehicle Code 10851(a), which is divisible for moral turpitude purposes because it involves the taking of a vehicle with intent either to permanently or temporarily deprive the owner of title or possession. See, e.g., Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007)(Calif. PC 487 involves moral turpitude); United States v. Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999); see Matter of T, 2 I&N Dec. 22 (BIA 1944); Matter of M, 2 I&N Dec. 686 (BIA 1946). Thanks to Jonathan Moore.

CRIMES OF MORAL TURPITUDE - FEDERAL FRAUD OFFENSES
Ted Cassman and Raphael Goldman, The Federal Mail and Wire Fraud Statutes - Must There be an Intent to Obtain Property, or Merely Deprive?

The federal mail and wire fraud statutes, 18 U.S.C. 1341 and 1343, proscribe "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." (Ibid. [emphasis supplied].) Nowhere do these statutes suggest that the offense could occur if the defendant intended only to "deprive" someone of money or property, rather than "obtain" it. Nevertheless, federal courts have often approved jury instructions that use the word "deprive" instead of "obtain." For example, the Fifth Circuits pattern jury instructions define "scheme to defraud" in the context of these statutes as "any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations, or promises." Fifth Circuit Criminal Jury Instructions Nos. 2.59, 2.60. Likewise, while the Ninth Circuit Model Criminal Jury Instructions use the word "obtain," the Ninth Circuit Court of Appeals has itself sometimes carelessly used the word "deprive" in describing the required elements of a mail or wire fraud offense. See, e.g., United States v. Thomas, 32 F.3d 418, 419 (9th Cir. 1994) (stating that, in a mail fraud prosecution, the defendant "must have intended to deprive his victims of money or property").

The difference between obtaining and depriving is not merely semantic. Consider the case of an executive at a publicly-traded company accused of making false statements designed to artificially inflate the price of her companys stock. The executive in this scenario arguably intends to deprive any person who purchases the stock at the inflated price of money or property. But unless the executive also intends to sell her own stock holdings at the inflated prices, she has not hatched a scheme to obtain money or property from the stock purchasers.

Although 1341 and 1343 use the disjunctive "or" between the phrases "scheme or artifice to defraud" and "for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," the Supreme Court twice has held based on the history of the mail and wire fraud statutes and the meaning of the term "defraud" that those phrases are to be read together as defining a single offense. Cleveland v. United States, 531 U.S. 12, 25-26 (2000); McNally v. United States, 483 U.S. 350, 358-359 (1987). Thus, a "deprivation is a necessary but not a sufficient condition" of mail or wire fraud because "only a scheme to obtain money or other property from the victim by fraud violates" those statutes. United States v. Walters, 997 F.2d 1219, 1227 (7th Cir. 1993); see also Monterey Plaza Hotel Ltd. Pship v. Local 483 of Hotel Employees, Rest. Employees, 215 F.3d 923, 926-27 (9th Cir. 2000) ("The purpose of the mail and wire fraud proscriptions is to punish wrongful transfers of property from the victim to the wrongdoer"); United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) ("after McNally the elements of mail fraud remain unchanged except that the intent of the scheme must be to obtain money or property, [and] the Court made it clear that the intent must be to obtain money or property from the one who is deceived" (emphasis added)); United States v. Baldinger, 838 F.2d 176, 180 (6th Cir. 1988) (Section 1341 "was intended by the Congress only to reach schemes that have as their goal the transfer of something of economic value to the defendant."); United States v. Alsugair, 256 F. Supp. 2d 306, 312 (D.N.J. 2003) ("[I]n addition to an allegation that a defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. 1341, requires an allegation that the defendant obtained money or property as well."). [For obvious reasons, this analysis does not apply to fraud charges that allege a scheme to deprive the victim of "honest services" under 18 U.S.C. 1346.]

Unless defense counsel watches carefully, the subtle shift from obtain to deprive can deprive a defendant of the right to have every element of the charged offense proved beyond a reasonable doubt, permitting the government to obtain a conviction on insufficient evidence in mail and wire fraud cases. Defense counsel should consider moving to dismiss charges that allege only a scheme to deprive, as opposed obtain, money and property under 18 U.S. C. 1341 and 1343. Further, counsel should submit instructions that properly define the offense as requiring an intent to obtain money and property in all mail and wire fraud cases. Finally, counsel should make and preserve objections to any jury instructions that suggest that an intent to deprive is sufficient for a mail or wire fraud conviction.