What are the elements of a federal mail and wire fraud instruction?

Defendant challenges the mail and wire fraud jury instructions given by the district court. We review de novo whether a jury instruction correctly stated the elements of a crime. United States v. Kilbride , 584 F.3d 1240, 1247 (9th Cir. 2009). At bottom, though, Defendant's beef is not with the instructions, which accurately reflected our caselaw, but with our circuit's longstanding construction of the mail and wire fraud statutes. Defendant argues that our "interpretations" of those statutes are not interpretations at all, but instead amount to judicially created crimes in violation of separation-of-powers principles. We review de novo such constitutional issues. United States v. Kuchinski , 469 F.3d 853, 857 (9th Cir. 2006).

The mail fraud instruction⁴ given by the district court reads as follows:

[908 F.3d 400]

Under our longstanding precedent, "anyone who knowingly and intentionally participates in the execution of [a] fraudulent scheme comes within the prohibition of the mail and wire fraud statutes regardless of whether the defendant devised the scheme." United States v. Manion , 339 F.3d 1153, 1156 (9th Cir. 2003) (per curiam) (emphasis added) (internal quotation marks and brackets omitted). But, as Defendant correctly points out, the mail and wire fraud statutes, by their terms, punish only those who "devise[ ] or intend[ ] to devise any scheme or artifice to defraud"; the word "participate" does not appear in the statutes. 18 U.S.C. 1341, 1343. According to Defendant, by reading the mail and wire fraud statutes to prohibit "participation in" schemes to defraud, we have essentially created new crimes, thus violating separation-of-powers principles. See, e.g. , United States v. Oakland Cannabis Buyers Coop. , 532 U.S. 483, 490, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (stating that, "under our constitutional system, ... federal crimes are defined by statute rather than by common law").