T.P.I. -- CRIM. 11.11

FRAUDULENT QUALIFYING FOR SET-ASIDE PROGRAMS

            Any person who commits the offense of fraudulent qualifying for set-aside programs is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

            (1)  that the defendant [committed] [engaged in] any false or fraudulent

                   conduct, representation, or practice for the purpose of [qualifying]

                   [assisting another in qualifying] to participate in a set-aside program

                   administered by or through an agency of state or local government;

and

            (2)  that the defendant acted knowingly.

            "Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.²

            A "set-aside program" is defined as a program whereby a portion of governmental funds allocated for the procurement of goods or services is reserved or utilized for the acquisition of such goods from any one or more categories of:³

            (A) disadvantaged businesses;⁴ or

            (B) small businesses;⁵ or

            (C) minority-owned businesses;⁶ or

            (D) disadvantaged business concerns and enterprises.⁷

            "Knowingly" means that a person acts knowingly with respect to the conduct or circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.⁸

            The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.⁹

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.¹⁰

            [The trial judge should now instruct the jury with respect to fixing the value of the property obtained. See T.P.I. -- CRIM. 11.03 (Fixing value).]

FOOTNOTES

  1.  Tenn. Code Ann. § 39-14-137(a)(1).

  2.  Tenn. Code Ann. § 39-11-106(a)(13).

  3.  Tenn. Code Ann. § 39-14-137(a)(2).

  4.  The trial judge should refer to Tenn. Code Ann. § 4-26-102.

  5.  The trial judge should refer to Tenn. Code Ann. § 12-3-802(4).

  6.  The trial judge should refer to Tenn. Code Ann. § 12-3-802(3).

  7.  The trial judge should refer to Tenn. Code Ann. § 54-1-124.

  8.  Tenn. Code Ann. § 39-11-106(a)(20).

  9.  Tenn. Code Ann. § 39-11-301(a)(2).

10.  Tenn. Code Ann. § 39-11-106(a)(18).

COMMENTS

            1.  Fraudulent qualifying for set-aside programs is punished as theft under Tenn. Code Ann. § 39-14-105.  Tenn. Code Ann. § 39-14-137(b).  See comment to T.P.I. -- CRIM. 11.01 (theft of property).