U.S. v. Gray, No. 02-15462.

Citation367 F.3d 1263
Decision Date30 April 2004
Docket NumberNo. 02-15462.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kevin Wayne GRAY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Chet Kaufman and Randolph P. Murrell, Federal Public Defenders, Tallahassee, FL, Thomas S. Keith, Federal Public Defender, Pensacola, FL, for Defendant-Appellant.

E. Bryan Wilson, Tallahassee, FL, Stephen P. Preisser, Pensacola, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, BARKETT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

On September 17, 2002, a jury found Kevin Gray guilty of mail fraud, in violation of 18 U.S.C. § 1341.1 He now appeals his conviction and sentence. First, he seeks a judgment of acquittal on the ground that his fraudulent scheme was "so absurd" that a person of ordinary prudence would not have believed it; the scheme therefore lies outside the realm of conduct proscribed by the mail fraud statute. Alternatively, he seeks a new trial on the ground that the district court erred in instructing the jury on the elements of mail fraud.2 He also challenges his sentence on the ground that the court took an uncounselled prior conviction into account in fashioning his sentence. For the reasons that follow, we affirm the appellant's conviction and sentence.

I.

The appellant's current predicament can only be understood against the backdrop of the event — the criminal prosecution of a prominent businessman in Pensacola, Florida — that led him to initiate the scheme to defraud for which he was convicted.3 In May, 2000, a Northern District of Florida grand jury indicted Frank M. Patti, Sr., a prominent Pensacola, Florida businessman, on eight counts for filing false income tax returns for himself and one of his companies, Patti Shipyard, Inc., for the tax years 1993, 1994, 1995 and 1996. In February, 2001, the grand jury returned a superceding indictment, adding four more counts charging Patti with filing false tax returns for himself and the shipyard. Ten months later, in December, 2001, the grand jury returned yet another superceding indictment; it contained twelve additional counts for a total of twenty-four. Count thirteen charged Patti, the president of Joe Patti Seafood, Inc., and Alice Guy, the company's manager, with conspiring from 1994 through 1998 to withhold the payroll taxes due with respect to the company's employees. Counts fourteen through twenty-four charged Patti and Guy with the substantive failing to withhold offenses that were the objects of the count thirteen conspiracy.

As the federal government closed in on Patti, he took steps to gain sympathy for his side of the case. He professed his innocence to members of the press, and they reported what he said. This publicity, in turn, exposed him to unsavory characters who sought to exploit his legal woes for pecuniary gain.4 Enter the appellant, who devised a scheme to bait Patti into forking over $185,000.00 in exchange for not being sent to prison.

On January 2, 2002, the district court entered an order scheduling Patti's trial for April 15, 2002. On Thursday, April 4, eleven days before the trial was to begin, Patti received a FedEx letter delivered to his seafood restaurant in Pensacola. The letter read:

FP., Your current predicament has been brought to our attention by a mutual friend & colleague Your files from Memphis, Butner,5 Pensacola & Tallahassee have been reviewed by our associates This case against you and AG6 gives the government an 80/20 favorable conviction Our mutual friend is concerned for your well being and has asked us to intervene This is not a prank but real serious business & it is imperative you believe in the contents of this letter & follow the advice & directions given Do not discuss this info with anyone including AG & Comisky7 You are a deep pocket figure to him only & he is a liability to all involved We can assure you & AG of no imprisonment but you must pay the agreed tax settlement issued by the court You are facing a long incarceration stay & Collier, Davies & Hensel8 are using you to inhance [sic] their career [sic] If you wish to continue with our help follow these directions step by step Insert the words... YES WE HAVE ... in front of the words SHRIMP, OYSTER & CATFISH on your digital flashing sign out front of Joe Patti's This will allow our associates in Pensacola to inform us of your intentions ... The pay phone on the corner of Main & Palafox will ring Saturday 4-06-02 at 2:10 & again at 2:10 Sunday The phone is located in front of The Daily Grind Café You must answer the phone by saying ... Hello this is Jack Simmons ... You will use this name for future conversation Do not ask questions just follow the directions given Do not bring any recording devices just a pen & paper You will be observed at all times Your future rest [sic] in your hands & many people have risk [sic] political & military careers to assist you The importance of extreme silence is essential

Good luck

HWH

This letter, which evinced a concrete level of knowledge with respect to the parties involved in Patti's legal predicament, represented a "ray of hope" for the businessman who was facing the prospect of prison sentences totaling ninety-six years.9 Thus, the following Saturday, April 6, he went to the pay phone by the designated café. There, he received the expected phone call shortly after 2 p.m.; the caller asked him if he was, in fact, "Jack Simmons." After Patti acknowledged that he was, the caller instructed him to return to his truck and await a second call at the pay phone. The call never came. When he returned to his place of business, however, he received another call from the same unknown person, again asking him if he was "Jack Simmons." This time, the caller reiterated what he had written in his letter to Patti and added that United States Senator Jesse Helms,10 some congressmen, and a five-star general were inclined to help emancipate Patti from his legal troubles.

After dangling the promise of political leverage, the caller instructed Patti to package $120,000 in six bags and to write down a series of numbers and letters signifying the amounts of that money intended to go to specific jurors.11 In exchange for the money, the caller promised Patti that he would serve no jail time. However, the caller's disclosure to Patti that some of the money would be used to bribe jurors alerted Patti that there was something suspicious about the caller's intentions. As Patti testified at the appellant's trial, "When J-1 came out of the phone I knew this was nothing but extortion, and I listened on. I didn't hang up. I was — I didn't believe in that. And he told me what was-what to do, and I knew this was just — this — this was just baloney."12

Shortly after this realization, Patti contacted his attorney, Ian Comisky, who in turn informed federal authorities of what was occurring. They told Patti to take the caller's bait and that the FBI would tape any phone calls he received from the caller. Growing bold at the prospect of receiving $185,00013 in cash, the caller repeatedly contacted Patti by telephone. He even solicited payments from Patti after Patti entered into a plea agreement with the Government and pled guilty to counts eight and thirteen of the indictment. Eventually, the FBI determined that the calls had been made to Patti from a pay phone at 605 W. Garden Street in Pensacola. The appellant was apprehended at that location on the night of April 11, while he was on the phone with Patti.14

On May 8, 2002, a federal grand jury in the Northern District of Florida returned an indictment charging the appellant on one count of mail fraud. He pled not guilty, and the case proceeded to trial before a jury. The jury, having received evidence establishing the facts set forth above, found the appellant guilty, and the district court sentenced him to prison for twenty-eight months. This appeal followed.

II.
A.

The appellant's initial attack on his conviction is that the evidence was insufficient to make out a case of mail fraud. He bases this attack on United States v. Brown, 79 F.3d 1550 (11th Cir.1996). There, we said that to prove the crime of mail fraud, the Government must establish that the defendant "intended to create a scheme `reasonably calculated to deceive persons of ordinary prudence and comprehension.'" Id. at 1557 (citation omitted). Additionally, it must show that the defendant took some action in furtherance of his scheme — to bring it to fruition — in the form of a material misrepresentation made to the would-be victim that "a reasonable person would have acted on." Id.15 It is on this peg that the appellant hangs his hat, contending that a reasonable person would not have acted on his representations when considered as a whole. In bolstering his argument, he draws attention to his statement to Patti that $85,000 would be needed to bribe three of the jurors who would be trying his case: $35,000 for J-1, and $25,000 each for J-2 and J-3.16 The appellant contends that a reasonable person would know that since the pool from which these jurors would be selected would not be known until April 15 — when the pool assembled at the courthouse for the trial — the representation had to be phony.

While it is true that statements like the one he cites would seem absurd or fanciful to a reasonable person, the mail fraud statute does not require that every representation a defendant utters while executing his scheme must be credible. Instead, the statute requires proof that the defendant's scheme to defraud involved the use of material, false representations or promises. See 18 U.S.C. § 1341 ("[w]hoever... having devised or intended to devise a scheme or artifice to defraud, or for obtaining money or property by means of false pretenses, representations, or promises ... shall be fined under this title or...

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8 books & journal articles
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • 22 mars 2006
    ...using the reasonable prudence standard have "rejected some form of the 'unreasonable victim' argument") (citing United States v. Gray, 367 F.3d 1263, 1269-71 (11th Cir. 2004); United States v. Coffman 94 F.3d 330, 333 (7th Cir. 1996) (Posner, J.); United States v. Coyle, 63 F.3d 1239, 1243-......
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    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • 22 mars 2007
    ...using the reasonable prudence standard have "rejected some form of the 'unreasonable victim' argument") (citing United States v. Gray, 367 F.3d 1263,1269-71 (11th Cir. 2004); United States v. Coffman, 94 F.3d 330, 333 (7th Cir. 1996) (Posner, J.); United States v. Coyle, 63 F.3d 1239, 1243-......
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    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • 22 mars 2009
    ...using the reasonable prudence standard have "rejected some form of the 'unreasonable victim' argument" (citing United States v. Gray, 367 F.3d 1263, 1269-71 (11th Cir. 2004))); United States v. Coffman, 94 F.3d 330, 333 (7th Cir. 1996) (holding that it is not a defense to an allegation of w......
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