U.S. v. Bright

• Decision Date: 26 January 1979
• Docket Number: No. 78-5184,78-5184
• Citation: 588 F.2d 504
• Parties: , 4 Fed. R. Evid. Serv. 163 UNITED STATES of America, Plaintiff-Appellee, v. Louin Ray BRIGHT and Edward Lee Whitten, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

588 F.2d 504

48 A.L.R.Fed. 378, 4 Fed. R. Evid. Serv. 163

UNITED STATES of America, Plaintiff-Appellee, v. Louin Ray BRIGHT and Edward Lee Whitten, Defendants-Appellants.

No. 78-5184.

United States Court of Appeals, Fifth Circuit.

Jan. 26, 1979.

John B. Farese, Ashland, Miss. (Court-appointed), for Bright.

Robert W. Elliott, Ripley, Miss., for Whitten.

H. M. Ray, U. S. Atty., Thomas W. Dawson, Alfred E. Moreton, III, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Mississippi.

Before THORNBERRY, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

Edgar Lee Whitten and Louin Ray Bright ¹ appeal their convictions for mail fraud under 18 U.S.C. §§ 2 ² and 1341. ³ Both appellants challenge the sufficiency of the evidence and attack the district court's supplemental instructions to the jury; Whitten also contends that the trial judge erred in allowing the Government to conduct prejudicial cross-examination of a character witness. We reject these assertions and affirm the convictions.

I. The Facts

The convictions of Whitten, a lawyer practicing in DeSoto County, Mississippi, and his uncle Ray Bright, formerly Chief Deputy Sheriff of adjoining Marshall County, stemmed from their indictment on charges of using the mails for the purpose of executing a plan to defraud the estate and beneficiaries of their late cousin, J. B. Bright. ⁴ J. B. and his wife were involved in an automobile accident on August 19, 1974; Mrs. Bright died the next day and J. B. passed away, at the age of 88, on November 21, 1974. A retired rural mail carrier, J. B. Bright left a gross estate of $1,196,707.20.

J. B. executed a will in 1965, dividing his estate among his wife, his two sisters, Nannie Tidewell and Allie Bright Baker, and Mrs. Baker's children. When Mrs. Tidewell died in 1971, he executed a codicil, redistributing her share among the other beneficiaries. Since J. B.'s wife predeceased him, Allie Baker and her children were the only beneficiaries under the 1965 will surviving at the time of J. B.'s death and in the event of intestacy Mrs. Baker was also her brother's sole heir at law.

Aaron Ford, J. B. Bright's brother-in-law ⁵ and regular attorney, prepared the 1965 will. J. B. kept the original and a favored nephew, named as a trustee in the will, took a Xerox copy for safekeeping. After J. B.'s death, however, the original 1965 will was never found and on Allie Baker's petition as sole heir Aaron Ford opened an intestate estate, with Howard Ford, Aaron's brother and J. B.'s former partner in a construction business, named as administrator.

On January 3, 1975, appellants Whitten and Ray Bright filed with the Chancery Court of Benton County, Mississippi, a document purporting to be J. B. Bright's will dated April 17, 1973. This alleged will named Ray Bright executor of his cousin J. B.'s estate and Ray chose his nephew Whitten to be the estate's lawyer. Bright and Whitten also filed a petition, signed by them in their respective capacities as executor and attorney for the estate, to probate the will and the document was admitted into probate on January 3. Along with the will and petition appellants submitted to the court a notice to the estate's creditors, as required by state law; the court subsequently sent this notice to the Southern Advocate, the local weekly newspaper, which published it in three successive issues.

On January 8, Whitten sent letters through the mail to Aaron Ford, Howard Ford and Allie Baker, informing them that he had found J. B.'s will, that they were named as beneficiaries and that he wished to discuss the matter with them in person. Appellants Whitten and Bright visited the Ford brothers and Mrs. Baker on January 9 and 10. The Fords agreed, in light of the newly discovered will, to terminate the administration of the intestate estate and to stand aside in deference to Ray Bright as executor. However, when appellants first showed Mrs. Baker and her daughter and son-in-law, Allene and William Wiley, a copy of the will, they immediately became suspicious as to its authenticity. They questioned the genuineness of J. B.'s signature, wondered why Mrs. Baker's brother had named as executor a distant cousin with whom he had not been close and observed that the document referred to Mrs. Baker as "Alice" rather than Allie, the name by which she was known to her brother J. B. Acting upon these suspicions, Mrs. Baker employed counsel and contested the will in Chancery Court. She later agreed to pay $125,000 to settle this contest, "because at my age I didn't feel like I could go through court for eight or ten years," and the court entered a decree setting aside the 1973 will and admitting to probate the 1965 will. The decree noted that the 1973 document filed by appellants "was not attested by two or more witnesses as required by statute and is, therefore, no will."

On December 9, 1977, a grand jury indicted appellants Whitten and Bright on six counts of mail fraud, in violation of 18 U.S.C. §§ 2 and 1341. Each count set forth the same five-part scheme to defraud J. B. Bright's estate and its beneficiaries, alleging: that appellants "did prepare and caused to be prepared and filed" a forged will; that they "were resulting beneficiaries under the fraudulent will" ; that Ray Bright "would and did serve as executor" of his late cousin's estate; that Bright, "in addition to receipt of an executor's fee . . . would and did unlawfully and fraudulently convert to his own use" more than $81,000 worth of the estate's assets; and that Bright "would and did hire" Whitten as attorney for the estate. Each count then specified a separate mailing caused by appellants "for the purpose of executing the aforesaid scheme and artifice to defraud." Counts I through III described the three letters that Whitten sent to the Ford brothers and Mrs. Baker and Counts IV through VI enumerated the three issues of the Southern Advocate, containing the notice to creditors that appellants filed with the Chancery Court, which were mailed to the paper's subscribers.

At trial, appellants contended that J. B. Bright came to Whitten's office on April 17, 1973, and executed a will. According to appellants, J. B. returned to Whitten's office on the first Monday in June 1974 to make a new will, with the most important change being inclusion of the Ford brothers as beneficiaries. ⁶ Because this was a busy day at court, Whitten wrote the changes in longhand on the original will and gave it to his secretary, instructing her to type the new will on the personal typewriter he kept in his office. Whitten testified that he then left for court, without seeing the typed version of the revised will or observing its execution. During his testimony, Whitten also stated that his secretary failed to change the date in typing the revised will, thereby accounting for the discrepancy between the date appearing on the document filed with the probate court and the date of its alleged preparation. Ray Bright denied any involvement in the preparation of the will.

Two secretaries in Whitten's office, Mable Hays and Jocile Woolfolk, allegedly witnessed and signed the purported will. ⁷ However, both women testified that the signatures appearing on the document were not genuine and three handwriting experts agreed that the women's signatures had been forged. In addition, Allie Baker, her son, James Bowen Baker, and her son-in-law, William Wiley, testified that it was not J. B.'s real signature that appeared on the will dated April 17; three expert witnesses concurred in that opinion. Moreover, according to the testimony of an employee of the Southworth Paper Company, which produced the paper on which the will dated April 17, 1973 was typed, that paper was not manufactured until 1974. Finally, Ray Bright admitted on the stand that he had "used" for personal purposes more than $81,000 worth of the estate's assets.

After a two-week trial, the jury convicted Whitten and Ray Bright on all six counts of the indictment. The appellants each received concurrent sentences of three years on each count.

II. The Sufficiency of the Evidence

Appellants Whitten and Bright first challenge the sufficiency of the evidence supporting their convictions, asserting that the district court erred in denying their motions for judgments of acquittal. They contend that the Government failed to show that they caused the forgery of the will and argue that the mailings specified in the indictment and proved at trial did not constitute use of the mails within the meaning of 18 U.S.C. § 1341. These arguments are without merit. The offense of mail fraud under section 1341 has two essential elements: (1) a scheme to defraud, and (2) the causing of a mailing for the purpose of executing that scheme. United States v. Crockett, 5 Cir., 1976, 534 F.2d 589, 593; United States v. Green, 5 Cir., 1974, 494 F.2d 820, 823-24, Cert. denied, 419 U.S. 1004, 95 S.Ct. 325, 42 L.Ed.2d 280 (1974). Here, there is ample evidence to support each necessary part of the offense.

A. The Scheme to Defraud

Contrary to appellants' contention, the scheme to defraud set forth in the indictment was not limited to the actual forgery of the will. Forgery was the first step in the scheme, but to ensure the plan's success appellants also had to maneuver themselves into positions of control over the estate's assets and guide the will through probate. Accordingly, the indictment encompassed Ray Bright's selection of Whitten as attorney for the estate and Bright's misappropriation of more than $81,000 of the estate's assets. Bright named Whitten as the estate's lawyer, accompanied him on his visits to the Ford brothers and Mrs. Baker, signed and filed the papers necessary to ensure admission of the forged will into probate and assumed management of the estate's assets. Moreover, he admitted under oath that he had "used"...