U.S. v. Seay, 81-5285

• Decision Date: 11 October 1983
• Docket Number: No. 81-5285,81-5285
• Citation: 718 F.2d 1279
• Parties: UNITED STATES of America, Appellee, v. Mary Louise SEAY, a/k/a Mary Louise Derringer, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1279

718 F.2d 1279

UNITED STATES of America, Appellee, v. Mary Louise SEAY, a/k/a Mary Louise Derringer, Appellant.

No. 81-5285.

United States Court of Appeals, Fourth Circuit.

Argued June 8, 1983.

Decided Oct. 11, 1983.

John D. Delgado, Columbia, S.C. (J. Edward Bell, III, Sumter, S.C., on brief), for appellant.

Eric Wm. Ruschky, Asst. U.S. Atty., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before HALL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Mary Louise Seay, also known as Mary Louise Derringer, appeals her conviction on three counts of making false statements to the Department of Labor that she had not remarried since the death of her first husband (18 U.S.C. Sec. 1001 ¹) and on one count of knowingly accepting about $14,000 in Federal Employees Compensation Act (FECA) benefits that she was not entitled to receive because she had remarried. 18 U.S.C. Sec. 1921. ² On the three counts under Sec. 1001, which are felonies, she was sentenced to two years, suspended on service of six months with five years probation. She was also ordered to repay $13,261.92 in benefits. ³ For violation of Sec. 1921, a misdemeanor, imposition of sentence was suspended and the appellant was placed on five years probation, to run concurrently with the probation on the three other counts. On appeal Mrs. Seay challenges the sufficiency of the evidence relating to her common law marriage. She also argues that her constitutional rights of due process under the fifth amendment were violated. We find, however, that the evidence was sufficient for the jury to find that Mrs. Seay had entered into a common law marriage under South Carolina law, that she knew she was married and that she filed the false statements that she had not remarried with the intent that the government act upon the misrepresentations. The jury also had sufficient evidence to conclude that the defendant accepted compensation after remarriage. Finding further that defendant's constitutional rights were not violated, we affirm the district court.

I

The defendant became eligible for FECA benefits because of the death of her husband, Edward Derringer, in 1950 while he was an active duty reservist. After Derringer's death, his widow applied for and received benefit payments until they were terminated by the Department of Labor in March 1981.

Prior to the marriages of her children, the appellant received $189.45 per month, plus $165.77 per month on account of her four children.

In December 1962, defendant and her four children moved from their residence in Columbia, South Carolina to the home of Coke Seay, a widower, who lived in the nearby town of Lexington. The couple had sexual relations both before and after they began living together. Defendant testified that when she first moved in with Coke Seay she intended to marry him but later changed her mind. The two lived together in the same house until 1981 when Mrs. Seay moved out on the advice of her attorney. This was after the Department of Labor began its investigation into her marital status.

Approximately nine months before moving to Coke Seay's house, defendant signed the following handwritten statement that was presented to her by a Department of Labor agent:

This is to advise that I, Mrs. Mary L. Derringer, residing at 3030 Park Street, Columbia, South Carolina, wish to state that I have not remarried, or entered into a common-law marital relationship.

In addition to B.E. Compensation, my three children receive $67.40 Social Security and I receive $29.30 per month.

I wish to continue the practice of having my check mailed to my Mother's address at 1115 Northwood Street, Columbia, South Carolina. (EV 492)

Mrs. Seay testified at trial that she asked the agent why he had come and whether he was making a periodic check. When he asked her to sign the statement she replied, "Yes, I will sign it, but I don't understand why that you are talking about common law, remarriage and all of that, because I have not entered into either one of them."

Shortly after the couple began living together, they transferred their church memberships from separate churches to the Providence Lutheran Church in Lexington. They joined this church as "Mr. and Mrs. Coke Seay" and appeared in the church pictorial directory as "Coke & Louise Seay." At trial the minister of Providence Lutheran Church testified that the church's members considered the couple to be married. The two were members of this church for approximately nineteen years, from 1962 until 1981 when the defendant transferred her membership back to the Park Street Baptist Church where she had previously been a member.

After she was first awarded compensation, appellant received a copy of a Department of Labor form dated November 3, 1953 entitled "Compensation Order Award of Compensation." Among the Findings of Fact were "[t]hat the claimant above named is entitled to compensation on her own account until she dies or remarries." Instructions that accompanied the Compensation Order provided that "[i]f, when a check reaches you, your status has changed through remarriage or otherwise ... you should return the check immediately to this office accompanied by a full explanation of any change in the status of yourself."

Sometime shortly after July 4, 1966 defendant also received a "Notice to Payee" statement. It provided:

The Federal Employees' Compensation Act provides your right to compensation as a widow (or dependent widower) ceases when you remarry. Because of a recent amendment to the Compensation Act you may upon remarriage after July 4, 1966 receive a lump sum payment equal to 24 times the monthly compensation you are receiving for yourself.

You are required to promptly notify the Bureau when you remarry. Before the lump sum is paid the Bureau will require a copy of the public record of your remarriage which bears the certificate and seal of the custodian of the public marriage records. If practicable, it should be sent in with your notice of remarriage.

The convictions for filing false statements were based on Mrs. Seay's responses to questions on a form entitled Claim for the Continuance of Compensation. Appellant filled out this form, sent to her yearly by the Department of Labor, on July 1, 1977, May 6, 1978 and December 15, 1980. She answered the following question "no": Have you married since the death of the above named employee? Yes____ No____ If 'yes' complete 10." Question 10 was "[w]hen and where was the marriage performed and what was the change in name, if any?" The form provided additional space for answers to questions 10, 11 and 12. The following statement appeared beside the claimant's signature:

I declare under the penalties of perjury that the information contained on this form is true and correct: and that I will immediately notify the office of worker's compensation programs of any change in status.

After learning of the possibility of prosecution, Mrs. Seay brought a declaratory judgment action in Lexington County Family Court to have the marriage declared invalid. The decision of the family court that it lacked subject matter jurisdiction was affirmed by the South Carolina Supreme Court. Derringer v. Seay, S.C., 296 S.E.2d 341 (1982). The supreme court concluded that there was no justiciable controversy because both parties alleged that no valid marriage existed. ⁴

II

Defendant argues that the evidence of the marriage was insufficient as a matter of law and that the trial court erred in not granting a directed verdict of acquittal. Defendant contends that both parties explicitly denied being married, that Coke Seay never held himself out as being married, that reputation as to defendant's marital status was divided and that some members of the community had assumed that a marriage existed because of the cohabitation of the parties.

The South Carolina Supreme Court has recognized that a common law marriage may exist despite denials by the husband and wife. In Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (1970) Mr. Jeanes, who had agreed to pay alimony to his wife until she died or remarried, petitioned to have the payments terminated because his former wife had entered into a common law marriage. Both the former wife and Mr. Swygert, the man that she was living with, denied any intent to be married. The court found, however, that facts such as the cohabitation by the couple for over two years, city directory listings of the two as husband and wife, insurance records in which Mr. Swygert had given the woman's name as wife and beneficiary, a post office box rented by the woman under the name Mae Jeanes Swygert and tax returns in which Mr. Swygert listed the same post office box as his wife's address showed the requisite intent to be married notwithstanding the statements of the couple.

At trial the defense presented evidence that at times Coke Seay and appellant had denied being married to each other and had acted in ways that indicated their intent to be single. ⁵ The government, however, introduced evidence of indicia of marriage including specific instances in which the couple had held themselves out as married. ⁶ Appellant does not argue that the trial court erred in instructing the jury concerning the prerequisites for a common law marriage in South Carolina. We find that, based on the record there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant and Coke Seay had entered into a common law marriage. ⁷

III

The jury was also properly charged by the trial court concerning the elements of 18 U.S.C. Sec. 1001. These elements are "the making (a) 'in any matter within the jurisdiction of any department or agency of the United States,' of (b) a false statement of (c) material fact with (d) fraudulent intent. United States v. Race, 632 F.2d 1114, 1116 (4th Cir.1980) (citations omitted). The jury was...