U.S. v. Forzese

Decision Date12 March 1985
Docket NumberNo. 84-1424,84-1424
Citation756 F.2d 217
PartiesUNITED STATES of America, Appellee, v. Bart FORZESE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Alan D. Rose, Boston, Mass., with whom Nutter, McClennen & Fish, Boston, Mass., was on brief for defendant, appellant.

Maurice R. Flynn, III, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and MALETZ, * Senior Judge.

MALETZ, Senior Judge.

Defendant-appellant Bart Forzese was indicted for nineteen counts of mail fraud, 18 U.S.C. Sec. 1341 (1982), and aiding and abetting, id. Sec. 2, and one count of conspiracy to commit mail fraud. Id. Sec. 371. Seven substantive mail fraud counts and the conspiracy count were submitted to the jury, which returned guilty verdicts on all eight counts.

The district court sentenced Forzese to concurrent three-year prison terms on the substantive counts and to a suspended four-year prison term, plus five years probation, on the conspiracy count. As a condition of probation, Forzese was ordered to make restitution of $43,720.60 to seven persons who allegedly were victims of his fraudulent activities.

Forzese appealed from the judgment of conviction and the sentence. He contends that (1) the evidence presented was insufficient to support the convictions; (2) the district court erred in refusing to strike from the indictment overt acts as to which there was no evidence or that were not committed in furtherance of a conspiracy and (3) the restitution order lacked a sufficient factual foundation. We disagree with Forzese's first two contentions but agree with the third. Accordingly, the judgment of the district court is affirmed in part and vacated and remanded in part for further proceedings not inconsistent with this opinion.

I. Facts

Bart Forzese, who sold insurance for various companies, specialized in selling health insurance policies to elderly customers. The indictment charged that he entered a conspiracy with, among others, co-defendants William Burhoe, Vincent Lessard, and John Kay to use the mails "in furtherance and execution of a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises...."

Burhoe, Lessard, and Kay all pleaded guilty but did not testify against Forzese. Richard Keller, another insurance salesman who was an unindicted co-conspirator and who had been imprisoned for mail fraud, testified for the government. According to Keller, he, Forzese, and the co-defendants cooperated in continually switching, or "twisting," the health insurance coverage of their elderly customers from one company to another.

Twisting benefits an insurance agent while damaging the customer. The agent benefits because the commission earned on the sale of a new health insurance policy is substantially higher than that earned on the renewal of an existing policy. The customer is harmed because he must satisfy a new "preexisting condition clause" with the start of each new policy. This clause requires the passage of a period of time--occasionally as long as two years--before the customer is covered for ailments that existed at the time the policy was sold. Given these circumstances, twisting increases the insurance agent's commissions while reducing--often to nothing--his customers' coverage.

Keller testified that some of the conspirators borrowed or stole money from the customers, but that to his knowledge Forzese did not do those things. Keller added that Forzese said he was unconcerned by a Massachusetts investigation of insurance sales "and he always claimed that he dotted his 'i's and crossed his 't's and they would never get him unless someone rolled over and testified against him."

The government called six witnesses who told of the frequent and repeated sales of health insurance policies to them by Forzese, Keller, Burhoe, Lessard, and Kay. They described how they dropped existing coverage in favor of new policies because the agents told them the new coverage was better for them.

The government also introduced evidence that an insurance company first cancelled policies issued to Forzese's customer Mary Robertson and later declined to issue coverage to her, because of "over-insurance." In this connection, the government elicited testimony tending to show that Forzese failed to refund a premium paid by Mrs. Robertson for the policy that was not issued. Finally, the government offered proof that Forzese, although he was not licensed to sell insurance in Maine, sold a policy to Charles Dube, a resident of that state, and obtained coverage by fraudulently using a Massachusetts address on Dube's application.

Forzese took the stand in his defense and denied involvement in twisting. He admitted, however, that he switched his customers to whatever new insurance company he represented, and had them drop their existing coverage in the process. He also acknowledged that his customers had been harmed but claimed that this was the result of the conduct of the other salesmen, of which he was unaware.

II. Sufficiency of the Evidence

Forzese contends that the evidence adduced at trial was insufficient to support his convictions. To succeed in this argument, he must show that the evidence before the jury "and all the legitimate inferences drawn therefrom, viewed in the light most favorable to the government, were insufficient to demonstrate [his guilt] beyond a reasonable doubt...." United States v. Smith, 726 F.2d 852, 866 (1st Cir.1984) (en banc). Accord, e.g., United States v. Hyson, 721 F.2d 856, 860 (1st Cir.1983); United States v. Fortes, 619 F.2d 108, 122 (1st Cir.1980).

"The elements of the offense of mail fraud ... are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme." Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954). Cf. United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 647, 38 L.Ed.2d 603 (1974) (for statute to apply, mailings must be "sufficiently closely related to [defendant's] scheme").

There is no substantial dispute as to what Forzese and the other insurance agents did; the extensive documentary evidence introduced at trial depicts cancellations and sales of policies, payments of premiums by customers, and exchanges of funds among the insurance agents. At its core, Forzese's challenge to the sufficiency of the evidence rests on his argument that the government failed to prove wrongful intent. The jury could not analyze Forzese's activities in a vacuum. Instead, it had to consider whether these activities were, as Forzese characterized them, an innocent attempt by an honest businessman to make a living or, as Keller characterized them, part of a scheme to defraud. It is apparent that the jury believed Keller.

The substantive mail fraud counts submitted to the jury (all of which resulted in convictions) were as follows:

Count Customer

-------- --------------

Count 1 Mary Robertson

Count 5 Charles Dube

Count 6 Charles Dube

Count 9 Florence Finn

Count 11 Fred Blank

Count 13 Henry Gates

Count 14 Floyd Barbetti

Counts 1, 9, 11, 13, and 14 concern the mailing of insurance policies sold to particular customers. Counts 5 and 6 were somewhat different from the others, in that the ultimate, if unintended, victim of the fraudulent scheme was an insurance company, which received an incorrect address for Charles Dube, rather than Mr. Dube himself. (Count 5 concerns the mailing of Dube's policy to Forzese, while count 6 concerns Forzese's mailing to the insurance company of a fraudulent letter, which said that Dube had moved from Massachusetts to Maine.)

The jury heard evidence that Forzese and the other insurance agents sold Robertson, Finn, Blank, Gates, and Barbetti numerous policies. Inasmuch as the jury believed Keller and viewed these sales as twisting rather than as the legitimate business of insurance, the convictions on counts 1, 9, 11, 13, and 14 are amply justified, because any mailing of a policy for the purpose of twisting must have furthered a fraudulent scheme. See United States v. Martin, 694 F.2d 885, 889-90 (1st Cir.1982).

Forzese contends, however, that the convictions on counts 5 and 6 cannot stand, because they involve a fraud on the insurance company that was misled as to Dube's address, but not a fraud on Dube. He argues that any fraud on the insurance company was not linked to the fraudulent scheme alleged in the indictment.

But there is more to the Dube matter than Forzese suggests. For one thing, Forzese did not transmit the policy to Dube, because that would have alerted the customer to the falsification of his address and could have led to cancellation of the policy and loss of Forzese's commission. The evidence further indicates that Dube's sister, who tried to submit insurance claims for her brother while he was ill, learned of the existence of the policy only when she came across her brother's cancelled check.

Thus, Forzese's letter to the insurance company, falsely indicating that Dube had moved from Massachusetts to Maine, was designed to cover up the previous fraud. Although the letter helped to bring about payment of Dube's insurance benefit, the jury was justified in finding that it remained "an integral part of appellant's ongoing scheme to defraud." Id. at 890. Cf. United States v. Pisciotta, 469 F.2d 329, 330-31 (10th Cir.1972) (submission of fraudulent applications for insurance coverage as part of scheme to defraud). The fraudulent scheme would have reached fruition and the insurance policy would have been rendered worthless but for the fortuitous discovery of the cancelled check--and the success or failure of the scheme is irrelevant to criminal liability under the statute. See United States v. Contenti, 735 F.2d 628, 632 (1st Cir.1984).

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