U.S. v. Turley

Decision Date27 November 1989
Docket NumberNo. 89-5302,89-5302
PartiesUNITED STATES of America v. Daniel J. TURLEY, Appellant. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

James J. West, U.S. Atty., Kim Douglas Daniel, Asst. U.S. Atty., Harrisburg, Pa., for appellee.

Thomas Colas Carroll, Philadelphia, Pa., for appellant.

Before SLOVITER and BECKER, Circuit Judges, and LIFLAND, District Judge *.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Facts

Daniel Turley, who was convicted following a jury trial on one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and four substantive counts of mail fraud in violation of 18 U.S.C. § 1341, appeals the denial of his post-verdict motions for judgment of acquittal, arrest of judgment, or a new trial.

At all times relevant to this case, Turley was employed as co-manager of the Wayne Agency for the Equitable Life Assurance Society of the United States. The Wayne Agency had its headquarters in Wayne, Pennsylvania, a town in the Eastern District of Pennsylvania, with district offices in Bloomsburg and Northumberland, Pennsylvania, both in the Middle District of Pennsylvania. The district managers of these two offices were E.P. Miller and Jeffrey Fedder, respectively.

Equitable was in the business of selling, inter alia, a life insurance program denominated "equi-sur-plus" (ESP) designed for owners and employees of businesses who paid for the premium through payroll deductions. Once Equitable received payment for the first month's premium on any ESP insurance order, the generating sales agent received his/her full commission for the year. Both the district manager and the agency manager also received a commission from the sale of ESP insurance.

The conspiracy at issue, which was masterminded by Miller and Fedder, consisted of a scheme to submit to Equitable fictitious applications for ESP insurance from real businesses or from totally fictitious customers. The sales agents who were involved prepared applications for insurance from fictitious customers, fronted the first month's premium with their own money, and submitted the applications to the agency office in Wayne. The applications were then mailed from the agency office in Wayne to the home office in Columbus, Ohio. When the policies went into default and Equitable charged back the commissions paid to the salesmen and others who shared in them, new fictitious applications were submitted on which, once again, the yearly commissions were advanced. The existence of the scheme is conceded.

The scheme began in 1981 but Turley joined the conspiracy in the beginning of 1984. Viewing the evidence in the light most favorable to the government, which received the verdict, there is ample evidence that Turley encouraged sales agents, primarily in the Bloomsburg and Northumberland district offices, to prepare the false applications. The substance of his participation is not at issue in this appeal, and Turley does not contend that the evidence was insufficient to support the verdict.

II. Conspiracy to Commit Mail Fraud

Turley contends first that Count 1 of the indictment charging the conspiracy is insufficient because it did not allege a specific agreement to use the mails, and that the court compounded this error in its jury instructions. Turley contends that the government must allege and prove an agreement to use the mails before there can be a mail fraud conspiracy violation.

Initially, the government contends that the indictment does sufficiently allege an agreement to use the mails in furtherance of the conspiracy, noting that the indictment should be construed liberally in favor of the government because Turley did not raise this challenge until after the government presented its case-in-chief. As the government argues, an indictment is sufficient if it adequately informs the defendant of the charges against him. United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir.1989). We agree with the district court that reading the indictment in its entirety, it sufficiently alleges a scheme contemplating use of the mails.

We turn to the more crucial argument, i.e., whether the government must prove an actual agreement to use the mails in furtherance of the scheme to defraud. This court has not directly addressed this issue. There are Courts of Appeals decisions which suggest a split among the circuits. 1 In United States v. Donahue, 539 F.2d 1131 (8th Cir.1976), the Eighth Circuit reiterated its support of the Sixth Circuit's earlier decision in Blue v. United States, 138 F.2d 351 (6th Cir.1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed.2d 1570 (1944), which held that while the government need only show that the mails were used in cases of substantive mail fraud, when the charge is conspiracy to commit mail fraud, "the government must also show that the scheme contemplated the use of the medium in question." Donahue, 539 F.2d at 1135.

It is of note, however, that subsequent to the Donahue case, the Sixth Circuit repudiated its holding in Blue in United States v. Reed, 721 F.2d 1059, 1060-61 (6th Cir.1983). In Reed, the Sixth Circuit held that Blue was no longer good law in light of the decisions of the Supreme Court in Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), and United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). In Pereira, the Court held that the only intent necessary for substantive mail fraud violations is that the use of the mails can reasonably be foreseen. Thereafter, in Feola the Court enunciated the general rule that the government need not prove a higher degree of criminal intent in a conspiracy case than required by the substantive offense. Applying these cases, the Sixth Circuit held in Reed that the government does not have to prove an explicit agreement to use the mails in furtherance of the conspiracy. Instead, "what the government must show ... is an agreement to defraud plus knowledge that the use of the mails was reasonably foreseeable." 721 F.2d at 1061.

Similarly, in United States v. Craig, 573 F.2d 455 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 110 (1978), the court rejected the contention also asserted here by Turley, that if the government were not required to prove a specific agreement to use the mails, the essence of mail fraud would be ignored in conspiracy cases. Instead, the court held that mailings are the jurisdictional element of mail fraud and that a conspirator's knowledge of the federal jurisdictional element is not a necessary element of a conspiracy to commit mail fraud. Id. at 486.

Although this court has not addressed the precise issue in the case at bar, we have in another context adopted the view that knowledge of the jurisdictional element is not necessary in order to convict. See United States v. Iannelli, 477 F.2d 999, 1002 (3d Cir.1973), aff'd on other grounds, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). The government argues that this court has also adopted the view of the Sixth and Seventh Circuits that a conspiracy to commit mail fraud does not require a specific agreement to use the mails when we affirmed without opinion the judgment of the district court in United States v. Thomas, 686 F.Supp. 1078 (M.D.Pa.1988), aff'd 866 F.2d 1414, (3d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1958, 104 L.Ed.2d 426 (1989). Even if the dicta contained in Thomas were applicable to a conspiracy charge, our Internal Operating Procedures make clear that only published opinions of this court are regarded as precedential. Third Circuit I.O.P. Ch. 5 § A.2.

We therefore address for the first time whether an agreement to use the mail is an essential element of mail fraud and conclude, along with the two other circuits, that it is not. We base our holding primarily on the reasoning applied by the Supreme Court in Feola. In that case, where the Court considered the scienter required to sustain a conspiracy charge, the Court held that in order to convict a defendant for conspiring to assault a federal officer under 18 U.S.C. § 111, the government did not have to prove the offenders knew that the person they were assaulting was, in fact, a federal officer. In so holding the Court rejected the line of lower court cases that held that there was a higher scienter requirement for conspiracy offenses than for the substantive offense.

The reasoning in Feola is instructive. Turley argues that if conspiracy to commit mail fraud can be proven merely by showing that the use of the mails was reasonably foreseeable, "this formulation largely does away entirely with the use of the mails as a factor in mail fraud conspiracy and reduces that charge to a simple agreement to defraud." Brief for Appellant at 14. In Feola, the Court rejected the analogous argument. Looking to the purpose of the law of conspiracy, the Court stated, "[t]hat individuals know that their planned joint venture violates federal as well as state law seems totally irrelevant to that purpose of conspiracy law which seeks to protect society from the dangers of concerted criminal activity." Feola, 420 U.S. at 693, 95 S.Ct. at 1268. Because use of the mails is merely the jurisdictional element by which a state fraud offense is turned into the federal crime of mail fraud, we hold that specific intent to use the mails need not exist as an essential element of the scheme and that the intent adequate to prove the substantive offense, i.e., if the use of the mails "can reasonably be foreseen, even though not intended," Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), is also sufficient to prove a conspiracy to commit mail fraud.

III. Venue

Turley's next contention is that venue on the four substantive mail fraud counts was improper in the Middle District of Pennsylvania and that accordingly we should dismiss...

To continue reading

Request your trial
24 cases
  • U.S. v. Perez
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 4 de fevereiro de 2002
    ...constitutionally-derived rights. The issue of proper venue in a criminal proceeding can be waived by a defendant. See United States v. Turley, 891 F.2d 57, 63 (3d Cir.1989); United States v. Sandini, 803 F.2d 123, 127 (3d Cir.1986), cert. denied sub nom. Moody v. United States, 479 U.S. 109......
  • U.S. v. Wood
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 19 de abril de 2004
    ...at 147 (brackets in original). This well-reasoned decision also is consistent with dicta from the Third Circuit. See United States v. Turley, 891 F.2d 57, 60 (3d Cir.1989) (acknowledging and approving government concession that "18 U.S.C. § 3237 ... is not applicable to mail A close compari......
  • U.S. v. Palmieri, 93-5134
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 11 de maio de 1994
    ...instructions as a whole to assess whether they adequately presented to the jury the defense theory. Id. See also United States v. Turley, 891 F.2d 57, 62 (3d Cir.1989). II. The escalating use of firearms in violent crimes led Congress to enact the Gun Control Act of 1968, as amended, 18 U.S......
  • United States v. Allen
    • United States
    • U.S. District Court — Virgin Islands
    • 2 de outubro de 2012
    ...was appropriate when a defendant in that district caused an illegal wire transferfrom a prison telephone); cf United States v. Turley, 891 F.2d 57, 61 (3d Cir. 1989) (finding it unnecessary to decide whether the causation theory adopted in United States v. Goldberg-which included a consider......
  • Request a trial to view additional results
1 books & journal articles
  • Contemplating the successive prosecution phenomenon in the federal system.
    • United States
    • Journal of Criminal Law and Criminology Vol. 85 No. 3, January 1995
    • 1 de janeiro de 1995
    ...notice of venue defects, therefore appellants waived objection to venue by failing to raise it before trial); United States v. Turley, 891 F.2d 57, 61 (3d Cir. 1989) (defendants waive objection to venue if they do not raise it in a timely manner. "Timeliness is viewed as `at least prior to ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT