U.S. v. Brocksmith

Decision Date15 July 1993
Docket NumberNo. 91-2208,91-2208
Citation991 F.2d 1363
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jack D. BROCKSMITH, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick J. Chesley and Rodger A. Heaton (argued), Asst. U.S. Attys., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.

Kenneth A. Kozel (argued), LaSalle, IL, for defendant-appellant.

Before POSNER and FLAUM, Circuit Judges, and WILLIAMS, District Judge. *

FLAUM, Circuit Judge.

Jack D. Brocksmith owned several agencies in Quincy, Illinois, that specialized in selling insurance and annuities to the elderly. Unfortunately for his customers, Brocksmith began playing a shell game with their accounts. Brocksmith would receive premium payments from individuals who wanted to purchase insurance policies. He would delay submitting their insurance applications for six to eight weeks, in the meantime drawing on their money to pay for his personal expenses. If the customers complained that they were not receiving their policies, Brocksmith would say there was a problem with the insurance company; to handle things on that end, he would omit the date on the applications he forwarded, or white-out the real date and replace it with a later one. Eventually, when premiums from other customers came in, he would send their money to the carriers to cover the earlier applications, and repeat the cycle again.

In late 1986, Brocksmith sold several large policies or annuities issued by Fidelity Bankers Life Insurance Company. To Mary and Paul Sill, he sold two $25,000 single-premium deferred annuities. The $50,000 in premium checks were deposited into the general operating account of Brocksmith's business. Brocksmith used the money to pay for all the insurance policies he had delayed up to that point and to pay his office expenses. That left only $13,000 remaining in the account.

In November of 1986, Brocksmith sold Jean and Irvin Klingler each a $50,000 single-premium life insurance policy. The Klinglers gave Brocksmith a $30,000 check up front, made out to his business rather than the insurance company. That way, Brocksmith explained, they would receive their interest immediately. In fact, Fidelity's application form contained a tear-off receipt for the purchaser stating that the premium check should be made out to Fidelity, not the agent, and that Fidelity would decide within sixty days whether to issue the policy. This receipt was already torn off before the application reached the Klinglers. On December 1, Brocksmith sent a letter to the Klinglers indicating that he was forwarding their medical examination forms. He encouraged the Klinglers to take their time completing them, which they were forced to do anyway since Brocksmith did not actually mail the forms until four weeks later.

On December 4, Brocksmith sold Willadean and Carl Sattman each a $50,000 single-premium life insurance policy. They gave Brocksmith a check for $25,000 as a down payment. He used this money to cover the Sills' annuities. Later in the month, the Sattmans sent in the rest of their premium payment. At the beginning of January 1987, the Klinglers mailed a check for the $70,000 balance they owed. Brocksmith used these funds to pay for the Sattmans' policies. Now all of his customers were accounted for, except the Klinglers, whose account (after all of Brocksmith's machinations) was $78,000 short of the amount needed to complete their applications.

On February 6, the Klinglers mailed in their medical forms. Jean Klingler became worried because she had not received their policies. She tried several times, unsuccessfully, to reach Brocksmith on the phone. Eventually, on March 23, Brocksmith sent a postcard announcing that he would visit the Klinglers during April. When that date arrived, he sent a letter stating that due to an illness in his family he could not meet them until May. After a few more attempts to set up a meeting, Brocksmith sent another postcard to confirm a date of May 25.

During this time, Brocksmith was engaged in a last-ditch effort to avoid disaster. He conceived a plan to fake a robbery of his office--or, more precisely, of the Klinglers' premium checks. Brocksmith told William Ratcliff, a former employee and current brother-in-law of his, that a large sum of money was missing from his account and was causing trouble between him and his wife. Brocksmith offered to pay Ratcliff if he would leave town and write a letter to his sister saying that he had taken the money. Ratcliff agreed. Brocksmith drove him to the train station in Burlington, Iowa, and bought him a ticket; from there, Ratcliff sent the deceitful letter to Mrs. Brocksmith.

Accompanied by his attorney, Brocksmith sat down with the Klinglers in late May to tell them the sad news that someone had broken into his office and stolen their premium checks. He confessed that he had endorsed the checks and left them in his office, and, showing them Ratcliff's letter, speculated that his former employee was the thief. He tried to comfort the Klinglers with an offer to pay back $10,000 at once and $1000 a month thereafter. To show his good faith, he handed the Klinglers a check for $10,000. Incredulous at his story, Jean Klingler refused to accept the offer. In the end, it would not have mattered if she had. The check bounced, and a replacement $10,000 money order sent via Federal Express had payment stopped on it a few days later.

Brocksmith called his insurance practice "rob[bing] Peter to pay Paul," Tr. 130-31; a jury called it mail fraud. Brocksmith was convicted of five counts of violating 18 U.S.C. § 1341. Count 1 alleged that the Klinglers mailed a $70,000 check to Brocksmith; count 2 alleged that they mailed medical exam forms to him; count 3 alleged that Ratcliff mailed a letter to Brocksmith's wife; and counts 4 and 5 alleged that Brocksmith mailed two postcards to the Klinglers. Brocksmith was sentenced to three consecutive sentences of five years on counts 1 through 3, and suspended sentences on counts 4 and 5. He was also ordered to pay restitution to the Klinglers in the amount of $7100.

Brocksmith raises sixteen different arguments on appeal, some containing as many as eight subparts. He challenges the sufficiency of the evidence on all counts and the length of his sentence, objects to five witnesses' testimony, claims his trial attorney was ineffective and should have been disqualified, alleges prejudicial comments and ex parte communications by the district judge, and criticizes the jury instructions and voir dire questions. Many of these arguments were not made before the district court, are barely a page long in Brocksmith's oversized brief, and are wholly unsupported with case authority. Counsel bears responsibility for narrowing the issues presented on appeal from the entire universe of possible objections to the proceedings below to the small set of arguments that offer a legitimate chance for success. A client is disserved when the most meritorious arguments are drowned in a sea of words. 1 "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.)), cert. denied, --- U.S. ----, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Undeveloped and unsupported claims are waived. See id.

Brocksmith's first argument is that his federal prosecution violated the Double Jeopardy Clause of the Fifth Amendment. Two years before this prosecution, the Assistant State's Attorney charged him with knowingly exerting unauthorized control over the Klinglers' assets. Brocksmith was found not guilty of this charge. He now contends that successive prosecutions for the same offense violate the Fifth Amendment. This argument, however, ignores the dual sovereignty doctrine, under which two sovereigns (such as the states and the federal government, see Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985)) may prosecute an individual for the same conduct if it violates the laws of each. "The dual sovereignty doctrine has been a fixture of constitutional law for decades." United States v. Bafia, 949 F.2d 1465, 1478 (7th Cir.1991) (citing United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)), cert. denied, --- U.S. ----, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992).

Brocksmith contends that the district court should at least have held an evidentiary hearing to determine whether his federal prosecution was a "sham." The case of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), supposedly recognized an exception to the dual sovereignty doctrine in situations where one sovereign's prosecution serves as a tool for a second sovereign that previously prosecuted the defendant. See id. at 123-24, 79 S.Ct. at 678. We have questioned whether Bartkus truly meant to create such an exception, and we have uniformly rejected such claims. See United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). In any event, conversations and cooperative efforts between state and federal investigators of the kind Brocksmith alleges are "undeniably legal" and are, in fact, "a welcome innovation" in law enforcement techniques. See id. at 1024 (quotation omitted).

Relatedly, Brocksmith argues that his federal prosecution was barred under the doctrine of collateral estoppel. The Double Jeopardy Clause has been held to embrace principles of issue preclusion, such that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same part...

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