U.S. v. Blankenship, 84-1193

• Decision Date: 29 October 1984
• Docket Number: No. 84-1193,84-1193
• Parties: 17 Fed. R. Evid. Serv. 284 UNITED STATES of America, Plaintiff-Appellee, v. Rollie BLANKENSHIP, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 233

746 F.2d 233

17 Fed. R. Evid. Serv. 284

UNITED STATES of America, Plaintiff-Appellee, v. Rollie BLANKENSHIP, Defendant-Appellant.

No. 84-1193

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 29, 1984.

John Tatum, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., Fort Worth, Tex., Christopher Lee Milner, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

Rollie Blankenship appeals his conviction on five counts of mail fraud under 18 U.S.C. Sec. 1341. He attacks the sufficiency of the evidence to support his conviction, the propriety of the court's instructions to the jury and the overruling of his objection to a Government question propounded to him during cross-examination. Finding no reversible error in the proceedings below, we affirm.

I.

Rollie Blankenship (Blankenship) was charged in seventeen counts of a twenty-count indictment alleging that he and several others committed mail fraud by submitting bogus insurance claims for the theft of non-existent machinery. Following dismissal of part of the indictment, a jury convicted Blankenship of five counts of mail fraud and acquitted him of three others. The five counts on which he was convicted all relate to a scheme through which Marvin Lovell (Marvin), with the help of his brother, Roger Lovell (Roger), Wade Hopkins (Hopkins) and Blankenship, attempted to procure funds needed to pay Marvin's income taxes. Marvin, Roger and Hopkins were also indicted but all three negotiated plea agreements with the Government and testified against Blankenship.

The background and particulars of the fraudulent scheme, as revealed through the testimony of Marvin, Roger and Hopkins, can be summarized as follows: Marvin told Blankenship, who was both a friend and a vice president at a local bank, that he owed $19,000 in taxes which he did not have. Blankenship responded by proposing a scam to defraud an insurance company through which Marvin might realize enough to keep the IRS off his back. He suggested the following: Blankenship would authorize a loan from his bank to Marvin for the avowed purpose of purchasing a piece of construction equipment. No equipment would be purchased, however, and, after reserving enough to make one or two loan payments, Marvin and Blankenship would split the bank's money. Marvin would simply supply the bank with a bogus serial number for a non-existent machine and insure the phantom machine against theft. After making one or two payments, Marvin would report the machine stolen, collect the insurance proceeds and use them to continue payments on the loan.

Marvin agreed to the scheme and solicited the help of Roger and Hopkins. Marvin and Blankenship located some equipment for sale in a construction magazine, altered the serial number slightly, and submitted the phony documentation to the bank. Blankenship provided Marvin with a blank bill of sale which Hopkins filled out and signed as the purported seller of the equipment. Blankenship authorized a loan of $36,000 to Marvin and had four checks drawn on the bank for $9,000 each. Marvin and Hopkins endorsed and cashed the checks and delivered about half of the money to Blankenship. About two months later, Roger reported to the police that the equipment had been stolen and Marvin submitted a claim to his insurance company. The altered serial number tipped the insurance company off, however, and it ultimately unearthed the scam and denied the claim.

Blankenship testified at trial and vigorously denied this version of the story. He claimed that, so far as he knew, the loan to Marvin was a bona fide business deal which he authorized because of Marvin's good credit and reputation at the bank. He supported his account of the facts by testifying that he had actually inspected the equipment for which the loan was made while it was stored in a hotel parking lot.

The mail fraud statute, 18 U.S.C. Sec. 1341, makes it unlawful to use the United States mail for the purpose of executing a scheme or artifice to defraud. Each separate use of the mail in furtherance of such a scheme constitutes a separate crime. United States v. Shaid, 730 F.2d 225 (5th Cir.1984). Counts one through five of the indictment allege Blankenship's involvement in the following separate offenses: (1) the mailing of a copy of the bank promissory note to the insurance company; (2) the mailing of a copy of the phony bill of sale to the insurance company; (3) the mailing by the insurance company of a blank proof of loss form to Marvin; (4) the return of the executed proof of loss form to the insurance company; and (5) the mailing of the police incident report to the insurance company. The indictment alleges that, with respect to each of the five mailings, Blankenship violated the mail fraud statute as well as the aiding and abetting statute, 18 U.S.C. Sec. 2. From his conviction on all five counts, Blankenship appeals.

II. IMPROPER IMPEACHMENT

Blankenship argues on appeal that the district court erroneously allowed the Government to comment during impeachment on his exercise of the fifth amendment privilege against self-incrimination. This argument lacks merit. Blankenship elected to testify at trial and stated, in direct contradiction to Marvin's testimony, that he had no knowledge that the loan transaction was a scam, that he authorized the loan on the strength of Marvin's credentials at the bank and that he actually saw a piece of equipment that he was led to believe was the collateral for the loan and later the subject of the insurance claim.

On cross-examination, the Government asked the following question: "Now, today was the first time that your account of what happened was heard by anybody involved in law enforcement, isn't it?" Record Vol. IV at 410. Blankenship was directed to answer the question over his counsel's objection and responded affirmatively. He went on to explain, however, that he had been contacted by a postal inspector and had expressed his willingness to talk but, for some unexplained reason, the discussion never occurred. Id. at 412-13.

Blankenship objected to the question on the ground that it constituted an impermissible comment on his exercise of the fifth amendment privilege against self-incrimination. Id. at 410. On appeal, he relies on a series of cases that deal with the propriety of prosecutorial reliance on post-arrest or post-Miranda silence to rebut an exculpatory story told by the defendant at trial. In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Supreme Court, without reaching the constitutional question, exercised its supervisory authority over lower federal courts to prohibit cross-examination of a defendant with respect to post-arrest silence. One year later, the Court held in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that cross-examination of a defendant with respect to post-arrest silence, offered on the theory that silence is inconsistent with an exculpatory story told at trial, deprives the defendant of the fundamental fairness guaranteed by the due process clause. That conclusion is bottomed on the insoluble ambiguity of post-arrest silence that necessarily results when a defendant has been read his Miranda rights; the defendant's silence may well indicate, not that he has no exculpatory story to tell, but that he is simply exercising the rights of which he has just been advised. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Court expressly limited Doyle's holding to silence occurring after Miranda warnings.

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), however, the Court held that impeachment of a testifying defendant by reference to his prearrest silence is not unconstitutional. By offering himself as a witness, the Court held, defendant waives his fifth amendment privilege and may be cross-examined with respect to his credibility to the same extent as other witnesses. The Court further held that allowing cross-examination to extend to prearrest silence does not impermissibly burden the exercise of fifth amendment rights; defendant makes a tactical decision to testify and must then accept the prosecutor's right to examine his credibility. Finally, the Court distinguished Doyle and found that allowing impeachment through prearrest silence does not offend due process guarantees; when prearrest silence is involved, "no governmental action [has] induced [the defendant] to remain silent," id. at 240, 100 S.Ct. at 2130, and it is not, therefore, fundamentally unfair to ask why he did not offer his exculpatory story at an earlier point in time.

Jenkins, of course, deals strictly with the constitutional issues involved in impeachment with prearrest silence. Id. at 240, 100 S.Ct. at 2130 ("Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial."). The Court has not pronounced a general supervisory rule for federal courts with respect to prearrest silence. But cf. United States v. Hale, 422 U.S. at 171, 95 S.Ct. at 2134 (supervisory rule for post-arrest silence). At trial, however, Blankenship's objection to the Government's question raised only the constitutionality of the impeachment technique. Therefore, we are not called upon to evaluate whether the question was objectionable under any specific rule of evidence. ¹ If the Government's question relates to prearrest silence, the constitutional claim is without merit; if it relates to post-arrest silence, there has been a constitutional violation which we will evaluate under the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1976). See, e.g., Chapman v. United States, 547 F.2d...