U.S.A v. Bryant

• Decision Date: 04 June 2010
• Docket Number: No. 09-2532.,09-2532.
• Citation: 606 F.3d 912
• Parties: UNITED STATES of America, Appellee,v.Weldon BRYANT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

606 F.3d 912

UNITED STATES of America, Appellee,v.Weldon BRYANT, Appellant.

No. 09-2532.

United States Court of Appeals,

Eighth Circuit.

Submitted: Feb. 12, 2010.

Filed: June 4, 2010.

COPYRIGHT MATERIAL OMITTED

Scott Tilsen, Assistant Federal Public Defender, Cape Girardeau, MO, for Appellant.

Keith D. Sorrell, Asst. U.S. Atty., Cape Girardeau, MO, for Appellee.

Weldon Bryant, Montgomery, AL, pro se.

Before RILEY, Chief Judge,¹ SMITH and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Weldon Bryant was convicted of three counts of mail fraud, in violation of 18 U.S.C. § 1341. The district court ² sentenced Weldon to 18 months imprisonment to run consecutive to his three-year state sentence for possession of a controlled substance,³ and ordered him to make restitution in the amount of $29,444. Weldon appeals his convictions, sentence, and the restitution order. We affirm.

I.

In 2000, Eleanor J. Bryant, a retired school teacher residing in Fairdealing, Missouri, applied for a long-term care insurance policy (“the policy”) through American Republic Insurance Company (“American Republic”). Once Ms. Bryant's application was accepted, American Republic's subsidiary, John Hancock Life Insurance Company (“John Hancock”), issued and administered the policy. The policy offered reimbursement of up to $70.00 per day ⁴ for the necessary care expenses associated with long-term disability, including home health care.⁵ To file a reimbursement claim under the policy, the insured (or their representative) had to submit a Custodial Nursing Care Questionnaire (“CNCQ”) form to John Hancock. The CNCQ form required the claimant to provide a detailed description of the number of hours that a caregiver ⁶ had provided the insured, the dates of the service, and the amount of money that the insured had paid the caregiver for service. The form was to be signed by both the caregiver and the insured, or the insured's representative. Once a claim was approved, John Hancock would then reimburse the insured for all expenses paid to the caregiver up to the $70.00 daily limit.

In January 2005, after Ms. Bryant was diagnosed with Alzheimer's disease, John Hancock determined that Ms. Bryant was eligible for benefits under the policy. Weldon, one of Ms. Bryant's sons, obtained a Power of Attorney, authorizing him to make health care decisions for his mother. Weldon then moved into Ms. Bryant's home and hired Jesse White, a Certified Nurse's Assistant, to provide home health care for his mother. Weldon began submitting CNCQ forms to John Hancock through the United States mail. All of the forms were signed by White and included information about the care White provided for Ms. Bryant. John Hancock reimbursed Weldon for the expenses he claimed on the forms.

On October 1, 2005, White stopped providing home health care services for Ms. Bryant. On two separate occasions subsequent to this date, Weldon arranged meetings with White. At these meetings, Weldon informed White that he had misplaced some of the CNCQ forms White had signed when providing home health care services to Ms. Bryant. Weldon indicated that he had not yet been reimbursed for these prior expenses and convinced White to sign approximately 20 blank CNCQ forms as substitutes for the alleged misplaced forms. Weldon then completed the blank, signed forms with fraudulent information regarding Ms. Bryant's care, claiming that White had provided skilled nursing care to Ms. Bryant, although in reality, White was no longer Ms. Bryant's caregiver. Weldon mailed the fraudulent CNCQ reimbursement forms to John Hancock on several occasions from November 2005 until January 2007.

After Ms. Bryant stopped receiving care from White in Fairdealing, she moved in with another son, Fred Bryant, in Fenton, Missouri. Fred employed Bon Vivant, a care facility, to assist Ms. Bryant. Fred began sending reimbursement requests to John Hancock for Bon Vivant's care of his mother. At the same time, Weldon was submitting CNCQ forms which falsely represented that Ms. Bryant was still receiving care from White.

John Hancock's investigation into the matter revealed that Weldon had been submitting inaccurate claims for reimbursement. In September 2008, Weldon was indicted by a federal grand jury on four counts of mail fraud, in violation of 18 U.S.C. § 1341. Prior to trial, the government dismissed one of these counts. On February 13, 2009, a jury found Weldon guilty on the remaining three counts of mail fraud.

At the conclusion of Weldon's sentencing hearing, the district court determined Weldon's base offense level to be seven under United States Sentencing Commission Guidelines Manual, § 2B1.1(a). The court then applied a four-level enhancement for causing a loss in excess of $10,000, under USSG § 2B1.1(b)(1)(C). This resulted in an offense level of 11. With a criminal history category of III based on his 2004 Missouri drug conviction, Weldon's advisory Sentencing Guidelines range was 12 to 18 months imprisonment. In denying Weldon's request for a downward departure, the district court stated, “I don't believe there's any proper grounds for downward departure because the criminal history category does not substantially over represent the seriousness of your situation and your criminal history.” (Sent. Tr. 27.) Further, the district court explained:

There's no question in my mind that you can be a useful and productive citizen and you will on your release, but I have to say I was shocked when I found out that you had a conviction for cocaine on your record in 2004. That was the first I'd heard about it and I could hardly believe it because a person of your standing in the community, with all the advantages that you have-My goodness, your mother was a school teacher for all of your life. Only blessing in this whole tragedy is that she's suffering from dementia and probably doesn't know about your situation now .... 90 percent of the people that we see in this courtroom haven't had a fraction of the advantages that you've had. I mean you're a very intelligent person with a college degree and successful life most of all and here you get a drug violation and while you're on probation, you commit fraud to the tune of some $29,000 against an insurance company and regardless of your motives on that, I mean this is just simply inexcusable. Pursuant to the Sentencing Reform Act of 1984 and the provisions of Title 18, United States Code, Section 3553(a) and also pursuant to the sentencing objectives of just punishment, general deterrence and incapacitation, it is the judgment and sentence of the Court that you are hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 18 months.

( Id. at 26-27.) Further, “pursuant to the provisions of [USSG] section 5G1.3,” the district court ordered that Weldon's sentence run consecutively to his three-year sentence for his prior state court conviction. ( Id. at 27.) In addition, the court ordered Weldon to pay restitution in the amount of $29,444 to John Hancock, the amount of loss to John Hancock proven by the government at trial.

II.

Weldon appeals, challenging (1) the sufficiency of the evidence supporting his mail fraud convictions, (2) his sentence, and (3) the district court's refusal to award a portion of the restitution amount to Ms. Bryant's estate.

A.

“We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government's favor, and drawing all reasonable inferences in favor of the jury's verdict.” United States v. Stymiest, 581 F.3d 759, 764 (8th Cir.2009) cert. denied, --- U.S. ----, 130 S.Ct. 2364, 176 L.Ed.2d 573 (2010). To establish mail fraud,⁷ the government must prove: “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) [that] the mail was used in furtherance of some essential step in the scheme.” United States v. Parker, 364 F.3d 934, 943 (8th Cir.2004) ( citing 18 U.S.C. § 1341); see also United States v. Frost, 321 F.3d 738, 740-41 (8th Cir.2003) (affirming a mail fraud conviction where defendant mailed documents requesting payment with forged signatures in order to maintain the appearance that other parties had approved the payments).

Weldon disputes only the first element, arguing that the reimbursed insurance funds he received from John Hancock “were legitimately obtained for the purposes sought,” including payment for his own care of Ms. Bryant. (Appellant's Br. 14.) He claims that his false representations about White's care of Ms. Bryant were not materially false representations under Ms. Bryant's policy because “for purposes of a criminal fraud under the mail fraud statute, the government must prove more than a deceit perpetrated on the insurance company with respect to the identity of the caregiver.” ( Id. at 11.) Weldon further argues that material terms of the policy-that Ms. Bryant was ill, qualified for benefits under the policy, and was provided care by Weldon-were not misrepresented by him, and because the identity of the caregiver was not specifically listed as a material term of the contract, John Hancock was not defrauded out of a property right by a material representation when Weldon represented that White was caring for Ms. Bryant.

Weldon is correct that to constitute mail fraud, a defendant's misrepresentations must be material. See Neder v. United States, 527 U.S. 1, 23-25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also United States v. Heppner, 519 F.3d 744, 748-49 (8th Cir.) (“In order to be convicted of mail fraud, a defendant must have made a material falsehood; materiality is an essential element of the offense.”) cert. denied, Anderson v. United States, --- U.S. ----, 129 S.Ct. 250, 172 L.Ed.2d 188 (2008). However, contrary to Weldon's argument, there is no...