U.S. v. Caldwell
| Decision Date | 21 November 1985 |
| Docket Number | No. 85-8208,85-8208 |
| Parties | 19 Fed. R. Evid. Serv. 537 UNITED STATES of America, Plaintiff-Appellee, v. S. Sam CALDWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William A. Morrison, Atlanta, Ga., for defendant-appellant.
Robert S. Stubbs, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.
Appellant S. Sam Caldwell appeals from his conviction below on six counts of mail fraud, one count of violating the federal statute prohibiting the destruction of a vessel upon the high seas for the purpose of injuring the vessel's insurer, and one count of conspiring to destroy that vessel. After the district court denied his motions for a new trial or for judgment of acquittal and imposed sentence, appellant filed a timely notice of appeal to this court. We have jurisdiction of this direct appeal from a criminal conviction, 28 U.S.C. Sec. 1291 (1982), and we find no reversible error in the proceedings below.
The evidence adduced at trial, when viewed in the light most favorable to the prosecution and the jury verdict, see, e.g., United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982), established that appellant Caldwell along with co-defendants Jack Flanigan and William Shanks purchased the vessel, the Our Way, in 1978 from the insurance proceeds of a previous vessel that they had jointly owned. Although the defendants originally were partners in the purchase of the Our Way, a 33 foot Alglass Pacemaker sports fisherman, Flanigan apparently receded somewhat from that equal partner status sometime thereafter due to a lack of funds. At any rate, the defendants used the Our Way without incident until approximately September of 1980. The vessel was at that time moored on Crooked River in Camden County, Georgia, a brackish or salt-water waterbody that was subject to the tidal variations of the ocean. The Our Way apparently fell victim to unusual tide conditions while moored on Crooked River, which, when coupled with the fact that she was tied too securely to the dock, caused her to literally roll on her side and sink. The defendants quickly undertook to have the vessel raised and refurbished, and they contacted numerous individuals to take part in that venture. One individual recruited for the project was Larry Mumford, an engine mechanic and race boat driver known to Caldwell from prior work he had done on Caldwell's boat. Mumford commenced with the process of removing the Our Way 's engines and proceeded over the next few months to rebuild and re-install them in the vessel.
At the time of this first sinking of the Our Way, the defendants had not obtained insurance for the boat. Subsequently, sometime during the renovation period, Caldwell confided in Mumford a plan to obtain insurance on the Our Way, to replace her expensive diesel engines with cheaper gasoline engines, and then to sink her for the purpose of obtaining the insurance proceeds. Mumford agreed to participate in the scheme and was given $1,500.00 to purchase the gasoline engines, with a promise from Caldwell of $5,000 more to be paid after the vessel was disposed of and the insurance proceeds were recovered. Sometime in 1981 during this refurbishing period, Caldwell hired Mumford to work for the Labor Department of the State of Georgia, although the real Initially, an insurance agent by the name of Jimmy Connors was to provide the insurance, but he apparently did not provide the insurance as expected, which delayed the plan to sink the boat. In the course of dealing with Connors, Shanks learned, however, that a marine survey would be required in order to obtain the marine insurance. Inasmuch as Mumford was already involved in the plan to sink the Our Way, Caldwell discussed with him the details involved and jotted down some potential figures to be used for a survey. A marine survey was subsequently prepared valuing the Our Way at $60,000.00, which was typed by Caldwell's secretary and bore Mumford's signature, although he (Mumford) denied at trial having prepared or signed the survey himself. During this time, Caldwell also informed Mumford that he had located a replacement vessel, and that he might take the Our Way to Florida, dock it for a few months, and then sink it and report it stolen.
purpose of that hiring was for Mumford to facilitate appellant's scheme to obtain the insurance proceeds.
Shanks eventually procured insurance for the Our Way through an agent by the name of Billy Deason. The policy was issued in June of 1981, after the submission by Shanks of insurance applications and of a marine survey completed by Baxley Marine Company of Baxley, Georgia. This survey, which was identified at trial as government's exhibit Deason 2, bore the signature of Larry Mumford and stated, inter alia, that the present physical value of the Our Way was $95,000.00 as equipped. Counts five through nine of the indictment were based upon discreet mailings of these applications and the survey back and forth between Deason, as the insurance agent, and the insurance brokers through whom he acquired the insurance for the Our Way. See supra note 4. The insurance policy was issued in the face amount of $95,000.00 covering loss due to named perils, which did not cover unseaworthiness of the vessel itself. In June of 1982, that policy was renewed.
Also in June of 1982, June 13, 1982 to be exact, Caldwell and Shanks embarked from the east coast of Florida en route to the Bahamas aboard the Our Way. Approximately 25 miles off shore, they encountered difficulties with the vessel. Earlier statements of Shanks and Caldwell's testimony at trial indicated that after noticing problems with the vessel, they checked below decks in the engine compartment and found a large amount of water entering the vessel at a rapid rate through an exhaust hose that had become disconnected. Caldwell testified at trial that the Our Way was so full of seawater and close to sinking by the time that they noticed the problem that there was not time to contact the Coast Guard, and he and Shanks almost immediately abandoned ship to a 15 foot boat they were towing behind the Our Way. 6 The Our Way sank in a matter of minutes, and Caldwell and Shanks then returned to shore in the small runabout, landing approximately in the area of Stuart, Florida. Shanks then notified the Coast Guard of the mishap.
After the sinking, Shanks submitted a Loss Notice seeking reimbursement from the insurance companies for the loss of the Our Way. That Loss Notice was mailed between the insurance brokers involved here and constituted the basis for the mail fraud claim contained in count ten. Sometime after this point, according to Mumford's trial testimony, Caldwell realized that the insurance companies were in possession of the fraudulent marine survey that had been submitted under Mumford's name. Caldwell therefore requested that Mumford meet him in Atlanta, Georgia, for
the purpose of having Mumford sign another marine survey and he complied. 7
On November 2, 1984, appellant Caldwell was brought for trial on the eight severed counts described above along with co-defendant Flanigan. The other co-defendant, William Shanks, died prior to trial. The government proceeded to trial in this matter relying heavily upon the testimony of Larry Mumford, as bolstered by circumstantial evidence corroborating his testimony and casting suspicion as to the circumstances surrounding the refurbishing and second sinking of the Our Way. The prosecution also relied upon evidence of appellant's prior vessel ownership and insurance loss history to show, among other things, the relationship between the defendants and the existence of a prior loss history on Caldwell's part that was not reported in the applications for insurance.
Appellant's defense consisted primarily of his own testimony, which to a large degree contradicted that of Larry Mumford. Caldwell generally denied or had no recollection of Mumford's allegations concerning his involvement in the submission of a fraudulent marine survey or subsequently meeting with Mumford in Atlanta to prepare a new marine survey for Mumford's actual signature. He contended that he gave the original $60,000.00 survey to either Shanks or Mumford before it was submitted to obtain insurance in 1981, and that if it was altered to reflect a value of the Our Way to $95,000.00, he had no knowledge of that fact. Caldwell also categorically denied any act or intention of sinking the Our Way at any time.
After the prosecution had presented its case and appellant his defense, a matter arose on the morning the case was to go to the jury regarding potential...
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