U.S. v. Curry, 81-3130

Decision Date29 July 1982
Docket NumberNo. 81-3130,81-3130
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gordon W. CURRY, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Steve M. Marks, Baton Rouge, La., for defendant-appellant.

C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.

GOLDBERG, Circuit Judge:

Gordon Curry appeals his conviction on three counts of mail fraud, 1 arguing that there was no jurisdiction under the mail fraud statute, that the evidence was insufficient to support a guilty verdict, and that the trial court erred in refusing to instruct the jury that good faith was a defense to the violations charged. While we find that the evidence was indeed sufficient to support the convictions for mail fraud, we conclude that the trial court erred in refusing to provide the requested jury charge. Accordingly, we reverse.

FACTS

Gordon Curry's indictment and conviction for mail fraud arise out of his activities as chairman of a citizens' political action organization during three elections in 1978 and 1979. The defendant is accused of fraudulently converting to his own use thousands of dollars received by him from electoral candidates on behalf of his political organization. In addition, the defendant is said to have mailed false documents to a state election supervisory committee in an effort to both conceal his fraudulent conversion of funds and to deny the state of Louisiana true and correct information concerning campaign finances.

Gordon Curry was chairman of the political action committee of an organization incorporated under Louisiana law as P.E.O.P.L.E., Inc. "P.E.O.P.L.E." was a group of black citizens in the South Baton Rouge area who performed various social, civil, charitable and political functions. 2 In early 1978, a group of P.E.O.P.L.E. members formed a so-called "political action committee," ostensibly for the purpose of supporting Gordon Curry was chairman of P.E.O.P.L.E.'s political action committee during three elections in 1978 and 1979. P.E.O.P.L.E. supported eight candidates in the September, 1978 election; six candidates in the November, 1978 election; and two candidates in the April, 1979 election. Candidates endorsed by P.E.O.P.L.E. ran for various offices, ranging from the United States Senate to local school board. In his role as chairman of P.E.O.P.L.E.'s political action committee, Mr. Curry negotiated with, and received funds in cash and check directly from, candidates. In addition, Curry oversaw and managed P.E.O.P.L.E.'s campaign support activities. Candidates testified that P.E.O.P.L.E. workers, led by Curry, provided substantial campaign assistance: they placed signs in voters' yards, distributed bumper stickers and ballots, manned the polls and set up phone banks for contacting voters.

political candidates chosen by the organization. Actually, candidates paid P.E.O.P.L.E. large amounts for its official endorsement, and for providing an array of campaign assistance services such as distributing signs and bumper stickers, printing ballots, and calling voters. P.E.O.P.L.E.'s presidents testified that any funds received from candidates over and above the cost of these election services were to be turned over to P.E.O.P.L.E.'s treasury and used to support programs to benefit youth and the elderly. Thus, P.E.O.P.L.E.'s "political action committee," served both to support the organization's political goals, and as a fund-raising vehicle for the organization's other programs.

The Government contends that Gordon Curry used his position as Chairman of P.E.O.P.L.E.'s political action committee to defraud that organization of over fourteen thousand dollars. According to the Government's calculations, Curry received an aggregate of $23,777.80 on behalf of P.E.O.P.L.E. during the three elections in question, and converted $14,975.00 of this to his own personal use. Curry deposited checks from candidates into his own checking account, or cashed the checks. According to the Government, only a small fraction of these funds were ever used to pay for campaign expenses. Instead of turning the balance of funds over to P.E.O.P.L.E., as he was required to do, Curry allegedly used the money for his own personal expenses.

Louisiana's Election Campaign Finance Disclosure Act (hereinafter "the Election Act") 3 requires political committees to report their campaign finances to a Supervisory Committee. Pursuant to the Election Act, Mr. Curry mailed 4 affidavits attesting to P.E.O.P.L.E.'s campaign finances to the state's Supervisory Committee after each election. The Government contends that the affidavits mailed by Curry to the Supervisory Committee were false and fraudulent under the terms of Louisiana's Election Act. According to the Government, the false affidavits were intended by Curry to conceal from the Committee and from P.E.O.P.L.E.'s membership the true amounts of money received by Curry on P.E.O.P.L.E.'s behalf from political candidates, thereby preventing detection of Curry's scheme to defraud P.E.O.P.L.E.

PROCEEDINGS BELOW

Curry was indicted on three counts 5 of violating the mail fraud statute, 18 U.S.C. § 1341. Defendant filed several pre-trial motions, including a motion to dismiss the indictment for lack of jurisdiction, which were denied. At the close of trial, defendant submitted a request for a "good faith" jury charge, which was also denied. The jury found Curry guilty of all three counts of mail fraud. The district court denied defendant's post-trial motions for judgment of acquittal, based on insufficiency of evidence; and for arrest of judgment, based

on lack of jurisdiction. Defendant brought this appeal. 6

ISSUES ON APPEAL

Three principal questions are presented on appeal. 7 First, assuming arguendo the existence of a scheme to defraud P.E.O.P.L.E., we must determine whether there is sufficient connection between the fraudulent scheme and the affidavits mailed by Curry to constitute the federal crime of mail fraud. Second, we must examine the record to determine whether there is sufficient evidence to sustain a guilty verdict. Finally, we must decide whether the district court erred in refusing to charge the jury on the issue of defendant's good faith.

THE CRIME OF MAIL FRAUD

The mail fraud statute prohibits in general terms the use of the United States mails in furtherance of fraudulent schemes. 8 Thus, in order to establish mail fraud, the Government must prove both the existence of a scheme to defraud, and use of the mails "for the purpose of executing" that scheme. U. S. v. Goss, 650 F.2d 1336, 1341 (5th Cir. 1981); U. S. v. Freeman, 619 F.2d 1112, 1117 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); U. S. v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1981); U. S. v. Zicree, 605 F.2d 1381, 1384 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Specific intent to defraud is an essential element of the crime. U. S. v. Goss, supra; U. S. v. Freeman, supra; U. S. v. Kent, supra at 545 n.3. See generally K. Carlyle, A Survey of the Mail Fraud Act, 8 Memphis State L.Rev. 673, 677-678 (1978) (discussing the intent requirement in mail fraud cases). Accordingly, the defendant's good faith is a defense to charges of mail fraud. U. S. v. Goss, supra.

The definition of a scheme to defraud is quite broad. As a learned judge of this Circuit 9 once remarked in regard to the mail fraud statute, "(t)he law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity." The language of the mail fraud statute is sufficiently flexible to encompass any conduct "which fails to match the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society." Blackly v. U. S., 380 F.2d 665, 671 (5th Cir. 1967).

Moreover, a scheme to defraud need not necessarily contemplate loss of money or property to the victims. See, e.g., U. S. v. Isaacs, 493 F.2d 1124, 1149-50 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. States, 488 F.2d 761, 764 (8th Cir. 1973); U. S. v. Mandel, 415 F.Supp. 997, 1011 (D.Md.1976), aff'd in relevant part, 591 F.2d 1347 (4th Cir. 1979), aff'd in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). Although the Government must prove that some actual harm was contemplated by the defendant, U. S. v. Regent Office Supply, 421 F.2d 1174, 1180 The indictment in this case describes two separate and distinct fraudulent schemes allegedly perpetrated by Curry, each scheme involving a different set of purported victims. First, it is alleged that Curry devised a scheme to defraud P.E.O.P.L.E. of funds collected from political candidates by converting these funds to his own use. This scheme also involved defrauding P.E.O.P.L.E.' § membership of their right to Curry's honest, true and faithful services as chairman of the political action committee. Second, Curry is alleged to have defrauded the Supervisory Committee of its right to obtain true and correct financial disclosure reports as required by the Election Act. 10

(2d Cir. 1970), it is well-established that a scheme which operates to deprive citizens of "intangible rights or interests" is a scheme to defraud under section 1341. U. S. v. McNeive, 536 F.2d 1245, 1248-49 (8th Cir. 1976). Thus, the mail fraud statute has been interpreted to forbid the use of the mails for schemes to defraud citizens of an elected official's honest and faithful services, see U. S. v. Isaacs, supra; U. S. v. Mandel, supra ; of political and civil rights, see, U. S. v. States, supra ; and...

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