U.S. v. Draiman

• Decision Date: 21 February 1986
• Docket Number: No. 85-1995,85-1995
• Citation: 784 F.2d 248
• Parties: 20 Fed. R. Evid. Serv. 380 UNITED STATES of America, Plaintiff-Appellee, v. Yehuda DRAIMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 248

784 F.2d 248

20 Fed. R. Evid. Serv. 380

UNITED STATES of America, Plaintiff-Appellee, v. Yehuda DRAIMAN, Defendant-Appellant.

No. 85-1995.

United States Court of Appeals Seventh Circuit.

Argued Nov. 8, 1985.

Decided Feb. 21, 1986.

Patrick A. Tuite, Patrick A. Tuite, Ltd., Chicago, Ill., for defendant-appellant.

Michael J. Shepard, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, WOOD and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The defendant, Yehuda Draiman, a principal stockholder, attempted to take advantage of the burglary of Electro Video Marketing ("EVM") which occurred in Chicago, Illinois in August, 1981. Thereafter, Draiman filed on behalf of EVM two burglary insurance claims with the insurers, Transamerica and Hartford Insurance Companies. The government alleged that the insurance claims were fraudulent, being far in excess of actual losses, and charged Draiman with ten counts of mail fraud, two counts of obstruction of justice, and one count of perjury. A jury found Draiman guilty of the mail fraud counts, and not guilty of perjury. The government moved to dismiss the two obstruction charges upon which the jury had not reached a verdict. ¹ This appeal followed raising the issue of whether the evidence was sufficient to show whether Draiman caused the mailings and whether they were in furtherance of Draiman's scheme to defraud the insurers. In addition, a variety of evidentiary rulings are questioned. We affirm.

Facts

EVM, as the name suggests, was in the video business, and had on hand a stock of video tapes and equipment. It is not disputed that two burglars broke into EVM on August 15, 1981, and left with EVM property. The government alleges that the loss was of about 1,100 video tapes valued at about $25,000, plus two wastebaskets which likely were handy containers for the burglars' use. Draiman, however, had more grandiose ideas about the extent of his loss, and in October, 1981 filed insurance claims totalling $1,061,900.51, which included tapes, equipment, and a $10,000 cash loss which Draiman said had been left in a desk drawer. A month later EVM's adjuster revised the claim downward to $896,103.89 and there were other downward adjustments during the course of the insurance investigation, but never to within range of the government's evidence of actual loss.

Draiman elaborately falsified documents from a nonexistent company to show he had video stock which was stolen, but which in fact he never possessed. He prevailed on friends to prevaricate. Immediately after the burglary he estimated his loss in the same amount the government used for its purposes, but after that the claimed loss went up. He attempted to bribe the investigating officers. Employees discounted his claims of what was missing as they saw the merchandise undisturbed on the shelves and in storage areas after the robbery. If the burglars managed to haul out everything Draiman claimed they did, then the burglars were master burglars who made remarkable use of two wastebaskets.

On appeal Draiman points out that nine of the mailings upon which nine counts of mail fraud are based are letters from a lawyer in the firm representing the two insurance companies addressed to various persons involved with the claims other than Draiman. The remaining mailing which forms the basis of Count 8 is a letter from the attorney for EVM to the attorney for the insurance companies. Draiman argues that the mailings do not come within the scope of the mail fraud statute ² as the government's proof failed to prove that (1) the defendant caused the mailings, and (2) that the mailings were for the purpose of executing the scheme. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). The evidence will be considered in more detail as the issues are considered.

Sufficiency of the Evidence

Draiman does not find fault with the trial court's mail fraud instructions, only with the sufficiency of the evidence on the components of mail fraud. Our standard of review requires that the evidence be viewed in the light most favorable to the government in determining whether "any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Roman, 728 F.2d 846, 857 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984). In reviewing sufficiency of the evidence at this distance from the trial we must give deference to the jury's weighing of the evidence and its drawing of reasonable inferences. United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984); United States v. Niemiec, 611 F.2d 1207, 1211 (7th Cir.1980).

This court has considered the mail fraud statute on numerous occasions, one of the latest being United States v. Bonansinga, 773 F.2d 166 (7th Cir.1985). Draiman argues that the mailings do not qualify since they originated with the attorney for the insurance companies and were directed to persons other than the defendant. It can be seen from Bonansinga that mailings between innocent parties may satisfy the statute if the scheme has not reached fruition. In the present case the scheme was not completed as Draiman had not collected his inflated damages from the insurers.

In United States v. Lindsey, 736 F.2d 433, 437 (7th Cir.1984), this court followed other circuits in reading the mail fraud statute expansively and giving it a broad interpretation. The government need only show that Draiman knowingly caused the mails to be used in the furtherance of his scheme. In Pereira v. United States, 347 U.S. 1, 8-9, 79 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954), the question of whether or not that standard had been met was found by the Supreme Court to be easily answered since a defendant "causes" the mail to be used when he does an act "with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended." As in United States v. Wormick, 709 F.2d 454, 461 (7th Cir.1983), Draiman's "approach to mail fraud is far too narrow." That Draiman neither personally mailed any of the letters nor even knew of the particular mailings does not mean that he has slipped by Pereira.

The "in furtherance" component of mail fraud is likewise to be broadly read and applied. If the mailing is "incident to an essential part of the scheme" the statute is satisfied. United States v. Lea, 618 F.2d 426, 430 (7th Cir.1980). That does not mean, however, that the mailing itself must always be an essential part of the scheme, only that it be incident to an essential part. Again Draiman's approach to mail fraud is far too narrow. We shall briefly see if the evidence in the ten mail fraud counts satisfies these general section 1341 requirements.

The individual mailings and their content must be examined within the context of the scheme. The scheme did not end with the filing of the false insurance claims with the insurers. That was only the beginning of Draiman's effort to profit from his burglary at the expense of his insurers. Once he filed the claims and the claims were questioned, Draiman did not give up. His continuing efforts to mislead the insurers with false information and the creation of false documents did not succeed in making the scheme profitable, only in laying sufficient basis for these mail fraud counts. The defendant raises specific objections to Counts I, III, IV, V, VI, VII, IX, and X, but only generally as to Counts II and VIII.

Count I

This mailing was a letter, dated December 23, 1981, to Draiman's insurance adjuster from the lawyer representing the insurers confirming that Draiman and his adjuster had been granted additional time to submit a revised detailed statement of loss, and also included a request for additional documents needed to evaluate the claims. The letter put in writing what had been discussed at a meeting between Draiman and his adjuster and representatives of the insurance company. Draiman, relying on United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied sub nom. Dolwig v. United States, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977), and United States v. Dick, 744 F.2d 546, 551-52 (7th Cir.1984), claims he did not cause the mailing nor was the mailing foreseeable by him or in furtherance of the scheme.

Kaplan, however, is a different situation although facially it might seem helpful. The charged letter in Kaplan, which could be called a "confirming letter," was found not sufficient to sustain the mail fraud count. The defendant made certain false oral representations which resulted in the use of the mails by the other party in order to confirm that the defendant had made the statements. Although the false oral representations were considered to be in furtherance of the fraudulent scheme, the letter in response was held not to be as it was not a step toward receipt of the fruits of the scheme in violation of section 1341. That is a distinguishable situation, because Draiman secured additional time by the mailing to try to better falsify his claim and to convince the insurers that he was entitled to the payment of his claim. The Kaplan letter was only seeking confirmation of what had already been said, but Draiman was gaining useful time to improve his fraudulent scheme.

In Dick the factual situation is also distinguishable. A contractor was awarded a completion contract as part of a scheme to defraud, but that fact, it was held, did not make subsequent mailings to a person a part of the scheme to defraud when that person had no interest in who finished the work or for what price. Those mailings were not related to the scheme.

The government argues that the letter assisted in and was a part of processing the insurance claim, citing United States v. Contenti, 735...