U.S. v. Fitterer

• Decision Date: 30 June 1983
• Docket Number: No. 82-2338,82-2338
• Parties: 13 Fed. R. Evid. Serv. 1184 UNITED STATES of America, Appellee, v. Harland G. "Skip" FITTERER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1328

710 F.2d 1328

13 Fed. R. Evid. Serv. 1184

UNITED STATES of America, Appellee, v. Harland G. "Skip" FITTERER, Appellant.

No. 82-2338.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1983.

Decided June 30, 1983.

Michael F. Fetsch, St. Paul, Minn., for appellant.

James M. Rosenbaum, U.S. Atty. by Thorwald Anderson, Jr., Asst. U.S. Atty., D. Minn., Minneapolis, Minn., Arlen Larson, Legal Intern, for appellee.

Before HEANEY, Circuit Judge, and FLOYD R. GIBSON and ROSENN, ^* Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Harland Fitterer appeals his convictions on seven counts of mail fraud in violation of 18 U.S.C. Sec. 1341 (1976), one count of transportation of property taken by fraud in violation of 18 U.S.C. Sec. 2314 (1976), one count of obstruction of a criminal investigation in violation of 18 U.S.C. Sec. 1510 (1976), and one count of conspiracy in violation of 18 U.S.C. Sec. 371 (1976). His convictions came after a jury trial. The district court sentenced Fitterer to concurrent four-year sentences on all counts except the obstruction of a criminal investigation count, for which he received a two-year consecutive sentence, and one of the mail fraud counts, for which he received a five-year suspended sentence. We affirm the judgment of the district court. ¹

I. Facts

Fitterer's convictions stem from an insurance fraud scheme. The evidence at trial showed that Fitterer was the manager of the Minneapolis branch of Milbank Mutual Insurance Company and had the authority to investigate, evaluate, and settle claims brought against the insurance company. Fitterer and two accomplices, Ronald Sterry and Jerry Peterson, developed a plan for filing fraudulent claims with the insurance company. In one of the schemes, Sterry insured a pickup truck and camper he did not own, and then reported the items as stolen. The insurance company paid more than $13,000 on the claim. In another fraud, Sterry reported that he had hit a Corvette, which was in fact owned by his accomplice Peterson, and filed a claim for damages in connection with the purported accident. The insurance company paid more than $6,000 on this claim. Fitterer was the insurance representative who signed all the checks in payment of these claims. A third scheme involved Peterson and another co-defendant, with the co-defendant fraudulently reporting that a boat was stolen. The insurance company paid more than $9,000 on this claim. A fourth fraud was perpetrated when another co-defendant made a claim for a home that was purportedly destroyed by fire; in fact it had been torn down before the fire supposedly occurred. The claim check was made out to Ronald Sterry's father-in-law, and it too was signed by Fitterer. The four schemes took place between August 1980 and August 1981.

Federal authorities began their investigation into the case in October 1981. Sometime before January 1, 1982, a federal grand jury began an investigation. In January, Fitterer asked a person who was being questioned by the investigators, Jerry McGraw, to tell investigators that McGraw had made an estimate on the house that the defendants claimed had burned down. Fitterer asked McGraw to "act hazy" about the house and its location. Also in January, federal authorities obtained help in the investigation from one of Fitterer's accomplices, Ronald Sterry. Sterry agreed to wear a tape recorder and a transmitter to a meeting with Fitterer and thereby helped obtain incriminating evidence. Sterry's meeting with Fitterer took place two weeks after Fitterer had appeared before the grand jury.

Fitterer and the other defendants were indicted in April. The mail fraud counts were based on the fraudulent schemes and the obstruction of a criminal investigation count was based on Fitterer telling McGraw to "act hazy" if investigators asked McGraw about the house that was supposedly burned down. Fitterer was tried in August and sentenced in October.

II. Obstruction of a Criminal Investigation

Fitterer's first argument is that the jury was improperly instructed on the charge of obstructing a criminal investigation. 18 U.S.C. Sec. 1510(a). ² A person violates that section if he "willfully endeavors by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator ...." (Emphasis added.) Fitterer argues that he can be convicted under Sec. 1510(a) only if he used "bribery, misrepresentation, intimidation or force or threats thereof" to obstruct an investigation. Fitterer did not use any of the proscribed acts upon McGraw to try to induce him to mislead investigators. Fitterer objects to the instruction which allowed the jury to find a violation even though Fitterer did not use the specifically proscribed acts upon McGraw. The district court told the jury: "A misrepresentation also occurs whenever an individual induces or attempts to induce another person to make a material misrepresentation to a criminal investigator. In this instance, the defendant need not make any misrepresentation himself." The issue is whether Fitterer can be convicted for a violation of Sec. 1510(a) even if he did not make a misrepresentation himself.

Fitterer relies primarily on the language of the statute. Excising portions not at issue, the statute makes it a crime to "endeavor[ ] by means of ... misrepresentation ... to obstruct ... the communication of information ... by any person to a criminal investigator." (Emphasis added.) According to Fitterer, the statute allows a person to obstruct the communication of information as long as one does not do so by means of misrepresentation or one of the other proscribed methods.

We do not read the statute as narrowly as Fitterer. We think the statute can be fairly read to prohibit obstructions to the communication of information which are effectuated by means of misrepresentation, and is not limited to situations where the defendant used a misrepresentation to induce a third party to lie.

The legislative history shows that Congress intended to outlaw Fitterer's conduct. The House Judiciary Committee report shows that the main purpose of Sec. 1510 is to protect potential witnesses from threats and intimidation by subjects of criminal investigations. H.R.Rep. No. 658, 90th Cong., 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 1760, 1761-62. However, the committee report specifically dealt with the meaning of the term "misrepresentation." The report states:

It is our intention that the actual procurement by a party of another party's misrepresentation or silence to a Federal investigator would be covered even though such procurement was not achieved by any misrepresentation. At the same time, it is also our intention that procurement of a witness' communication or silence to a Federal investigator by means of a misrepresentation on the part of the procurer is also covered under the act.

Id. at 1762. (Emphasis added.) But see Additional Views of Basil L. Whitener and William L. Hungate, id. at 1765. ("The misrepresentation of facts by individuals contacted by law enforcement officers is an entirely different matter from bribery, intimidation, or the use of force to obstruct criminal investigations." ) Our view of the meaning of the word "misrepresentation" in Sec. 1510 is shared by the only other federal appeals court to have considered the issue. United States v. St. Clair, 552 F.2d 57, 58-59 (2d Cir.), cert. denied, 433 U.S. 909, 97 S.Ct. 2976, 53 L.Ed.2d 1094 (1977).

We believe that resort to the legislative history to clarify the meaning of Sec. 1510 is appropriate. We are aware of the general rule that a penal statute must be strictly construed so that no one can be subjected to a penalty unless a fair warning has been given in words which plainly impose the penalty. United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971); W. LaFave and A. Scott, Criminal Law Sec. 10, at 72 (1972). Likewise, "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). However, the rule of strict construction of penal statutes cannot provide a substitute for the legislative history. United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 1427, 16 L.Ed.2d 492 (1966). The rule does not require that a statute be given the narrowest meaning. It is sufficient if words are given their fair meaning in accord with the evident intent of Congress. United States v. Cook, 384 U.S. 257, 262, 86 S.Ct. 1412, 1414, 16 L.Ed.2d 516 (1966); United States v. Bass, 404 U.S. 336, 351, 92 S.Ct. 515, 524, 30 L.Ed.2d 488 (1971). Furthermore, the need for strict construction is not as great when the conduct is morally bad. W. LaFave and A. Scott, Criminal Law Sec. 10, at 73. When the conduct is morally bad, the defendant is more likely to have fair warning of what is prescribed; no one would be surprised to learn that soliciting misrepresentations by a potential witness is illegal. St. Clair, 552 F.2d at 59.

Section 1510 can, on its face, be fairly read to prohibit asking someone to make a misrepresentation to a criminal investigator, and the legislative history makes the Congressional intent completely clear on this point. Therefore we share the view of the Second Circuit that Sec. 1510 prohibits a procurement of a third party's misrepresentation to a criminal investigator.

III. Other Crimes Evidence

Fitterer's second argument is that he was prejudiced by testimony about an insurance fraud scheme of his which was not mentioned in the indictment....