U.S. v. Fuel

• Decision Date: 16 August 1978
• Docket Number: Nos. 77-1876,77-1896,s. 77-1876
• Citation: 583 F.2d 978
• Parties: 3 Fed. R. Evid. Serv. 976 UNITED STATES of America, Appellee, v. Carolyn Porter FUEL, Appellant. UNITED STATES of America, Appellee, v. Merle O. GREENE, Jr. and Julia Greene, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 978

583 F.2d 978

3 Fed. R. Evid. Serv. 976

UNITED STATES of America, Appellee, v. Carolyn Porter FUEL, Appellant.

UNITED STATES of America, Appellee, v. Merle O. GREENE, Jr. and Julia Greene, Appellants.

Nos. 77-1876, 77-1896.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1978.

Decided Aug. 16, 1978.

Thomas Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant, Carolyn Porter Fuel.

James R. Wyrsch, Kansas City, Mo., for appellants, M. O. Greene, Jr. and J. Greene.

Kenneth Josephson, Asst. U. S. Atty., Kansas City, Mo., for appellee; Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., on brief.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Merle O. Greene, Jr., Julia Greene and Carolyn Porter Fuel were charged in a ten-count indictment with mail fraud and conspiring to commit mail fraud in violation of 18 U.S.C. §§ 2, 371 and 1341. Greene and Julia Greene were convicted on all counts with which they were charged, and Fuel was convicted on all but one count with which she was charged. ¹ The trial court subsequently entered a judgment of acquittal as to Julia Greene with respect to a substantive count. Each appellant raises several issues on appeal. For the reasons discussed below, we reverse each appellant's conviction for conspiracy and the convictions of Fuel on Counts III and IV. We affirm the appellants remaining convictions on the substantive counts.

I. Factual Background.

Count I of the indictment charged the appellants with engaging in a conspiracy from January 1, 1973, until August 1, 1975, to defraud and obtain money from different insurance companies by submitting fraudulent claims on insurance policies in connection with automobile accident and burglary claims. During the pendency of the alleged conspiracy, Greene submitted eleven claims against nine insurance companies arising out of seven purported automobile accidents, two purported burglaries and one purported automobile larceny. He was paid approximately $15,328 by the insurance companies. During the same period, Julia Greene submitted four claims to four insurance companies arising out of three automobile accidents and one burglary. She was paid approximately $3,475 by the insurance companies. Fuel submitted five claims to four insurance companies arising out of four automobile accidents and one burglary. She was paid approximately $2,823 by the insurance companies.

Fraudulent medical reports, work-loss letters, receipts and vehicle repair estimates were submitted in support of some of the claims. The documentation used to support some of the later claims was a duplication of the documentation used to support earlier claims by one or more of the appellants. One of the insurance policies obtained by Greene had been obtained by misrepresentation. No question is raised as to the validity of some of the claims. The individuals submitting the claims were generally related to one another by blood or marriage. Julia Greene is the mother of Merle Greene, and Carolyn Porter Fuel is the cousin of Merle Greene's wife. Individuals submitting claims included Merle Greene's wife, brother, niece and children.

In the nine substantive counts, the appellants were charged with violation of the mail fraud statute by causing certain letters and reports to be mailed to insurance companies in connection with the fraudulent claims mentioned above. Greene was charged in Counts II, III, IV, V, VI, VIII and X; Julia Greene was charged in Counts IX and X; and Fuel was charged in Counts III, IV, VII and VIII.

The trial lasted a week and a half. Prior to trial, Fuel had filed a motion for severance which was denied. On September 12, the government began presenting evidence. It produced twenty-six witnesses and nearly two hundred exhibits. The government concluded its case-in-chief on September 19. At that time, motions for judgments of acquittal were filed by both the Greenes and Fuel. Fuel also filed a motion for severance. Fuel did not testify. She presented two witnesses for impeachment purposes and rested her case on September 19. Greene testified on his own behalf, but Julia Greene did not. The Greenes presented four witnesses and rested their case on September 20. At the close of all the evidence, each of the appellants again filed motions for judgments of acquittal, and Fuel again filed a motion for severance. The jury returned its verdict on September 21. It found all of the appellants guilty on Count I, the conspiracy count. It also found Greene guilty on Counts II, III, IV, V, VI, VIII and X (these counts involved $6,430); Julia Greene guilty on Counts IX and X (these counts involved no money); and Fuel guilty on III, IV and VII (these counts involved $1,368). It acquitted Fuel on Count VIII. The trial court denied the motion for severance and the motions for judgments of acquittal, except as to Count IX where it granted a judgment of acquittal as to Julia Greene. This appeal followed.

II. Sufficiency of the Evidence.

Greene, Julia Greene and Fuel attack the sufficiency of the evidence supporting each of their convictions. ² We view the evidence in the light most favorable to the verdict rendered, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Wofford, 562 F.2d 582, 585 n. 1 (8th Cir. 1977), and take as established all reasonable inferences which tend to support the action of the jury. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), Cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). It is well established that

circumstantial evidence does not differ in principle from direct evidence, and that in order for a jury to convict on circumstantial evidence it is not necessary that the evidence exclude every reasonable hypothesis except that of guilt but simply that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.

United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), Cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Jackson, 549 F.2d 517, 529-530 (8th Cir.), Cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), Cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). We have carefully reviewed the record with these principles in mind and have concluded that there is insufficient evidence to support the appellants' convictions on the conspiracy count, but that there is sufficient evidence to support Greene's convictions on Counts II, III, IV, V, VI, VIII and X; Julia Greene's conviction on Count X; and Fuel's conviction on Count VII.

A. Conspiracy Count.

The indictment charged, and the government's position both at trial and on appeal, has been that the appellants were involved in a single conspiracy, over a thirty-three-month period, to defraud insurance companies. The evidence does not support this position. To prove the existence of a conspiracy, the government must establish the existence of an agreement between at least two conspirators to effect the object of the conspiracy, United States v. Jackson, supra at 530; United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), Cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and that at least one overt act was committed in furtherance of the conspiracy. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), Cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). To convict an individual of conspiracy, it is not necessary for the government to prove that the individual knew all of the conspirators or was aware of all of the details of the conspiracy, but it is necessary to establish that the individual knowingly contributed to the furtherance of the conspiracy. United States v. Jones, 545 F.2d 1112, 1115 (8th Cir. 1976), Cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Hester, 465 F.2d 1125, 1127 (8th Cir. 1972); Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966).

In this case, the government simply failed to establish the existence of an agreement between the appellants to defraud insurance companies. In so holding, we recognize that an agreement need not be express or formal, United States v. Jackson, supra at 531, and that it may be established by circumstantial evidence. Id.; United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), Cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974). Here, the government produced no statement or admission of the appellants which would indicate a common plan or agreement. ³ Nor did the government establish facts and circumstances from which the existence of an agreement could be inferred.

The government failed to establish that the alleged automobile accidents and burglaries either were "staged" or nonexistent. Thus, a conspiracy to defraud could only be proved by establishing that the appellants agreed to submit fraudulent documentation in support of any claim which might arise. We find insufficient evidence from which to infer the existence of such an agreement. Initially, we note that it is difficult to understand how an agreement to defraud could exist that would only come into play at the happening of a fortuitous event that is, the occurrence of an automobile accident or a burglary. Even if this hurdle is crossed, however, we are faced with the fact that the government also failed to establish that either Fuel or Julia Greene was aware that medical reports submitted on their behalf, or on behalf of others involved in the same accident, were fraudulent, ⁴ or that either of them knew that other documentation submitted with respect to automobile accident claims by Greene on his own behalf was fraudulent. While there is evidence to...