U.S. v. Gordon, 85-4069

• Decision Date: 16 January 1986
• Docket Number: No. 85-4069,85-4069
• Citation: 780 F.2d 1165
• Parties: 19 Fed. R. Evid. Serv. 1575 UNITED STATES of America, Plaintiff-Appellee, v. James C. GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1165

780 F.2d 1165

19 Fed. R. Evid. Serv. 1575

UNITED STATES of America, Plaintiff-Appellee, v. James C. GORDON, Defendant-Appellant.

No. 85-4069.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1986.

Fraiser, Burgoon & Abraham, James W. Burgoon, Jr., Greenwood, Miss., for defendant-appellant.

George Phillips, U.S. Atty., Ruth R. Harris, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, and JOHNSON, Circuit Judges, and MENTZ ^*, District Judge.

MENTZ, District Judge:

Defendant, James C. Gordon, appeals from his conviction on a three-count indictment for violations of Sections 371, 1341 and 1343 of Title 18 of the United States Code. As grounds for relief, he alleges that (1) the indictment charging conspiracy, mail fraud and fraud by wire was insufficient, (2) it was error to admit extrinsic or similar act testimony on the issue of intent, (3) defense counsel was unduly restricted in cross-examining a government co-conspirator witness, and (4) the jury was "forced" to reach a compromise verdict inconsistent with and contrary to the law and evidence.

THE CRIME

It is alleged that defendant Gordon conspired with William Dale Blount, ¹ Shirley Copeland and Thomas Lang to defraud an insurance company by having his eighteen wheeler tractor-trailer truck taken by Copeland and Lang, and cut up into parts so that he could file a theft claim with the Emmco Insurance Company and thereby collect the insurance money on it. The defendant was also charged with committing the substantive crimes of mail fraud and wire fraud by actually using (or causing to be used) the mails and the telephone in furtherance of the scheme to defraud. The defendant, James C. Gordon, was indicted in the United States District Court for the Southern District of Mississippi, along with two other defendants, William Dale Blount and Shirley S. Copeland, in a three-count indictment, for violations of

Sections 371, 1341 and 1343, Title 18, United States Code.

THE TRIAL

The defendant, Shirley S. Copeland, entered a guilty plea before trial and executed a "memorandum of understanding" whereby he agreed to testify in exchange for the government recommending lighter treatment and immunization from further prosecution. The defendants, James C. Gordon and William Dale Blount, were tried before a jury on November 14, 1984. The jury returned a verdict of guilty on all three counts as to defendant Gordon. Defendant Blount was acquitted on all three counts. The defendant Gordon was sentenced to a three year term of imprisonment on Count I; five years probation on Count II; five years probation on Count III, concurrent with the probation on Count II; and ordered to pay $20,000 in restitution to Emmco Insurance Company.

SUFFICIENCY OF THE INDICTMENT

Gordon challenges the sufficiency of the indictment contending that it is deficient because it fails to state in detail "the facts and circumstances of the specific offense charged." ² The indictment's most basic purpose is to fairly inform a defendant of the charge against him. Count one of Gordon's indictment, the conspiracy charge, details the predicate offenses and the overt act with great specificity. It alleges that as part of the conspiracy the defendants, Shirley Singleton Copeland, James C. Gordon, and William Dale Blount, "knowingly and willfully devise[d] and intend[ed] to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises" from an insurance company. It then lists the overt act alleging that Gordon and Blount had Copeland steal the 1979 White Western Star tractor, VIN JTPCPQ1030182, for the purpose of collecting insurance on the truck from Gordon's insurer, EMMCO Insurance Company. Gordon nevertheless contends that this count is defective because its charging portion does not set forth sufficient material facts essential to its validity under minimal constitutional standards. He also contends that the indictment is defective because each of its counts fails to set forth the essential elements of the offense charged. Finally, Gordon argues that the indictment fails to specify any means, known or unknown, by which the defendants are alleged to have committed the offenses charged.

An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant what charge he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974); United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.1983), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v. Cauble, 706 F.2d 1322, 1333 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); United States v. Webb, 747 F.2d 278 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1222, 84 L.Ed.2d 362 (1985); United States v. Giles, 756 F.2d 1085, 1087 (5th Cir.1985); United States v. Lennon, 751 F.2d 737, 743 (5th Cir.1985), cert. denied, --- U.S. ----, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985); United States v. Stanley, 765 F.2d 1224, 1239 (5th Cir.1985). The test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards. United States v. Webb, 747 F.2d at 284. Furthermore, it is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as the statutory language unambiguously sets out all the elements necessary to constitute the offense. United Count one of the indictment charges a conspiracy to commit mail fraud and wire fraud. It well noted that the essential elements of a conspiracy are an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by one of the members in furtherance of the agreement. United States v. Fischetti, 450 F.2d 34, 40 (5th Cir.1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); United States v. Evans, 572 F.2d 455, 483 (5th Cir.1978), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). In United States v. Purvis, 580 F.2d 853, 859 (5th Cir.1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979), the court observed that "conspiracy incorporates willfulness and specific intent." The Supreme Court has also stated that the "intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it." United States v. Purvis, 580 F.2d at 859 (citing Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 251, 63 L.Ed. 561 (1919)). A conspiracy indictment is sufficient if it sets out the essential elements of the charge and lists overt acts committed in furtherance of the conspiracy. United States v. Evans, 572 F.2d at 483; Anderson v. United States, 417 U.S. 211, 227 n. 13, 94 S.Ct. 2253, 2264 n. 13, 41 L.Ed.2d 20 (1974). In the case at bar, the indictment alleges an agreement among the defendants to "knowingly and willfully devise and intend to devise a scheme ... to obtain money by means of false and fraudulent pretenses ... and, for the purpose of executing the [scheme], to knowingly cause to be delivered by mail ... letters, policies, claims, proofs of losses and other matters required in processing insurance coverage and claims," and to further execute the scheme "to transmit ... sounds in interstate commerce by means of the telephone." The indictment also sets out the following specifics as the overt act committed in furtherance of the conspiracy:

                States v. Stanley, 765 F.2d at 1239-40;  United States v. Cauble, 706 F.2d at 1351;  United States v. Montemayor, 703 F.2d at 117.  The language used must be sufficient to inform the accused of the specific offense with which he is charged.   Hamling v. United States, 418 U.S. at 117-18, 94 S.Ct. at 2907-08, 41 L.Ed.2d at 621
                

That on or about June 23, 1983 JAMES C. GORDON and WILLIAM DALE BLOUNT had SHIRLEY SINGLETON COPELAND steal his 1979 White Western Star tractor, VIN JTPCPQ1030182, for the purpose of collecting insurance on the truck from the EMMCO INSURANCE COMPANY.

The conspiracy charge clearly sets out the elements of the offense, the specific code sections violated and the names of the co-conspirators. Moreover, the allegations of Count one clearly charge Gordon with specific intent to commit the described offense. See United States v. Diecidue, 603 F.2d 535, 546 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980).

Count two charges mail fraud, 18 U.S.C. Sec. 1341, the essential elements of which are (1) a scheme to defraud, (2) involving a use of the mails, (3) for the purpose of executing the scheme. United States 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). The indictment need not specifically charge, but the government must prove, "a specific intent to commit fraud." United States v. Freeman, 619 F.2d at 1117 (citing United States v. Kent, 608 F.2d 542, 545 n. 3 (5th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980)). See also United States v. Gaspard, 744 F.2d 438, 440 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1197, 84 L.Ed.2d 341 (1985). In the present case the indictment charges Gordon with "a scheme ... to defraud and to [fraudulently] obtain money ... from EMMCO Insurance, whereby ... Gordon had his 1979 White Western Star tractor, VIN JTPCPQ1030182, stolen by defendants ... while such vehicle was insured against loss by theft by EMMCO...." The indictment further charges the scheme described involved the Finally, Count three charges wire fraud, 18 U.S.C. Sec. 1343, the essential elements of which are (1) a...