U.S. v. Gray

• Decision Date: 11 January 1985
• Docket Number: No. 84-1298,84-1298
• Citation: 751 F.2d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert William GRAY, a/k/a A.W. Gray, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 733

751 F.2d 733

UNITED STATES of America, Plaintiff-Appellee, v. Albert William GRAY, a/k/a A.W. Gray, Defendant-Appellant.

No. 84-1298.

United States Court of Appeals, Fifth Circuit.

Jan. 11, 1985.

Donald R. Scoggins, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., Fort Worth, Tex., William F. Alexander, Asst. U.S. Atty., Dallas, Tex., Janis Kockritz, Crim. Div., Appellate Sec., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, WISDOM and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

After a jury trial, Albert William Gray was convicted of four counts of mail fraud, in violation of 18 U.S.C. Sec. 1341, and one count of inducing travel in interstate commerce with the intent to defraud the traveller of property worth over $5,000, in violation of 18 U.S.C. Sec. 2314. Gray offers three reasons for reversal: the trial court's refusal to give his requested jury instruction on good faith; rejection of his Fourth Amendment objections to the admission into evidence of a brochure that the receiver of Gray's defunct bonding company had turned over to the FBI; and the alleged insufficiency of the evidence. We affirm.

I

The indictment charged Gray with conducting a scheme to sell fraudulent surety bonds to contractors. Gray was accused of representing to contractors that his bonds had been issued by established insurance companies, when instead they were backed only by Gray's similarly-named Texas businesses.

In June of 1982, Gray incorporated a Texas corporation called New Hampshire Financial Services. Gray then filed assumed name certificates stating that New Hampshire Financial Services would do business under the names "New Hampshire Insurance Company" and "Granite State Insurance Company." Although Gray listed his true name and address in all of these filings, his selection of trade names showed little originality. New Hampshire Insurance Company is an established and prominent insurer with offices in Manchester, New Hampshire and Granite State Insurance Company is its subsidiary.

Gray promoted his companies as issuers of performance and payment bonds for contractors. He had a brochure printed describing each company's operations, financial status and officers. Much of the information in the brochure was false. Of the persons listed as officers, one was dead, two were attorneys with no connection to Gray's companies, and two were Gray's children, both under age 11. The brochure also listed over $800,000 in nonexistent corporate assets, and listed a nonexistent accounting firm as the corporate auditor.

In September 1982, Scott McPherson, an independent insurance agent, arranged for Gray's Granite State Insurance Co. to issue a performance bond for one of McPherson's clients. McPherson believed that he was dealing with the New Hampshire-based company. McPherson mailed Gray a premium check for $9,367.20. Gray then mailed McPherson a performance bond that bore two forged signatures and listed the company's home office as Manchester, New Hampshire.

In October 1982, Larry Snider, McPherson's partner, mailed Gray a premium check for $463.20. Gray mailed Snider a performance bond listing Associated Indemnity Company as the surety. Snider checked a U.S. Treasury Department list of insurers, saw Associated Indemnity listed as a division of Fireman's Fund, and assumed that the bond had come from the Fireman's Fund company. It was in reality backed only by Gray. The bond also contained the forged signature of a notary.

During the same month, for a $23,000 premium, Gray sold W.L. Kilgore a bond insuring Kilgore's performance as contractor on an Army Corps of Engineers dredging project in Louisiana. Kilgore's wife flew from New Orleans to Dallas, paid for and obtained the bond, and returned to New Orleans to submit the bond to the Corps for approval. The bond was issued by Gray's New Hampshire Insurance Co., but listed the company's home office as Manchester, New Hampshire; once again, the bond bore the forged signature of a purported corporate officer. The Corps later rejected the Gray bond, and demanded that Kilgore obtain a new one. When he did not, the Corps cancelled Kilgore's contract and Kilgore filed for bankruptcy.

On October 14, a Texas court ordered Gray's business into a receivership. The State Board of Insurance was appointed as receiver. Christopher Meisel, the State Board official assigned to act as receiver, discovered the brochure. He questioned Gray, who admitted that many of the brochure's representations were false. Later, FBI Agent Sam Williams visited Meisel and told him that Gray was being investigated for possible criminal acts. Meisel agreed to cooperate with Williams, and turned over to him, among other items, the brochure.

Soon after the receivership took effect, Gray, using personal funds, refunded Snider's premium and other premiums paid to him for unused bonds. In the succeeding months, Gray wrote to the receiver and offered suggestions as to what actions New Hampshire Financial Services should take in the litigation over the Kilgore project.

Gray was indicted for mail fraud with respect to the McPherson and Snider bonds, and for causing Mrs. Kilgore to travel in interstate commerce with the intent to defraud her of over $5000. Before trial, Gray moved to suppress the brochure as the fruit of an illegal search; the court denied his motion without opinion. At trial, Gray, through cross-examination of government witnesses and exhibits submitted on cross-examination, introduced evidence of his post-receivership actions and of the truthfulness of his June 1982 state filings. The defense called no witnesses of its own.

At the close of the evidence, Gray's counsel submitted a proposed jury instruction setting forth good faith as a defense. The court refused to give this instruction, but instead charged the jury that specific intent was necessary for a conviction, and explained how Gray's intent might be inferred. Gray was convicted on all the counts submitted to the jury, and was sentenced to prison terms totalling seven years, followed by four years of probation.

II

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We have recently explained that in deciding the sufficiency of the submission of a defendant's theory of defense the charge "... must be examined in the full context of trial including the final arguments of counsel." United States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir.1984). That the inquiry is not confined to the four corners of the charge flows directly from the circumstance that the ultimate question is whether the claimed instructional deficiency "violates a defendant's right to the fair trial guaranteed him by the Due Process Clauses of the Fifth and Fourteenth Amendments...." Id. Any further narrowing of the judicial inquiry would then by necessity be justifiable only as a matter of superintendence. Arguably, we did just that in United States v. Goss, 650 F.2d 1336, 1344-45 (5th Cir.1981) and United States v. Lewis, 592 F.2d 1282, 1286-87 (5th Cir.1979). In Goss and Lewis the inquiry, although it is not certain, seems to have been confined to the charge. Whether this was simply reflective of the facts of those cases or whether it was a considered expression of a rule of superintendence was not clear. In Fooladi, we "read them in the reconciling light that neither Goss nor Lewis explained the shortcoming of the charge in the context of trial[.]" United States v. Fooladi, at 1031. We pointed out that reading Lewis and Goss as having adopted a per se rule, with its companion limit of looking solely to the charge, was inconsistent with earlier cases including United States v. Wellendorf, 574 F.2d...