U.S. v. Hebshie

• Citation: 549 F.3d 30
• Decision Date: 04 December 2008
• Docket Number: No. 07-2339.,07-2339.
• Parties: UNITED STATES of America, Appellee, v. James G. HEBSHIE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

549 F.3d 30

UNITED STATES of America, Appellee, v. James G. HEBSHIE, Defendant, Appellant.

No. 07-2339.

United States Court of Appeals, First Circuit.

Heard September 9, 2008.

Decided December 4, 2008.

Jeanne M. Kempthorne for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellees.

Before Howard, BALDOCK,^* and SELYA, Circuit Judges.

BALDOCK, Circuit Judge.

A federal grand jury returned a superseding indictment against Defendant James Hebshie. The indictment had four counts: arson, in violation of 18 U.S.C. § 844(i) (Count One); two counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts Two and Three); and use of fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count Four). A petit jury convicted him on all counts. Now, Defendant appeals his convictions for mail fraud and using fire to commit a felony, i.e., Counts Two, Three, and Four. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

I.

We recount the relevant facts in the light most favorable to the Government. See United States v. Cardoza, 129 F.3d 6, 8 (1st Cir.1997).¹ On April 21, 2001, a fire severely damaged a two-story commercial building at 32-34 Main Street in downtown Taunton, Massachusetts. Defendant leased a portion of the building for his business, the Main Street Lottery & News Store. On the day of the fire, the Lottery & News Store's alarm system recorded Defendant entering at 8:11 a.m. and leaving at 1:37 p.m. Seven minutes after Defendant left, the alarm's motion and heat sensors activated, notifying local authorities. Around the same time, a Taunton Police Officer arrived at the scene and saw dark smoke billowing in the Lottery & News Store window. The fire department arrived shortly thereafter. Efforts to save the building were unsuccessful. Ultimately, the building collapsed due to structural damage from the fire and attempts to save it with high-powered water hoses. The next day, officials began a "cause and origin" investigation of the building. Officials concluded that the fire originated at the Lottery & News Store, and was caused by deliberate human involvement.

Two days after the fire, on April 23, 2001, Defendant filed a claim at the office of his insurance agent. The agency contacted Commerce Insurance Company (Commerce), the insurance provider, with claim information that same day. The next day, Peter Rolashevich, a Commerce employee, spoke with Defendant. When Defendant asked "how quick he could get payment," Rolashevich responded that the claim had been assigned to an independent adjusting firm, Certuse Adjustment, Inc. (Certuse), which would contact Defendant about investigating and processing his claim. The following day, Rolashevich sent Defendant Commerce's standard reservation-of-rights letter (the Rolashevich letter).²

One week after the fire, Commerce's cause and origin investigator, Vincent Calenda, conducted a tape-recorded interview with Defendant. After about fifteen or twenty minutes of discussion, Defendant abruptly terminated the interview. While the timing is unclear from the record, Defendant also declined to meet with Glen Williams, the adjuster for Certuse. Commerce was aware that Defendant had refused to meet with Williams on or before May 2, 2001, however, because it sent a letter through its attorney, Lawrence Dugan (the Dugan letter) requesting that Defendant contact Williams. The letter advised Defendant that his refusal to cooperate in the investigation and settlement of his claim could provide Commerce with an independent basis to deny his claim.³

Defendant retained an attorney. Defendant's attorney notified Commerce that his client would no longer communicate with it, but was not waiving any rights he might have to collect on his insurance policy. Ultimately, Commerce declined Defendant's claim, but the record is unclear on the specific grounds.

II.

At trial, the Government presented evidence that Defendant's business was financially failing and sought to have the jury infer that he had burned down the Lottery & News Store to collect on a $30,0000 insurance policy after attempting unsuccessfully to sell the business. The evidence included Defendant's erratic behavior during the time frame surrounding the fire and expert testimony opining that the fire was set deliberately. At the close of the Government's case-in-chief, the Defendant moved for a judgment of acquittal. See Fed.R.Crim.P. 29(a). The district court reserved its ruling, but ultimately denied the motion before submitting the case to the jury.

In his own case-in-chief, Defendant attempted to discredit the accuracy of the cause and origin investigation through the testimony of an expert. The Government rebutted with the testimony of a former special agent with the Bureau of Alcohol, Tobacco, and Firearms who reaffirmed the initial conclusion of the cause and origin investigators, i.e., the fire was deliberately set and originated in Defendant's store.

When the district court instructed the jury, Defendant did not object. The jury returned a guilty verdict on all counts. Defendant moved for judgment notwithstanding the verdict, contending the evidence was insufficient to support the convictions. The district court denied the motion, and sentenced Defendant to a fifteen-year term of imprisonment, followed by a two-year term of supervised release. The sentence included 60 months on each of the arson and mail fraud counts, to run concurrently, and a consecutive term of 120 months on the count alleging use of fire to commit a felony. The district court also ordered the Defendant to pay restitution in the amount of $621,389.98.

Defendant made a timely appeal, alleging (1) the Rolashevich and Dugan letters were insufficient to support his mail fraud convictions because they did not further his scheme to collect fraudulently on his insurance policy; (2) the district court clearly erred in instructing the jury on an essential element of the mail fraud counts; and (3) the district court erroneously concluded that the crime of arson carried a five-year mandatory-minimum term of imprisonment.⁴

III.

We first consider whether the Government presented sufficient evidence for the jury to conclude that the Rolashevich and Dugan letters furthered Defendant's fraudulent scheme. Defendant contends there is no evidence that these letters furthered his scheme to collect on the insurance policy, and that no rational jury could have concluded otherwise. The Defendant does not appeal the jury's conclusion that he engaged in a fraudulent scheme to collect on his insurance policy. Consequently, we only inquire into the sufficiency of the evidence as to whether the mailings furthered this scheme. Our review is de novo. United States v. Cornier-Ortiz, 361 F.3d 29, 32 (1st Cir.2004). We inquire "whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Because the district court reserved its ruling on Defendant's motion for judgment of acquittal at the close of the Government's case-in-chief, we assess the sufficiency of the evidence as of the time the district court reserved its ruling. See Fed.R.Crim.P. 29(b); see also United States v. Moran, 312 F.3d 480, 487-88 (1st Cir.2002). In performing our "limited role in reviewing this evidence" we "neither weigh ... the credibility of the witnesses nor attempt ... to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence." United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir.2001) (citations omitted).

A.

The crime of mail fraud includes three elements: "(1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the intent to defraud; and (3) the use of interstate mail ... communications in furtherance of that scheme."⁵ United States v. Cheal, 389 F.3d 35, 41 (1st Cir.2004). Importantly, the last element, which we will refer to as the "mailing element," requires that the defendant both (1) cause the use of the mails, which includes reasonably foreseeable mailings, and (2) use the mails for the purpose, or in furtherance, of executing the scheme to defraud.⁶ See United States v. Moss, 591 F.2d 428, 436 (8th Cir.1979).

The "in furtherance" requirement is to be broadly read and applied. See United States v. Koen, 982 F.2d 1101, 1107 (7th Cir.1992). To further Defendant's fraudulent scheme, the mailings need not be an "essential element" of the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). They simply must be "sufficiently closely related" to the scheme, United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), such that they are "incident to an essential part of the scheme," Pereira, 347 U.S. at 8, 74 S.Ct. 358, or "a step in [the] plot." Schmuck v. United States, 489 U.S. 705, 715, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Although we have observed that "the scheme's completion or the prevention of its detection must have depended in some way on the mailings," United States v. Pacheco-Ortiz, 889 F.2d 301, 305 (1st Cir.1989) (citation omitted), we have not required a "but-for" link between a mailing and the fraudulent scheme. See United States v. Pimental, 380 F.3d 575, 587 (1st Cir.2004). Rather, a mere "connection or relationship" is sufficient. Id. at 587 n. 5. "The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later,...