U.S. v. Jolivet

Decision Date09 May 2000
Docket NumberNo. 99-2886,99-2886
Citation224 F.3d 902
Parties(8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. CATHERINE A. JOLIVET, ALSO KNOWN AS CATHERINE A. VAHO, APPELLANT. Submitted:
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Richard S. Arnold and Heaney, Circuit Judges, and Magnuson1, District Judge.

Heaney, Circuit Judge.

Following a jury trial, Catherine A. Jolivet was convicted of four counts of mail fraud, in violation of 18 U.S.C. §§ 2 and 1341; three counts of money laundering, in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i); and one count of conspiracy, in violation of 18 U.S.C. § 371. She was sentenced to thirty-six months' imprisonment on all charges, with the sentences to run concurrently. On appeal, she argues that the district court plainly erred in admitting expert testimony from the government's handwriting analyst, and that the district court abused its discretion by denying her a continuance. She further argues that the evidence was insufficient to sustain any of the convictions. We affirm in part and reverse in part.

FACTS

Jolivet's charges stemmed from four insurance schemes, all of which were perpetrated in the same manner by Jolivet and her husband, Jeremi-Jo Vaho. Jolivet, Vaho, or another party would obtain insurance. Sometime thereafter, the insured (or someone claiming to be the insured) would contact the insurance company, claiming to have caused an automobile accident.

The government produced evidence that none of these accidents actually happened. Rather, each of the "victims" was a fictitious person created by Vaho. Vaho would represent to the insurance companies that he and his fictitious family were the accident victims, and would then submit false expenses and medical records. Among the items submitted to the insurance companies were checks and money orders indicating that they were being used to pay for medical expenses. None of these instruments were used to pay these expenses, but had been altered to effectuate the fraudulent scheme. Many of these documents were signed by Jolivet.

After providing the insurance company with fraudulent documentation of the injuries and expenses from the accident, Vaho would settle the insurance claims on behalf of himself and his fictitious family. The settlement proceeds were often deposited in one of Jolivet's bank accounts.

DISCUSSION
I. EXPERT TESTIMONY

Jolivet complains that the district court erred in admitting the testimony of Donald Lock. Lock, proffered as an expert in handwriting comparison, analyzed a large number of documents at trial to determine if Jolivet was the signatory on the documents. After comparing the questioned documents with other documents that were known to contain Jolivet's signature, he opined that the signatory on the questioned documents was likely Jolivet, but he would not state that he was absolutely certain of his conclusions.

In order to be admissible, expert testimony must be both relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The district court is afforded wide latitude in making its reliability and relevance determinations. See id. at 152.

We usually review the district court's expert testimony determinations for an abuse of discretion. See id. at 141-42. However, in this case our review is further limited because Jolivet did not object to the admission of Lock's testimony at trial. "Without a timely, contemporaneous objection at trial, a party cannot preserve an issue for appeal, and this court cannot reverse on appeal unless we find 'plain error.'" United States v. Martin, 869 F.2d 1118, 1121 (8th Cir. 1989) (quoting United States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987)) (citation omitted).

Because Lock was particularly well-qualified in analyzing questioned documents--having studied and taught internationally, written manuals, and practiced in the field for over two decades, performing several thousand comparisons--the district court did not abuse its discretion in finding Lock's expert testimony to be reliable. See United States v. Paul, 175 F.3d 906, 910-11 (11th Cir. 1999). Similarly, in light of Lock's experience and expertise, we believe his testimony may be properly characterized as offering the jury knowledge beyond their own and enhancing their understanding of the evidence before them. See id. at 911. The district court thus committed no abuse of discretion, much less plain error, in admitting Lock's testimony.

II. MOTIONS FOR A CONTINUANCE

Jolivet next argues that the district court erred in denying two of her motions for a continuance. According to Jolivet, her counsel had insufficient time to prepare for trial and therefore did not adequately represent her. We review for an abuse of discretion, mindful that continuances "generally are not favored and should be granted only when the party requesting one has shown a compelling reason." United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir. 1996).

Jolivet's trial was originally scheduled for January 4, 1999. In late December of 1998, Jolivet's attorney filed a motion to withdraw as counsel. The district court granted the motion, appointed new counsel, and continued the trial until February 8, 1999.

Apparently unaware that the court had already ruled on the issue, Jolivet subsequently filed a pro se motion asking that her trial remain scheduled for January 4. As she stated in her motion, any request for a further continuance was a strategy employed by the government to "drag [the case] as long as it takes for Defendant to grow weak and frustrated enough to agree to a plea offer." (App. at 76.) Informing the court that she was "ready to proceed to trial," Jolivet stated that she "would like to see trial proceed as scheduled on January 4, 1999." (Id.)

Despite Jolivet's request, the trial remained set for February 8. On January 19, Jolivet's attorney requested a continuance because he would be in trial in state court on February 8. The district court denied the motion, noting Jolivet's recent request for a speedy resolution. On January 27, counsel renewed his motion, this time because Jolivet had a scheduling conflict on February 8. The district court denied this motion as well.

In light of Jolivet's own requests for an expeditious disposition, it was not an abuse of discretion for the district court to deny further continuances. Moreover, in neither motion did counsel suggest that absent a continuance he would have insufficient time to adequately prepare for trial, the ground Jolivet now relies upon for reversal on appeal. As this issue was not properly presented to the district court, our review is limited to plain error and we find none. See Fed. R. Crim. P. 52(b); accord Parkus v. Delo, 135 F.3d 1232, 1234 (8th Cir. 1998) (analyzing appellant's objection to jury instructions under plain error standard where appellant raised different grounds before district and appellate courts).

III. SUFFICIENCY OF THE EVIDENCE

Jolivet further challenges her convictions, contending that the evidence adduced at trial was insufficient to support any of them. We view the evidence in the light most favorable to the verdict, accepting as established all reasonable inferences the evidence tends to prove. See United States v. Hawkey, 148 F.3d 920, 923 (8th Cir. 1998). While the government is obligated to prove every element of the offenses, see United States v. Hildebrand, 152 F.3d 756, 761 (8th Cir. 1998), the evidence "need not exclude every reasonable hypothesis of innocence, but simply be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty," Hawkey, 148 F.3d at 923 (quoting United States v. McGuire, 45 F.3d 1177, 1186 (8th Cir. 1995)).

A. Mail Fraud

Jolivet was convicted of four counts of mail fraud stemming from two insurance schemes. In order to sustain a conviction for mail fraud, the government must show that the defendant knowingly participated in a scheme to defraud, and that it was reasonably foreseeable that the mails would be used to effectuate the scheme. See Hildebrand, 152 F.3d at 761. The use of mails need not be essential to the scheme; a conviction may be sustained even if the use of mails was merely incidental to the scheme. See United States v. Nelson, 988 F.2d 798, 804 (8th Cir. 1993). Moreover, it is not necessary that the defendant herself use the mails, so long as she caused the mails to be used in furtherance of her scheme. See id.; accord Hildebrand, 152 F.3d at 761 ("[E]ach participant in a scheme to defraud is responsible for his partners' use of the mails in furtherance of that scheme.")

Jolivet does not deny the existence of either scheme to defraud, or that it was foreseeable that the mails were used to further the schemes. Rather, she argues that she did not knowingly participate in the plan. In order to consider her claims, we must further detail the facts surrounding each plot.

1. The Norwood Claim

In early January of 1994, Anicet Penoukou-a confederate of Jolivet and Vaho's-reported that while driving a rental car, he was involved in an at-fault accident in which he hit Martin Norwood'vehicle. Martin Norwood was a fictitious character portrayed by Vaho.

The rental car was insured by The Travelers Insurance Company (Travelers). Travelers contacted Vaho (whom Travelers believed to be Norwood) regarding the accident. Vaho stated that he was involved in the accident, that his car had been damaged and repaired, and that he and his family were receiving medical treatment. Vaho indicated that his address was 4347 S. Weller, Apt. 79, in Springfield, Missouri-- Jolivet's address. Travelers subsequently sent a letter to this address, asking Vaho to detail the accident.

In June, someone again posing as Norwood mailed copies of medical records,...

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