U.S. v. Kelley

• Decision Date: 08 April 1991
• Docket Number: 90-6148,Nos. 90-6136,s. 90-6136
• Citation: 929 F.2d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marilyn Kay KELLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 582

929 F.2d 582

UNITED STATES of America, Plaintiff-Appellee, v. Marilyn Kay KELLEY, Defendant-Appellant.

Nos. 90-6136, 90-6148.

United States Court of Appeals Tenth Circuit.

April 8, 1991.

Robert G. McCampbell, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him, on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Randy Alan Bauman, Oklahoma City, Okl., for defendant-appellant.

Before LOGAN, SEYMOUR, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a ten-count indictment Marilyn Kay Kelley was charged in one count with conspiring with her daughter, LaDena Dunning, and others to commit bank fraud and mail fraud, in violation of 18 U.S.C. Sec. 371; in four counts with bank fraud in violation of 18 U.S.C. Secs. 1344 and 2; in four counts with mail fraud in violation of 18 U.S.C Secs. 1341 and 2; and in one count with money laundering in violation of 18 U.S.C. Sec. 1957(a). Kelley was tried jointly with her daughter, LaDena Dunning. A jury convicted Kelley on all ten counts, and pursuant to the Sentencing Guidelines she was sentenced to fifty months imprisonment on each count to be served concurrently. Kelley now appeals her several convictions and sentences. ¹

At trial, Kelley did not testify nor were any witnesses called in her behalf. This is mentioned merely to show that all the evidence adduced at trial was presented by the government. It was the government's theory of the case that Kelley and Dunning organized a business entity known as Shannon Financial in which they were both corporate officers; that through the use of this company they conspired together and with others to commit bank fraud and mail fraud; and that loans were obtained from three federally insured banks by means of false pretenses. Further, it was alleged that Kelley also obtained loans from I.T.T. Financial Corporation by means of false pretenses and that during the course of these particular transactions loan approval notices were delivered by the United States Postal Service from I.T.T.'s parent office in Englewood, Colorado, to I.T.T.'s local office in Oklahoma City, Oklahoma.

On appeal, Kelley contends that her several convictions should be reversed for the following reasons: (1) insufficient evidence to support the four mail fraud convictions; (2) insufficient evidence to show that either the banks or I.T.T. sustained any pecuniary loss; (3) insufficient evidence of an unlawful conspiracy; and (4) insufficient evidence to show that any money laundering transaction was "in or affecting interstate commerce."

Kelley, with the help of others, made several loan applications to I.T.T. in Oklahoma City, Oklahoma which were supported by false documents. ² The loan applications were sent to I.T.T.'s parent company in Englewood, Colorado, for approval. They were apparently either faxed or sent by Federal Express or other courier to Englewood, Colorado. In any event, it was the government's theory of the case that these loan applications were reviewed by the parent company in Englewood, Colorado, marked "approved," if such was the case, and then sent through the United States Mail to the local I.T.T. office in Oklahoma City, Oklahoma. It would appear that a loan advancement was occasionally made based on telephone notification with the balance of the loan being made after the loan application approval was received in the Oklahoma City office. Further, it would appear that one loan was made even though the loan application was received back in Oklahoma City office with the "loan approved" notation missing.

Steve Brown, vice-president of operations for I.T.T.'s Englewood, Colorado office, testified that the approved loan applications received from the local Oklahoma City, Oklahoma office were invariably sent by mail back to the Oklahoma City office. On cross-examination, Brown conceded that some business documents were faxed or sent by Federal Express or other courier, but he still insisted, on redirect examination, that approvals of loan applications were returned to the local Oklahoma City office by mail. Proof of mailing by showing an established business practice to mail is sufficient circumstantial evidence to require submission of the mailing issue to a jury. United States v. Sumnicht, 823 F.2d 13, 15 (2d Cir.1987); United States v. Brickley, 426 F.2d 680, 684 (8th Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970); United States v. Doran, 299 F.2d 511, 514 (7th Cir.), cert. denied 370 U.S. 925, 82 S.Ct. 1563, 1565, 8 L.Ed.2d 504, 505 (1962).

Counsel also argues that any mailing must be in furtherance of the scheme to defraud in order to come within the mail fraud statute. In this regard, counsel points out that, based on telephone conversations, some loan advancements were made before the Oklahoma City office received back the "approved" loan application. Such, however, would not negate the government's evidence that: The usual procedure was for the Oklahoma City I.T.T. office to forward loan applications to its Englewood, Colorado office; the loan applications would then be reviewed and marked approved, if such was the case; the applications would then be returned via the U.S. Mail to Oklahoma City; and finally the loan would be made. In a mail fraud case it is not necessary that the mailing predate the defendant's receipt of the money. United States v. Sampson, 371 U.S. 75, 80-81, 83 S.Ct. 173, 175-76, 9 L.Ed.2d 136 (1962); United States v. Bottom, 638 F.2d 781, 785 (5th Cir.1981); Sparrow v. United States, 402 F.2d 826, 829 (10th Cir.1968). Further, mailings which facilitate concealment of a fraudulent scheme meet the "furtherance" requirement. United States v. Walker, 915 F.2d 1463, 1466 (10th Cir.1990); United States v. Rauhoff, 525 F.2d 1170, 1176 (7th Cir.1975). In the instant case there was testimony that if the approved loan application was not in the file at the local Oklahoma City office, there would be an internal investigation which would have disclosed the irregularities.

In sum, we think the evidence concerning the use of the mails and the evidence that the use was in furtherance of the false scheme was such as to require submission of those issues to the jury.

Counsel next argues that an essential element of both the bank fraud and mail fraud charges was that the banks and I.T.T. suffered an "actual pecuniary loss" as a result of Kelley's fraudulent scheme. Counsel notes that in this regard the indictment did not allege any actual pecuniary loss either to the banks or I.T.T., that the instructions did not inform the jury that an actual pecuniary loss was an essential element of the crimes charged, and further, that there was little or no evidence of any such pecuniary loss. This argument misconceives the law on this matter. The gist of both the bank fraud charges and the mail fraud charges is devising and executing, or intending to execute, a scheme to defraud, and the ultimate success or failure of the scheme is immaterial. In other words, the government does not have to prove that the victim suffered actual pecuniary loss from the scheme. See United States v. Stewart, 872 F.2d 957 (10th Cir.1989) (listing cases). ³ And the truth of the matter is that there was evidence of actual pecuniary loss to the banks and I.T.T. The fact that in one instance, for example, a recoupment was made through the sale of collateral is of no moment.

The conspiracy count charged Kelley and others with conspiring to commit bank fraud and mail fraud. Counsel argues that because some, if not all, of the underlying charges of bank fraud and mail fraud should be reversed, the conspiracy charge, being in the disjunctive, must necessarily fail. We need not resolve that particular matter since we are affirming the convictions for bank fraud and mail fraud.

Count 9 charged Kelley with obtaining a loan in the sum of $36,864.85 from I.T.T. by means of a mail fraud. Count 10 charges Kelley with money laundering a portion of the monies thus obtained from I.T.T. by purchasing an automobile from Fred Jones Lincoln Mercury. Counsel argues that since Kelley's conviction on Count 9 must be reversed, her conviction on Count 10 cannot stand. As indicated, we are affirming Kelley's conviction on Count 9 so her conviction on Count 10 cannot be set aside for the reason given.

Counsel also argues that any money laundering transaction was not "in or affecting interstate commerce" as required by the money laundering statute. 18 U.S.C. Sec. 1957(a). In this regard, there was evidence that the automobile Kelley purchased was manufactured in Michigan and was sold to her by a local car agency which was itself engaged in interstate commerce and that monies paid the car agencies by Kelley would, in part, be used to purchase other vehicles and automotive parts from outside Oklahoma. The requirement that the transaction be "in or affecting interstate commerce" must be met in order to confer jurisdiction on federal courts. Such, however, is not an essential element of the crime charged.

The parties are in substantial agreement that the "in or affecting interstate commerce" requirement has been broadly read and that a "minimal effect" on interstate commerce is sufficient to establish federal jurisdiction. In statutes analogous to 18 U.S.C. Sec. 1957 a minimal effect on interstate commerce is sufficient to confer federal jurisdiction. See e.g., United States v. Robinson, 763 F.2d 778, 781 (6th Cir.1985) (18 U.S.C. Sec. 1962(c)); United States v. Worley, 751...