U.S. v. Ledesma
| Decision Date | 03 September 1980 |
| Docket Number | No. 79-2003,79-2003 |
| Citation | 632 F.2d 670 |
| Parties | 6 Fed. R. Evid. Serv. 235 UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. LEDESMA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Allan A. Ackerman, Chicago, Ill., for defendant-appellant.
Thomas P. Sullivan, U. S. Atty., William A. Spence, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before PELL and SPRECHER, Circuit Judges, and JAMESON, Senior District Judge. *
Daniel J. Ledesma appeals his conviction on three counts of mail fraud in violation of 18 U.S.C. § 1341, 1 and one count of making a false statement to obtain a bank loan in violation of 18 U.S.C. § 1014. 2 With the exception of the conviction of one of the mail fraud counts, we affirm.
In December, 1975, Ledesma and his wife applied for a $6,000 loan at the Pioneer Trust and Savings Bank in Chicago (Pioneer), purportedly to purchase a motor home. They furnished a Wisconsin certificate of title which indicated that the sellers and current owners of the motor home were Linda and Scott Johnson of Rock Spring, Wisconsin. The bank approved the loan, and the Ledesmas executed a security agreement in favor of the bank. The $6,000 was deposited in Ledesma's account.
Ledesma insured the vehicle with Foremost Insurance Company (Foremost). The application for insurance indicated that there was no lien on the vehicle. Theft coverage was provided.
In July, 1976, Ledesma reported to Edward R. Williamson, a Foremost claims adjuster, that the motor home had been stolen. Williamson mailed an affidavit of loss form to Ledesma, with a request that Ledesma complete the form and also provide the bill of sale he had received from the Johnsons. Williamson received an incomplete affidavit of loss by return mail. The bill of sale was not furnished. In a later telephone conversation, Ledesma told Williamson that he had purchased the vehicle with cash and did not have a bill of sale. To show ownership Ledesma sent Williamson by mail a copy of the promissory note and security agreement he had given Pioneer.
Williamson mailed Ledesma's claim to Foremost's headquarters in Indianapolis. On October 27, 1976, the Indianapolis office mailed Williamson a check for $10,695. Two days later Williamson presented the check to Ledesma and the bank. Ledesma executed a completed proof of loss, which Williamson mailed to Foremost's headquarters in Indianapolis.
A subsequent investigation revealed the fraudulent scheme. Tracing the vehicle's identification number, it was found that the vehicle bearing that number had been sold by a Wisconsin dealer to one Elwin Andre in September, 1974, and Andre in turn had sold it in California in 1977. At the time of the purported sale from the Johnsons to Ledesma, Andre was using the vehicle. It was never stolen.
Ledesma and his wife had rented a post office box in the names of the purported sellers, Linda and Scott Johnson. This provided a mailing address for the Wisconsin certificate of title, which appellant furnished Pioneer to show ownership when he procured the loan. 3
Ledesma was indicted in February, 1979. The jury found him guilty on all four counts. The trial judge sentenced Ledesma to three years imprisonment for each of the three mail fraud counts and one year imprisonment on the count of fraudulently obtaining a bank loan, the sentences to run consecutively, and imposed fines of $1,000 on each of the first three counts, and $5,000 on the fourth count.
Appellant contends that (1) he was deprived of a fair trial because the judge failed to follow the requirements of Fed.R.Evid. 103(c) and allowed the prosecutor to suggest inadmissible evidence to the jury; (2) the evidence was insufficient to warrant appellant's conviction for mail fraud; (3) the court, in violation of Fed.R.Crim.P. 30, deprived appellant of an opportunity to object to the instructions given to the jury and (4) the court "committed prejudicial error (by) imposing a ten (10) year prison term for a single offense".
Rule 103(c) of the Federal Rules of Evidence reads:
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
We agree with appellant that the trial court failed to comply properly with the requirements of this rule. At the beginning of the trial, the court informed counsel that it did not "have sidebars for any purpose". Consequently, all offers of proof were made in the presence of the jury. Although Rule 103(c) does not require the court to hold all proceedings pertaining to the admissibility of evidence outside the jury's presence, see Charter v. Chleborad, 551 F.2d 246, 249 n. 5 (8 Cir. 1977), an automatic "no sidebar" rule is contrary to the requirement that proceedings "be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury...." 4
We do not agree, however, with appellant's contention that the prosecutor took advantage of the court's no sidebar rule in order to suggest inadmissible evidence to the jury, and that this conduct deprived the appellant of a fair trial. Rule 103(a) provides that, "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Whether error is harmless or insubstantial must be "resolved in the context of the individual case". International Merger & ACG Cons. v. Armac Enterprises, 531 F.2d 821, 823 (7 Cir. 1976). The trial court's no sidebar rule cannot be the basis for reversible error if it "in no way influenced the jurors, or had only a slight effect on them". Id. After reviewing all of the instances where appellant claims that inadmissible evidence was suggested to the jury, we are satisfied that the jury could, at most, be only slightly affected. The prosecutor argued some of the evidential matters on foundation grounds. 5 Other arguments were rejected because the evidence was irrelevant, but the information revealed to the jury could have had only a minimal effect, taken either singly or cumulatively. Moreover, we find no instance where the conduct of the prosecutor rose to the level of prosecutorial misconduct. 6 We therefore hold that no reversible error occurred; nor was the appellant deprived of a fair trial. 7
To prove mail fraud, the Government must prove that the mails were used "for the purpose of executing" the fraudulent scheme. 18 U.S.C. § 1341. Appellant argues that the Government's evidence is insufficient to prove this element in each of the three mail fraud counts.
Count I was predicated on the appellant's sending a letter by mail to Williamson, Foremost's claim adjuster, on July 13, 1976, listing items of equipment allegedly in his 1972 motor home. The Government relied on Williamson's testimony to establish the mailing. Appellant "deem(s) (Williamson's) testimony inherently improbable" because he had no personal knowledge of the mailings, but was merely expressing his opinion. He argues that the insufficiency of the evidence is amplified by the Government's failure to produce the envelope in which the equipment list was purportedly mailed.
It is of course true that the introduction of the envelope in which the correspondence was mailed would have been strong direct evidence of mailings, but "testimony as to office practice is sufficient proof of mailing". United States v. Joyce, 499 F.2d 9, 15 (7 Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Flaxman, 495 F.2d 344, 349 (7 Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). In United States v. Shavin, 287 F.2d 647, 652 (7 Cir. 1961), this court found "the evidence was sufficient to show that (a) letter was sent by United States mail" under circumstances similar to this case. The evidence in Shavin disclosed that the letter "contained the initials of the defendant" and his secretary, indicating that "the letter was dictated by the defendant". It was addressed to an adjuster in the claim department of the insurance company. The proof further disclosed "that it was the custom of the (insurance company) to place a certain stamp on letters received through the mail and this letter was imprinted with this stamp".
Here, the equipment list, which forms the basis for establishing the use of the mails in Count I, was attached to an affidavit of loss signed by the appellant and notarized. The list also bears the appellant's name. This clearly supports the inference that appellant authored the documents. The equipment list, similar to the letter in Shavin, was addressed to the claims adjuster. The claims adjuster, Williamson, testified that he personally date stamped all correspondence he received through the mail, but did not date stamp correspondence received by other means. 8 The equipment list in question is date stamped "RECEIVED July 19, 1976". The claims adjuster also testified that he recalled viewing the envelope bearing the postage stamp in which the equipment list was mailed and that he was the only person that could have stamped it on July 19, 1976. This evidence supports the inference that the appellant sent the letter through the mails. The evidence is at least as strong as the evidence in Shavin, supra. Moreover, we see nothing "inherently improbable" in the adjuster's testimony that would merit interference by this court. He was not merely expressing an opinion or conclusion. 9 His credibility appropriately is a matter for the jury. 10 E. g., United States v. Grabiec, 563 F.2d 313, 316 (7 Cir. 1977).
Count II...
To continue reading
Request your trial
-
United States v. Lane Lane v. United States
...very well have discovered the fraud. The Lanes contend that the Fifth Circuit's decision in this case also conflicts with United States v. Ledesma, 632 F.2d 670 (CA7), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980), which reversed a conviction involving the mailing of a fr......
-
Beck v. Cantor, Fitzgerald & Co., Inc.
...of that scheme. See Securities and Exchange Commission v. Holschuh, 694 F.2d 130, 143-44 (7th Cir.1982); United States v. Ledesma, 632 F.2d 670, 677 (7th Cir.1980), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980). Most importantly, even if plaintiff was "lulled into retaini......
-
U.S. v. Gonzalez-Sanchez
...of his office was sufficient to allow the jury to infer that the letter was delivered through the mail. See United States v. Ledesma, 632 F.2d 670, 675-76 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980); see also United States v. Davidson, 760 F.2d 97, 98-99 (6t......
-
U.S. v. Bortnovsky, s. 650
...denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982); United States v. Reed, 639 F.2d 896, 906 (2d Cir.1981); United States v. Ledesma, 632 F.2d 670, 676 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980); United States v. Moss, 591 F.2d 428, 436 (8th Cir.19......