U.S. v. Minkin, 74-1004

• Decision Date: 18 February 1975
• Docket Number: No. 74-1004,74-1004
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary MINKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 350

504 F.2d 350

UNITED STATES of America, Plaintiff-Appellee, v. Gary MINKIN, Defendant-Appellant.

No. 74-1004.

United States Court of Appeals, Eighth Circuit.

Submitted May 14, 1974.

Decided Sept. 27, 1974, Rehearing and Rehearing En Banc

Denied Oct. 18, 1974, Certiorari Denied Feb. 18,

1975, See 95 S.Ct. 1122.

Milton Eisenberg, Washington, D.C., for defendant-appellant.

Terry I. Adelman, Asst. U.S. Atty., St. Louis, Mo., for plaintiff-appellee.

Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge. ^*

JOHNSEN, Senior Circuit Judge.

I.

Gary Minkin, operator of a salvage and used-parts business, was charged in a single-count indictment and convicted on a jury trial of a violation of the mailfraud statute, 18 U.S.C. 1341. ¹

The fraud involved, as implicit in the jury's verdict, consisted in Minkin's having devised and executed, together with a claims supervisor of the Hartford Insurance Group (Hartford), named Dace, a scheme to get Hartford to issue a comprehensive insurance policy to Minkin on a 1967 Cadillac El Dorado automobile (stated in the application to be a 1968 model) which had been the subject of payment by another insurance company to its previous owner of a total loss by fire and had then been disposed of by the insurance company to Minkin as a salvage item; making false representation in the application to Hartford that the automobile was 'in good mechanical condition and free of any evidence of physical damage'; having Hartford issue a policy as applied for; making claim against Hartford that the automobile had thereafter been the subject of a theft and fire occasioning a total loss to Minkin; and collecting on this basis, by a draft payable to Minkin in the sum of $4,931.85, the proceeds of which he divided with Dace. ²

Hartford thus was caused to pay Minkin for a loss which he never suffered. Dace, instead of handling the adjustment of the fictitious loss himself, turned it over to an independent adjuster who made examination of the automobile upon Minkin's car lot, assumed that its condition was the result of the claimed theft and fire, and made appraisal and report that the condition of the car constituted a total loss, with only a salvage disposal being possible in the situation. Dace had precedingly drawn up and placed in the file a fictitious police report purporting to show that the car had been duly reported to the authorities as stolen and then recovered in its burned condition.

The use of the mail relied on in the indictment as basis for the fraud coming within 1341, consisted in the mailing of Minkin's application to the regional office of Hartford by the broker who had handled the obtained of the insurance, and in the alleged reasonable foreseeability by Minkin that this mailing would occur as a matter of ordinary business course in the insurance broker's dealing with the application. Under the interpretation made of 1341 in Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954), and in other court decisions-- e.g., Fisher v. United States, 324 F.2d 775, 780 (8th Cir. 1963), United States v. Grow, 394 F.2d 182, 205-206 (4th Cir. 1968)-- the existence of such a foreseeability in the situation would entitle Minkin to be legally regarded as having caused the mailing.

II.

The principal issue presented for review is the sufficiency of the evidence to go to the jury on (a) whether the broker had actually used the mail to forward the application to Hartford, and (b) if so, whether such a use of the mail by the broker could properly be found to have been reasonable foreseeable by Minkin.

On question (a), Minkin argues that there was no direct proof of a mailing of the application having been made by the broker or his secretary, nor of a receiving of it through the mail having occurred at Hartford. The contention is that there was such possibility that the broker had hand-carried the application to the Hartford office instead of mailing it that reasonable doubt on what the fact was should be held to exist as a matter of law.

The testimony of the broker, however, was positive and unshaken that he had never hand-carried any applications for individual automobile policies to the Hartford office, but invariably handled this class of business by mailing the signed application to Hartford for acceptance and issuance of the policy. He firmly stated that the only class of automobile insurance on which he ever hand-carried any papers to the Hartford office was on commercial risks or accounts, as to which signed applications were not required, but discussion, engineering and negotiation ordinarily were necessary to effect the underwriting and settling of premium rates.

Application forms used by the broker for individual policies bore the name of the company to which the application was to be submitted, and according to his testimony he always drew an arrow on the application pointing to the company's name for mailing purposes by his secretary and then placed it in the secretary's outgoing mail basket. The application here, which was put in evidence from Hartford's files, bore such an arrow mark made by the broker. Any possibility that the secretary could have hand-carried the application to the Hartford office instead of mailing it was negatived by proof that she had never at any time been in Hartford's office.

In addition, the situation was plainly not one of an application having been brought in and a policy carried out in completion of the insurance transaction, for a period of time had intervened between the date on which the application was shown to have been received by Hartford and the date on which the policy was issued by it. The jury further could find some corroboration as to the application having been mailed in the fact testified to by the broker that during the period involved and for a period preceding he had been putting in only part time at his office because of a heart attack from which he was recovering and had not at all in that time been in the Hartford office for any purpose.

All this provided adequate probative basis for the jury to be allowed to pass on the mailing question and to entitle it to be found that the application had in fact been mailed by the broker to the Hartford office.

On question (b), supra, as to the occurrence of such a mailing of the application being reasonably foreseeable by Minkin, we further agree with the trial court that adequate probative basis existed for inference, evaluation and conclusion to entitle the matter of reasonably foreseeability by Minkin to be submitted to the jury. This is a day in which, within common knowledge and experience, the mail has come to constitute an instrumentality of general use in ordinary business incidents. In the situation here, the broker's place of business was located in the suburbs and Hartford's office in the heart of downtown St. Louis, a distance of some twelve miles from each other. We think the jury could properly regard Minkin, who himself operated a substantial business, as not being able credibly to claim that he believed or assumed that the broker in ordinary business course would take the time and undergo the inconvenience of making a twelve-mile trip into downtown St. Louis and back, instead of using a ten-cent stamp, to get the application into the hands of Hartford, and particularly where, as here, there was recognizedly no emergency or other element of immediacy involved.

But even more directly probative on the question of reasonable foreseeability, there was evidence showing that at the very beginning the broker had used the mail to transmit the application form to Minkin for execution, and that Minkin in turn, after filling it out, had mailed it back to the broker with a check for the premium requested. Also, this use of the mail, both by the broker and by Minkin, in handling the application between them, with the distance thus involved consisting of ten miles, had preceded the mailing of the application to Hartford.

On all these elements together, it would not, in our opinion, be entitled to be held as a matter of law that the mailing of the application by the broker to Hartford was not reasonably foreseeable by Minkin.

That use of the mail to handle such routine application incidents constituted a matter of ordinary business course in the insurance field here involved was further indicated by the facts, which there was testimony to show, that after the broker had mailed the application to Hartford, Hartford returned it to him in the same manner, together with Minkin's check because of an error in the amount of the premium which Minkin had been charged, and that after Minkin had sent the broker a check for the deficiency, the broker, 'again forwarded the whole thing back to Hartford.'

As previously noted, within the interpretation made in Pereira,supra, of the term 'causes' as used in 1341, use of the mail as a necessary or facilitating instrument to effect the execution of a scheme to defraud, 'where such use can reasonably be foreseen,' gives rise to a violation of 1341. 347 U.S. at 9, 74 S.Ct. at 363. One who engages in carrying out a scheme to defraud is therefore responsible under 1341 for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general, expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally in Fisher v. United States, 324 F.2d 775, 780 (8th Cir. 1968), as to the ordinary course of such an insurance business as is here involved:

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

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