U.S. v. Oldfield

• Decision Date: 30 September 1988
• Docket Number: No. 87-6301,87-6301
• Citation: 859 F.2d 392
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard S. OLDFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 392

859 F.2d 392

UNITED STATES of America, Plaintiff-Appellee, v. Richard S. OLDFIELD, Defendant-Appellant.

No. 87-6301.

United States Court of Appeals Sixth Circuit.

Argued Aug. 2, 1988.

Decided Sept. 30, 1988.

Ronald D. Bowling, argued, Trimble and Henry, Lexington, Ky., J. Montjoy Trimble, Kevin G. Henry, for defendant-appellant.

Louis DeFalaise, U.S. Atty., Lexington, Ky., James Zerhusen, argued, for plaintiff-appellee.

Before ENGEL, Chief Judge, MILBURN, Circuit Judge, and DOWD, District Judge ^*.

MILBURN, Circuit Judge.

Defendant-appellant Richard Oldfield appeals his jury convictions for aiding and abetting in mail fraud which stem from his involvement in a substantial odometer tampering scheme. The principal issues on appeal are (1) whether the district court correctly held that prosecution of Oldfield under the mail fraud statute was not prohibited by the existence of odometer tampering proscriptions in 15 U.S.C. Sec. 1984 et seq.; and (2) whether the district court correctly held that sufficient evidence had been presented to establish the use of the mails in furtherance of a fraudulent scheme. For the reasons that follow, we affirm.

I.

On June 10, 1986, an indictment was returned by the United States Grand Jury for the Eastern District of Kentucky at Covington charging defendant Richard Oldfield with eighteen counts of aiding and abetting the commission of mail fraud pursuant to 18 U.S.C. Secs. 1341 and 2. Each count alleged a scheme continuing from on or before April 17, 1984, and through at least July 5, 1985, wherein Oldfield and others "rolled back" odometers on used automobiles, obtained fraudulent automobile titles reflecting a false mileage, sold the automobiles to purchasers, and caused a Kentucky title for those automobiles to be mailed to the consumer. Each count involved a separate automobile, consumer, and mailing.

On July 10, 1987, Oldfield moved for a continuance of his trial date. The district court granted the motion and further directed in the pretrial order that all pretrial motions be filed no later than August 10, 1987. Supplemental Joint Appendix at 14.

On the day of trial, November 2, 1987, Oldfield's counsel filed a thirty-two-page motion to dismiss the indictment and supporting memorandum raising the two issues presently before this court. Before the trial commenced, a hearing was held by the district court and the issue of the timeliness of the motion was raised by counsel for the government. The following colloquy between the court and counsel then took place:

THE COURT: Why is this Motion filed in this delayed fashion?

MR. TRIMBLE [Counsel for Oldfield]: I apologize to the Court, Your Honor, for the untimely filing. It [sic] will cede, Your Honor, that the Motion was filed out of time. And, for that reason, Your Honor, we will withdraw the Motion to Dismiss.

THE COURT: Well, I don't want you to withdraw any motion on that basis. My only question at this time is, why is it late?

....

MR. TRIMBLE: Well, quite frankly, Your Honor, it--you know, the thought of the issue had been running through my head, and my associate's and partner's, for some time, but we had just not got into the legislative history, the other background which we had raised.

....

THE COURT: But, you are just saying that you were untimely because you were untimely.

MR. TRIMBLE: Basically, that's it, Your Honor. Yes, sir.

J.A. 441-443. Although both counsel and the court conceded that the motion was untimely, and that there was no cause for its tardiness, the district court nevertheless considered the motion and subsequently found it to be without merit.

A trial was held from November 2, 1987, through November 4, 1987. At the close of the prosecution's case, Oldfield moved for dismissal of the indictment and/or judgment of acquittal, alleging that insufficient evidence supported the mail fraud indictment. The district court overruled the motion, but granted Oldfield's request that the jury be instructed that misdemeanor odometer tampering was a lesser included offense. Oldfield was subsequently found guilty on all eighteen counts of mail fraud.

II.

From 1984 until November of 1987, Oldfield owned and operated Oldfield's Used Cars in Mt. Sterling, Kentucky. During that time, Oldfield, his brother, Joseph Oldfield, and Terry McCarty were car salesmen. The defendant-appellant was responsible for obtaining used cars from wholesalers for his business to retail. He generally purchased late model, high mileage used automobiles from various wholesalers including several businesses in Cincinnati, Ohio.

Jerry Klein, along with his son, Todd Klein, operated Regency Motors in Cincinnati, Ohio, during 1984 and 1985. Regency Motors would purchase used automobiles and wholesale those vehicles to other car dealers, one of which was Oldfield. Oldfield and the Kleins agreed to a scheme wherein automobiles obtained by Oldfield from Regency or other dealerships in Ohio would have their odometers altered or "rolled back" in order that Oldfield could successfully retail the automobiles at a higher price.

Oldfield instructed Todd Klein as to how many miles to "roll back" on automobiles supplied by Regency Motors. Moreover, Oldfield himself was directly involved in rolling back odometers on vehicles obtained from other Cincinnati dealers by having Oldfield Used Cars' mechanics remove the dash and odometer so that Oldfield could alter the mileage. The standard procedure would be that Oldfield would pay the mechanic a $25.00 fee over and above his regular salary for removing the dash and then Oldfield would roll the odometer back to the mileage he desired.

Whenever Jerry Klein purchased an automobile destined for Oldfield or Oldfield purchased an automobile from another dealer, they received a certificate of title bearing an assignment to either Regency Motors or Oldfield Used Cars. This certificate of title listed the true mileage of the vehicle. To carry out their scheme, Klein and Oldfield arranged with Hamilton County, Ohio, Deputy Court Clerk Beverly Tilford to have an Ohio automobile title issue for each vehicle in the name of Oldfield Used Cars listing the false "rolled back" mileage on the title's face. Tilford was paid $100.00 for each title she falsely prepared and supplied to Klein for Oldfield, and she testified that she prepared well over one hundred fraudulent titles. The $100.00 bribe was included in the price Oldfield paid for the cars from Regency Motors or in the case of cars obtained by Oldfield from other dealers, was paid to the Kleins by Oldfield and passed on to Tilford.

As acknowledged by Richard Oldfield's signature, documentation was provided in each instance including the original title, odometer statements, and bills of sale reflecting the true mileage of each vehicle prior to the "roll back." Oldfield received the fraudulent Ohio titles from the Kleins and had the vehicles transported to his Mt. Sterling, Kentucky, used car lot. The fraudulent Ohio titles supplied by Tilford listed Oldfield Used Cars as titleholder with the false mileage appearing on the face of the title. Oldfield would then use the fraudulent Ohio titles as documentation of ownership in the resale of the used cars in Kentucky.

Eighteen of the automobiles obtained by Oldfield Used Cars from Regency Motors or other Cincinnati dealers and fraudulently titled by Beverly Tilford in the manner described above are involved in the present case. The eighteen automobiles in question were sold by Oldfield Used Cars in Kentucky to consumers and used automobile dealers either by direct sale or by automobile auction.

In every sale, a fraudulent Ohio title was used by Oldfield in the transfer of title from Oldfield to the purchaser. In each instance, a Kentucky automobile title was obtained by a purchaser after Oldfield had falsely represented the mileage of the vehicle in a title application or caused others to do so by reference to the respective fraudulent Ohio title obtained from Tilford.

Before any resident of Kentucky who owns a motor vehicle may operate it on state highways, he must register the vehicle and apply for a certificate of title. Ky.Rev.Stat.Ann. Sec. 186A.065 (Michie/Bobbs-Merrill Supp.1986). Ky.Rev.Stat.Ann. Sec. 186A.170 provides that the Kentucky Department of Vehicle Regulation, located in Frankfort, Kentucky, shall issue an automobile certificate of title following receipt of an application in proper form, unless it finds discrepancies with respect to its supporting documents, and mail a certificate of title in the name of the owner. The titling process begins with the completion of a title application/vehicle transaction record by the seller and purchaser, wherein the vehicle is described and the seller attests to the mileage of the vehicle at the time of the transfer. In support of the application, certain documents, including the existing title to the vehicle, must be attached establishing ownership. The application and documents are presented to the county clerk where they are examined, and an inspection of the vehicle is conducted by a sheriff to verify the vehicle identification number and odometer reading as listed in the application for title.

If a variance is discovered upon inspection of the application and supporting documents, the application is rejected. If the examination reveals no discrepancy, the county clerk enters the title application information into a computer system connected with the Department of Vehicle Regulation, and a title application number is generated and entered on the application. No title issues at the county level, however, as the county clerk mails the application and documents to Frankfort, where the application is again examined and reviewed. If the documentation supports the information listed on the application for title and no other discrepancies are discovered, a Kentucky title will be generated by the Department of Vehicle Regulation and mailed to...