U.S. v. Reed, 83-1132

• Decision Date: 28 November 1983
• Docket Number: No. 83-1132,83-1132
• Citation: 721 F.2d 1059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bishop REED, Riley Reed and Earl Reed, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1059

721 F.2d 1059

UNITED STATES of America, Plaintiff-Appellee, v. Bishop REED, Riley Reed and Earl Reed, Defendants-Appellants.

No. 83-1132.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 6, 1983.

Decided Nov. 28, 1983.

Samuel Posner, argued, Gerald Posner, Detroit, Mich., for defendants-appellants.

Leonard R. Gilman, U.S. Atty., Blondell L. Morey, argued, Detroit, Mich., for plaintiff-appellee.

Before MERRITT and KENNEDY, Circuit Judges, and BERTELSMAN, ^* District Judge.

MERRITT, Circuit Judge.

In this direct criminal appeal the three defendants were convicted of conspiracy (18 U.S.C. Sec. 371) to commit the substantive offense of mail fraud (18 U.S.C. Sec. 1341) in connection with the filing of accident insurance claims, but acquitted on the substantive counts. Conceding the fraud, their primary claim on appeal is that the evidence is insufficient to prove what they assert is an element of the mail fraud conspiracy offense under our decision in Blue v. United States, 138 F.2d 351 (6th Cir.1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944), namely: the government must prove specific intent to use the mails, that is, that the conspiratorial agreement must specifically include use of the mails.

Although the Blue case is certainly open to that interpretation, the case--to the extent it so holds--is no longer good law in light of the intervening Supreme Court decision in Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), which squarely holds that specific intent to use the mails is not necessary to prove the substantive offense so long as such use "can reasonably be foreseen, even though not intended." Id. at 9, 74 S.Ct. at 363. The Pereira case when read in light of United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) disposes of the defendants' conspiracy issue. Feola rejected "a line of cases, commencing with Judge Learned Hand's opinion in United States v. Crimmins, 123 F.2d 271 (CA2 1941), all holding that scienter of a factual element that confers federal jurisdiction, while unnecessary for conviction of the substantive offense, is required in order to sustain a conviction for conspiracy to commit the substantive offense." 420 U.S. at 675-76, 95 S.Ct. at 1259. Feola establishes a general principle that in proving the content of the conspiracy agreement the government need not prove a higher degree of criminal intent or scienter respecting the jurisdictional element than is necessary for the substantive offense itself: "where knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense embodying a mens rea requirement, such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense." 420 U.S. 696, 95 S.Ct. at 1269. Thus, what the government must show here is an agreement to defraud plus knowledge that the use of the mails was reasonably foreseeable. There is no claim that the proof was insufficient to prove these elements, only that it is insufficient to show a specific intent to use the mails.

Defendants contend that their convictions should be reversed on the additional ground that the trial judge instructed the jury improperly on the issue of intent in both the conspiracy and substantive charges, although defendants failed to object to the trial judge's instructions on both charges at the time of trial. We conclude that the trial judge did not commit plain error in his instructions on the conspiracy charge because the trial judge made clear to the jury that in order to find the defendants guilty of the conspiracy charge, the jury had to find that the defendants "voluntarily and intentionally" had devised a scheme to...