U.S. v. Ribaste

• Citation: 905 F.2d 1140
• Decision Date: 07 June 1990
• Docket Number: No. 89-2453,89-2453
• Parties: UNITED STATES of America, Appellee, v. Peter J. RIBASTE, a/k/a P.J. Ribaste, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1140

905 F.2d 1140

UNITED STATES of America, Appellee, v. Peter J. RIBASTE, a/k/a P.J. Ribaste, Appellant.

No. 89-2453.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1990.

Decided June 7, 1990.

Byron Neal Fox, Kansas City, Mo., for appellant.

Michael J. Dittoe, Kansas City, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Peter J. Ribaste was convicted by a jury of one count of mail fraud, 18 U.S.C. Sec. 1341 (1988), one count of making a false statement to a federally insured institution, 18 U.S.C. Sec. 1014 (1988), and one count of making a false statement to a federal agency, the Small Business Administration (SBA), 18 U.S.C. Sec. 1001 (1988). The District Court ¹ sentenced Ribaste to six months in prison followed by three years of supervised release and a $10,000 fine. Ribaste argues on appeal: (1) his conviction for mail fraud should be overturned because the necessary mailing element of the crime was not satisfied; (2) the District Court improperly instructed the jury regarding Ribaste's asserted good faith defense; and (3) the District Court erred in not granting a mistrial after the government questioned a defense witness about a prior fraud conviction of Ribaste's partner. We affirm.

This case arises out of Ribaste's failure to disclose legally enforceable gambling debts to General Motors Corporation (GM), the Union Bank, and the SBA during the course of Ribaste's application for a GM car dealership. ² Ribaste incurred substantial gambling debts at several Las Vegas casinos in 1986, approximately one year prior to applying, on July 24, 1987, to be a GM dealer. An applicant for a GM dealership must submit a personal financial statement listing all outstanding debts. Ribaste submitted statements to GM that did not include his $92,700 in gambling debts. In addition, as part of the purchase of the GM dealership, which then was known as Pete Maude Chevrolet, Ribaste assumed a pre-existing loan made by the Union Bank to the previous owner of the dealership. To assume the loan, Ribaste submitted a financial statement to the Union Bank and to the SBA, which guaranteed the loan. Ribaste did not list his outstanding gambling debts in the financial statements submitted to the bank or to the SBA.

Ribaste maintained at trial that he did not disclose his gambling debts out of a good faith belief that debts of this type were not legally enforceable in the state of Missouri. ³

Following the submission of the false financial statements to GM, the bank, and the SBA, GM sent Ribaste a letter dated October 14, 1987, informing him that GM was prepared to appoint Ribaste as an owner/operator of a GM dealership if Ribaste would send certain additional documentation to GM. GM's acceptance letter was sent through the United States mail and forms the basis of Ribaste's mail fraud conviction. The false financial statements made to the bank and the SBA are the grounds for Ribaste's other two counts of conviction.

Ribaste first argues that the mailing at issue--GM's mailing of the letter accepting Ribaste as a GM dealer--was not in furtherance of the fraudulent scheme and, thus, does not satisfy the mailing element of the crime of mail fraud. We disagree.

"The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law." Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944). To be part of the execution of the fraud, the mailing need only be "incident to an essential part of the scheme." Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954). The Supreme Court has held that an innocent mailing--one that contains no false information--may supply the necessary mailing element. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 1449, 103 L.Ed.2d 734 (1989) (innocent automobile dealers' routine submission of title registration forms to Wisconsin Department of Transportation was part of used car distributor's fraudulent scheme when Wisconsin titles were prerequisite to dealers' ultimate sale of cars to retail customers and success of distributor's scheme depended on continued good relations with dealers); Carpenter v. United States, 484 U.S. 19, 28, 108 S.Ct. 316, 321-22, 98 L.Ed.2d 275 (1987) (routine mailing of newspapers was part of appellants' fraudulent scheme to profit from information contained in "Heard on the Street" column); Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960) (fraud perpetrated by innocent mailing is not "immuniz[ed] from the ban of the statute" if the mailing is a "step in the plot"); see also United States v. Brownlee, 890 F.2d 1036, 1037-38 (8th Cir.1989) (mailing of titles of stolen vehicles by the Missouri Department of Revenue was part of scheme to defraud).

In the instant case, the fraudulent activity was the acquisition of a GM dealership through the submission of false financial statements. GM's letter tentatively accepting Ribaste as a GM dealer was, by definition, a necessary step in Ribaste's successful completion of the fraud. Ribaste's submission of the false financial statements to the lenders was a key factor in GM's decision to issue the letter, and was exactly the sort of action Ribaste sought to induce. We hold that the mailing of GM's acceptance letter was an element of Ribaste's scheme to defraud and, thus, satisfies the mailing requirement of the mail fraud statute.

Ribaste next claims that the District Court improperly rejected Ribaste's proposed instruction regarding his asserted good faith defense. He further maintains that the issue of the materiality of the false statements "should have been formulated to the jury in conjunction with Appellant's 'good faith' defense." Appellant's Brief at 10. These arguments have no merit.

All three of the crimes of which Ribaste was convicted must be committed "knowingly," and the jury was so instructed. See Instructions J, M, O. The court further instructed the jury:

An act is done "knowingly" if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

The purpose of adding the word "knowingly" is to insure that no one would be convicted for an act done because of mistake, or accident, or other innocent reason.

Instruction I. At Ribaste's request, the jury was instructed regarding Ribaste's good faith defense:

To the Government's charges ... the Defendant Peter J. Ribaste responds:

He believed that credit taken to gamble in a Las Vegas gambling casino was not a legally enforceable debt and was not a legal liability, subject to be included on a financial statement.... Finally, he believed that the statements on his Applications made at the time of their offerings were true. He neither schemed nor intended to defraud anyone of their money or any other thing of value.

The jury is reminded that the statements above set forth the defendant's theory of the facts which the jury will evaluate.

Instruction P2.

"[A] party is entitled to an instruction reflecting that party's theory of the case if the instruction is legally correct and there is evidence to support it." Federal Enters. v. Greyhound Leasing & Fin. Corp., 786 F.2d 817, 820 (8th Cir.1986). A party is not, however, entitled to a specific formulation of an instruction and the district court is given broad discretion in framing the language of an instruction. Lackawanna Leather Co. v. Martin & Stewart, Ltd., 730 F.2d 1197, 1201 (8th Cir.1984). The purpose of instructing the jury is to focus its attention on the essential issues in the case and inform it of the permissible ways in which these issues may be resolved. Federal Enters., 786 F.2d at 820. We review the instructions given to determine if "the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issues in the case to the jury." Swift v. R.H. Macy's & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985).

Ribaste's challenges to the...