U.S. v. Scott, No. 82-7072

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before HILL and ANDERSON; JAMES C. HILL
• Citation: 701 F.2d 1340
• Parties: 12 Fed. R. Evid. Serv. 1549 UNITED STATES of America, Plaintiff-Appellee, v. Alan Neal SCOTT, Defendant-Appellant.
• Docket Number: No. 82-7072
• Decision Date: 04 April 1983

Page 1340

701 F.2d 1340 12 Fed. R. Evid. Serv. 1549 UNITED STATES of America, Plaintiff-Appellee,
v.
Alan Neal SCOTT, Defendant-Appellant. No. 82-7072. United States Court of Appeals,
Eleventh Circuit. April 4, 1983.

Page 1342

N.P. Callahan, Jr., Birmingham, Ala. (court-appointed), for defendant-appellant.

Frank W. Donaldson, U.S. Atty., Holly L. Wiseman, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL and ANDERSON, Circuit Judges, and LYNNE ^*, District Judge.

JAMES C. HILL, Circuit Judge:

In December, 1976, Alan Neal Scott, appellant in this case, persuaded an acquaintance to co-sign on a small loan application obtained at a Birmingham, Alabama bank. The loan was quickly repaid, thus establishing a good credit rating. However, material information on the loan application was falsified by the appellant. ¹ Appellant, a few months later applied for credit at numerous banks and department stores. On each application appellant again falsified information regarding his employment, income and prior address. Based on his prior credit rating from his loan in December and the false information elevating his financial image, many of the institutions extended him credit. The falsified information was detected and the institutions were notified, thereby preventing them from being defrauded.

Appellant was subsequently charged in a five count indictment with making false statements to two banks pursuant to 18 U.S.C.A. Sec. 1014 and with use of the mails

Page 1343

in furtherance of a scheme to obtain, by means of false representations, money or property in violation of 18 U.S.C.A. Sec. 1341. After a jury trial was held, Scott was found guilty on all five counts. He now appeals his conviction.

I.

Appellant argues that the trial court failed to instruct the jury properly on the requisite elements of Sec. 1341. This statute makes it a federal crime to "devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ...." 18 U.S.C.A. Sec. 1341 (emphasis added). The phrasing of this statute in the disjunctive prohibits two separate acts, each constituting an independent ground for prosecution and conviction of mail fraud. See United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981).

The trial judge properly explained and distinguished these two grounds for conviction. In so doing, he did not, as appellant suggests, ignore the requirement of specific intent. The court's instruction was as follows:

Now, in pertinent parts, this statute under which Counts 3, 4 and 5 are framed, Section 1341 of Title 18 of the U.S.Code, reads like this: "Whoever, having devised or intending to devise any scheme for obtaining money or property by means of false pretenses, representations or promises for the purpose of executing such scheme or attempting so to do, places at any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, shall be guilty of the offense against the laws of the United States." This statute was enacted under the power of Congress to establish and operate and regulate the Post Office establishment of the United States. So the use of the mails is an essential element of the crime. If there had been a scheme to defraud, I skipped that part of the statute, that is against the law, but that is not what the Government charges here. The Government charges under that part of the statute which makes it a crime to devise or intend to devise a scheme to obtain property by means of false pretenses, representations or promises, and in carrying out that scheme to use the mails. The statute actually uses the word scheme and artifice, but the indictment only uses the word scheme. The words mean, they include any plan, course of action intended to deceive others and to obtain by either false or fraudulent pretenses, representations or promises, either money or property from persons who are so deceived. Statement or representation is false or fraudulent within the meaning of this statute if known to be untrue or made with reckless indifference as to the truth or falsity and made or caused to be made with the intent to deceive. There are three essential elements. First, the act or acts having devised a scheme to obtain from certain extendors of credit property or money by means of false representations; second, the act or acts of placing or causing to be placed in an authorized depository for mail matters, generally means mailbox, a letter--in other words, a place anywhere you know mail is going to be picked up, an authorized place to mail letters, a letter intended to be sent or delivered by the Post Office Department as charged in the indictment; and third, the act or acts of using or causing the use of the United States Mail willfully and with a specific intent to carry out some essential step in the execution of said scheme....

The crime charged in Counts 3, 4, and 5 is a serious crime which requires proof of specific intent before the defendant can be convicted under either one of those counts. Specific intent as the term implies means more than the general intent to commit the act. The Government must prove beyond a reasonable doubt

Page 1344

that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all of the facts and circumstances surrounding the case. An act or failure to act is knowingly done if done voluntarily, intentionally and not because of mistake, accident or other innocent reason, and that intent may be inferred from conduct and circumstantial evidence from which reasonable inferences can be drawn. But since intent is an essential element of this charged offense under Counts 3, 4 and 5, specific criminal intent is required. (Emphasis added)

There is little doubt that the trial judge clearly explained to the jury the exact offense for which the appellant was charged, including the element of specific intent. Appellant's objection to the trial court's instructions seem to center on the court's negation of the need to prove an intent to defraud. As we stated above, this case was not brought under the part of the statute involving a scheme to defraud. Although, the Government's approach in dividing this statute may be novel, the statute clearly provides for the prosecution of the intentional obtaining of property through false representations. The "intent to defraud" element under the latter part of this statute is the intent to obtain the property through false representations.

However, representations known by a person to be false is a type of a scheme to defraud. United States v. Bruce, 488 F.2d 1224 (5th Cir.1973), Silverman v. United States, 213 F.2d 405 (5th Cir.1954). The trial court may not have explained this as clearly as possible. The trial court did err by stating this case did not involve an intent to defraud. However, in this instance, the error is harmless at best because of the court's lengthy and accurate instructions explaining that the jury must find a scheme to obtain property based on knowingly false representations in order to find the appellant guilty. The trial court's instruction indicating this was not an intent to defraud case, was made only to clarify which part of the statute this particular appellant was being tried under. The trial court did not eliminate the "intent to defraud" element of this statute, he merely defined the term as it pertained to the appellant's case. This error simply involved a semantics problem. To reverse the conviction on the basis of this error would be to place form over substance.

II.

In Counts I and II, appellant was charged with violating 18 U.S.C.A. Sec. 1014 which states in pertinent part:

Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of the ... Federal intermediate credit bank, or any division, officer, or employee thereof, ... a Federal Savings and Loan Association, a Federal Reserve Bank ... any institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation, any bank the deposits of which are insured by the Federal Deposit Insurance Corporation ... shall be fined not more than $5,000 or imprisoned not more than two years, or both.

At trial, the defendant/appellant introduced evidence attempting to demonstrate that the false information he supplied on his loan applications did not, in...