U.S. v. Scott

• Decision Date: 13 March 1984
• Docket Number: Nos. 83-5051,s. 83-5051
• Citation: 730 F.2d 143
• Parties: 15 Fed. R. Evid. Serv. 418 UNITED STATES of America, Appellee, v. Priscilla R. SCOTT, Appellant, UNITED STATES of America, Appellee, v. Stephen Rodger WILSON, Appellant. (L), 83-5052.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 143

730 F.2d 143

15 Fed. R. Evid. Serv. 418

UNITED STATES of America, Appellee, v. Priscilla R. SCOTT, Appellant, UNITED STATES of America, Appellee, v. Stephen Rodger WILSON, Appellant.

Nos. 83-5051(L), 83-5052.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 7, 1983.

Decided March 13, 1984.

William R. Metzner, Wheeling, W. Va., for appellant Scott.

John L. Henning, Elkins, W. Va., on brief, for appellant Wilson.

Thomas O. Mucklow, Asst. U.S. Atty., Philippi, W. Va., Richard M. Yurko, Jr., Third Year Law Student (William A. Kolibash, U.S. Atty., Betsy C. Steinfeld, Asst. U.S. Atty., Wheeling, W. Va., on brief), for appellee.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BRYAN, Senior Circuit Judge.

ALBERT V. BRYAN, Senior Circuit Judge:

Priscilla R. Scott and Stephen Rodger Wilson were convicted by a jury in the Federal Court for the Northern District of West Virginia on four counts of mail fraud punishable under 18 U.S.C. Sec. 1341. ¹ Appealing, they protest that the evidence was not sufficient to justify the verdict on two of the four counts. Furthermore, appellant Scott for herself contends, first, that the trial judge failed to charge the jury correctly with regard to specific intent to defraud, and also that it was error to admit certain statements made by appellant Wilson and used against her under the coconspirator exception to the hearsay rule. Upon consideration, we affirm the convictions on three of the four counts and reverse as to the other.

I

On September 27, 1982, the appellants were indicted on five counts under the mail fraud statute just quoted. The indictment accused Scott and Wilson of structuring a scheme to defraud the Stonewall Casualty Company, Scott's automobile insurance carrier, by selling Scott's car and thereafter falsely reporting it as stolen with intent to collect some $12,600 under Scott's insurance policy. Particularly, the indictment alleged that Scott and Wilson used the United States Postal Service five times to accomplish their plan.

Testimony put on by the Government traced the scheme to defraud through these steps: Wilson, with Scott's collaboration, arranged through an acquaintance, one Joseph Vernon, to sell Scott's 1980 Cadillac. The sale took place on December 9, 1980. On the December 15 following, Scott obtained an insurance policy covering the previously sold automobile. The insurer was the Stonewall Casualty Company acting through the Thomas Brothers Insurance Agency of Bruceton Mills, West Virginia. Thereupon on December 30, 1980, Scott notified the police that her car had been stolen from the parking lot of a mall in Morgantown, West Virginia. After informing a claims agent from Stonewall of the theft, the insurance company paid Scott $12,600 under her policy.

Government testimony further vouched, and the indictment pleaded, that mail fraud was committed in Scott's purchase of the insurance for the purpose of collecting on a false claim. Count One of the indictment embodied Scott's mailing of the insurance premium to her insurance agent (Thomas Brothers) for forwarding to Stonewall with the intention of procuring an insurance policy in return; Count Two recited Stonewall's mailing of the insurance policy to Thomas Brothers for delivery to Scott; Count Three embraced the actual mailing by Thomas Brothers of the policy to Scott; Count Four covered the mailing of the claim check of $12,600 from Stonewall to Scott; and Count Five set forth the mailing by Scott of the original automobile theft report and proof of loss to the insurance company.

In defense at trial, Scott gave evidence in which she did not deny her purchase of an insurance policy from Stonewall on December 15, 1980. However, she maintained that there had been a legitimate reason for this transaction. Her previous policy, containing identical terms to the one purchased on December 15, had covered the period from October 29, 1980 to January 29, 1981. But, she insisted this policy was cancelled effective December 10, 1980 because her check of $236.00 for the premium payment had been dishonored by her bank. To sustain the policy, Scott had to pay the insurance company this $236.00 balance which she did on December 15, 1980. Therefore, Scott argued that what appeared to be the purchase of insurance for fraudulent purposes was nothing more than the reinstatement of her original policy.

As for appellant Wilson, Scott testified that she had met him several months prior to December, 1980, and that they had become romantically involved. She had often allowed him to use the Cadillac as well as another car she owned. She recalls that late in the evening of December 9, 1980, she received a telephone call from Wilson saying that he had sold her Cadillac because he needed the money. Then, he had told her to report the car as stolen so as to collect the insurance proceeds. Scott said she became "furious" with Wilson and demanded that he have her car returned. Scott also testified to telling him that her insurance on the car had just lapsed, although technically it would not lapse until the next day. It was, she testified, her hope that the car would be returned that deterred her from at once reporting the car as stolen.

While there was testimony that Wilson endeavored to retrieve Scott's car, he was unsuccessful in this pursuit. However, to keep Wilson out of trouble, Scott gave evidence that she afterward reported her car as having been stolen from the mall parking lot in Morgantown. Scott admitted that her assignment of the December 30, 1980 date for the larceny was false, but she also testified that Wilson himself had, in truth, stolen her car on December 9. Since her old policy was then still in effect, and inasmuch as that policy contained identical terms with the one purchased on December 15, Scott did not feel she was defrauding the insurer. Moreover, in further denying an intent to defraud, she also stated upon oath that she had asked the insurance company to replace the "stolen" automobile with an identical model rather than give her the proceeds from the insurance policy. While Stonewall was not able to do this and subsequently paid her in cash for the loss, she later repurchased her original car from the company, an act which she argued was further proof of her lack of intent to defraud. ²

This testimony of Scott notwithstanding, the testimony more damaging against her came from Joseph Vernon, the individual who had in fact sold Scott's car. He claimed that he had met Wilson in late November or early December. At that time, Wilson told him that he had a "lady friend" who wanted to sell her automobile to collect on the insurance. Vernon also testified that, while he was negotiating a price with the buyer, Wilson had called the woman who owned the car from his home to agree on a price for it. Vernon heard Wilson refer to the woman as "Pat", a nickname of Scott. Scott sought to rebut this testimony by stating that Wilson had no phone in his house, but Wilson did not take the witness stand to confirm her story. The jury then convicted appellant on 4 out of the 5 mail fraud counts on December 15, 1982. ³

II

Appellants' initial contention is that there was not enough evidence for the jury to convict them on Counts One and Three of the indictment. ⁴ They press that the prosecution did not adduce evidence on either count which, independently, would establish beyond a reasonable doubt the requisite proof of mailing necessary to sustain a mail fraud conviction. See United States v. Murr, 681 F.2d 246, 248 (4th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 307, 74 L.Ed.2d 286 (1982) (proof of mailing and existence of a scheme to defraud must be presented in order to convict under 18 U.S.C. Sec. 1341). While there is merit in appellants' claim as to Count One, clearly their argument against conviction on Count Three must fail.

The standard by which the court must measure the sufficiency of the evidence is laid out in United States v. Sherman, 421 F.2d 198 (4th Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970). There, we made clear that:

The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt. Glasser v. United States, 315 U.S. 60, 80 [62 S.Ct. 457, 469, 86 L.Ed. 680] (1942). Where the evidence construed most favorably for the government is such that the jury might find the defendant guilty beyond a reasonable doubt, then the evidence is sufficient to sustain a finding of guilt.

Id. at 199-200 (other citations omitted). See also, United States v. Baker, 611 F.2d 961, 962 n. 2 (4th Cir.1979). Furthermore, evidence of mailing sufficient to sustain a conviction for mail fraud may be either direct or circumstantial. United States v. Hopkins, 357 F.2d 14, 17 (6th Cir.), cert. denied, 385 U.S. 858, 87 S.Ct. 107, 17 L.Ed.2d 84 (1966); United States v. Wolfson, 322 F.Supp. 798, 812 (D.Del.1971), aff'd, 454 F.2d 60 (3d Cir.), cert. denied, 406 U.S. 924, 92 S.Ct. 1792, 32 L.Ed.2d 124 (1972). Introduction of a firm's "office practice" and its "usual course of business", while circumstantial, has been found sufficient to carry the question of mailing to the jury. United States v. Decker, 51 F.Supp. 15, 18 (D.Md.1943), aff'd, 140 F.2d 378 (4th Cir.), cert. denied, 321 U.S. 792, 64 S.Ct. 791, 88 L.Ed. 1082 (1944). See also, United States v. Ledesma, 632 F.2d 670, 675 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980).

Returning to the sufficiency of evidence question as to Count One, the Government failed to present proof of mailing which would allow a jury to conclude beyond a reasonable doubt that appellants committed mail fraud. Indeed, appellant Scott testified that she hand-delivered her $236.00 premium payment to the Thomas Brothers Agency for transmittal to Stonewall. The Government offers testimony inadequate to overcome...