United States v. Pisciotta

• Citation: 469 F.2d 329
• Decision Date: 10 April 1973
• Docket Number: No. 72-1065.,72-1065.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam PISCIOTTA, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

469 F.2d 329 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Sam PISCIOTTA, Jr., Defendant-Appellant.

No. 72-1065.

United States Court of Appeals, Tenth Circuit.

November 28, 1972.

Rehearing Denied April 10, 1973.

James W. Treece, U. S. Atty., W. Allen Spurgeon, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.

Anthony F. Zarlengo, and Howard M. Kirshbaum, Denver, Colo., for defendant-appellant.

Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and THEIS, District Judge.

THEIS, District Judge.

The appellant, Sam Pisciotta, Jr., appeals from his conviction on four counts of an eight count indictment charging him with violations of 18 U.S.C.A. § 1341 (mail fraud) and 18 U.S.C.A. § 371 (conspiracy). The trial court dismissed Counts Two, Three and Four, and the jury found appellant not guilty as to Count Six. In substance, the indictment charged appellant with conceiving, organizing and executing a scheme to defraud no fewer than twenty-one insurance companies by, first, causing the submission of fraudulent applications for insurance coverage and, later, the filing of claims following a staged automobile accident. Also charged in the indictment were three other participants, one of whom appeared as the government's principal witness. On appeal, the appellant asserts the trial court erred in denying his motion for acquittal ; erred in instructing the jury prior to conclusion of the government's case that the co-conspirator's testimony had been independently corroborated ; and erred in admitting as evidence against him the insurance policy applications submitted by the other participants.

Appellant's challenge to the sufficiency of the government's evidence to sustain a conviction and to the admissibility of the insurance policy applications share a common premise. The Mail Fraud Statute, 18 U.S.C.A. § 1341, makes it a crime for any person to mail or to knowingly cause to be delivered by mail any matter for the purpose of executing a scheme to defraud. Thus, to warrant a conviction two elements must be established: (1) a scheme to defraud, and (2) the mailing of some material for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954) ; United States v. Seasholtz, 435 F.2d 4 (10th Cir. 1970) ; Gusow v. United States, 347 F.2d 755 (10th Cir. 1965), cert. den. 382 U.S. 906, 86 S.Ct. 243, 15 L.Ed.2d 159 (1965). Appellant's stand throughout has been that in order to establish this second element the government was required to demonstrate some direct link between the false information contained in the insurance applications and him, and since no substantial evidence was adduced linking him directly with the false statements contained in the applications the second element was not established. Similarly, he contends the admission into evidence of the insurance applications was erroneous because he was never directly connected with the fraudulent statements contained in them.

The statutory requirement is not as stringent as the appellant would construe it. If the government is able to prove the defendant "caused" the fraudulent insurance applications to be mailed, then the second element of the offense is established. A defendant causes the mails to be used when he does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can be reasonably foreseen, even though not actually intended. Pereira v. United States, supra, 347 U.S. at 8-9, 74 S.Ct. 358.

In Marvin v. United States, 279 F.2d 451 (10th Cir. 1960), this Court held that use of the mail was established where it was shown the defendant set forces in motion which foreseeably would involve mail uses. Further, it was held that the alleged mail uses could be established circumstantially (at 454). In this case, therefore, the government did not have to link appellant directly with the fraudulent statements contained in the applications. Consequently, instead of proving the appellant directed the other participants to make false statements on their applications, the government need only establish that appellant did acts or set forces in motion which foreseeably would involve mail uses. On this point, viewing the evidence in the light most favorable to the government and giving them the benefit of all reasonable inferences, as we must, there was ample evidence to warrant denial of appellant's motion for acquittal. See, e. g., United States v. Ramsdell, 450 F.2d 130 (10th Cir. 1971) ; United States v. Ortiz, 445 F.2d 1100 (10th Cir. 1971). Moreover, since the insurance policy applications were relevant to show use of the mails in aid of a scheme to defraud their admission into evidence did not constitute a prejudicial abuse of discretion.

The evidence established that at some time prior to June 21, 1967, appellant had conceived the idea to defraud a number of insurance companies by having the other participants load up on insurance, become involved in a staged accident, and file claims under the various policies. One of the participants, Frank Cardinelli, following a nolo contendere plea, testified against appellant. In substance, he testified appellant contacted him following the death of his wife and offered him $500.00 to participate in a scheme. Subsequently, he met with appellant on several occasions, and during one of these meetings, appellant told him there would be a staged automobile accident. Later, appellant told him to purchase insurance coverage and furnished him with money to pay the premiums. Appellant also referred several insurance agents to him. There was additional testimony that appellant referred insurance agents to the other participants on several occasions. These referrals and subsequent sales were corroborated by the testimony of the insurance agents. The testimony of the agents also portrayed graphically the rapidity with which Cardinelli, Barbera, and Givigliano, the three participants, increased their insurance coverage shortly before the accident. Cardinelli further testified he did not fully disclose the extent of his additional insurance coverage on any of his applications. The applications received in evidence revealed that neither Cardinelli, Barbera or Givigliano fully disclosed the extent of their insurance coverage. The insurance agents testified that these...