United States v. Cooper , 132 F.3d 1400 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-3649.
UNITED STATES of America, Plaintiff-Appellee,
v.
Candace L. COOPER, Glenn H. Martin, Defendants-Appellants.
Jan. 13, 1998.
Appeal from the United States District Court for the Middle District of Florida. (No. 94-155-CR-
ORL-19), Patricia C. Fawsett, Judge.
Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.
HUNT, District Judge:
Glenn H. Martin and Candace L. Cooper appeal their convictions following a jury trial.1
They raise challenges to the sufficiency of the evidence, the admission of certain evidence, the jury
instructions, and the district court's application of the Sentencing Guidelines. Cooper also contends
that her convictions are preempted by the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015. For
the reasons set forth below, we affirm.
I. PROCEDURAL HISTORY
On November 10, 1994 a grand jury returned a thirty-three count indictment against
defendants Martin and Cooper, charging them jointly with several crimes. Count One of the
*
Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia,
sitting by designation.
1
Martin was convicted of conspiracy to commit mail fraud, 18 U.S.C. § 371; mail fraud, 18
U.S.C. §§ 1341 and 2; and various forms of money laundering, 18 U.S.C. §§ 1956(a)(1)(A)(i),
1956(a)(1)(B)(i), 1957, and 2. Cooper was convicted of conspiracy to commit mail fraud and
mail fraud.
indictment charged defendants with conspiracy to commit mail fraud, and Counts Two through
Eighteen charged defendants with the substantive acts of mail fraud that formed the basis of the
conspiracy charge. Counts Nineteen through Thirty-three charged defendants with various forms
of money laundering.2
Following a two-month trial, a jury convicted Martin on Counts One, Three, Four, Nine,
Fifteen, Sixteen, and Eighteen through Thirty-three and convicted Cooper on Counts One, Ten
through Fourteen, and Seventeen. Shortly thereafter, the district court sentenced Martin and Cooper
to prison terms of 140 months and seventy months, respectively, and further ordered each defendant
to make restitution in the amount of $9,750,000 to the North Carolina Life & Health Insurance
Guaranty Association. Defendants timely filed notices of appeal.
II. FACTS
Martin's and Cooper's convictions arise out of their operation of Twentieth Century Life
Insurance Company ("TCL"), an insurance company that did business in several states, including
North Carolina and Florida. TCL was a wholly-owned subsidiary of a Florida holding company,
Twentieth Century Financial Corporation of America ("TCFCA"). Martin was the chief executive
officer ("CEO"), president, majority stockholder, and chairman of the board of directors of TCFCA,
and Cooper, Martin's sister, was the corporate secretary of TCFCA, as well as a member of its board
of directors. Martin was also the CEO, president, and chairman of the board of directors of TCL,
and Cooper was TCL's executive vice president.
As an insurance company doing business in North Carolina and Florida, TCL was subject
2
Specifically, the indictment charged defendants with engaging in monetary transactions
affecting interstate commerce with criminally derived property (Counts Nineteen through
Twenty-Five), money laundering with intent to promote the carrying on of specified unlawful
activity (Counts Twenty-Six through Twenty-Eight), and money laundering with intent to
conceal the proceeds of specified unlawful activity (Counts Twenty-Nine through Thirty-Three).
to regulation by the North Carolina Department of Insurance ("NCDOI") and the Florida Department
of Insurance ("FLDOI"). Both of these agencies required that insurance companies maintain specific
minimum ratios of assets to liabilities and surplus. If an insurance company operated below these
minimum ratios, NCDOI and FLDOI were authorized to bar the company from doing further
business in their respective states because of statutory insolvency.
Because the valuation of assets had a critical bearing on the calculation of these ratios,
NCDOI and FLDOI regulated the accounting treatment of assets by insurance companies. For
example, neither of the agencies allowed insurance companies to treat loans or advances to "related"
companies-companies with common ownership or management-as assets. Due to these and other
regulations on the valuation of assets, it was possible for an insurance company to be declared
statutorily insolvent and, therefore, subject to regulatory shutdown and takeover, despite the fact
that, under generally accepted accounting principles, the company's assets exceeded its liabilities.
TCL sold various types of insurance policies, including single premium, whole life policies
and single premium annuities. These policies would accumulate cash values that could be redeemed
by the policyholder under certain conditions specified in the policy. These policies also required
TCL to pay death benefits upon the death of the insured. TCL had the primary responsibility to
make any payments to policyholders. However, under the laws of North Carolina and Florida, the
North Carolina Life, Accident and Health Insurance Guaranty Association and the Florida Life and
Health Insurance Association (the "Guaranty Associations")were required to reimburse all
policyholders of life insurance companies located within their respective states that became
insolvent or otherwise failed.
From 1984 through June 1989, Martin caused TCL to loan or advance substantial sums of
money to other companies controlled by Martin. Although NCDOI initially was unaware that TCL
was engaging in these related-party transactions, it increasingly became concerned about the
apparent illiquidity of TCL's assets as the percentage of TCL's assets in the form of business
accounts receivable from a few companies continued to escalate. This concern led NCDOI to
become more aggressive in its efforts to learn about TCL's assets, which, in turn, led to the discovery
that TCL had engaged in extensive related-party transactions.
Although NCDOI could have shut down TCL for fiscal unsoundness once it discovered the
related-party transactions, it instead entered into a consent agreement with TCL under which TCL
would continue doing business subject to strict supervision by NCDOI. Among other restrictions,
the consent agreement required TCL to receive NCDOI approval before making any disbursements
from TCL bank accounts. Shortly after the execution of this June 8, 1994 consent agreement,
FLDOI issued a series of consent orders relating to TCL's business in Florida. The orders severely
limited the amount of new business TCL could write in Florida and required TCL to make a variety
of disclosures to FLDOI concerning TCL's new business and its reserves.
The indictment charged Martin and Cooper with devising and executing a scheme to divert,
conceal, and ultimately convert approximately $9,750,000 in funds received by TCL as premiums
for certain annuities and single premium, whole life polices. According to the indictment,
defendants issued policies in exchange for the converted premiums, but concealed the sale of the
policies and TCL's receipt of the premiums from NCDOI and FLDOI by avoiding TCL's standard
operating procedures for documenting the issuance of policies and the receipt of premiums. Instead
of processing these policies and premiums in the usual fashion, Cooper maintained the records in
a separate word processing file and handwritten log. The files regarding these policies were also
stored separately from TCL's other policy files, either in Cooper's office or in the trunk of Cooper's
car.
Between July 1989 and August 1990, Martin, Cooper, and others deposited approximately
$9,750,000 in premiums from these policies into bank accounts that had not been reported to
NCDOI or FLDOI. These accounts were owned and controlled by Martin. The funds were
ultimately disbursed by Martin for his personal use or were funneled to other corporations that he
owned. Although Cooper did not receive any of these funds, she was aware that the premiums were
being deposited in the unreported accounts and handled the premiums in a manner that prevented
NCDOI and FLDOI from discovering the existence of the premiums.
In March 1991, NCDOI declared TCL statutorily insolvent and assumed the company's
operation. However, the agency was unable to cure TCL's financial problems, and the company
ultimately failed. As a result, the North Carolina Guaranty Association was statutorily obligated to
assume the liabilities of all TCL policyholders up to $300,000 each.
III. DISCUSSION
Martin and Cooper challenge their convictions and sentences on a number of grounds. Both
argue that there was insufficient evidence to support their convictions, that the district court's
instructions to the jury were fatally flawed, and that the district court erred by ordering each
defendant to make restitution in the amount of $9,750,000. Martin further argues that the district
court miscalculated his sentencing range under the Guidelines by improperly grouping the money
laundering offenses and the amount of money laundered. Cooper also raises several challenges to
the district court's calculation of her offense level under the Guidelines and further challenges the
district court's denial of her motion for a downward departure from the Guidelines. Cooper's
primary argument, however, is that her convictions are barred by the McCarran-Ferguson Act, 15
U.S.C. §§ 1011-1015.
A. Preemption Under the McCarran-Ferguson Act
Section 2(b) of the McCarran-Ferguson Act provides, in relevant part, "[n]o Act of Congress
shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose
of regulating the business of insurance ... unless such Act specifically relates to the business of
insurance." 15 U.S.C. § 1012(b). Thus, the McCarran-Ferguson Act ensures the supremacy of the
states in the realm of insurance regulation. Whereas a federal law ordinarily supersedes an
inconsistent state law, "[t]he first clause of § 2(b) reverses this by imposing what is, in effect, a
clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of
insurance' do not yield to conflicting federal statutes unless a federal statute specifically requires
otherwise." United States Department of Treasury v. Fabe, 508 U.S. 491, 507, 113 S.Ct. 2202,
2211, 124 L.Ed.2d 449 (1993).
Although Cooper did not invoke the McCarran-Ferguson Act in front of the district court,
she now argues that her "conviction should not stand because the mail fraud and conspiracy statutes
have been preempted by the McCarran-Ferguson Act." Cooper's Brief at 12. This court, however,
"sit[s] to review the proceedings in the district court rather than to serve as a de novo forum where
prior proceedings can be retried." United States v. Johnson, 889 F.2d 1032, 1035 (11th Cir.1989).
Accordingly, "[a]s a general rule, this court will not address an issue not decided by the district
court." United States v. McAllister, 77 F.3d 387, 389 (11th Cir.1996).
Although this rule is discretionary, we see no reason to depart from it in this case. Cooper
had every reason and opportunity to raise this argument before the district court, and prohibiting her
from raising it now will not result in a miscarriage of justice. Therefore, we decline to address the
merits of Cooper's McCarran-Ferguson Act argument.3
3
Were we inclined to address the merits of this argument, we would review only for plain
error because of Cooper's failure to raise it before the district court. See Fed.R.Crim.P. 52(b).
Under this standard of review, the fact that the only three appellate decisions directly addressing
B. Sufficiency of the Evidence
We next consider whether the government's evidence was sufficient to sustain defendants'
convictions in this case. In reviewing the sufficiency of the evidence, we must consider the evidence
in the light most favorable to the government and draw all inferences and credibility choices in favor
of the jury's verdict. United States v. Adair, 951 F.2d 316, 318 (11th Cir.1992). The convictions
must be affirmed if any reasonable construction of the evidence would allow the jury to find
defendants guilty beyond a reasonable doubt. United States v. McKinley, 995 F.2d 1020, 1025 (11th
Cir.1993). Based on our review of the record, we hold that there is sufficient evidence to support
the jury's findings of guilt.
1. Cooper's Challenge
Cooper's argument that her mail fraud convictions cannot stand because the government
failed to demonstrate that the mailings were made in furtherance of the alleged scheme requires little
discussion. The counts of mail fraud of which Cooper was convicted involved the mailings of policy
applications and premiums from an insurance agent to TCL during the time that Cooper was
assisting Martin in converting the premiums. These mailings were at the heart of the scheme, as it
was these premiums that Martin ultimately converted to his own use. Consequently, we have no
difficulty concluding that a jury could have reasonably construed the evidence to support a finding
that Cooper was guilty of mail fraud.
2. Martin's Challenge
Martin's argument concerning the sufficiency of the evidence is more properly characterized
this argument—United States v. Blumeyer, 114 F.3d 758 (8th Cir.1997), United States v. Cavin,
39 F.3d 1299 (5th Cir.1994), and United States v. Sylvanus, 192 F.2d 96 (7th Cir.1951)—have
held that the McCarran-Ferguson Act does not preempt federal prosecution for mail fraud would
be particularly instructive.
as an attack on the legal sufficiency of the indictment. Rather than arguing that the government
failed to prove the acts alleged in the indictment, Martin contends that the acts alleged in the
indictment do not constitute mail fraud. This argument is unavailing.
The mail fraud statute, 18 U.S.C. § 1341, criminalizes the use of the mails in furtherance
of a scheme to defraud or to obtain money or property by means of false or fraudulent
representations. Accordingly, in order to sustain a mail fraud conviction, the government must
establish that the defendant intended to defraud a victim of money or property of some value. See
Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 321, 98 L.Ed.2d 275 (1987). In this
case, the indictment charged conjunctively that Martin devised a scheme to defraud the TCL
policyholders, the state guaranty associations, and TCFCA's minority shareholders by taking money
and property. Although Martin argues that the scheme as alleged did not involve any legally
cognizable monetary or property interest, we disagree. See United States v. Cosentino, 869 F.2d
301, 307 (7th Cir.1989) (holding that alleged scheme to keep insurance company in business by
deceiving regulators about company's financial status affected the property rights of the company's
policyholders); United States v. Bailey, 859 F.2d 1265, 1276 (7th Cir.1988) (holding that alleged
scheme with potential to expose S & L's money and property to plunder by artificially keeping S &
L in operation "could affect the property interests of the depositors, shareholders, and FSLIC, which
would be potentially on the hook for some or all of the depositors' losses" and was, therefore,
sufficient to support mail fraud conviction). We find the reasoning behind these decisions
persuasive and hold that the allegations in the indictment and the evidence presented at trial were
sufficient to support Martin's convictions for mail fraud and conspiracy.4
4
Because we find that each of the government's theories contained in the indictment was
legally sufficient to support a conviction of mail fraud, we summarily dismiss Martin's argument
that the district court erred in giving a jury instruction that allowed the jury to convict on a
C. Remaining Issues
Defendants' remaining contentions may be disposed of summarily. With respect to Cooper's
evidentiary challenges, we do not find that the district court abused its discretion in admitting
evidence concerning the removal of the FSCA plaque and the cash surrender log. See R22: 213-
217, 272-277; R9: 199-206. Furthermore, in light of this court's previous approval of the use of
a jury instruction regarding willful blindness in a case involving a conspiracy charge, United States
v. Peddle, 821 F.2d 1521 (11th Cir.1987) (per curiam), we find that the district court did not err in
giving such an instruction in this case. Finally, with respect to the sentencing issues raised by both
defendants, the record clearly demonstrates that the district court properly calculated all aspects of
defendants' sentences under the Guidelines after making the requisite factual findings and that these
findings are not clearly erroneous. In addition, it is clear that the district court did not err in denying
Cooper's motion for a downward departure.
IV. CONCLUSION
For the reasons stated above, we affirm the convictions of Martin and Cooper.
AFFIRMED.
legally inadequate basis.