United States v. McKamey ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11240
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHELLE D MCKAMEY
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:99-CR-35-6
_________________________________________________________________
October 6, 2000
Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.
PER CURIAM:**
Defendant-Appellant Michelle D. McKamey appeals her
conviction under 18 U.S.C. § 371 for conspiracy to violate 18
U.S.C. § 1033(b)(1)(A), which provides that “[w]hoever (A) acting
as, or being an officer, director, agent, or employee of, any
person engaged in the business of insurance whose activities
*
Circuit Judge of the Seventh Circuit, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
affect interstate commerce, . . . willfully embezzles, abstracts,
purloins, or misappropriates any of the moneys, funds, premiums,
credits, or other property of such person so engaged” is subject
to criminal prosecution. 18 U.S.C. § 1033(b)(1)(A) (2000).
McKamey, along with several co-defendants, entered into a “Joint
Stipulation of Facts” with the government, waived her right to a
jury trial, and requested the district court to accept the
stipulated facts as the evidence in the case and to find her not
guilty or guilty of the charged offense based on a written
conclusion of law. The only issue before the district court was
whether the stipulated facts constituted a violation of the
charged offense as a matter of law. The district court found
McKamey guilty, and McKamey timely appealed.
McKamey contends that the district court erred as a matter
of law when it determined that she conspired as alleged in the
indictment. She claims that her intent to blackmail her alleged
co-conspirators compels the conclusion that there was no “meeting
of the minds” between her and her co-conspirators to further the
conspiracy that the co-conspirators were involved in. The
agreement contemplated by § 371 “must have been made prior to or
during the consummation of the substantive crime,” United States
v. Bankston, 603 F.2d 528, 531 (5th Cir. 1979), and can be
established by circumstantial evidence. “‘Where the
circumstances are such as to warrant a jury in finding that the
conspirators had a unity of purpose or a common design and
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understanding, or a meeting of minds in an unlawful arrangement,
the conclusion that a conspiracy is established is justified.’”
United States v. Hopkins, 916 F.2d 207, 212 (5th Cir. 1990)
(citation omitted). McKamey contends that her effort to
blackmail the co-conspirators compels the conclusion that she
lacked a unity of purpose or a common design and understanding or
a meeting of minds to advance the objectives of the conspiracy.
McKamey relies heavily on the opinion of the Court of
Appeals for the Eleventh Circuit in United States v. Toler, 144
F.3d 1423 (11th Cir. 1998). But the very respect in which that
case is different from this one undercuts McKamey’s argument. In
Toler, a defendant was convicted of conspiracy to possess and
distribute crack cocaine after she demanded $500 from her ex-
boyfriend in exchange for the return of the crack cocaine that he
left at her house. See id. at 1431. The Eleventh Circuit
reversed the conviction and reasoned that, although the
defendant’s action “might support a conviction for criminal
blackmail, unlawful possession of drugs, or another criminal
act,” it did not show beyond a reasonable doubt that she agreed
to join a conspiracy. See id. at 1433.
As the government points out, McKamey’s argument about the
similarity between this case and Toler would be stronger if
McKamey had started blackmailing her alleged co-conspirators
after they deposited the check payable to Rebecca Hoffman because
McKamey might have more plausibly argued that she did not share
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their purpose of defrauding the insurance company. Instead, she
insisted that the fraudulent check be given to Hoffman for
deposit in Hoffman’s bank account. Demanding that the fraudulent
check be deposited and that all the proceeds be given to her was
not at odds with the conspiracy; indeed, it depended on the
advancement of the conspiracy to provide her with the proceeds of
the check. The evidence was legally sufficient to convict McKamey
of conspiracy.
McKamey’s judgment of conviction and sentence are AFFIRMED.
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