United States v. Smith ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 01-50218
UNITED STATES of AMERICA,
Plaintiff-Appellee,
VERSUS
SHAWN MICHELLE SMITH,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the
Western District of Texas, San Antonio
SA-97-CR-190-8
___________________________________________________
July 16, 2002
Before DAVIS, DeMOSS, and STEWART, Circuit Judges.*
W. EUGENE DAVIS, Circuit Judge:
Shawn Smith was convicted of several counts of aiding and
abetting mail fraud and one count of conspiracy to commit mail
fraud. She appeals her conviction and sentence, arguing that the
government presented insufficient evidence to support her
conviction and that the intended loss calculation was erroneous.
*
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this opinion should not be published and is not precedent except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.
For the reasons that follow, we affirm her conviction.
I.
At 2:00 a.m. on November 4, 1994, Shawn Smith, her brother
Chad Smith, Ronald Panelli, and William Destiny Davis left a bar
when it closed and piled into Ms. Smith’s car. Panelli drove, Ms.
Smith sat in the passenger seat, and the other two sat in the back.
On their way out of the parking lot, another car, driven by
Kimberly McCormick, backed into them. An argument ensued, during
which Chad Smith pushed Ms. McCormick to the ground and the police
were called. Ms. McCormick picked herself up and drove away.
Panelli also drove away with Ms. Smith and the other occupants of
her car because they did not want the police to discover that they
had been involved in an accident while drinking. Ms. Smith made a
police report the following day. Apparently because Panelli’s
license had been suspended, Smith claimed to have been driving.
Ms. Smith decided to hire a lawyer to represent her in
connection with the accident. Ms. Smith selected the Choice
Richardson law firm to represent her ostensibly on the
recommendation of her aunt. This firm had represented her in an
accident once before -- also upon the recommendation of her aunt.
This personal injury law firm was named after its only licensed
attorney, a lawyer without litigation experience. The evidence
revealed that the firm was actually operated by four Lampanzianie
brothers. Two brothers, Marcello (who is married to Ms. Smith’s
2
aunt) and Francesco, shared profits with Richardson. They funded
the firm and controlled its financial affairs. Brothers Tony and
Pierre, each of whom had extensive experience in personal injury
work, were employed as legal assistants. Richardson provided the
legitimacy of a law license but contributed little else to the
firm’s operation.
Clients would meet with Tony or Pierre. If the brothers could
not settle a case, they would refer it to an outside attorney.
Clients with bodily injuries were referred for medical treatment to
the Pain Therapy Clinic, also operated by Tony and Marcello. The
government proceeded on a theory that the Lampanzianie brothers had
created the firm and the clinic in order to defraud insurance
companies.
The four occupants of Ms. Smith’s car met with Tony and Pierre
Lampanzianie. Although Davis said that he had not been injured,
all four were sent to the Pain Therapy Clinic. Davis testified
that it was his understanding that an insurance company would pay
for the visit.
All four received continued treatment upon repeat visits. On
February 6, 1995, Medical bills were sent by the law office to the
USAA insurance company, the medical pay insurer of the Smith
vehicle, based on treatment for their alleged injuries. USAA paid
a total of $9,385.08 on February 21, 1995, of which $2,500 was paid
to Ms. Smith and Choice Richardson. On the same day, USAA offered
3
to settle the remaining claims, but Pierre Lampanzianie rejected
their offer and submitted a counteroffer. USAA rejected his
counteroffer.
On March 2, 1995, the firm made a claim on behalf of the four
occupants of the Smith vehicle against Progressive Insurance,
Kimberly McCormick’s liability carrier. Progressive refused to
make a settlement offer until further documentation was provided.
Instead of providing that documentation, the firm referred the suit
to an outside lawyer who brought a negligence action in Bexar
County Court on behalf of the four passengers against Ms. McCormick
alleging personal injury and property damage. The prayer for
relief sought damages within the court’s jurisdictional limit or
$100,000, plus interest and costs.
While riding with her brother Chad on November 23, 1994, Ms.
Smith had another accident when she collided with another car. The
firm submitted a claim for medical services provided by the Pain
Therapy Clinic to both Allstate Insurance Co., the insurer of the
other driver, and USAA, Ms. Smith’s insurer. Allstate settled in
April 1995, paying Shawn and Chad Smith $3,800 each. In November
1995, USAA paid Ms. Smith $2,034.40.
In June 1998, a grand jury returned an indictment against Ms.
Smith, Chad Smith, Ronald Panelli, the Lampanzianie brothers, and
three others. Of the 29 counts charged in the indictment, counts
14, 15, 19, 20, and 29 involved Ms. Smith. Counts 14-20 charged
4
aiding and abetting mail fraud under 18 U.S.C. § 1341 and § 2, and
count 29 charged conspiracy to commit mail and wire fraud under 18
U.S.C. § 371. The district court severed Ms. Smith’s trial from
her co-defendants. Government experts and William Destiny Davis
testified that the low-speed parking lot accident of November 4th,
1994 caused no injury to any of the passengers in Appellant’s car.
The jury found Ms. Smith guilty on all five counts.
The Pre-Sentence Report stated that Ms. Smith’s conduct
involved a loss of $111,106.34. This figure included the total
actual losses caused by Ms. Smith -- $11,106.34 -- plus the
$100,000 sought in her lawsuit. The court sentenced her to fifteen
months imprisonment, along with three years supervised release, and
ordered her to pay $250 in special assessment and $11,106.34 in
restitution. On appeal, Ms. Smith challenges the sufficiency of
the evidence and questions the calculation of intended loss made
for the purposes of sentencing.
II.
A.
We first address Ms. Smith’s argument that the government
produced insufficient evidence to convict her of mail fraud or
conspiracy to commit mail fraud with respect to her claim for
injuries from the November 4th accident.
The elements of mail fraud are (1) a scheme to defraud; (2)
use of the mails to execute the scheme; and (3) the specific intent
5
on the part of the defendant to defraud.1 Ms. Smith argues that
the government failed to prove that she had the requisite intent to
commit mail fraud or conspiracy. She argues that if any fraud was
perpetrated, it was committed by the Lampanzianie brothers and that
she only visited the Pain Therapy Clinic upon their suggestion.
We are satisfied that sufficient evidence was presented of her
participation in the fraudulent scheme. Ms. Smith testified that
after the accident she did not think she was hurt and consulted the
Choice Richardson law firm to recover for damage to her vehicle.
However, on the intake form she filled out upon her first visit to
the Clinic, Ms. Smith claimed to be experiencing back pain as a
result of the November 4th accident. She made multiple visits to
the Clinic for treatment for these alleged injuries. A government
expert testified that no one could possibly have been injured in
the November 4th accident. William Destiny Davis corroborated this
testimony. The jury was entitled to find that Ms. Smith sought
damages for personal injury with knowledge that she had not been
injured. Thus, “a rational trier of fact could have found that the
evidence established the elements of the offense beyond a
reasonable doubt.”2
1
See, e.g., U.S. v. Peterson, 244 F.3d 385, 389 (5th Cir.
2001), citing U.S. v. Rico Industries, Inc., 854 F.2d 710, 712 (5th
Cir.1988); U.S. v. Brown, 186 F.3d 661, 665 (5th Cir. 1999).
2
U.S. v. Carreon-Palacio, 267 F.3d 381 (5th Cir. 2001), citing
U.S. v. Reyes, 239 F.3d 722 (5th Cir. 2001).
6
B.
Ms. Smith also argues that the evidence was insufficient to
convict her on count 20. Ms. Smith’s car was insured by USAA,
which included a personal injury protection (PIP) plan. In
February 1995, USAA was billed for medical procedures and services
that Ms. Smith received that were related to the November 4th
accident. In October 1995, USAA was billed for medical procedures
and services that Ms. Smith received related to the November 23rd
accident. This count charged that many of the medical procedures
and services billed to and paid by USAA in October regarding the
second accident had already been billed to and paid by USAA in the
February claim. This double-billing amounted to $860.67. Ms.
Smith claims that she could not have known that the Choice
Richardson law office was billing USAA twice for the same medical
services.
We are satisfied that sufficient evidence was presented of her
participation in the fraudulent scheme. On December 13, 1994, Ms.
Smith’s first saw a physician at the clinic after the November 23rd
accident. Despite her previous visits, she filled out a new intake
form, stating that for the previous two weeks her neck and back
were sore, but that she had “really felt good” before then. When
the form asked whether she had suffered from similar conditions in
the past, she left the space blank and did not mention the November
4th accident. She also admitted to knowing that of the business
7
relationship between the clinic and the law firm.
Ms. Smith was treated by Dr. Davis, one of the physicians at
the Pain Therapy Clinic. Ms. Smith meanwhile continued to receive
treatment relating to the November 4th accident from another Clinic
doctor. Dr. Davis testified that had he known that Ms. Smith was
simultaneously receiving treatment on the same part of the body
from another doctor, he would have refused to prescribe therapy.
When interviewed by USAA’s adjuster in December 1994 regarding
the first accident, Ms. Smith made no mention of the second
accident.
From this pattern of behavior, a fact-finder could reasonably
conclude that Ms. Smith concealed the injuries she claimed occurred
in the first accident (which overlapped with her injuries in the
second accident) to promote a scheme to induce insurance companies
to process claims on the second accident separately and
independently from the first, improving her chances of getting paid
twice.
C.
Ms. Smith argues that the district court erred by accepting
the Pre-Sentence Report’s (PSR) recommendation of $111,106.34 as
the intended loss. The PSR asserted that intended loss was the
appropriate measure of loss under the U.S. Sentencing Guidelines
based upon commentary note 8 to § 2F1.1, which states that “if an
intended loss that the defendant was attempting to inflict can be
8
determined, this figure will be used if it is greater than the
actual loss.” The PSR’s intended loss figure included the total
restitution losses caused by Appellant -- $11,106.34 -- plus the
$100,000 sought in her lawsuit. Under the Sentencing Guidelines,
the inclusion of the $100,000 figure adjusted her offense level
upwards by six points. The district court accepted the PSR’s
recommendation, reasoning that Ms. Smith put the $100,000 at risk
by asking for this sum in damages.
This Court reviews the calculation of the amount of loss, a
factual finding, for clear error.3 Interpretation and application
of the Sentencing Guidelines is reviewed de novo.4
The complaint sought “an amount within the jurisdictional
limits of the Court ... or $100,000.00.” Ms. Smith argues that the
$100,000 should not be included as part of the intended loss
because her attorney selected that sum based in part on the fact
that it represented the jurisdictional limits of the court.
The government argues that when Ms. Smith asked the court to
award this sum to her, she put $100,000 at risk. The question
presented here is analogous to this Circuit’s cases involving
credit cards and forged checks. Under our cases, when a defendant
has stolen a credit card, the total available credit limit of the
3
See U.S. v. Morrow, 177 F.3d 272, 301 (5th Cir. 1999), citing
U.S. v. Tedder, 81 F.3d 549, 550 (5th Cir. 1996).
4
See U.S. v. Randall, 157 F.3d 328, 330 (5th Cir. 1998),
citing Tedder at 550.
9
card may be used as a measure of intended loss, even when the
defendant has not used the card and does not know its credit
limit.5 Similarly, when checks or money orders are stolen and
forged but not yet cashed, their face value may be used as the
intended loss.6
In U.S. v. Sowels, the defendant was a postal employee who
stole 110 credit cards but was apprehended before he could use
them. In affirming the district court’s assessment of the intended
loss as the amount placed at risk or the total credit limit on all
the stolen cards, we stated that district courts have wide latitude
in determining the loss from theft and fraud.7 We noted that had
the defendant “completed or withdrawn from his offense before being
apprehended, he might have been able to rebut the evidence that he
intended to charge the cards to their limit.”8 We held that the
district court had not clearly erred in concluding that the total
credit limit on the cards was the intended loss.
In U.S. v. Wimbish, a bank fraud case, the defendant’s scheme
5
See U.S. v. Sowels, 998 F.2d 249 (5th Cir. 1993), interpreted
in U.S. v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1997).
6
See U.S. v. Chappell, 6 F.3d 1095 (5th Cir. 1993), cert.
denied, 510 U.S. 1183 (1994); U.S. v. Brown, 7 F.3d 1155 (5th Cir.
1993); U.S. v. Wimbish, 980 F.2d 312 (5th Cir. 1992); U.S. v.
Hooten, 933 F.2d 293 (5th Cir. 1991); U.S. v. Quertermous, 946 F.2d
375, 276 (5th Cir. 1991).
7
Sowels, 998 F.2d at 252.
8
Id. at 251.
10
was to deposit forged checks and then receive a portion of the
check’s face value as cash back. We noted that in carrying out his
scheme, the defendant
acted with conscious indifference to the impact his
scheme would have on the victims. His testimony at the
sentencing hearing underscored his ignorance and
indifference to what would happen to the remaining check
amount. [His] callous indifference to his victims’ loss
falls within the ambit of intended loss... His actions
and his conscious indifference put his victims at risk
for the entire loss, regardless of how much he actually
obtained.9
We held that the district court did not clearly err by calculating
the loss based on the face value of the checks rather than the
amount the defendant actually obtained.
In U.S. v. Oates,10 the caretaker for an 86-year-old Alzheimer
patient made fraudulent withdrawals from the patient’s accounts and
attempted unsuccessfully to negotiate a $50,000 certificate of
deposit in the patient’s name. In calculating the amount of loss,
the district court included the $50,000 certificate of deposite the
defendant attempted to negotiate. We noted that “[t]his Court has
long adhered to the view ... that the amount of loss ... is the
dollar amount placed at risk by a defendant’s fraudulent scheme or
artifice.... Of course, use of the dollar amount of funds or
credit placed at risk to determine the ‘loss’ amount ... is merely
an application” of the commentary note, which states that if
9
Wimbish, 980 F.2d at 316.
10
122 F.3d 222 (5th Cir. 1997).
11
intended loss is greater than actual loss, intended loss shall be
used.11 Thus we affirmed the district court’s calculation of loss.
We see no basis to distinguish these cases from today’s case.
These decisions hold that in determining the intended loss, the
court should consider the amount the defendant puts at risk.
Ms. Smith argues that she should not be held responsible for
the lawyer’s decision on the amount of damages to seek in the
lawsuit. She did, however, retain a lawyer and she cooperated in
prosecuting the lawsuit. Thus, her “actions and [her] conscious
indifference put [her] victims at risk for the entire loss,
regardless of how much [she] actually obtained.”12 We conclude that
the district court did not clearly err in the calculation of the
loss for the purpose of sentencing under the Guidelines.
III.
For the reasons stated above, we affirm Ms. Smith’s conviction
and sentence.
AFFIRMED.
11
Oates, 122 F.3d at 225.
12
Wimbish, 980 F.2d at 316.
12