United States v. Terry Goodpaster , 769 F.2d 374 ( 1985 )

KRUPANSKY, Circuit Judge.

Terry Goodpaster (Goodpaster) appealed his jury conviction on five counts of substantive mail fraud, predicated on making false insurance claims, in violation of 18 U.S.C. § 1341.

At approximately 1 a.m. on Sunday, December 21, 1980, Terry Goodpaster (Goodpaster) drove his motor vehicle into a Kentucky Utilities (KU) pole in Salt Lick, Kentucky, interrupting electric service in the area. Records from St. Clair Medical Center of Morehead, Kentucky, disclosed that Goodpaster, admitted at 1:30 a.m., was alert, intoxicated and suffering from facial lacerations, a fractured nose and chipped upper teeth.

Paulene Cannon (Cannon), the operator of a small independent insurance agency and the key witness for the prosecution, related the following events. Cannon had written automobile insurance for Goodpaster through Dairyland Insurance Company (Dairyland) on two prior occasions, one on January 7, 1980 (which lapsed on February 27, 1980) and the other one July 5, 1980. Goodpaster personally appeared at her office on each occasion to complete an application. The policy which issued to Goodpaster on July 5, 1980, expired on November 13, 1980.

Cannon further explained that at about 9 a.m. on Sunday, December 21,1980, a woman unknown to her appeared at her door and stated she was sent to deliver an insurance premium for Goodpaster, who was working stripping tobacco. Cannon agreed to examine her file on Goodpaster. This examination revealed a “renewal notice” which had been previously forwarded to her by Dairyland. Cannon recalled that Goodpaster had failed to pay a premium on November 13, 1980. Cannon advised the woman that the policy had lapsed requiring the issuance of a new policy. Cannon further informed the woman that Goodpaster would have to appear personally to complete and execute an application for the new policy. The woman was adamant about paying the premium she was sent to deliver, stating that she was Goodpaster’s wife. Upon this representation, an application for a new policy was prepared and the woman purporting to be “Mrs. Goodpaster” signed his name to the application.

The woman presented the check signed by Goodpaster. It was stapled to the application and mailed to Dairyland. In completing the application, the woman stated that the automobile to be covered was the same one Goodpaster had previously insured through Cannon, a 1979 Plymouth Sapporo. Cannon gave the woman a receipt for payment (two months premium) and a written binder which provided new coverage through Dairyland as of December 21, 1980 at 9:30 a.m.

Cannon testified that on the following Monday or Tuesday morning (December 22 or 23) she received a telephone call from an unidentified female who reported an automobile accident involving Goodpaster. The caller advised that the accident occurred on December 21, 1980 at 11:30 a.m., which would have been two hours after the new coverage had become effective. Cannon conveyed this information to the Dairyland claims office in Lexington. Later, Goodpaster told Cannon personally that the accident had occurred at 11:30 p.m. on December 21, 1980, some 12 hours after coverage became effective. During cross-examination it was determined that the woman seeking insurance for Goodpaster on December 21, 1980, had assured Cannon that Goodpaster had no recent traffic violations or accidents. The insurance company ultimately issued five cheeks, totalling approximately $7,000, pursuant to the policy coverage in payment for Goodpaster’s asserted claims.

Lloyd Arms (Arms), a retired FBI Agent, testified that he and Charles Schroeder (Schroeder), an investigator in the Insurance Crime Prevention Institute, interviewed Goodpaster on September 23, 1983. He related that after identifying themselves and explaining the purpose of their visit as an investigation of the fraudulent claim Goodpaster had allegedly filed with Dairyland, Goodpaster “didn’t actually appear to be really surprised as much as he appeared to be relieved,” according to Arms. Arms further stated that Goodpaster acknowledged awareness that his insurance had lapsed when he had his then-girlfriend Lucinda initiate the new coverage on December 21, 1980.

The testimony of insurance fraud investigator Schroeder confirmed Arms’ statements that Goodpaster admitted that he knew his insurance had expired when he wrecked his automobile on December 21, 1980.

Goodpaster and his wife Lucinda also testified. Lucinda, who married the defendant in January, 1982, related that at 8:00 a.m. on the Sunday morning in question, Goodpaster called her at her mother’s home and requested that she go to Cannon’s house to pay his insurance premium because he had damaged his vehicle. She admitted that Goodpaster had visible injuries, but disputed Cannon’s statement that she represented herself as the defendant’s wife. She also denied that she told Cannon that Goodpaster couldn’t come himself because he was stripping tobacco.

Lucinda admitted that she had not informed Cannon of the damage to Goodpaster’s vehicle or that he could not pay the insurance premium himself because his face was visibly injured. Lucinda disputed Cannon’s testimony that she had signed the name “Terry Goodpaster” on the insurance application.

The defendant admitted during his testimony that he thought he was “behind” thirty days in his insurance payments when the accident occurred, but conceded that he had no idea when he had made his last previous premium payment.

Concerning his reason for falsely reporting the time of the accident, Goodpaster offered the following explanation:

Q. All right. When did you tell her you had the accident?

A. Told her I had the accident Sunday. Q. What time?

A. Night.

Q. Why did you tell her Sunday night when you knew it happened Sunday morning?

A. Well, I just didn’t know at that time know for sure and I wanted — I didn’t know for sure my insurance was good. I didn’t know. I said, “Well, it wouldn’t make no difference; what’s the big deal?” That’s the way I figured it.

Goodpaster also disputed the testimony of FBI Agent Arms regarding his admission to Arms that he had known his coverage expired prior to the accident.

Through prosecution witness Sidney Sutphen, a supervisor of the Lexington claims office of Dairyland’s parent company Sentry Insurance who was familiar with Goodpaster’s claims, five cancelled Dairyland checks were admitted into evidence. All the checks had been endorsed and cashed including the one payable to Terry Goodpaster.¹ Sutphen testified that his company’s regular business practice was to mail these checks to the payee.

The jury returned a guilty verdict against Goodpaster on all five counts. Defendant was sentenced to one year and one day on each count. However, execution of sentence was suspended and Goodpaster was placed on unsupervised probation for a period of five years. He thereafter filed a timely appeal with this court.

Goodpaster was convicted of violating 18 U.S.C. § 1341, which states in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting to do so, places in any post office or authorized depository for mail ... any matter or thing ... or takes or receives therefrom, ... or knowingly causes to be delivered by mail, ... any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

Courts have consistently held that the essential elements of a mail fraud prosecution are (1) a scheme to defraud; and (2) the use of the mails to execute that scheme. Pereira v. U.S., 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); U.S. v. Haimowitz, 725 F.2d 1561, 1568-69 (11th Cir.1984); U.S. v. White, 673 F.2d 299, 302 (10th Cir.1982); U.S. v. Alston, 609 F.2d 531, 536 (D.C.Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1281, 63 L.Ed.2d 603 (1980); U.S. v. Moss, 591 F.2d 428, 435 (8th Cir.1979); U.S. v. Schilling, 561 F.2d 659, 661 (6th Cir.1977). It is equally well established that a specific intent to commit fraud is an essential element of the crime. U.S. v. Bohonus, 628 F.2d 1167, 1172 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980); DeMier v. U.S., 616 F.2d 366, 369 (8th Cir.1980); U.S. v. Pearlstein, 576 F.2d 531, 535 (3rd Cir.1978).

In the instant case, the defendant’s primary assignment of error on appeal concerned the government’s failure to prove his policy had lapsed and the insurance company’s failure to inform him of the policy’s expiration. In this regard, defendant cites to State Farm Mutual Automobile Insurance Co. v. Martin, 382 S.W.2d 83, 85 (Ky.1964) and Goodin v. General Accident Fire and Life Assurance Corp., 450 S.W.2d 252, 255 (Ky.1970). Reliance upon these cases is misplaced, however, since they address only the general proposition that cancellation of an insurance policy in Kentucky must be in accordance with the exact terms of the policy. The cases apply to situations where the company defends on a disclaimer that it had properly cancelled the insurance policy prior to the accident date.

In the criminal prosecution at issue, evidence that the insurance company had actually notified defendant that his policy had lapsed would at best be relevant to prove the specific element of intent required in a mail fraud case. In other words, such evidence would conclusively establish that defendant knew that his insurance had expired when, through his future wife, he initiated new coverage on his already-damaged automobile. However, there was sufficient evidence in the record from which Goodpaster’s specific intent to defraud could be inferred. In fact, the chronology of events on December 21, 1980, i.e., the accident at 1:00 a.m., the securing of new coverage at 9:30 a.m. that same morning, the subsequent inconsistent reports to Cannon by Goodpaster, and the unidentified telephone caller reporting the purported time of the December 21 accident to Cannon constitute circumstantial evidence from which it could be inferred that Goodpaster knew that his insurance had expired prior to the accident and that he knowingly obtained new coverage and subsequently recovered the insurance proceeds under fraudulent pretenses. In addition, Arms and Schroeder both testified that Goodpaster admitted during their September 23, 1983 meeting that he had defrauded the insurance company. Although Goodpaster denied making this admission, the jury apparently credited Arms and Schroeder over Goodpaster in determining that Goodpaster did possess the requisite specific intent necessary to support a mail fraud conviction.

The dissent vigorously urges that the record of proof having failed to disclose that Dairyland had notified Goodpaster of the expiration of his auto insurance policy, the policy remained in effect at the time of the accident by operation of Kentucky law. Predicated on this conclusion, the dissent reasons that Goodpaster should not have been found guilty of the offense charged in the indictment because his policy was, as a matter of law, in full force and effect at the time of the accident. The logic of this hypothesis is misplaced.

Initially, it is indeed dubious whether the Kentucky statute upon which the dissent premises its “operation of law” argument is applicable to the instant case, as Ky.Rev. Stat. § 304.20-040(3) expressly states that it does not apply to policy “renewals”. Insurance agent Cannon consistently referred to Goodpaster’s action on December 21, 1980, as a “renewal” of his lapsed policy-

Secondly, the dissent relies on Goodpaster’s self-serving inconclusive testimony that he “did not recall” if he had received a notice of cancellation as support for the presumption that Dairyland had not in fact served the required notice. However, it is equally valid to presume that since agent Cannon had a copy of the “renewal notice” provided by Dairyland in her file on December 21, 1980, Goodpaster had also been provided with a copy of the notice. In any event, the inference advanced by the dissent and inference suggested above stand purely on conjecture by members of this panel and are of little or no consequence in the final disposition of the issues herein. The testimony of Arms and Schroeder that Goodpaster had acknowledged that the policy had expired prior to the accident further undermines the conclusion advanced in the dissent that the evidence supports an inference that Goodpaster had not been notified of the termination. To the contrary, all the evidence of record supports the presumption that the insurance company had in fact notified Goodpaster of the policy’s expiration, and that Goodpaster acted on his knowledge of the coverage termination when he sought to renew his policy after the accident occurred. In sum, there was no proof, as the dissent’s theory urges, that Goodpaster was “legally entitled” to payment under the policy.

Finally, it is of critical import that the defendant herein was not charged with fraud per se, but rather with devising a scheme to defraud as proscribed by 18 U.S.C. § 1341. It is well established that a conviction under § 1341 does not require proof that the intended victim was actually defrauded. See, United States v. Rasheed, 663 F.2d 843 (9th Cir.1981), cert. denied sub nom., Phillips v. United States, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982); United States v. Buchanan, 633 F.2d 423 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981); United States v. Schaffer, 599 F.2d 678 (11th Cir.1979); United States v. Keane, 522 F.2d 534 (7th Cir.1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976); United States v. Anderson, 447 F.2d 833 (8th Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed. 788 (1972); New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir.1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed. 581 (1969); Henderson v. United States, 202 F.2d 400 (6th Cir.1953). Contrary to this settled precedent, the dissent erroneously seeks to place a burden on the government in the instant case to prove that the insurance company was in fact defrauded.

Having reviewed the remaining allegations of error asserted by Goodpaster, this court finds them to be without merit. In view of the foregoing, the decision of the lower court is Affirmed.

1 . The insurance checks issued under the policy were as follows: $4,687 to Farmers Bank of Owingsville, Kentucky; $762 to Terry Goodpaster; $182 to Morehead Clinic; $472 to St. Claire Medical Center; and $846 to Kentucky Utilities. The indictment cited each check as supporting a separate mail fraud count.