United States v. Thomas Dale French ( 1996 )

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No. 95-3780
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United States of America, *
* Appeal from the United States
Appellee, * District Court from the
* District of Minnesota
v. *
*
Thomas Dale French, *
*
Appellant. *
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Submitted: May 14, 1996
Filed: July 19, 1996
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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and
VAN SICKLE, Senior District Judge*
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VAN SICKLE, District Judge
I. BACKGROUND
Thomas Dale French in the late 1970's expanded from his
farming operation into a grain hauling business, and from that into
a grain buying business. As a grain buyer, he was required by the
Minnesota Grain Buyers Act to be licensed and bonded. He was first
licensed about July 1, 1983.
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* The HONORABLE BRUCE M. VAN SICKLE, Senior United States
District Judge for the District of North Dakota, sitting by
designation.
By 1989, French was unable to pay his license fee and
operated for a time without a license. He managed to renew his
license through June 30, 1990. However, he continued to operate
after July 1, 1990 without a license. He continued to represent to
his customers, and in his advertising, that he was licensed. He
often represented to his customers that he had sold the grain for
a higher price than he actually received, and delayed, or
completely failed to remit for sales to his customers. Among other
things, French picked up grain and sold it without permission of an
owner, and also altered weigh tickets to hide the actual place of
sale of the grain.
French also converted grain which was pledged to the Commodity
Credit Corporation (CCC). In one instance a farmer, Oleen, had
been using French as his grain buyer for about ten years, and using
the CCC as his financier during that time. In July, Mr. Oleen
agreed to sell soybeans to French at $5.72 a bushel. He told
French the beans were under a CCC loan, and, as usual, to pay off
the loan and remit the balance to him. Oleen then called the local
Agricultural Stabilization and Conservation Service (ASCS), which
administered the CCC program, and received permission to sell the
soybeans to French. The ASCS confirmed this permission in writing
to Oleen, reminding him to, as usual, inform French of his
obligation to remit directly to the CCC. The ASCS also sent to
Oleen and French, by mail, copies of the marketing authorization.
French received his copy, sold the soybeans and mailed Oleen a
written copy of the transaction with the name of the buyer cut from
the sales slip. And French, in writing, asserted that the loan,
$8,687.51.00, had gone "to CCC." Two months later ASCS advised
Oleen his loan had not been paid. Oleen demanded that French remit
the loan to CCC and the balance to him. French wrote out a check
to CCC which Oleen delivered to ASCS only to have it bounce.
French declared bankruptcy December 14, 1990.
French was indicted in April, 1995 and charged with seven
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counts of mail fraud in violation of 18 U.S.C. § 1341, and one
count of agriculture conversion in violation of 15 U.S.C. §
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714m(c) - The jury returned a verdict of guilty on all counts.
French was sent to prison and restitution was ordered in the amount
of $50,000.00 to be divided among the farmers who lost in excess of
$238,000.
II. DISCUSSION
A. Motion for Acquittal
French claims that the district court erred in denying a
motion for judgment of acquittal on Count I in that there was
insufficient evidence that French caused the use of the mails for
the purpose of executing a scheme to defraud. In reviewing a
motion for a judgment of acquittal the court examines the evidence
in the light most favorable to the government, and gives the
government the benefit of all reasonable inferences to be drawn
from the evidence. United States v. Freitag, 768 F.2d 240, 242
(8th Cir. 1985). To uphold the conviction, the government must
have produced sufficient evidence to allow the jury to find the
elements of the offense beyond a reasonable doubt. Id. A similar
standard of review applies in challenges to the sufficiency of the
evidence, United States v. Manzer, 69 F.3d 222, 226 (8th Cir.
1995), and the conviction will be upheld unless no reasonable fact
finder could have found guilt beyond a reasonable doubt. Id.
In the case of Oleen, for example, French well knew that if he
sold the grain, Oleen his customer, would need to receive, in the
mail, a form authorizing the sale of the mortgaged grain. French
also knew that it would be his duty to remit the amount owed to the
CCC. Both of these transactions were handled by mail. Both
parties knew and understood that this cross mailing was a basic
element in the grain buying and selling transaction. The order
denying the motion for acquittal on count one is affirmed.
B. Defendant's Proposed Instruction
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Appellant asserts that the district court erred in refusing to
give the defendant's proposed instruction as to the elements of
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mail fraud. The key language in the instruction which the
defendant protests is the phrase "that the mails were used in
furtherance of some essential step in the scheme." The defendant
feels that the language should have been "that the mails were used
for the purpose of executing the scheme." The statute involved is
18 U.S.C. § 1341. It contains the language "for the purpose of."
Appellant claims that the language "in furtherance of" reduces the
burden of proof imposed upon the prosecution by the statute. The
court had used the Eighth Circuit Model Jury Instruction which
adopts the language "in furtherance of." The entire instruction was
taken verbatim from the Eighth Circuit Model Jury Instructions and
reads as follows:
In order to sustain its burden of proof for the crime of mail
fraud as charged in counts 1-7 of the indictment, the
government must prove the following four essential elements
beyond a reasonable doubt:
First: The defendant voluntarily and intentionally devised or
made up a scheme to defraud farmers of money or property by
means of false representations, or promises as set forth in
the indictment;
Second: The defendant did so with the intent to defraud;
Third: It was reasonably foreseeable that the mails
would be used; and
Fourth: The mails were used in furtherance of some essential
step in the scheme.
Eighth Circuit Model Jury Instructions, 6.18.1341 (1996).
In Pereira v. United States, 347 U.S. 1 (1954), the mail fraud
statute is discussed in some depth. The Supreme Court pointed out
that it is not necessary to show that the petitioners actually
mailed or transported anything themselves; it is sufficient if they
caused it to be done. Id. at 8. Further, it is not necessary that
the schemes contemplate the use of the mails as an essential
element. Where one does an act with the knowledge that the use of
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the mails will follow in the ordinary course of business, or where
such use can reasonably be foreseen, even though not actually
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intended, then he "causes" the mail to be used. Id. at 8-9. Given
the established interpretation of the statute, the use of the
phrase "in furtherance of," as contrasted to the use of the phrase
"for the purpose of," is easily seen as the preferred choice of
language, and the district court's use of the Eighth Circuit
instruction is not an abuse of discretion.
C. Alleged Prosecutorial Misconduct
Finally, the Appellant asserts that the district court erred
by denying French's motion for mistrial because the prosecutor
stated during closing argument that "I think it is fair for you to
conclude that he [the defendant] was lying to you."
It does not appear that the prosecutor engaged in any
misconduct. However, even if this statement could be considered
misconduct, this court would still affirm the denial of the motion
for mistrial. If prosecutorial misconduct allegedly has occurred,
a reviewing court looks into its prejudicial impact by assessing
the cumulative effect of the misconduct, determining if the court
took any curative actions, and gauging the strength of the evidence
against the defendant in the context of the entire trial. United
States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir. 1987) , cert.
denied, 488 U.S. 1011 (1989). This court applies the harmless
error rule, Fed.R.Crim.P. 52(a) , and will only reverse "if the
improper remarks could reasonably have affected the jury's
verdict." Id. at 1429. See United States v. Peyro, 786 F.2d 826,
831-32 (8th Cir. 1986) (holding that while prosecutor engaged in
unprofessional conduct, reversal was not required since the jury
was not affected by the improper comment made during closing
argument).
While the prosecutor may have, indirectly, been expressing his
own opinion, he was primarily leaving to the jury the question of
the defendant's credibility. The Eighth Circuit has denied a
reversal of a conviction when a prosecutor has used stronger and
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more personal language. Peyro, 786 F.2d at 831-32 (finding that no
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reversal was required though prosecutor had made statements such as
"The man is an obvious liar."). Furthermore, the district court,
during his delivery of the final instructions, cautioned the jury
to disregard the prosecutor's statement. The evidence against the
defendant on all the counts of mail fraud was quite strong.
Therefore, the prosecutor's statement did not affect the verdict,
and the conviction must stand.
The defendant's conviction is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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