ON PETITION FOR REVIEW OF A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Aldisert and Higginbotham, Circuit Judges and Meanor,*fn* District Judge.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
We are asked in this case to review and set aside the conviction of appellant Orlando Hart on Counts One and Two of a thirteen-count indictment for mail fraud and a one-count indictment for conspiracy. The judgment on Count Two will be vacated and the appellant will be discharged on that count because the government failed as a matter of law to prove its case. We will affirm the district court on all other issues.*fn1
On January 22, 1981, Orlando Hart and six other defendants were indicted by a federal grand jury. The indictment charged that from approximately February 1, 1976 to approximately October 1, 1977 the defendants engaged in a scheme to defraud certain insurance companies of money by submitting compensation claims for fictitious automobile accidents, that is, for automobile accidents that in fact did not occur.
At trial, the government introduced evidence of twenty fictitious automobile accidents that had served as the basis of the insurance claims. The government's proof that the accidents were fictitious consisted primarily of evidence that the same cars with the same damage were repeatedly presented by claimants using the same names or aliases with the same addresses.
On May 6, 1981, the jury found Hart guilty of the first two counts of mail fraud while finding him not guilty of conspiracy (Count Fourteen) and of five other counts of mail fraud (Counts Three, Five, Eight, Nine and Thirteen).*fn2
Hart's post-trial motions were denied, and he was sentenced to two consecutive five-year terms of imprisonment, which sentences were consecutive to a prior sentence of imprisonment imposed by the Honorable James T. Giles in the matter of United States of America v. Hart, Criminal No. 80-00380.*fn3 Hart then timely filed this Notice of Appeal.
Hart complains that the evidence presented by the government was insufficient to prove Count Two which charges that:
On or about December 21, 1976, in the Eastern District of Pennsylvania and in connection with an alleged accident of September 27, 1976 involving the 1973 Ford Stationwagon [sic], the defendant ORLANDO HART, for the purpose of executing the scheme to defraud and attempting to do so, knowingly and willfully caused to be placed in an authorized depository for mail matter and delivered by the ...