UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 19, 1982
THE UNITED STATES OF AMERICA
HART, ORLANDO, APPELLANT
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.
Opinion OF THE COURT
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 Postal Service mail matter containing a Geico personal injury claim form in the name of James Davis.
In violation of Title 18, United States Code, Section 1341.*fn4
The jury found Hart guilty of this charge.
An appeals court is reluctant to set aside a jury's verdict because in our judicial process the determination of questions of fact and of guilt and innocence is the particular function assigned to the jury.*fn5 A court of review may intrude upon the jury's special preserve only if the evidence upon which the jury based its decision is clearly insufficient to support it.*fn6 The case before us is such a case. The government failed to prove Count Two because it offered no evidence to establish that a mailing had in fact occurred.*fn7
Evidence admitted at trial identified two documents to which the "personal injury claim form" possibly refers. One document is entitled "Wage and Salary Verification" (Exh. 2(j) (1)) and the other is entitled "Application for Benefits -- Personal Injury Protection" (Exh. 2(j) (2)). Of the two, the application for personal benefits (Exh. 2(j) (2)) would appear to be the claim form contemplated by the indictment, since it is more obviously the kind of document usually understood as a personal injury claim form. However, no evidence was presented to show this form had been mailed. Indeed, the government conceded as much and, in its response to Hart's post-trial motion, specified the Wage and Salary Verification (Exh. 2(j) (1)) as the document contemplated by Count Two.*fn8
The government's "proof" that the Wage and Salary Verification was mailed is contained in the testimony of Marshall H. Frick, a GEICO claims representative. When Frick was asked to explain the Wage and Salary Verification (Exh. 2(j) (1)) and the Application For Benefits -- Personal Injury Protection (Exh. 2(j) (2)), he testified:
2-J-1 is a form that GEICO sends to the employer to verify salary and wage loss information. 2-J-2 is an application for benefits under the Pennsylvania No-Fault Act.*fn9 (Emphasis added.)
The government contends that it was permissible for the jury to infer from Frick's assertion that "GEICO sends " the Wage and Salary Verification to employers that Hart caused to be mailed "a Geico personal injury claim form in the name of James Davis" as charged.
We disagree for the following reasons. The generic concept encompassed in "sends" may, though does not necessarily, include the specific mode of transmission denoted by "mail." The document could have been "sent" without having been "mailed." For example, a personal messenger or courier could have been employed in sending the document. Indeed, the record in this case establishes, and the government concedes, that when the claim form was completed in the name of James Davis it was not mailed; rather, it was hand-delivered.*fn10 When the government charges a defendant with mail fraud, it must at a minimum clearly and explicitly prove that the mailing occurred. We conclude that Frick's statement that GEICO "sends" documents is too ambiguous to meet the government's burden of proving that the claim form was mailed as charged in Count Two.
We conclude, therefore, that the government failed to prove the mailing charged in Count Two of the indictment. For this reason, the judgment of conviction on Count Two will be vacated. The judgment of conviction on Count One will be affirmed.