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UNITED STATES v. FLEMING

April 13, 1993

UNITED STATES
v.
RALPH FLEMING



The opinion of the court was delivered by: EDUARDO C. ROBRENO, J.

 EDUARDO C. ROBRENO, J.

 Defendant Ralph Fleming was convicted by a jury on three counts of mail fraud in violation of 18 U.S.C. ยง 1341. The conviction arose from the defendant's involvement in a scheme to submit fraudulent claims to an insurance company for damage to his motor vehicles. Defendant has filed motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) or for a new trial pursuant to Federal Rule of Criminal Procedure 33, seeking relief from his conviction. For the reasons set forth below, I will deny the motions.

 I. BACKGROUND

 Between 1988 and 1990, emissions containing debris and various chemicals were released into the air by the Marcus Hook oil refinery of the Sun Oil Company ("Sun Oil"), causing damage to the finish of automobiles in, near, and around the area of the refinery. Sun Oil was self-insured. To administer the approximately 1,500 claims for damage resulting from these emissions, Sun Oil contracted with the Travelers Insurance Company ("Travelers"). Certain Travelers appraisers who were assigned to adjust the claims, along with certain automobile body-shop owners, designed a scheme intended to mislead Travelers into paying for the costs of repairs to vehicles that were not damaged by the refinery emissions or for inflated costs of repairs to vehicles actually damaged. The money that Travelers paid on the fraudulent claims on behalf of Sun Oil was apportioned among the participants in each claim, typically: 1) one-third to the Travelers appraisers who wrote the claims; 2) one-third to the body-shop owners who allegedly repaired the vehicles claimed to have been damaged; and 3) one-third to the owners of the vehicles that were used as the basis of the fraudulent claims. Fleming participated in the submission of three fraudulent "appraisal" claims forms for damage to vehicles that he owned, and he received one-third of the amount that Travelers paid for each of the three claims. *fn1"

 II. DISCUSSION

 Defendant contends that the Government failed to prove a necessary element of its case, and that the Court erred by admitting into evidence copies instead of the originals of certain documents. The defendant also claims error in the jury charge concerning the weight to be accorded character evidence and the pre-indictment destruction of documents by Government witnesses.

 In deciding a motion for judgment of acquittal, the Court must view the evidence in the light most favorable to the Government, draw all reasonable inferences in the Government's favor, and uphold the verdict unless no rational juror could have found guilt beyond a reasonable doubt. United States v. Skulsky, 786 F.2d 558, 563 (3d Cir. 1986). With respect to the motion for a new trial, the Court may grant a new trial only in exceptional circumstances involving a miscarriage of justice or where evidence predominates heavily against the verdict. United States v. Bevans, 728 F. Supp. 340, 343 (E.D. Pa.), aff'd, 914 F.2d 244 (3d Cir. 1990); see also United States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984). I will address each of the defendant's contentions seriatim.

 
A. Failure to Establish a Necessary Element of the Case.

 1. The Government has offered sufficient evidence to prove the allegations of paragraph 12 of the indictment.

 Assuming arguendo that the Government needed to prove the allegations of paragraph 12 of the indictment in order to sustain the conviction, the Court concludes that the Government offered sufficient evidence at trial to prove these allegations. Paragraph 12 of the indictment alleges that the appraisals "falsely represented" the vehicles had been damaged by the Marcus Hook refinery, not that the forms themselves explicitly stated those words. Fleming relies upon the Third Circuit's decision in United States v. Frankel, 721 F.2d 917 (3d Cir. 1983), for the proposition that when the Government has chosen to rely upon a misrepresentation as one of the elements of an indictment under the mail fraud statute, the Government must show that the defendant "explicitly" made that misrepresentation. See Memorandum of Law in Support of Post Trial Motions at 7-8. United States v. Frankel involved the dismissal of an indictment which charged mail fraud in connection with a check kiting scheme. See 721 F.2d at 917. In Frankel, the Government had alleged that the presentation of checks to banking institutions constituted "implicit" misrepresentations of "the existence of adequate funds in the accounts to cover each check written." Id. at 919.

 Contrary to Fleming's interpretation of Frankel, the Third Circuit did not affirm the district court's dismissal of the indictment on grounds that implied misrepresentations cannot form the basis of a violation of the mail fraud statute. Instead, the Frankel indictment was dismissed because the presentation of a check in and of itself is not a factual representation capable of characterization as true or false. See Frankel, 721 F.2d at 919 (relying on Williams v. United States, 458 U.S. 279, 284, 102 S. Ct. 3088, 3092, 73 L. Ed. 2d 767 (1982)). Therefore, the Government could not prove any misrepresentations under the indictment, whether explicit or implicit. See id. In contrast, the representations contained in the appraisal forms submitted by Fleming, i.e., that the automobiles at Ken's Auto Body were damaged by the Marcus Hook refinery, are capable of characterization as true or false. To put it another way, while the representations contained in the Frankel checks were neither true nor false (in the absence of the "implicit" representation of the existence of adequate funds to cover the checks), the very representations contained in the appraisal forms in the present case were false on their faces. While it is true, as the defendant points out, that the Government must prove the misrepresentations that it chooses to charge in the indictment, see Frankel, 721 F.2d at 921, Frankel does not require that the Government prove that the false representations described in paragraph 12 of the indictment appear verbatim on the faces of the appraisal forms. *fn2"


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