On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 92-00612-01).
Before: Becker, Hutchinson and Cowen, Circuit Judges.
Eugene Hannigan appeals from his conviction for one count of mail fraud, in violation of 18 U.S.C. § 1341. Because there was insufficient evidence produced at trial that the United States mails were used to accomplish the alleged fraud, we will reverse the judgment of the district court and direct that a judgment of acquittal be entered.
Hannigan was indicted on two counts of mail fraud. The jury found him guilty of Count One and not guilty of Count Two. Although Hannigan has raised numerous points on appeal, we will address only those facts and issues concerning Count One dealing with the sufficiency of evidence as to mailing.
Hannigan was the manager of an auto body shop, Park Auto Body, located in Philadelphia. Count One charged that Hannigan and David Giordano, an appraiser employed by Travelers Insurance Company ("Travelers"), submitted a fraudulent insurance claim, falsely representing that a car had been damaged by chemical emissions from a refinery, the Sun Oil Company ("Sun Oil"). The indictment charged that Giordano and Hannigan, "knowingly caused to be delivered by the United States Postal Service . . . a $4,001.13 check payable to Park Auto Body on the [false] claim, from Travelers to Park Auto Body." App. at 9.
The prosecution attempted to establish the mailing through a single witness, Cindi Skowronski, a Travelers' claims supervisor. Since Skowronski was the only witness who testified as to the mailing, we will describe her testimony in some detail. Skowronski testified that she assisted in the processing of Sun Oil claims for Travelers, and described at trial the procedures which Travelers followed for processing these claims. She testified that after receiving notice of a claim, Travelers set up an appraisal site or sent appraisers to inspect the damage caused by emissions at the Sun Oil plant, and the appraisers brought their estimates to Travelers' office. After Travelers set up a claim number and subfile for each claimant, it paid the claims by check, often payable to body shops or car rental companies rather than individuals.
Skowronski testified that on a daily basis, Travelers issued checks. She stated: "Within our office, there's a person in charge of running the checks so you couldn't input a check or--during [sic] that time. And, then once they were run off of a printer, they would then be stuffed into envelopes and mailed." App. at 169 (emphasis added). On occasion, however, individuals would arrange to pick up a check at the Travelers office, rather than having it mailed to them. In such a situation, Ms. Skowronski testified to a different procedure:
In order for a check to be picked up at our office . . . we would have to have our unit manager approve someone coming in to pick up the check for a check to be released to me. And, proof of that--of them approving it, would be signing the file or signing a piece of paper that was attached to the file. And, then once that was done--when you input the check on the computer, there was a little sign--a little question that said, like check attachment and you would put a yes, so that they know to give me that check. If someone came to pick it up, then I would have it already [sic] ready for them.
In addition to Ms. Skowronski's testimony--that Travelers usually mailed claim checks and that special procedures were required when someone wanted instead to pick up a check--the government introduced computer printouts for the Sun Oil claims. The computer printouts contained a space entitled "attachment", in which a "Y" or "N" would be placed. Skowronski testified that a "Y" meant the check was authorized to be picked up and an "N" meant that the check was to be mailed. The computer printout for the repair claim addressed in Count One contained an "N" in the attachment column, and Skowronski testified that this indicated that the claim check was to be mailed, not picked up.
On cross examination, Hannigan's counsel engaged in the following colloquy with Ms. Skowronski:
Q: Now, you didn't mail the checks in this case yourself, did you?
Q: All right. And, you didn't see them put into the mail ...