SUMMARY
Appellants, husband and wife, were jointly indicted for eight violations of the mail fraud statute, 18 U.S.C. §§ 1341 and 2, and appellant Robert DeMier was indicted for violating 18 U.S.C. §§ 922(m) and 2 by making a false entry in a bound firearms acquisition and disposition record, which record he was required to keep as a licensed firearms dealer. The nine-count indictment was rеturned twenty months after a fire occurred on the premises of Bob’s Party Shop and Deli in Independence, Missouri, a business owned and operated by appellant Robert DeMier. Appellants allegedly hired an acquaintance to arrange the burning of their business so that appellants could submit a loss claim to their prоperty insurer. The eight mail fraud counts involved mailings made incident to or as a result of this claim. The ninth count involved a notation by appellant Robert DeMier in his firearms acquisition and disposition record that a particular .38 caliber derringer he owned had been stolen from his business premises the day of the fire. It was alleged that appellant Robert DeMier had, in fact, given the gun to the acquaintance who arranged *368 the fire. After jury trial, appellants were convicted on each of the eight mail fraud counts and Robert DeMier was convicted on the firearm record count.
On appeal, appellants contend that: (1) The evidencе was insufficient to prove a specific intent to defraud; (2) Count IX against Robert DeMier was multiplicitous when charged with the mail fraud counts; (3) the trial court admitted the co-conspirator statements of prosecution witnesses even though there was insufficient independent evidence of a conspiracy; and (4) the trial cоurt admitted perjured testimony of a prosecution witness, testimony the government knew was false. We overrule each of appellants’ contentions, and affirm the judgments entered by the trial court. 1
FACTUAL BACKGROUND
In 1975, Robert DeMier bought an existing delicatessen and liquor store business located in Independence, Missouri. He and his wife Barbara therеafter operated the business as Bob’s Party Shop and Deli. In May, 1977, Robert Androus (an acquaintance of both DeMiers and once an employee of an unrelated business formerly owned by Barbara) went to a garage sale at the DeMier home. According to Androus, Barbara at that time said that she and her husband wanted out оf their delicatessen, and asked Androus if he knew anyone who could set fire to the business for them. Androus contacted one Fain, and it was arranged with Barbara that Fain, posing as a roofing contractor, would inspect the interior layout of the premises at a time when the DeMiers were not there. Fain did so, and agreed to set the fire for a price which was communicated to Barbara. She agreed to the price and sent Fain five hundred dollars, through Androus, as an advance partial payment.
In June, Fain and Androus met with Barbara at the delicatessen. She showed Fain the premises’ alarm system and informed him that the electric eye device had been disconnected (by the Mossie Alarm Company at her request). She also showed Fain the items she wanted destroyed in the fire.
About two weeks before the fire, Robert DeMier met with Androus at the delicatessen. He showed Androus the way to gain access to and maneuver inside the building in order to circumvent the burglar alarms. He pointеd out the items he wanted destroyed and told Androus he wanted the incident to appear as a burglary and fire.
In the early morning hours of July 30, 1977, Fain, Androus and a Miss Guillemot went to the delicatessen, and Fain set the fire which destroyed the building and its contents. That evening, appellants gave a party, attended by Fain, Androus and one Bridgeman.
On July 31, apрellants made a claim against their insurer for their loss sustained as a result of the fire. The insurer ultimately paid them a total of $86,000 on their claim.
Several days after the fire, Androus went to the DeMier house to collect the balance of $1,500.00 due for the setting of the fire. Barbara refused to pay, saying she was not satisfied with the results. Later, Robert DeMier gave Androus two .38 caliber derringers, which Androus gave to Fain and Fain gave to Miss Guillemot. She, at Fain’s direction, then sold one derringer to A. Picaro and Associates, which she and Fain believed to be a fencing operation, but which was actually a law enforcement anti-fencing (sting) operation conducted jointly by the Bureau of Alcohol, Tobacco and Firearms (ATF) and the Kansas City, Missouri, Police Department.
In December, 1977, an ATF agent was assigned to trace the ownership of the derringer sold to “Big John” (Agent Keating) of Picaro and Associates by Miss Guillemot. In doing the trace, the agent on December 13 contacted the DeMiers, since Robert was the last record owner of the gun. The agent identified himself as an ATF agent and advised appellants he was conducting a gun trace. Shortly thereafter, Robert De-Mier called Androus to warn him of the *369 ATF gun trace, and Androus then called Fain to warn him. Fain, still believing Picaro and Associates was a fencing operation on December 14 called “Big John” (Agent Keating) to warn him of the ATF gun trace. The next day, December 15, 1977, an ATF agent recovered from Robert DeMier, DeMier’s dealer’s firearm acquisition and disposition record. The entry in the record corresponding with the derringer purchased by Picaro Associates from Miss Guillemot read, “Stolen 7-30-77. Fire.”
SPECIFIC INTENT TO DEFRAUD
To establish mail fraud (18 U.S.C. § 1341), the government must prove a scheme to defraud, and the mailing of a letter or other document for the purpose of executing the scheme.
United States v. Brown,
Barbara DeMier testified that the insurer verified the total loss by fire to be $143,-000.00, but paid only the policy limit of $80,000.00, plus $6,000.00 under the business interruption coverage. Appellants offered evidence showing profit from the business of $1,900.00 in January, $2,300.00 in April, and $3,250.00 in July, 1977. Defendants lost, rather than profited by the fire, they argue, and thus did not obtain money or property as required by 18 U.S.C. § 1341.
It is not necessary in a mail fraud prosecution to show that a defendant profited from his scheme.
United States v. Gaskill,
(Upon cross examination) Robert DeMier testified that he purchased the business in 1975 for $20,000, and that by the end of the 1976 tax year, as. a result of loans, the business owed him almost $42,000 and his wife, Barbara, $12,500. He received only $1,300 in compensation from the business in 1976, the last full business year before the July, 1977, fire. Their employees testified that appellants voiced numerous complaints about the business, including the long hours, the leaky roof, the walk-in cooler, and the landlord. Androus and Fain testified that Barbara DeMier several times before the fire expressed an interest in opening and operating a massage parlor, and witness Bridgeman testified she discussed the subject with him at the party at DeMiers the night after the fire.
The evidence that the delicatеssen was unprofitable, and that the defendants were unsatisfied and wanted to get out, was relevant to intent, as was the evidence that defendants hired Androus and Fain to set fire to the premises, 2 after which defendants immediately claimed payment for the property destroyed in the fire.
On appeal, the evidence at triаl must be viewed in the light most favorable to the jury’s verdict, accepting all reasonable inferences tending to support that ver
*370
diet.
United States v. Lambros,
MULTIPLICITY
Appellаnt Robert DeMier argues that the gist of all the counts against him, both mail fraud and making a false entry in a firearms record, was his alleged scheme to defraud the insurance company, basing this position on the fact that part of the insurance payment was for the gun. According to this argument, “The same evidence is required to provе the first eight counts as the ninth, namely, intent to defraud.” Therefore, Robert DeMier should have been charged with either mail fraud or the gun record violation, but not both.
Appellants’ argument bypasses the fundamental question of whether either the mail fraud charge or the gun record charge requires proof of a fact not required in thе proof of the other offense. Offenses are considered separate, and therefore not multiplicitous, if each requires proof of a fact not common to the others.
Ianelli
v.
United States,
On this appeаl, appellants make no objection to the jury instructions of the trial court concerning the elements of mail fraud and the elements of the gun record violation. The court properly instructed the jury that the essential elements required to be proved to establish the mail fraud offenses were: (1) The act or acts of hаving devised or having intended to devise a scheme or artifice to defraud or to attempt to defraud American Family Insurance Company out of money incident to the insurance claim filed in connection with the destruction and loss by fire of Bob’s Party Shop and Deli as charged in the information; (2) the act or acts of plaсing or causing to be placed in an authorized depository for mail matter a letter intended to be delivered by the Postal Service as charged; and (3) the act or acts of so using or causing to use the United States mail willfully and with the specific intent to carry out some essential step in the execution of said scheme оr artifice to defraud or to attempt to do so as charged.
Regarding the gun record violation in Count IX, the trial court instructed the jury that there were four essential elements to be proved: (1) The act or acts of making a false entry in the bound firearms acquisition and disposition record; (2) that the bound firearms acquisition and ‘ disposition record in which the false entry was made was required to be kept pursuant to law; (3) that the act or acts of making the entry was done willfully and with knowledge that such entry was false; and (4) that the corporation of which Robert DeMier was president was a licensed dealer in firearms.
As shown, there is a marked disparity between the elements required to be proved to establish a violation of 18 U.S.C. § 1341 as compared with the proof required under 18 U.S.C. § 922(m). Proof of the elements of one offense would not, standing alone, support conviction of the other offense. This court has held that “separate offenses may arise out of the same act provided each offense requires proof of at least one different element.”
United States v. Gardner,
CO-CONSPIRATOR STATEMENTS
Appellants claim error in the admission of out of court statements of Androus and Fain, under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E). Appellants urge that the statements were inadmissible because a conspiracy was not found by the jury from independent evidence, beyond a reasonable doubt.
United States v. Bell,
In this case, the trial court, in chambers, heard the testimоny of Androus that pursuant to Barbara DeMier’s request that he find an arsonist to burn the premises, he procured Fain, who agreed to set the fire. Androus also testified as to specific conversations he had with each appellant, and with Fain, concerning the understandings and arrangements for the contracted arson. The trial сourt also considered the stipulated evidence by which the parties agreed that Robert DeMier owned and operated the delicatessen, that the business was insured, that as a result of a fire in the premises on July 30, 1977, appellants filed an insurance claim and were paid $86,-000, and that Robert DeMier, a licensed gun dealer, entered in a firearm disposition record he maintained pursuant to law a notation that a .38 caliber derringer had been stolen in the fire. Upon the evidence before him, the trial court ruled that the out of court statements of Androus and Fain were admissible under Fed.R.Evid. 801(d)(2)(E). The procedure followed by the trial court was that contеmplated in United States v. Bell, supra. Upon the evidence before him, the trial court was entitled to find that it was “more likely than not” that: (1) A conspiracy existed; (2) that each appellant, and Androus, Fain and Guillemot, were members of the conspiracy; and (3) the conversations to which Androus testified were held during the course and in furtherance of the сonspiracy. We find no error in the ruling of the trial court.
PERJURED TESTIMONY
Appellants argue that one of the government’s chief witnesses, Androus, committed perjury on the witness stand, and that the government made knowing use of this perjured testimony. This is based on appellant’s assertion that Androus testified that Robert DeMier warned him of the ATF gun trace in August, 1977, when, in fact, thе DeMiers were not notified of the trace until December, 1977.
Androus admitted h,e had testified to the grand jury that he last talked to the DeMiers in August, 1977. However, Androus went on to testify that his grand jury testimony was in error, and that to his best recollection, the warning call from Robert DeMier came in December, and that he recalled it as being in Decembеr because it was around Christmas time. The jury were entitled to believe his explanation, (which was consistent with testimony of other witnesses as to the date agent Keating received the warning call from Fain). Certainly, the jury could reasonably understand from the whole trial testimony of Androus that he was not saying the warning call from DeMier came in August, but instead that his best recollection was that it came in December.
*372 Appellants’ claim of error under this heading is completely unsupported by the record and is, indeed, close to frivolous.
Appellants contend the trial court should have granted their motion for a judgment of acquittal. They present nothing to support this contention not already considered and resolved against them on this appeal.
The judgments appealed from are affirmed.
Notes
. The Honorable John W. Oliver, Chief Judge for the Western District of Missouri.
. Defendants denied ever seeing Fain before the trial, but Bridgeman, (a beer company vice-president and acquaintance of appellants) testified on rebuttal that Barbаra introduced him to Fain and Androus at the party the night after the fire. The fact that Robert DeMier immediately warned Androus of the ATF gun trace, and that Androus then promptly warned Fain, who then called agent Keating, tends to impeach Robert DeMier’s denial of any participation in a scheme with Androus and Fain. It was, of course, the function of the jury to resolve conflicts in the testimony and to determine the credibility of the witnesses and the weight of the evidence.
United States v. Hemphill,