UNITED STATES оf America, Appellee, v. Alfred PEMBERTON, also known as Tig, Appellant. UNITED STATES of America, Appellee, v. Daniel BROWN, Appellant. UNITED STATES of America, Appellee, v. Harold FINN, also known as Skip, Appellant.
Nos. 96-3417, 96-3498, 96-3527.
United States Court of Appeals, Eighth Circuit.
Submitted May 19, 1997. Decided July 31, 1997.
Rehearing and Suggestion for Rehearing En Banc denied in No. 96-3417 Sept. 4, 1997. Rehearing and Suggestion for Rehearing En Banc denied in No. 96-3498 Sept. 8, 1997.
121 F.3d 1157
Douglas A. Kelley, Minneapolis, MN, argued (Steven E. Wolter, Minneapolis, MN, on the brief), for Harold Finn.
Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.
BOWMAN, Circuit Judge.
Alfred “Tig” Pemberton, Daniel Brown, and Harold “Skip” Finn appeal their convictions on various charges related to the insurance arrangements of the Leech Lake Band of Chippewa Indians (the Band) in the late 1980s and early 1990s. Pemberton and Finn also appeal their sentences. We affirm the judgments of the District Court.1
I.
Because of the complexity of this case and the many fаct-specific arguments raised by the defendants, we relate the facts of this case in somewhat more detail than is customary. Pemberton, Brown, and Finn are enrolled members of the Band. This tale begins in 1985, when Pemberton was secretary-treasurer of the Leech Lake Reservation Business Committee (LLRBC), the five-member governing body of the Band.2 At the time, Brown was one of three district representatives on the LLRBC, and Finn was the Band‘s legal counsel.3
Before 1985, the Band routinely purchased property-casualty and liability insurance to cover the risks associated with several buildings owned by the Band and several businesses operated by the LLRBC on behalf of the Band. In 1985, however, a crisis in the insurance market threatened to make insurance too expensive for the Band to afford; the only company willing even to quote a premium for the year beginning July 1, 1985 would have increased the previous year‘s property-casualty premium from $122,000 to $254,000 and the previous liability premium from $31,000 to $187,000. Because of the prohibitive cost, the Band went without insurance for a time in 1985.
At a meeting of the LLRBC on October 1, 1985, Finn and an LLRBC staff member presented a possible solution. As Finn described it, the Band could “self-insure” by depositing funds annually in a segregated bank account and paying claims out of that account. Several individuals present at the October 1 meeting testified that Finn stated that the Band would own any funds not used to pay claims, as is typical of self-insurance programs. Finn suggested that he administer the program by collecting the contributions and managing the payment of claims. Witnesses disagreed whether Finn proposed to retain a portion of the contributions as an administrative fee or whether he would render his services pursuant to his retainer agreement with the Band. Because of the possibility that the Band might suffer a large loss in the early years of the plan, before аny significant reserves could be developed, Finn suggested that the LLRBC purchase excess insurance coverage from a traditional insurance company. The LLRBC voted unanimously to approve the self-insurance program as described by Finn, and adopted a resolution establishing a corporation named Reservation Risk Management, Inc. (RRM) as “a corporate sub-entity of the Leech Lake Reservation Business Committee.” LLRBC Resolution No. 86-26 (Oct. 1, 1985). RRM‘s charter stated that the company was formed under the authority of the Minnesota Chippewa Tribe (of which the Leech Lake Band is one of six constituent bands) to manage the Band‘s self-insurance program.
During the next few weeks, it became apparent that insurance companies were unwilling to provide excess insurance coverage to the Band at affordable rates. Finn reported this development at an LLRBC meeting on
The Subscription Agreement gave 25% of the shares in RRM to the LLRBC and 75% of the shares to Finn. In the Debenture Agreement, Finn and his law partner, Kimball Mattson, pledged to tender as much as $450,000 to RRM if necessary to avoid a shortfall in “Fund C,” the fund from which RRM was to pay claims. RRM was obligated to repay any sums advanced by Finn and Mattson, who also had the option to cancel the agreement on ninety days’ notice and receive 20% interest per annum on any balance owed to them by RRM. In exchange for their standby promises to contribute to RRM, Finn and Mattson were to receive 15% of the premiums collected by RRM. The Debenture Agreement was executed by Finn on his own behalf and on behalf of RRM; the LLRBC was not a party to this contract.
The Shareholders’ Agreement between the LLRBC and Finn described the internal workings of RRM. Fifteen percent of premiums received were to be deposited in Fund A and paid annually to debenture holders, as described above. The other 85% of each prеmium payment was to go into Fund B, to be used for operating expenses, which Finn had previously estimated at $100,000 per year. Any excess in Fund B was to be regularly transferred to Fund C, from which claims would be paid. The Shareholders’ Agreement stated that the “reserves in Fund C shall belong to the shareholders of RRM” but were not to be distributed to the shareholders except on the dissolution of RRM. Shareholders’ Agreement 1.3(b) (Jan. 14, 1986). In addition, if the LLRBC withdrew from the insurance program any time before October 31, 1990, the LLRBC would forfeit any claim to the assets of RRM, and those assets would be distributed among the other shareholders.
The Insurance Agreement set up a ten-year insurance program at premiums beginning at $300,000 per year and escalating to $450,000 per year (subject to upward adjustment if deemed necessary by the directors of RRM). RRM agreed to seat two persons nominated by the LLRBC on the board of directors of RRM. Pursuant to this agreement, RRM issued to the LLRBC an insurance policy providing on its face more than $8 million in property-casualty coverage and $300,000 in liability coverage.
The government‘s risk-management expert testified that, in combination, these documents created a program that was neither insurance (because RRM did not assume the risk of loss) nor self-insurance (because persons other than the LLRBC had ownership interests in funds remaining after the payment of losses). In particular, the expert testified, the Shareholders’ Agreement “essentially took the Band money and gave it to Mr. Finn.” Tr. at 475. To demonstrate the workings of the program, she calculated what would have happened if the RRM arrangement had lasted one year, during which the LLRBC suffered no losses, and Finn had waived the forfeiture provision and allowed the LLRBC to retain its equity despite the early cancellation. The LLRBC would have paid $300,000 to RRM, of which 15% ($45,000) would have gone to Finn and his partner pursuant to the Debenture Agreement and another $100,000 (or 33%) would have gone to administrative expenses (essentially to Finn, his firm, and RRM‘s board members). Of the $155,000 remaining in Fund C, the LLRBC would receive one-fourth ($38,750) when the program was cancelled. Thus, even without any claims or losses (i.e., the
In January 1987, the LLRBC appointed Pemberton and Brown as its two representatives on the board of RRM. Shortly thereafter, Pemberton was elected secretary-treasurer and Brown vice-president of RRM. (Finn previously had been named president and was a board member.) Finn‘s wife and Pemberton‘s wife also were elected to the five-member board, and each of them gave a proxy to Finn, giving him effective control of the company. Finn soon transferred some of his equity ownership of RRM to Pemberton and Brown in exchange for their investment of $18,000 and $12,000, respectively, giving Pemberton approximately 7% and Brown approximately 5% ownership of the company.4
Later in 1987, an auditor began to audit the Band on behalf of the Department of the Interior for fiscal year 1986. RRM immediately became an issue because the LLRBC‘s October 1985 resolution established the company as a tribal entity, which would require it to be included in the audit. When the auditor wrote to Pemberton seeking more information about RRM, Finn responded with a letter stating that RRM was chartered by the state of Minnesota and that the LLRBC owned only 25% of the company. (In fact, Finn had organized a state-chartered corporation under the name “Reservation Risk Management, Inc.,” a corporation that was evidently inactive. When we refer to “RRM,” however, we mean the tribally-chartered company.) The auditor inquired further of Pemberton whether any of the Band‘s elected officials stood to benefit from the Band‘s association with RRM. Again, Finn responded: “Please be advised that the Leech Lake Reservation elected officials do not stand to profit from its association with RRM, Inc.” Letter from Finn to auditor of Mar. 3, 1988. After some further jousting with Finn, the auditor gave up on RRM and did not include the company in his audit. When the auditor and his partners later had second thoughts, they sent a representation letter to the LLRBC, asking the members to sign if they agreed with certain statements, including the following: “All prior [LLRBC] resolutions establishing some type of control over RRM by the Leech Lake RBC have been rescinded. There are no RBC elected officials who exercise control or who share in the profits of RRM.” Letter from auditor to LLRBC officials of Jan. 11, 1989. Brown and Pemberton signed the letter.
In 1989, the Bureau of Indian Affairs notified the Band of fraudulent practices involving insurance companies and warned that in the future, all insurance companies doing business with Indian tribes would have to be licensed by the relevant state government. Accordingly, the LLRBC decided to end its arrangements with RRM. Of the approximately $2 million collected by RRM since its establishment, the LLRBC received about $850,000 in a complicated series of transactions when the company was dissolved. During the life of RRM, it paid only $61,000 in insurance claims, while Finn took hundreds of thousands of dollars out of the company—some for cash and some to purchase items such as cars, boats, golf carts, professional football and baseball tickets, and real estate. All three defendants also received thousands of dollars in fees for serving on the board of directors of RRM.
As RRM was finally dissolved in mid-1990, Finn distributed considerable sums to the defendants. On May 2, 1990, Finn purchased an annuity for the benefit of Brown in the amount of $43,500; Brown later applied for a cash payout of 10% of the annuity and received the payout in October. On June 25, 1990, Finn distributed $62,000 to Pemberton, $199,547.10 to Mattson (Finn‘s law partner),
In November 1990, a federal grand jury began investigating RRM. A federal agent served Finn with a grand jury subpoena in January 1991 at the Minnesota capitol building, where Finn had just been sworn in as the first Native American elected to the state Senate. Finn eventually was charged by information in 1994 with a misdemeanor count of misapplying tribal funds, in violation of
On June 7, 1995, the grand jury returned thе indictment that began this case. Finn, Pemberton, and Brown were charged with one count of conspiracy, in violation of
After a seventeen-day trial, a jury convicted all three defendants of conspiracy. In addition, Finn was convicted of four counts of theft or misapplication of tribal funds, four counts of theft concerning a program receiving federal funds, and three counts of mail fraud; Pemberton was convicted of one count of theft or misapplication of tribal funds and one count of theft concerning a program receiving federal funds. The District Court sentenced Finn to fifty-seven months in prison, fined him $25,000, and ordered him to pay restitution of $400,000 to the Band. Pemberton was sentenced to thirty-three months in prison and ordered to repay $66,430 to the Band. Brown was placed on probation for two years, including one year of home detention, fined $7500, and ordered to pay restitution of $31,412.
II.
Of the many points raised by the defendants on appeal, we consider first several overarching arguments that attack the heart of the government‘s case.
A.
The parties agree that all of the crimes charged in this case are subject to the five-year limitation period of
The defendants argue, however, that if there was wrongdoing in this case, it occurred when Finn induced the LLRBC to set up the self-insurance plan that gave him a 75% stake in the proceeds; in other words, according to the defendants, this is a case of fraudulent inducement. Any theft or misapplication, the argument continues, occurred at the latest in 1989, when the LLRBC made its last payment to RRM. After that point, the defendants could not have stolen or misapplied RRM‘s funds, for they owned RRM. (Actually, they owned only three-quarters of RRM, but the defendants finesse this point by arguing that they kept less than three-fourths of RRM‘s assets when the company was wound up.)
This argument misses the point that the government‘s theory of the case, a theory the evidence supports, was that the documеnts
B.
The defendants next argue that
We need not explore the defendants’ argument at length, for it is foreclosed by our recent decision in United States v. Stone, 112 F.3d 971 (8th Cir. 1997). In Stone, which involved a violation of the Airborne Hunting Act,
C.
We next consider several arguments raised by Finn, all of which concern claims of prosecutorial misconduct. For the most part, these arguments are tangentially related to a dispute that arose during the government‘s investigation of this case and the obstruction-of-justice charges against Finn that resulted. The key document involved in this dispute is an invoice in the amount of $7600 sent by RRM to the LLRBC for additional insurance
Finn first argues that the government‘s decision to charge him with multiple felonies after he withdrew his guilty plea to a misdemeanor constituted vindictive prosecution. As Finn frames the issue, the government retaliated against him for his exercise of “a legal right.” Finn Br. at 13.8 Finn has adduced no evidence of actual vindictiveness on the part of the government; accordingly, his claim can succeed only if it is proper to presume vindictiveness from the circumstances. The government seeks to clarify the circumstances by pointing out that the misdemeanor plea resulted from a plea bargain and that Finn was warned that he could be charged with more serious crimes if he insisted on going to trial. Although we have no reason to disbelieve the government, we need not venture outside the record to determine that Finn‘s argument must be rejected. “[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified.” United States v. Goodwin, 457 U.S. 368, 382-83, 102 S. Ct. 2485, 2493, 73 L. Ed. 2d 74 (1982); see also Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S. Ct. 663, 668-69, 54 L. Ed. 2d 604 (1978) (holding that prosecutor‘s threatening more serious charges if defendant does not plead guilty does not violate due process). Accordingly, we do not presume vindictiveness in this case, and Finn‘s argument fails to carry the day.
Finn also complains that an agent of the Department of the Interior perjured himself before the grand jury by stating that the Band never turned over the invoice in response to subpoenas. This argument is meritless for several reasons. First, “an indictment returned by a legally established and unbiased grand jury ‘is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.‘” United States v. Roach, 28 F.3d 729, 739 (8th Cir. 1994) (quoting United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 618, 38 L. Ed. 2d 561 (1974)). Second, even if we consider the merits of the argument, any prejudice to Finn from this testimony was dissipated when the obstruction charge was dismissed during trial. In fact, because the defendants cross-examined the agent thoroughly at trial and exposed his failure to discover the copy of the invoice among the documents turned over to the grand jury in 1993, the incident probably caused more damage to the government‘s case than it did to Finn‘s defense.
Finn next argues that the government‘s mention of the obstruction-of-justice allegations in its opening statement was improper. As best as we can tell, Finn appears to be arguing that because the government discovered that the invoice had not been destroyed, it should have abandoned the obstruction charge before the trial began. As the District Court found when Finn made a similar argument in the guise of a Brady claim, however, the fact that a copy of the invoice survived does not show that Finn did not order the accountant to destroy it. Nothing in Finn‘s argument shows a lack of good faith on the part of the prosecutor, see United States v. Wallace, 453 F.2d 420, 422 (8th Cir. 1972) (noting that prosecutor‘s good faith is controlling question), cert. denied, 406 U.S. 961, 92 S. Ct. 2072, 32 L. Ed. 2d 348 (1972),
Finally, we consider Finn‘s objection to the testimony of one of the government‘s expert witnesses. At trial, an IRS agent testified that a particular financial transaction сonducted by Finn constituted money laundering. After a bench conference, the District Court struck the testimony and instructed the jury to disregard it; the court repeated this instruction during the final jury charge. Finn suggests that expert testimony that a defendant committed a crime is invariably improper, citing
III.
We now turn to several issues raised by Pemberton and Brown, including their arguments that the evidence is insufficient to support their convictions. When we examine the sufficiency of the evidence, we consider the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the verdict, and we will reverse only if no reasonable jury could have found the defendants guilty beyond a reasonable doubt. See United States v. Stands, 105 F.3d 1565, 1570 (8th Cir. 1997), petitions for cert. filed, Nos. 96-9316, 96-9420, 96-9541 (U.S. June 5, 17, 18, 1997).
A.
We deal first with Pemberton‘s challenge to the sufficiency of the evidеnce. In addition to conspiracy, Pemberton was convicted of two substantive counts relating to the disbursement of the funds of RRM as the company was wound up in June 1990. Pemberton argues that he was merely a pawn of Finn, the mastermind of the RRM scheme, and that he had no knowledge that RRM was a scam; his payout in 1990, he says, was merely a fair return on his legitimate investment in RRM in 1987. This is, of course, one possible interpretation of the facts, but it is the interpretation most favorable to Pemberton, not the one most favorable to the verdict. As in many cases, there is little direct evidence of Pemberton‘s knowledgeable participation in the conspiracy and the distribution of the proceeds of RRM, but the jury was entitled to rely on the significant circumstantial evidence indicating that Pemberton knew Finn was defrauding the Band and that he joined in Finn‘s efforts to do so. See United States v. Jewell, 893 F.2d 193, 194 (8th Cir. 1990) (recognizing that knowledge and intent may be established by circumstantial evidеnce). The jury could have considered, for example: (1) that Pemberton created a conflict of interest by investing in RRM while he was secretary-treasurer of the LLRBC; (2) that Finn‘s notes from the first RRM board meeting show that the “Leech Lake agreements” were discussed while Pemberton was present; (3) that Pemberton, along with White, signed a letter authorizing one of the LLRBC‘s banks to transfer to RRM the $30,000 that was used to purchase shares for Pemberton and Brown in RRM;
Reasonable jurors could disagree about whether Pemberton conspired with his co-defendants and intentionally stole from his fellow tribal members. Nevertheless, the jurors before whom Pemberton was tried did not disagree, and we cannot say that no reasonable juror could have found him guilty. See United States v. Weston, 4 F.3d 672, 674 (8th Cir. 1993) (“[I]f the evidence rationally supports two conflicting hypotheses, we cannot disturb the conviction.“).
B.
Brown, who was convicted on the conspiracy count only, presents a closer case on the sufficiency question, but much of the circumstantial evidence that suffices to support Pemberton‘s conviction is equally probative of Brown‘s participation in the conspiracy. In particular, Brown‘s signature on the auditor‘s representation letter, which contained the false statement that no LLRBC officials would share in RRM‘s profits, reasonably could lead the jury to the inference that Brown intended to mislead thе auditor and the Interior Department. Brown suggests that he did not know that the statement was false, but the jury quite reasonably could have determined that, as a director and shareholder of RRM, he was well aware of his financial interest in the company.
C.
The government also presented a theory of “willful blindness” regarding Pemberton‘s and Brown‘s knowledge of and participation in the conspiracy. Brown does not challenge the substance of the District Court‘s instruction on the willful-blindness issue, but he does take issue with the manner in which the court decided to give the instruction. We conclude that the District Court erred, but the error was not prejudicial.
In examining this claim, we must consider the rather unusual happenings as the trial came to a close. Although the record is not entirely clear, the parties agree that the court ruled at the instruction conference that it would give a willful-blindness instruction. When the parties returned to the courtroom the following morning to begin closing arguments, the court told counsel that it had determined that the instruction was not appropriate and that it would not be given. The government and Finn then presented their arguments, and the court recessed for lunch. After lunch, the court informed counsel that it had changed its mind again and would give the willful-blindness instruction.9 When Brown objected, the court ruled that the government would not be permitted to argue willful blindness in its rebuttal unless Brown raised the issue in his closing argument. Brown then proceeded with his argument, avoiding the subject, and the government did not argue it in rebuttal.
Brown argues that he was prejudiced because the government would have been permitted to respond if he had argued the willful-blindness issue. Of course, the government would have been permitted to respond to Brown‘s arguments in any event, regardless of when the District Court ruled on the instructions, because the government is entitled to the last word in rebuttal. See
IV.
We now consider several arguments proffered by Finn. Before considering some of Finn‘s more substantial arguments in detail, we pause to reject several other arguments briefly. What we have written already with respect to Pemberton‘s and Brown‘s conspiracy convictions is sufficient to demonstrate our belief that the government presented sufficient evidence to convict Finn of conspiracy. Nor is there merit in Finn‘s contention that
A.
Finn challenges the sufficiency of the indictment with respect to the charges that he violated
An indictment is sufficient if it (1) contains the elements of the charged offense and fairly informs the defendant of the charge against which he or she must defend and (2) enables him or her to рlead double jeopardy as a bar to further prosecution. ... Unless the indictment is so defective that by no reasonable construction can it be said to charge the offense for which the defendant[ ] was convicted, we will uphold it. Stands, 105 F.3d at 1575 (citations omitted). When the issue is whether an element of an offense has been omitted, our inquiry is whether the omission is one of substance or one of form only. See United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir.), cert. denied, 488 U.S. 849, 109 S. Ct. 130, 102 L. Ed. 2d 103 (1988).
Finn correctly notes that the § 666 counts contain no language expressly informing him that the government would be required to prove that he was an agent of the Band. Three factors, however, when considered in combination, make the indictment sufficient nonetheless. First, the § 666 counts cite the statute, which clearly makes agency an element of the offense. Finn points out that we held in United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976), that a reference to the relevant statute cannot supply an element omitted by the grand jury. This case is distinguishable from Camp, however, because of other relevant allegations made by the grand jury. The introductory section of the indictment, which the indictment incorporates by reference into all of the counts, alleges that Finn was the Band‘s attorney “from on and about 1983 to June 1, 1990.” Grand Jury Indictment at 3. Although all of the § 666 offenses were alleged to have occurred between June 13 and July 5, 1990, the use of “on or about” (which is what we must assume the grand jury meant when it said “on and about“) in an indictment incorporates dates “within a reasonable time of the date specified.” United States v. Duke, 940 F.2d 1113, 1120 (8th Cir. 1991). The indictment further alleges that the same acts by Finn that violated § 666 also violated
B.
Finn next argues that the government did not prove that RRM was an “Indian tribal organization” for purposes of
Whether an entity is an Indian tribal organization is a question for the jury to decide. See United States v. White Horse, 807 F.2d 1426, 1429 (8th Cir. 1986). In White Horse, the relevant organization was a telephone authority chartered pursuant to tribal law and wholly owned by the tribe. We reversed the defendants’ convictions because the district court erred by instructing the
Nor do we find persuasive Finn‘s argument that United States v. Zephier, 916 F.2d 1368 (8th Cir. 1990), controls in this case. Zephier involved a school founded by fifteen tribes and organized as a charitable corporation under state law. See id. at 1369-70. We explicitly noted the state-law character of the corporation when we laid out several factors indicating that a state-law corporation may be an Indian tribal organization, including the factor that Finn now emphasizes: “the entity must be patterned after or deliberately have conformed its operations to federal laws for Indian affairs.” id. at 1372. We do not believe that the government is required to meet this element of Zephier in the case of a corporate subsidiary chartered by a tribe; in fact, the requirement does not especially make sense in the context of RRM. Federal laws governing Indian affairs do not necessarily have anything to do with a corpоration founded pursuant to tribal authority. Because tribal law gives the corporation its legal existence, a corporation chartered under tribal law necessarily has a closer legal relationship with the tribe than does a state-chartered corporation that is merely controlled by one or more tribes. Accordingly, we believe that the only relevant factor for the jury‘s consideration in the case of a corporation chartered under tribal authority is the degree of control over the corporation possessed by the tribe. See id. (outlining four factors relevant to determination of “de facto control“); White Horse, 807 F.2d at 1430 (“[T]he Telephone Authority constituted an Indian tribal organization if there was a sufficient nexus between the Tribe and the Telephone Authority.“). Although Finn argues that in fact he had full control of RRM, he does not seriously dispute that the government established a sufficient nexus between the Band and RRM. We conclude that the government‘s evidence sufficiently supports the jury‘s finding that RRM was an Indian tribal organization.
C.
Finally, we consider Finn‘s challenge to his mail-fraud convictions. Here Finn argues that the mailings did not further his scheme to defraud the Band and the state of Minnesota. Again, we disagree.
The mail-fraud charges relate to two of Finn‘s boat purchases. Finn bought a twenty-foot boat in 1987 with RRM funds and registered it in the name of Finn & Mattson, his law partnership. Three years later, Finn bought a twenty-one-foot boat with RRM funds laundered through the LLRBC; he registered this boat in his own name. Minnesota passed a statute in 1989 requiring many boats, including the two boats at issue here, to have certificates of title beginning January 1, 1991. See
Finn argues first that the government cannot premise one of his mail-fraud convictiоns on the sales-tax return that was filed by the dealer that sold him the twenty-one-foot boat in 1990. The dealer that sold the boat testified that because Finn indicated that he was purchasing the boat on behalf of the LLRBC, he did not charge Finn sales tax on the purchase and he did not submit sales tax to the state. Finn nevertheless argues that the dealer‘s sales-tax return was not false because, according to the testimony of one of Finn‘s witnesses, the return did not report the sale of the boat as a sale to an exempt entity. This argument is irrelevant, for an innocent mailing—that is, a mailing
Finn presents a better argument with respect to the other two counts of mail fraud. These counts were premised on the state‘s mailing of сertificates of title to Finn after the passage of the new statute. Finn argues that because these mailings were not “part of the execution of the scheme as conceived by the perpetrator at the time,” Schmuck, 489 U.S. at 715, 109 S. Ct. at 1450, they cannot support mail-fraud convictions. We will accept Finn‘s version of events and assume that he was entirely unaware that certificates of title might be required some time after he purchased the boats, although we suspect that an attorney and sportsman such as Finn was probably aware of the titling statute, which was passed in 1989, when he bought the twenty-one-foot boat in 1990. On Finn‘s theory, the fraud was complete once he registered the boat in his name (or the name of his partnership), because he could then transfer title merely by signing over the registration card to a purchaser.12 Finn argues that the state‘s subsequent requirement that he obtain a certificate of title was not foreseeable and that his receipt of titles through the mail did not further his fraud in any way.
We think Finn‘s view of the situation is overly simplistic. For starters, the language in Schmuck that the mailing must be “part of the execution of the scheme as conceived by the perpetrator at the time” is directed to a different issue: what might be called an “inculpatory” mailing. Schmuck argued that the mailings for which he was convicted (certificates of titles to cars that he had sold after rolling back their odometers) actually worked against him by increasing the risk that he would be caught. See id. The Court rejected his argument, holding that it is irrelevant “whether the mailing later, through hindsight, may prove to have been counter-productive and return to haunt the perpetrator of the fraud.” id. Finn‘s case is a bit different: here, Finn believed he had successfully defrauded the Band, but then a change in state law required him to take another step if he wished to retain the fruits of his fraud or cоnvert them to cash. Given the change in the law, the mailings in the instant case increased the chances that Finn‘s fraud would be successful, for they enabled him to present a purchaser with prima facie proof of title in a new and official form. Finn‘s mailings, therefore, are not the inculpatory sort of communications envisioned in Schmuck; they are communications that he did not foresee but that he nevertheless was required to make in order to continue the fraud. Finn suggests no authority that a mailing of this type may not suffice to support a mail-fraud conviction, and we see no reason why such a mailing should not be adequate.
In essence, Finn seems to be arguing that a defendant who has successfully fleeced his victim and gained possession and control of the victim‘s property may not be convicted of mail fraud based on subsequent mailings. This is not the law. See United States v. Lane, 474 U.S. 438, 451-52, 106 S. Ct. 725, 733, 88 L. Ed. 2d 814 (1986) (“Mailings occurring after receipt of the goods obtained by frаud are within the statute if they ‘were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.‘“) (quoting United States v. Maze, 414 U.S. 395, 403, 94 S. Ct. 645, 650, 38 L. Ed. 2d 603 (1974)). Ultimately, whether a mailing furthers a scheme to defraud is a factual question for the jury to decide. See United States v. Freitag, 768 F.2d 240, 244 (8th Cir. 1985).
V.
We have considered the defendants’ numerous remaining arguments, including those challenging their sentences, and have concluded that they are without merit. Accordingly, the judgments of the District Court are affirmed.