United States v. Cynthia Bennett Evans, Also Known as Cindy

REAVLEY, Circuit Judge,

dissenting in part:

I would affirm the mail fraud convictions because the indictment charged and the evidence proved an ongoing scheme that included the use of the mail to collect the travel vouchers. The indictment cannot be read to allege that Evans acted gratuitously in assisting Clay; it alleges that she acted for personal financial gain. Counts 1 through 5 allege that she accepted bribes from Clay in violation of the- Hobbs Act, 18 U.S.C. § 1951 (a). Counts 6 through 11 allege the commission of mail .fraud involving the use of travel vouchers. Count 6, which details the overall mail fraud scheme, alleges that Evans devised a scheme “to defraud [her employer] of her honest and faithful services,” and that the acts in furtherance of the scheme included the receipt of cash payments from Clay, as well as the making of “false and incom: píete entries into the business records” of her employer, including travel vouchers indicating “periodic visits to Jphn Clay’s place of employment and place of residence.” The indictment can fairly be read to allege that the scheme’s financial rewards to Evans included not only the payments from Clay, but the payment of false travel vouchers by her employer.

Evans falsely recorded required visits in Clay’s record which were never made, and submitted corresponding travel vouchers, and the evidence was sufficient to prove that Evans knowingly caused the vouchers to be mailed. On the appropriate box on the vouchers, Evans requested that the reimbursements be paid directly to her. Supervisor Presswood testified that the vouchers are mailed to an office in Austin, and paid from that office. A rational jury could conclude that Evans must have realized that the vouchers, which are handwritten on printed forms, were mailed to Austin when she received her payment from the Austin office.

As to the Supreme Court authority -discussed by the majority, I would distinguish those decisions the majority finds indistinguishable, and find indistinguishable the one case the majority distinguishes. Kann v. United States, 323 U.S. 88 , 65 S.Ct. 148 , 89 L.Ed. 88 (1944), involved the cashing of fraudulent checks by the defendants. The Supreme Court ruled that the scheme had “reached fruition” before the checks were mailed. “The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank.” 323 U.S. at 94 , 65 S.Ct. at 151 . In the pending case, Evans did not *486 receive all the fruits of her fraud, and did not complete the fraud on her employer, until the vouchei’s were mailed, and payments from Austin were received by her. ■

United States v. Maze, 414 U.S. 395 , 94 S.Ct. 645 , 38 L.Ed.2d 603 (1974), held that a defendant who made fraudulent use of a credit card to obtain goods and services at motels was not liable under the mail fraud statute, where the alleged mailings were the invoices sent from the motels to the bank that issued the card. The Court again held that the fi’aud reached fruition before the invoices were mailed. “Indeed, from [defendant’s] point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all.” 414 U.S. at 402 , 94 S.Ct. at 649 .

The defendants in Parr v. United States, 363 U.S. 370 , 80 S.Ct. 1171 , 4 L.Ed.2d 1277 (1960), were accused of misappropriating funds from a school district. Most of the mail fraud counts were premised on mailings related to the collection of school taxes, rather than the misappropriation of school funds resulting from the taxes. The Court reversed the convictions under these counts because “the indictment did not allege, and there was no evidence tending to show, that the taxes assessed and collected were excessive, ‘padded’ or in any way illegal.... ” 363 U.S. at 387 , 80 S.Ct. at 1181 . Even counsel for defendants conceded that if an employee “improperly ‘pads’ or increases the amounts of the statements and causes them to be mailed to bring in a fund to be looted, such mailings, not being those of the employer ... would constitute an essential step ‘for the purpose of executing [a] scheme’ to defraud, in violation of § 1341.” 363 U.S. at 386 , 80 S.Ct. at 1181 . In the pending case, the documents mailed — the travel vouchers— were themselves fraudulent because Evans “padded” the claims for reimbursement with travel that never occurred.

I would affirm under Schmuck v. United States, 489 U.S. 705 , 109 S.Ct. 1443 , 103 L.Ed.2d 734 (1989). In Schmuck , the defendant rolled back the odometers of automobiles and sold them to car dealers, who then resold them to retail customers. The alleged mailings associated with .the fraud were the mailing of title application forms from the dealers to the state department of transportation, a necessary step in transferring title to the retail customer. The Court noted that defendant Schmuck had longstanding relations with some of the dealers, and that “[h]is was an ongoing fraudulent venture. A rational jury could have concluded that the success of Schmuck’s venture depended upon his continued harmonious relations with, and good reputation among, retail dealers, which in turn required the smooth flow of cars from dealers to their Wisconsin customers.” 489 U.S. at 711-12 , 109 S.Ct. at 1448 . The Court distinguished Kami, Parr, and Maze , and affirmed the convictions, reasoning that “a failure of this passage of title would have jeopardized Schmuck’s relationship of trust and goodwill with the retail dealers upon whose unwitting cooperation his scheme depended.” 489 U.S. at 714 , 109 S.Ct. at 1450 .

As in Schmuck , Evans’ ongoing fraudulent scheme depended on continued harmonious relations with her employer. Failure to submit routine travel vouchers consistent with Clay’s parole file put at risk her relationship of trust and goodwill with her employer, since Presswood testified that an inconsistency between the travel vouchers and the parole file would have raised a red flag.

The facts of the pending case present a more compelling ease of mail fraud than the facts of Schmuck . First, the documents mailed in Schmuck were themselves totally innocent, while in the pending case the mailed travel vouchers were fraudulent. Second, to the extent that Schmuck turned on a relationship of trust and goodwill, such a relationship was even more important to Evans than to Schmuck. The defendant and the dealers in Schmuck had ongoing business relations, to be sure, but in the pending case Evans was an employee who occupied a sensitive post.