Memorandum — Minkin v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-597

GARY MINKIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CiRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the mailing involved here was

insufficiently connected to the fraudulent scheme to bring

him within the ambit of the mail fraud statute, 18

U.S.C. 1341.

After a jury trial in the United States District Court

for the Eastern District of Missouri, petitioner was con-

victed of mail fraud, in violation of 18 U.S.C. 1341.

He was sentenced to three years’ imprisonment, execu-

tion of all but six months of the sentence was sus-

pended, and he was placed on probation for a period

of two and one-half years. The suspension was condi-

tioned upon petitioner paying $2,200 to the victim of

the offense (Pet. 3). The court of appeals affirmed

(Pet. App. la-i5a) in an opinion reported at 504 F.2d

350.

(1)

Qe PONT eS Srnec

Arcaeta age

ry

2

The evidence at trial demonstrated that, in the course

of his salvage business, petitioner had received a 1967

Cadillac Eldorado that had been virtually destroved by

fire. Acting with the complicity of a claims supervisor

for the Hartford Insurance Company by the name of

Dace,' petitioner caused the vehicle to be insured by Hart.

ford upon the representation that it was in good mechan-

ical condition and free from any evidence of physical

damage. Petitioner thereafter claimed a total loss on

the vehicle, representing that it had been stolen and

destroyed by fire. Dace assisted petitioner in his scheme

by inserting in the insurance file a fictitious police

report that the car had been stolen and thereafter

recovered in its burnt condition. The claim was paid.

In the early course of these dealings, petitioner mailed

his application for a policy to an insurance broker in

a St. Louis suburb, who in turn mailed it to the Hartford

regional office in downtown St. Louis, a distance of some

twelve miles. This latter mailing was the subject of the

charge (Pet. App. !a-3a, Sa).

The federal mail fraud statute, 18 U.S.C. 1341, provides

that anyone who, having devised a fraudulent scheme,

either uses the mails or causes anything to be mailed

“for the purpose of executing such scheme or artifice

‘Dace was named in 24 counts of a separate but related 26-count

indictment, charging an ongoing scheme to defraud Hartford

Insurance Company by approving fraudulent insurance claims. He

entered pleas of guilty to three counts charging violations of the

same statute involved here--18 U.S.C. 1341--and was sentenced to

a total of ten years’ imprisonment. In the face of an allegation

that the trial court abused its sentencing discretion, the court of

appeals affirmed Dace’s conviction (502 F.2d 897), and this Court

denied certiorari. Schneider and Dace v. United States, certiorari

denied, January 20, 1975, Nos. 74-491, 74-5608.

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or attempting so to do” is guilty of a federal offense.

One causes the mails to be used when he “does an act

with knowledge that the use of the mails will follow

in the ordinary course of business, or where such use

can reasonably be foreseen, even though not actually

intended.” Pereira v. United States, 347 U.S. 1, 8-9.

Here, petitioner mailed his policy application to a broker

in St. Louis County, knowing that it would be forwarded

to the Hartford regional office in downtown St. Louis.

The jury could properly infer that it was reasonably

foreseeable by petitioner that such forwarding would be

by mail, at trifling cost and a minimal expenditure of

time, rather than by the more cumbersome means of

hand delivery. The issue was therefore one for the jury,

and it has been determined adversely to petitioner's

contention.

Petitioner’s reliance on United States v. Maze, 414

U.S. 395, is misplaced. The Court in Maze fully recog-

nized the validity of the Pereira reasoning (414 U.S. at

399), but it distinguished the credit card scheme involved

in Maze because the intended fraud was fully accom-

plished before the mails were ever used; and the mailings

were therefore not sufficiently closely related to the

scheme. Here, on the contrary, as the court of appeals prop-

erly concluded, the mailing of the application was an inte-

gral part of the scheme and “for the purpose of executing

such scheme”—a valid insurance coitract being the

necessary basis for petitioner and Dace to present and

process the fraudulent claim. Unlike the situation in Maze,

the scheme in this case had not reached fruition before

the mailing, and transmission of the application was an

integral part of the criminal plan. Cf. United States

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v. Flaxman, 495 F.2d 344, 348 (C.A. 7), certiorari

denied, No. 73-1894, November 25, 1974; United States

v. Isaacs, 493 F.2d 1124, 1151-1152 (C.A. 7), certiorari

denied, November 25, 1974, No. 73-1894; United States

F. 2d 981, 984 (C.A. 8); United States v. MacKay,

491 F.2d 616, 624 (C.A. 10), certiorari denied, 416

U.S. 972.2

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RopertT H. Bork,

Solicitor General.

JANUARY 1975.

2]t is immaterial that a binder had already been issued. Such

extension of temporary coverage is customary to protect the client

during the interim before a formal contract can be executed. Carideo

v. Phoenix Assurance Co. of New York, 317 F. Supp. 607, 610

(E.D. Pa.).

DOJ-197541