UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TERRY DOWNS, DEFENDANT-APPELLANT

11th Cir. | 1989-04-19
No. 88-7458
Before HILL, HATCHETT and CLARK, Circuit Judges.
870 F.2d 613 Court of Appeals for the Eleventh Circuit (1989) Positive Treatment
Cited by 21 cases

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Holding

The court held that the evidence was sufficient to support the appellant's conviction for mail fraud, as the scheme to defraud was dependent on the use of the mails, which the appellant could reasonably foresee.


Facts & Procedural History

Terry Downs altered odometers and falsified odometer statements on used cars he sold to McConnell Cadillac. McConnell paid for the cars via sight draf…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

The appellant, Terry Downs, pled guilty to the commission of mail fraud, in violation of 18 U.S.C. § 1341. On appeal, he challenges the sufficiency of the evidence supporting his conviction. Finding sufficient evidence, we affirm.

I

The government and the appellant stipulated to the following facts: Terry Downs, a resident of Booneville, Mississippi, operated a business buying and selling used automobiles. Between 1985 and 1986, the appellant purchased approximately sixty used automobiles in Texas and resold them to McConnell Cadillac (“McConnell”), a dealership in Mobile, Alabama. In several of these automobiles, Terry Downs rolled back the odometers and falsified the vehicles’ odometer statements. For example, in May, 1986, the appellant purchased a 1984 Ford automobile in Texas which had been driven 62,718 miles. He rolled back the odometer to indicate 38,464 miles, and then sold the automobile to McConnell for $6,300 — a price reflecting the value of that car at 38,464 miles. The appellant asserts in the stipulation that he altered the odometers at the request of Charlie Harris, a McConnell employee. Harris asserts, however, that he made no such request.

In every transaction, McConnell paid for each automobile with a sight draft. The appellant transferred the sight draft, as well as the automobile’s title, bill of sale, and odometer statement to his brother, Larry Downs, who had financed the purchase and resale of the used cars. Larry Downs paid the appellant the profit on each automobile sale and delivered the documents to his bank in Booneville, Mississippi. That bank credited Larry Downs’ account and mailed the automobile documents with the draft through the United States postal system to McConnell’s bank in Mobile. There, a McConnell representative inspected the automobile documents and approved payment of the sight drafts. McConnell then resold the vehicles in reliance upon the odometer statements. After several customers complained of unusual maintenance problems, McConnell discovered the alteration of the odometers and contacted the Federal Bureau of Investigation.

A grand jury sitting in the Southern District of Alabama charged the appellant with nine counts of mail fraud perpetrated upon McConnell Cadillac, in violation of 18 U.S.C. § 1341. The appellant moved to dismiss the indictment because of insufficient evidence connecting him with the use of the mails. Thereafter, the parties submitted to the district court the stipulation of facts described above, requesting a determination as to whether the stipulated facts were sufficient for a mail fraud charge. The judge ruled that the fraudulent scheme involved the use of the United States mail system and denied appellant’s motion to dismiss. Consequently, Terry Downs pled guilty, conditionally, to mail fraud alleged in Count 2 of the indictment, which involved the sale of the Ford automobile in May, 1986 for $6,300, reserving his right to appeal the denial of the motion to dismiss. On appeal, Downs argues that the facts and evidence to which he stipulated do not sustain his conviction. We disagree.

II

The offense of mail fraud pursuant to 18 U.S.C. § 1341 consists of (1) an intentional participation in a scheme to defraud a person of money or property, and (2) the use of the mails in furtherance of the scheme. United States v. Simon, 839 F. 2d 1461, 1465 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2883, 101 L.Ed.2d 917 (1988). The latter element is satisfied if the scheme’s completion was dependent in some way upon information and documents passed through the mails, United States v. Bottom, 638 F. 2d 781, 785 (5th Cir. Unit B 1981),1 and if the defendant acted with knowledge that the use of the mails would follow in the ordinary course of business or could reasonably be foreseen. Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954); United States v. Georgalis, 631 F. 2d 1199, 1206 (5th Cir. Unit B 1980).

Here, the evidence supports a finding that the appellant rolled back the odometers in several automobiles — including the one described in Count 2 of the indictment — in order to induce McConnell Cadillac to pay unlawfully inflated sales prices. Moreover, this scheme was dependent on documents which passed through the mails. McConnell did not authorize payment on a sight draft until receiving an automobile’s title, bill of sale and odometer statement through the mail. Although the Mississippi bank, and not the appellant, actually mailed the documents, the appellant would reasonably be expected to foresee that these documents, critical to the consummation of the sale, would be mailed to McConnell in Mobile, Alabama. See United States v. Shryock, 537 F. 2d 207, 209 (5th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977) (transfer of title by mail was a necessary step to a scheme involving the fraudulent alteration of odometers).2 Therefore, the evidence supported the appellant’s conviction, and the district judge correctly denied the appellant’s motion to dismiss.

Ill

The judgment of the district court is AFFIRMED.

. This Circuit has adopted as precedent all decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F. 2d 33, 34 (11th Cir.1982).

. The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.


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Citator

Cited By (13 total)

  • Byrne v. Camran Nezhat, M.D., 261 F.3d 1075 (11th Cir. 2001)
    …d in civil RICO cases. Mail fraud occurs when a person (1) intentionally participates in a scheme to defraud another of money or property and (2) uses the mails in furtherance of that scheme. See Pelletier, 921 F. 2d at 1498; United States v. Downs, 870 F. 2d 613, 615 (11th Cir.1989). Pelletier explains that in a criminal prosecution “the government ... is not required to show that the intended victim was actually deceived and suffered injury.” Id. at 1499; United States v. Dynalectric Co., 859 F. 2d 1559…
  • Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991)
    …consider these predicate acts together. Mail or wire fraud occurs when a person (1) intentionally participates in a scheme to defraud another of money or property and (2) uses the mails or wires in furtherance of that scheme. United States v. Downs, 870 F. 2d 613, 615 (11th Cir.1989). A scheme to defraud need not be carried out to constitute a violation of the mail and wire fraud statutes. These statutes punish unexecuted, as well as executed, schemes. See Durland v. United States, 161 U.S. 306, 313-15, 16…
  • United States v. Cary V. COX, 995 F.2d 1041 (11th Cir. 1993)
    …ox committed mail fraud in violation of section 1341, the United States had to prove that Cox (1) intentionally participated in a scheme to defraud Mitchell County of money, and (2) used the mails to further that scheme. See United States v. Downs, 870 F. 2d 613, 615 (11th Cir.1989); United States v. Simon, 839 F. 2d 1461, 1465 (11th Cir.), cert. denied, 488 U.S. 861, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988). Cox did not dispute the second prong, that the mails were heavily involved in his machinations (which…

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