Wallace H. HAWKINS, Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Fifth Circuit1962-07-26No. No. 19295

305 F.2d 658

Summary · law.co

Holding. The conviction was affirmed. The court held that the procedural defect regarding indictment presentment was cured by supplementing the record, and that evidence of Hawkins's involvement in the fraudulent scheme, combined with the reasonably foreseeable interstate phone call that resulted in payment of the insurance claim, was sufficient to establish wire fraud.

Hawkins was convicted of wire fraud for his role in a scheme involving staged automobile accidents and fraudulent insurance claims. He appealed on two grounds: first, that the indictment record failed to show it was returned in open court as required by the Federal Rules of Criminal Procedure; and second, that the evidence was insufficient to support his conviction. On the procedural defect, the court found that the record was properly supplemented after the fact, which cured any initial omission. On the sufficiency of evidence, the court upheld the conviction, finding that Hawkins's participation in the fake accident scheme was sufficient to establish that he 'caused' the interstate wire communication—specifically, a collect telephone call between one conspirator and an insurance adjuster—even though he did not personally make the call. The court applied the principle that when someone acts with knowledge that wire communications will follow in the ordinary course of business, or when such use can reasonably be foreseen, that person causes the communication to occur for purposes of wire fraud liability.

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Key issues

Whether indictment must be shown as returned in open court under Federal Rules of Criminal Procedure Rule 6(f)
Whether record defects can be cured by supplementation
Whether defendant 'caused' interstate wire communication in fraud scheme when conspirator placed the call
Sufficiency of evidence to support wire fraud conviction

Procedural posture

This was an appeal from a conviction for wire fraud in furtherance of an insurance fraud scheme involving staged automobile accidents.

Authorities cited

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Opinion · public domain

majority opinion

JONES, Circuit Judge.

This case was before us on a former appeal. Belvin v. United States, 5th Cir. 1960, 273 F.2d 583. The charge of which the appellant was convicted was that, in furtherance of a scheme to defraud insurance companies by faked automobile accidents, he caused Charles E. McLeod to receive a collect telephone call. Two questions are presented on appeal. The first of these is that the record does not show that the indictment was returned in open court as is required by Rule 6(f) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. See 4 Wharton, Criminal Law and Procedure, 12th ed. §§ 1739-1740. The record was subsequently supplemented as authorized by the rules. Rule 75(h), Fed.Rules Civ. Proc., 28 U.S.C.A.; Rule 39(b) (1), Fed. Rules Crim.Proc. See the related case of Glenn et al. v. United States, 5 Cir., 303 F.2d 536, where the same question was raised and where the record was supplemented and corrected as has been done in this case.

The other ground urged by the appellant as a basis for reversal is that the evidence was insufficient to sustain a conviction and his motion for a judgment of acquittal should have been granted. The statute creating the offense of which the appellant stands convicted provides that:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U.S.C.A. § 1343.

The appellant asserts that it was not established that he caused the telephone to be used. There was testimony that appellant and others staged a phony accident, that one of the persons involved, after making a claim against the insurer of his car, made an interstate telephone call to an insurance adjuster which resulted in the payment of $1,800 on the faked insurance claim. The question as to whether the use of the mails was “caused” in a mail fraud case was discussed in the prior opinion in this case where the rule was announced by a quotation from the Supreme Court which we again state:

“Where one 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, then he ‘causes’ the mails to be used.” Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Belvin v. United States, supra.

The rule applies in a wire fraud case as in a mail fraud case. Cummings v. United States, 10th Cir., 1961, 289 F.2d 904, cert. den. 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48. The use of the telephone in the settlement and payment of an insurance claim was reasonably to be foreseen and a case was made for the jury. See Glenn et al v. United States, supra.

The judgment of conviction is

Affirmed.