United States v. Smith

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 01-50218

UNITED STATES of AMERICA,

Plaintiff-Appellee,

VERSUS

SHAWN MICHELLE SMITH, Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Western District of Texas, San Antonio SA-97-CR-190-8 ___________________________________________________ July 16, 2002

Before DAVIS, DeMOSS, and STEWART, Circuit Judges.*

W. EUGENE DAVIS, Circuit Judge:

Shawn Smith was convicted of several counts of aiding and

abetting mail fraud and one count of conspiracy to commit mail

fraud. She appeals her conviction and sentence, arguing that the

government presented insufficient evidence to support her

conviction and that the intended loss calculation was erroneous.

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. For the reasons that follow, we affirm her conviction.

I.

At 2:00 a.m. on November 4, 1994, Shawn Smith, her brother

Chad Smith, Ronald Panelli, and William Destiny Davis left a bar

when it closed and piled into Ms. Smith’s car. Panelli drove, Ms.

Smith sat in the passenger seat, and the other two sat in the back.

On their way out of the parking lot, another car, driven by

Kimberly McCormick, backed into them. An argument ensued, during

which Chad Smith pushed Ms. McCormick to the ground and the police

were called. Ms. McCormick picked herself up and drove away.

Panelli also drove away with Ms. Smith and the other occupants of

her car because they did not want the police to discover that they

had been involved in an accident while drinking. Ms. Smith made a

police report the following day. Apparently because Panelli’s

license had been suspended, Smith claimed to have been driving.

Ms. Smith decided to hire a lawyer to represent her in

connection with the accident. Ms. Smith selected the Choice

Richardson law firm to represent her ostensibly on the

recommendation of her aunt. This firm had represented her in an

accident once before -- also upon the recommendation of her aunt.

This personal injury law firm was named after its only licensed

attorney, a lawyer without litigation experience. The evidence

revealed that the firm was actually operated by four Lampanzianie

brothers. Two brothers, Marcello (who is married to Ms. Smith’s

2 aunt) and Francesco, shared profits with Richardson. They funded

the firm and controlled its financial affairs. Brothers Tony and

Pierre, each of whom had extensive experience in personal injury

work, were employed as legal assistants. Richardson provided the

legitimacy of a law license but contributed little else to the

firm’s operation.

Clients would meet with Tony or Pierre. If the brothers could

not settle a case, they would refer it to an outside attorney.

Clients with bodily injuries were referred for medical treatment to

the Pain Therapy Clinic, also operated by Tony and Marcello. The

government proceeded on a theory that the Lampanzianie brothers had

created the firm and the clinic in order to defraud insurance

companies.

The four occupants of Ms. Smith’s car met with Tony and Pierre

Lampanzianie. Although Davis said that he had not been injured,

all four were sent to the Pain Therapy Clinic. Davis testified

that it was his understanding that an insurance company would pay

for the visit.

All four received continued treatment upon repeat visits. On

February 6, 1995, Medical bills were sent by the law office to the

USAA insurance company, the medical pay insurer of the Smith

vehicle, based on treatment for their alleged injuries. USAA paid

a total of $9,385.08 on February 21, 1995, of which $2,500 was paid

to Ms. Smith and Choice Richardson. On the same day, USAA offered

3 to settle the remaining claims, but Pierre Lampanzianie rejected

their offer and submitted a counteroffer. USAA rejected his

counteroffer.

On March 2, 1995, the firm made a claim on behalf of the four

occupants of the Smith vehicle against Progressive Insurance,

Kimberly McCormick’s liability carrier. Progressive refused to

make a settlement offer until further documentation was provided.

Instead of providing that documentation, the firm referred the suit

to an outside lawyer who brought a negligence action in Bexar

County Court on behalf of the four passengers against Ms. McCormick

alleging personal injury and property damage. The prayer for

relief sought damages within the court’s jurisdictional limit or

$100,000, plus interest and costs.

While riding with her brother Chad on November 23, 1994, Ms.

Smith had another accident when she collided with another car. The

firm submitted a claim for medical services provided by the Pain

Therapy Clinic to both Allstate Insurance Co., the insurer of the

other driver, and USAA, Ms. Smith’s insurer. Allstate settled in

April 1995, paying Shawn and Chad Smith $3,800 each. In November

1995, USAA paid Ms. Smith $2,034.40.

In June 1998, a grand jury returned an indictment against Ms.

Smith, Chad Smith, Ronald Panelli, the Lampanzianie brothers, and

three others. Of the 29 counts charged in the indictment, counts

14, 15, 19, 20, and 29 involved Ms. Smith. Counts 14-20 charged

4 aiding and abetting mail fraud under 18 U.S.C. § 1341 and § 2, and

count 29 charged conspiracy to commit mail and wire fraud under 18

U.S.C. § 371. The district court severed Ms. Smith’s trial from

her co-defendants. Government experts and William Destiny Davis

testified that the low-speed parking lot accident of November 4th,

1994 caused no injury to any of the passengers in Appellant’s car.

The jury found Ms. Smith guilty on all five counts.

The Pre-Sentence Report stated that Ms. Smith’s conduct

involved a loss of $111,106.34. This figure included the total

actual losses caused by Ms. Smith -- $11,106.34 -- plus the

$100,000 sought in her lawsuit. The court sentenced her to fifteen

months imprisonment, along with three years supervised release, and

ordered her to pay $250 in special assessment and $11,106.34 in

restitution. On appeal, Ms. Smith challenges the sufficiency of

the evidence and questions the calculation of intended loss made

for the purposes of sentencing.

II.

A.

We first address Ms. Smith’s argument that the government

produced insufficient evidence to convict her of mail fraud or

conspiracy to commit mail fraud with respect to her claim for

injuries from the November 4th accident.

The elements of mail fraud are (1) a scheme to defraud; (2)

use of the mails to execute the scheme; and (3) the specific intent

5 on the part of the defendant to defraud.1 Ms. Smith argues that

the government failed to prove that she had the requisite intent to

commit mail fraud or conspiracy. She argues that if any fraud was

perpetrated, it was committed by the Lampanzianie brothers and that

she only visited the Pain Therapy Clinic upon their suggestion.

We are satisfied that sufficient evidence was presented of her

participation in the fraudulent scheme. Ms. Smith testified that

after the accident she did not think she was hurt and consulted the

Choice Richardson law firm to recover for damage to her vehicle.

However, on the intake form she filled out upon her first visit to

the Clinic, Ms. Smith claimed to be experiencing back pain as a

result of the November 4th accident. She made multiple visits to

the Clinic for treatment for these alleged injuries. A government

expert testified that no one could possibly have been injured in

the November 4th accident. William Destiny Davis corroborated this

testimony. The jury was entitled to find that Ms. Smith sought

damages for personal injury with knowledge that she had not been

injured. Thus, “a rational trier of fact could have found that the

evidence established the elements of the offense beyond a

reasonable doubt.”2

1 See, e.g., U.S. v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001), citing U.S. v. Rico Industries, Inc., 854 F.2d 710, 712 (5th Cir.1988); U.S. v. Brown, 186 F.3d 661, 665 (5th Cir. 1999). 2 U.S. v. Carreon-Palacio, 267 F.3d 381 (5th Cir. 2001), citing U.S. v. Reyes, 239 F.3d 722 (5th Cir. 2001).

6 B.

Ms. Smith also argues that the evidence was insufficient to

convict her on count 20. Ms. Smith’s car was insured by USAA,

which included a personal injury protection (PIP) plan. In

February 1995, USAA was billed for medical procedures and services

that Ms. Smith received that were related to the November 4th

accident. In October 1995, USAA was billed for medical procedures

and services that Ms. Smith received related to the November 23rd

accident. This count charged that many of the medical procedures

and services billed to and paid by USAA in October regarding the

second accident had already been billed to and paid by USAA in the

February claim. This double-billing amounted to $860.67. Ms.

Smith claims that she could not have known that the Choice

Richardson law office was billing USAA twice for the same medical

services.

We are satisfied that sufficient evidence was presented of her

participation in the fraudulent scheme. On December 13, 1994, Ms.

Smith’s first saw a physician at the clinic after the November 23rd

accident. Despite her previous visits, she filled out a new intake

form, stating that for the previous two weeks her neck and back

were sore, but that she had “really felt good” before then. When

the form asked whether she had suffered from similar conditions in

the past, she left the space blank and did not mention the November

4th accident. She also admitted to knowing that of the business

7 relationship between the clinic and the law firm.

Ms. Smith was treated by Dr. Davis, one of the physicians at

the Pain Therapy Clinic. Ms. Smith meanwhile continued to receive

treatment relating to the November 4th accident from another Clinic

doctor. Dr. Davis testified that had he known that Ms. Smith was

simultaneously receiving treatment on the same part of the body

from another doctor, he would have refused to prescribe therapy.

When interviewed by USAA’s adjuster in December 1994 regarding

the first accident, Ms. Smith made no mention of the second

accident.

From this pattern of behavior, a fact-finder could reasonably

conclude that Ms. Smith concealed the injuries she claimed occurred

in the first accident (which overlapped with her injuries in the

second accident) to promote a scheme to induce insurance companies

to process claims on the second accident separately and

independently from the first, improving her chances of getting paid

twice.

C.

Ms. Smith argues that the district court erred by accepting

the Pre-Sentence Report’s (PSR) recommendation of $111,106.34 as

the intended loss. The PSR asserted that intended loss was the

appropriate measure of loss under the U.S. Sentencing Guidelines

based upon commentary note 8 to § 2F1.1, which states that “if an

intended loss that the defendant was attempting to inflict can be

8 determined, this figure will be used if it is greater than the

actual loss.” The PSR’s intended loss figure included the total

restitution losses caused by Appellant -- $11,106.34 -- plus the

$100,000 sought in her lawsuit. Under the Sentencing Guidelines,

the inclusion of the $100,000 figure adjusted her offense level

upwards by six points. The district court accepted the PSR’s

recommendation, reasoning that Ms. Smith put the $100,000 at risk

by asking for this sum in damages.

This Court reviews the calculation of the amount of loss, a

factual finding, for clear error.3 Interpretation and application

of the Sentencing Guidelines is reviewed de novo.4

The complaint sought “an amount within the jurisdictional

limits of the Court ... or $100,000.00.” Ms. Smith argues that the

$100,000 should not be included as part of the intended loss

because her attorney selected that sum based in part on the fact

that it represented the jurisdictional limits of the court.

The government argues that when Ms. Smith asked the court to

award this sum to her, she put $100,000 at risk. The question

presented here is analogous to this Circuit’s cases involving

credit cards and forged checks. Under our cases, when a defendant

has stolen a credit card, the total available credit limit of the

3 See U.S. v. Morrow, 177 F.3d 272, 301 (5th Cir. 1999), citing U.S. v. Tedder, 81 F.3d 549, 550 (5th Cir. 1996). 4 See U.S. v. Randall, 157 F.3d 328, 330 (5th Cir. 1998), citing Tedder at 550.

9 card may be used as a measure of intended loss, even when the

defendant has not used the card and does not know its credit

limit.5 Similarly, when checks or money orders are stolen and

forged but not yet cashed, their face value may be used as the

intended loss.6

In U.S. v. Sowels, the defendant was a postal employee who

stole 110 credit cards but was apprehended before he could use

them. In affirming the district court’s assessment of the intended

loss as the amount placed at risk or the total credit limit on all

the stolen cards, we stated that district courts have wide latitude

in determining the loss from theft and fraud.7 We noted that had

the defendant “completed or withdrawn from his offense before being

apprehended, he might have been able to rebut the evidence that he

intended to charge the cards to their limit.”8 We held that the

district court had not clearly erred in concluding that the total

credit limit on the cards was the intended loss.

In U.S. v. Wimbish, a bank fraud case, the defendant’s scheme

5 See U.S. v. Sowels, 998 F.2d 249 (5th Cir. 1993), interpreted in U.S. v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1997). 6 See U.S. v. Chappell, 6 F.3d 1095 (5th Cir. 1993), cert. denied, 510 U.S. 1183 (1994); U.S. v. Brown, 7 F.3d 1155 (5th Cir. 1993); U.S. v. Wimbish, 980 F.2d 312 (5th Cir. 1992); U.S. v. Hooten, 933 F.2d 293 (5th Cir. 1991); U.S. v. Quertermous, 946 F.2d 375, 276 (5th Cir. 1991). 7 Sowels, 998 F.2d at 252. 8 Id. at 251.

10 was to deposit forged checks and then receive a portion of the

check’s face value as cash back. We noted that in carrying out his

scheme, the defendant

acted with conscious indifference to the impact his scheme would have on the victims. His testimony at the sentencing hearing underscored his ignorance and indifference to what would happen to the remaining check amount. [His] callous indifference to his victims’ loss falls within the ambit of intended loss... His actions and his conscious indifference put his victims at risk for the entire loss, regardless of how much he actually obtained.9

We held that the district court did not clearly err by calculating

the loss based on the face value of the checks rather than the

amount the defendant actually obtained.

In U.S. v. Oates,10 the caretaker for an 86-year-old Alzheimer

patient made fraudulent withdrawals from the patient’s accounts and

attempted unsuccessfully to negotiate a $50,000 certificate of

deposit in the patient’s name. In calculating the amount of loss,

the district court included the $50,000 certificate of deposite the

defendant attempted to negotiate. We noted that “[t]his Court has

long adhered to the view ... that the amount of loss ... is the

dollar amount placed at risk by a defendant’s fraudulent scheme or

artifice.... Of course, use of the dollar amount of funds or

credit placed at risk to determine the ‘loss’ amount ... is merely

an application” of the commentary note, which states that if

9 Wimbish, 980 F.2d at 316. 10 122 F.3d 222 (5th Cir. 1997).

11 intended loss is greater than actual loss, intended loss shall be

used.11 Thus we affirmed the district court’s calculation of loss.

We see no basis to distinguish these cases from today’s case.

These decisions hold that in determining the intended loss, the

court should consider the amount the defendant puts at risk.

Ms. Smith argues that she should not be held responsible for

the lawyer’s decision on the amount of damages to seek in the

lawsuit. She did, however, retain a lawyer and she cooperated in

prosecuting the lawsuit. Thus, her “actions and [her] conscious

indifference put [her] victims at risk for the entire loss,

regardless of how much [she] actually obtained.”12 We conclude that

the district court did not clearly err in the calculation of the

loss for the purpose of sentencing under the Guidelines.

III.

For the reasons stated above, we affirm Ms. Smith’s conviction

and sentence.

AFFIRMED.

11 Oates, 122 F.3d at 225. 12 Wimbish, 980 F.2d at 316.