United States v. Cooper , 132 F.3d 1400 ( 1998 )


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  •                                  United States Court of Appeals,
    
                                              Eleventh Circuit.
    
                                               No. 95-3649.
    
                            UNITED STATES of America, Plaintiff-Appellee,
    
                                                     v.
    
                     Candace L. COOPER, Glenn H. Martin, Defendants-Appellants.
    
                                               Jan. 13, 1998.
    
    Appeal from the United States District Court for the Middle District of Florida. (No. 94-155-CR-
    ORL-19), Patricia C. Fawsett, Judge.
    
    Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.
    
           HUNT, District Judge:
    
           Glenn H. Martin and Candace L. Cooper appeal their convictions following a jury trial.1
    
    They raise challenges to the sufficiency of the evidence, the admission of certain evidence, the jury
    
    instructions, and the district court's application of the Sentencing Guidelines. Cooper also contends
    
    that her convictions are preempted by the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015. For
    
    the reasons set forth below, we affirm.
    
                                      I. PROCEDURAL HISTORY
    
           On November 10, 1994 a grand jury returned a thirty-three count indictment against
    
    defendants Martin and Cooper, charging them jointly with several crimes. Count One of the
    
    
    
       *
         Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia,
    sitting by designation.
       1
       Martin was convicted of conspiracy to commit mail fraud, 18 U.S.C. § 371; mail fraud, 18
    U.S.C. §§ 1341 and 2; and various forms of money laundering, 18 U.S.C. §§ 1956(a)(1)(A)(i),
    1956(a)(1)(B)(i), 1957, and 2. Cooper was convicted of conspiracy to commit mail fraud and
    mail fraud.
    indictment charged defendants with conspiracy to commit mail fraud, and Counts Two through
    
    Eighteen charged defendants with the substantive acts of mail fraud that formed the basis of the
    
    conspiracy charge. Counts Nineteen through Thirty-three charged defendants with various forms
    
    of money laundering.2
    
           Following a two-month trial, a jury convicted Martin on Counts One, Three, Four, Nine,
    
    Fifteen, Sixteen, and Eighteen through Thirty-three and convicted Cooper on Counts One, Ten
    
    through Fourteen, and Seventeen. Shortly thereafter, the district court sentenced Martin and Cooper
    
    to prison terms of 140 months and seventy months, respectively, and further ordered each defendant
    
    to make restitution in the amount of $9,750,000 to the North Carolina Life & Health Insurance
    
    Guaranty Association. Defendants timely filed notices of appeal.
    
                                                II. FACTS
    
           Martin's and Cooper's convictions arise out of their operation of Twentieth Century Life
    
    Insurance Company ("TCL"), an insurance company that did business in several states, including
    
    North Carolina and Florida. TCL was a wholly-owned subsidiary of a Florida holding company,
    
    Twentieth Century Financial Corporation of America ("TCFCA"). Martin was the chief executive
    
    officer ("CEO"), president, majority stockholder, and chairman of the board of directors of TCFCA,
    
    and Cooper, Martin's sister, was the corporate secretary of TCFCA, as well as a member of its board
    
    of directors. Martin was also the CEO, president, and chairman of the board of directors of TCL,
    
    and Cooper was TCL's executive vice president.
    
           As an insurance company doing business in North Carolina and Florida, TCL was subject
    
    
       2
        Specifically, the indictment charged defendants with engaging in monetary transactions
    affecting interstate commerce with criminally derived property (Counts Nineteen through
    Twenty-Five), money laundering with intent to promote the carrying on of specified unlawful
    activity (Counts Twenty-Six through Twenty-Eight), and money laundering with intent to
    conceal the proceeds of specified unlawful activity (Counts Twenty-Nine through Thirty-Three).
    to regulation by the North Carolina Department of Insurance ("NCDOI") and the Florida Department
    
    of Insurance ("FLDOI"). Both of these agencies required that insurance companies maintain specific
    
    minimum ratios of assets to liabilities and surplus. If an insurance company operated below these
    
    minimum ratios, NCDOI and FLDOI were authorized to bar the company from doing further
    
    business in their respective states because of statutory insolvency.
    
           Because the valuation of assets had a critical bearing on the calculation of these ratios,
    
    NCDOI and FLDOI regulated the accounting treatment of assets by insurance companies. For
    
    example, neither of the agencies allowed insurance companies to treat loans or advances to "related"
    
    companies-companies with common ownership or management-as assets. Due to these and other
    
    regulations on the valuation of assets, it was possible for an insurance company to be declared
    
    statutorily insolvent and, therefore, subject to regulatory shutdown and takeover, despite the fact
    
    that, under generally accepted accounting principles, the company's assets exceeded its liabilities.
    
           TCL sold various types of insurance policies, including single premium, whole life policies
    
    and single premium annuities. These policies would accumulate cash values that could be redeemed
    
    by the policyholder under certain conditions specified in the policy. These policies also required
    
    TCL to pay death benefits upon the death of the insured. TCL had the primary responsibility to
    
    make any payments to policyholders. However, under the laws of North Carolina and Florida, the
    
    North Carolina Life, Accident and Health Insurance Guaranty Association and the Florida Life and
    
    Health Insurance Association (the "Guaranty Associations")were required to reimburse all
    
    policyholders of life insurance companies located within their respective states that became
    
    insolvent or otherwise failed.
    
           From 1984 through June 1989, Martin caused TCL to loan or advance substantial sums of
    
    money to other companies controlled by Martin. Although NCDOI initially was unaware that TCL
    was engaging in these related-party transactions, it increasingly became concerned about the
    
    apparent illiquidity of TCL's assets as the percentage of TCL's assets in the form of business
    
    accounts receivable from a few companies continued to escalate. This concern led NCDOI to
    
    become more aggressive in its efforts to learn about TCL's assets, which, in turn, led to the discovery
    
    that TCL had engaged in extensive related-party transactions.
    
           Although NCDOI could have shut down TCL for fiscal unsoundness once it discovered the
    
    related-party transactions, it instead entered into a consent agreement with TCL under which TCL
    
    would continue doing business subject to strict supervision by NCDOI. Among other restrictions,
    
    the consent agreement required TCL to receive NCDOI approval before making any disbursements
    
    from TCL bank accounts. Shortly after the execution of this June 8, 1994 consent agreement,
    
    FLDOI issued a series of consent orders relating to TCL's business in Florida. The orders severely
    
    limited the amount of new business TCL could write in Florida and required TCL to make a variety
    
    of disclosures to FLDOI concerning TCL's new business and its reserves.
    
           The indictment charged Martin and Cooper with devising and executing a scheme to divert,
    
    conceal, and ultimately convert approximately $9,750,000 in funds received by TCL as premiums
    
    for certain annuities and single premium, whole life polices. According to the indictment,
    
    defendants issued policies in exchange for the converted premiums, but concealed the sale of the
    
    policies and TCL's receipt of the premiums from NCDOI and FLDOI by avoiding TCL's standard
    
    operating procedures for documenting the issuance of policies and the receipt of premiums. Instead
    
    of processing these policies and premiums in the usual fashion, Cooper maintained the records in
    
    a separate word processing file and handwritten log. The files regarding these policies were also
    
    stored separately from TCL's other policy files, either in Cooper's office or in the trunk of Cooper's
    
    car.
           Between July 1989 and August 1990, Martin, Cooper, and others deposited approximately
    
    $9,750,000 in premiums from these policies into bank accounts that had not been reported to
    
    NCDOI or FLDOI. These accounts were owned and controlled by Martin. The funds were
    
    ultimately disbursed by Martin for his personal use or were funneled to other corporations that he
    
    owned. Although Cooper did not receive any of these funds, she was aware that the premiums were
    
    being deposited in the unreported accounts and handled the premiums in a manner that prevented
    
    NCDOI and FLDOI from discovering the existence of the premiums.
    
           In March 1991, NCDOI declared TCL statutorily insolvent and assumed the company's
    
    operation. However, the agency was unable to cure TCL's financial problems, and the company
    
    ultimately failed. As a result, the North Carolina Guaranty Association was statutorily obligated to
    
    assume the liabilities of all TCL policyholders up to $300,000 each.
    
                                            III. DISCUSSION
    
           Martin and Cooper challenge their convictions and sentences on a number of grounds. Both
    
    argue that there was insufficient evidence to support their convictions, that the district court's
    
    instructions to the jury were fatally flawed, and that the district court erred by ordering each
    
    defendant to make restitution in the amount of $9,750,000. Martin further argues that the district
    
    court miscalculated his sentencing range under the Guidelines by improperly grouping the money
    
    laundering offenses and the amount of money laundered. Cooper also raises several challenges to
    
    the district court's calculation of her offense level under the Guidelines and further challenges the
    
    district court's denial of her motion for a downward departure from the Guidelines. Cooper's
    
    primary argument, however, is that her convictions are barred by the McCarran-Ferguson Act, 15
    
    U.S.C. §§ 1011-1015.
    
    A. Preemption Under the McCarran-Ferguson Act
            Section 2(b) of the McCarran-Ferguson Act provides, in relevant part, "[n]o Act of Congress
    
    shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose
    
    of regulating the business of insurance ... unless such Act specifically relates to the business of
    
    insurance." 15 U.S.C. § 1012(b). Thus, the McCarran-Ferguson Act ensures the supremacy of the
    
    states in the realm of insurance regulation. Whereas a federal law ordinarily supersedes an
    
    inconsistent state law, "[t]he first clause of § 2(b) reverses this by imposing what is, in effect, a
    
    clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of
    
    insurance' do not yield to conflicting federal statutes unless a federal statute specifically requires
    
    otherwise." United States Department of Treasury v. Fabe, 
    508 U.S. 491
    , 507, 
    113 S. Ct. 2202
    ,
    
    2211, 
    124 L. Ed. 2d 449
     (1993).
    
           Although Cooper did not invoke the McCarran-Ferguson Act in front of the district court,
    
    she now argues that her "conviction should not stand because the mail fraud and conspiracy statutes
    
    have been preempted by the McCarran-Ferguson Act." Cooper's Brief at 12. This court, however,
    
    "sit[s] to review the proceedings in the district court rather than to serve as a de novo forum where
    
    prior proceedings can be retried." United States v. Johnson, 
    889 F.2d 1032
    , 1035 (11th Cir.1989).
    
    Accordingly, "[a]s a general rule, this court will not address an issue not decided by the district
    
    court." United States v. McAllister, 
    77 F.3d 387
    , 389 (11th Cir.1996).
    
           Although this rule is discretionary, we see no reason to depart from it in this case. Cooper
    
    had every reason and opportunity to raise this argument before the district court, and prohibiting her
    
    from raising it now will not result in a miscarriage of justice. Therefore, we decline to address the
    
    merits of Cooper's McCarran-Ferguson Act argument.3
    
    
       3
        Were we inclined to address the merits of this argument, we would review only for plain
    error because of Cooper's failure to raise it before the district court. See Fed.R.Crim.P. 52(b).
    Under this standard of review, the fact that the only three appellate decisions directly addressing
    B. Sufficiency of the Evidence
    
            We next consider whether the government's evidence was sufficient to sustain defendants'
    
    convictions in this case. In reviewing the sufficiency of the evidence, we must consider the evidence
    
    in the light most favorable to the government and draw all inferences and credibility choices in favor
    
    of the jury's verdict. United States v. Adair, 
    951 F.2d 316
    , 318 (11th Cir.1992). The convictions
    
    must be affirmed if any reasonable construction of the evidence would allow the jury to find
    
    defendants guilty beyond a reasonable doubt. United States v. McKinley, 
    995 F.2d 1020
    , 1025 (11th
    
    Cir.1993). Based on our review of the record, we hold that there is sufficient evidence to support
    
    the jury's findings of guilt.
    
    1. Cooper's Challenge
    
            Cooper's argument that her mail fraud convictions cannot stand because the government
    
    failed to demonstrate that the mailings were made in furtherance of the alleged scheme requires little
    
    discussion. The counts of mail fraud of which Cooper was convicted involved the mailings of policy
    
    applications and premiums from an insurance agent to TCL during the time that Cooper was
    
    assisting Martin in converting the premiums. These mailings were at the heart of the scheme, as it
    
    was these premiums that Martin ultimately converted to his own use. Consequently, we have no
    
    difficulty concluding that a jury could have reasonably construed the evidence to support a finding
    
    that Cooper was guilty of mail fraud.
    
    2. Martin's Challenge
    
            Martin's argument concerning the sufficiency of the evidence is more properly characterized
    
    
    
    
    this argument—United States v. Blumeyer, 
    114 F.3d 758
     (8th Cir.1997), United States v. Cavin,
    
    39 F.3d 1299
     (5th Cir.1994), and United States v. Sylvanus, 
    192 F.2d 96
     (7th Cir.1951)—have
    held that the McCarran-Ferguson Act does not preempt federal prosecution for mail fraud would
    be particularly instructive.
    as an attack on the legal sufficiency of the indictment. Rather than arguing that the government
    
    failed to prove the acts alleged in the indictment, Martin contends that the acts alleged in the
    
    indictment do not constitute mail fraud. This argument is unavailing.
    
            The mail fraud statute, 18 U.S.C. § 1341, criminalizes the use of the mails in furtherance
    
    of a scheme to defraud or to obtain money or property by means of false or fraudulent
    
    representations. Accordingly, in order to sustain a mail fraud conviction, the government must
    
    establish that the defendant intended to defraud a victim of money or property of some value. See
    
    Carpenter v. United States, 
    484 U.S. 19
    , 27, 
    108 S. Ct. 316
    , 321, 
    98 L. Ed. 2d 275
     (1987). In this
    
    case, the indictment charged conjunctively that Martin devised a scheme to defraud the TCL
    
    policyholders, the state guaranty associations, and TCFCA's minority shareholders by taking money
    
    and property. Although Martin argues that the scheme as alleged did not involve any legally
    
    cognizable monetary or property interest, we disagree. See United States v. Cosentino, 
    869 F.2d 301
    , 307 (7th Cir.1989) (holding that alleged scheme to keep insurance company in business by
    
    deceiving regulators about company's financial status affected the property rights of the company's
    
    policyholders); United States v. Bailey, 
    859 F.2d 1265
    , 1276 (7th Cir.1988) (holding that alleged
    
    scheme with potential to expose S & L's money and property to plunder by artificially keeping S &
    
    L in operation "could affect the property interests of the depositors, shareholders, and FSLIC, which
    
    would be potentially on the hook for some or all of the depositors' losses" and was, therefore,
    
    sufficient to support mail fraud conviction). We find the reasoning behind these decisions
    
    persuasive and hold that the allegations in the indictment and the evidence presented at trial were
    
    sufficient to support Martin's convictions for mail fraud and conspiracy.4
    
    
       4
        Because we find that each of the government's theories contained in the indictment was
    legally sufficient to support a conviction of mail fraud, we summarily dismiss Martin's argument
    that the district court erred in giving a jury instruction that allowed the jury to convict on a
    C. Remaining Issues
    
            Defendants' remaining contentions may be disposed of summarily. With respect to Cooper's
    
    evidentiary challenges, we do not find that the district court abused its discretion in admitting
    
    evidence concerning the removal of the FSCA plaque and the cash surrender log. See R22: 213-
    
    217, 272-277; R9: 199-206. Furthermore, in light of this court's previous approval of the use of
    
    a jury instruction regarding willful blindness in a case involving a conspiracy charge, United States
    
    v. Peddle, 
    821 F.2d 1521
     (11th Cir.1987) (per curiam), we find that the district court did not err in
    
    giving such an instruction in this case. Finally, with respect to the sentencing issues raised by both
    
    defendants, the record clearly demonstrates that the district court properly calculated all aspects of
    
    defendants' sentences under the Guidelines after making the requisite factual findings and that these
    
    findings are not clearly erroneous. In addition, it is clear that the district court did not err in denying
    
    Cooper's motion for a downward departure.
    
                                              IV. CONCLUSION
    
            For the reasons stated above, we affirm the convictions of Martin and Cooper.
    
            AFFIRMED.
    
    
    
    
    legally inadequate basis.