Unpublished Dispositionunited States of America Plaintiff-appellee, v. Robert Glen Mckinney Defendant-appellant. (88-5162)united States of America Plaintiff-appellee, v. Eddie Dale Kingins, Defendant-appellant. (88-5196), 875 F.2d 868 (6th Cir. 1989)

Appellant Robert Glen McKinney appeals from his conviction on an eight count indictment charging him and Eddie Dale Kingins with committing mail fraud in violation of 18 U.S.C. § 1341. McKinney contends that he should have been given a lesser included instruction on the federal statutory crime of odometer fraud and the mailings that were proven did not satisfy the mailing element of Sec. 1341. Kingins appeals from his sentence, arguing that it was excessive. We affirm in both appeals.

* The indictment arose out an odometer fraud scheme hatched by McKinney and Kingins. McKinney, a used car salesman in Murray, Kentucky, bought used cars from auctions and rolled back odometers. He then sold the cars to Kingins, a dealer from Dover, Tennessee, who either sold them to another dealer or a customer. All eight car sales which formed the basis of the indictment involved cars which were ultimately purchased by consumers who were not aware of the odometer change.

The mailing necessary for the Sec. 1341 charge allegedly took place when title applications, which included a required odometer statement, were sent from a Tennessee purchaser's local county clerk's office to the Tennessee Department of Revenue in Nashville, Tenn., the state capital. If, however, the application was made in the county in which Nashville is located, the title application was delivered by hand. In Kentucky, all the applications were delivered by hand. McKinney conceded at trial that it was reasonable to think that these applications would be mailed, stating that he knew that they would be mailed but did not think of it as being mail fraud.

McKinney and Kingins were indicted in August 1987. On the motion of the government, the two trials were severed. McKinney was convicted, in December 1987, on all eight counts of the indictment. He was sentenced to two years in prison on each of the counts, with the sentences to run concurrently. Kingins pleaded guilty in December 1987 to the first four counts of the indictment. The other counts were dismissed. There was no agreement regarding sentence. Kingins was sentenced to two years on each of the counts, the sentences to run concurrently. These appeals followed.

II

McKinney first argues that the lower court erred when it denied his request for an instruction on odometer fraud as a lesser included offense of mail fraud. Odometer fraud is prohibited by 15 U.S.C. § 1984, which states that "No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon." It is punishable, under 15 U.S.C. § 1990c, by no more than one year in prison or a fine of not more than $50,000, or both. The defendant argues that the jury should have been instructed on this crime in the event they determined that McKinney was guilty of odometer fraud (which he admitted committing) but not of mail fraud, which carries a much stiffer penalty.

Rule 31(c) of the Federal Rules of Criminal Procedure states, in pertinent part, that a "defendant may be found guilty of an offense necessarily included in the offense charged." The mode of analysis used in determining whether one offense is the lesser included offense of another, thus entitling the defendant to an instruction on that crime, has been the subject of a great deal of controversy. There are two basic approaches to the question.

The first approach is the more traditional 'elements' test. Under this test, the elements of the two statute are compared in order to see whether one includes all of the elements of the other. This comparison is done without considering the allegations of the specific indictment or the evidence produced at trial. See Government of Virgin Islands v. Joseph, 765 F.2d 394, 396 (3rd Cir. 1985). In the context of this case, for example, one would analyze the statutes in the following manner. The elements of a mail fraud offense are: (1) devising or intending to devise a scheme to defraud; and (2) using the mail for the purpose of executing the scheme or attempting to do so. The elements of an odometer fraud offense consist of: (1) willfully and knowingly altering an odometer with (2) the intent the change the number of miles indicated. One can conclude that each offense, on its face, requires proof of facts not required by the other and, thus, is separate. Mail fraud, for example, requires proof of the use of the mails, and odometer fraud requires proof of willful tampering.

The second approach to this question is the 'inherent relationship' test. This test was developed by the D.C. Circuit in United States v. Whitaker, 447 F.2d 314 (D.C. Cir. 1971). The court in Whitaker rejected the elements test, in favor of a test that looks to the facts of the case in order to determine whether the case as pleaded and proved would be sufficient to prove a lesser included offense. For example, in our case, it is not enough to merely say that mail fraud is different than odometer fraud. One has to ask whether the specific mail fraud alleged by the government also constitutes, or has an inherent relationship with, odometer fraud. If the only difference between the two offenses is that mail fraud requires a mailing, then the odometer fraud is a lesser included offense of mail fraud. One can see why this analysis has some common sense appeal. The mail fraud defendant does not commit fraud in general; he is committing a certain type of fraud. One can argue that he is committing odometer fraud with a mailing.

Looking at the two different approaches, it becomes clear which one McKinney would prefer this court to use. Under the elements test, McKinney has no case; mail and odometer fraud are completely different. The inherent relationship test is his only possible argument. The Supreme Court, however has very recently resolved this very issue in favor of the elements test. In Schmuck v. United States, 109 S. Ct. 1443, 1450 (1989), the Court stated: "We now adopt the elements approach to Rule 31(c) ... this approach is grounded in the language and history of the Rule and provides for greater certainty in its application. It, moreover, is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach in cases involving lesser included offense instructions." The Court then went on to hold that odometer fraud was not a lesser included offense of mail fraud. The Court concluded: "The offense of odometer tampering includes the element of knowingly and willfully causing an odometer to be altered. This element is not a subset of any element of mail fraud. Knowingly and willfully tampering with an odometer is not identical to devising or intending to devise a fraudulent scheme." Id. at 1453. Thus, on this issue, we must find in favor of the government.

III

McKinney's second contention is that the mailing of the title applications was not a sufficient mailing to satisfy Sec. 1341. McKinney argues that this case is just like United States v. Maze, 414 U.S. 395 (1974), where the Court invalidated a mail fraud conviction where the defendant stole another person's credit cards and used them to purchase goods. The alleged mailing was the mailing of the credit card receipts to the issuing bank. The Court held that only those mailings which were in furtherance of the scheme satisfied the statute. Id. at 399. These mailings were not a part of the scheme; they were merely the result of it. The defendant's scheme had come to an end prior to any mailings. Id. at 403. In this case, McKinney argues that he too completed the scheme before any mailings. The mailing of title applications was just as much an inconsequential "result of the scheme" as the mailing of credit card receipts.

The Supreme Court, however, also rejected this argument in Schmuck. The Court held that "a rational jury could have found that the title-registration mailings were part of the execution of the fraudulent scheme, a scheme which did not reach fruition until the retail dealers resold the cars and effected transfers of title. Schmuck's scheme would have come to an abrupt halt if the dealers either had lost faith in Schmuck or had not been able to resell the cars obtained from him. These resales ... naturally depended on the sucessful passage of title among the various parties." Schmuck, 109 S. Ct. at 1448. The Court distinguished Maze by saying that the credit card processing at issue in that case had nothing to do with the future success of the scheme; it only determined who would pay for the fraud. In this case, if there was no passage of title, the defrauder's scheme would come to an end. Id. at 1449.

This court has also held that the mailings at issue here are sufficient to meet the mailing element. In United States v. Oldfield, 859 F.2d 392 (6th Cir. 1988), we held that the mailing of title applications was in furtherance of the odometer fraud scheme. All the defendant had to do was reasonably foresee that the mails would be used in the completion of the scheme. Id. at 400. As an experienced auto dealer (as was McKinney), Oldfield had to be familiar with the paperwork needed to perfect title. Ibid. We held that the scheme was not complete until the consumers perfected title, which they could not do until the documents were mailed. Ibid. This distinguishes the case from Maze, where the purchases were complete immediately. Again, it is clear, then, that we must hold for the government.

IV

Kingins contends that the district court abused its discretion by giving him an excessive sentence. It is settled that trial courts have broad discretion over sentencing, and appellate courts should not disturb such sentences unless the judge relied upon improper or erroneous factors, resulting in a gross abuse of discretion, or unless the judge failed to evaluate the evidence submitted or exercise discretion. United States v. Barbara, 683 F.2d 164, 166 (6th Cir. 1982). The defendant argues that he has a negligible past criminal record and, most importantly, his wife, two children, and grandson are all financially dependent upon him. Doubtless, also, he is unhappy that McKinney received the same sentence despite the fact McKinney went to trial. He asks this court to hold that he should have been given probation.

The government contends that the sentence was reasonable especially given the fact that he could have received up to twenty years in prison under the plea bargain and up to forty years under the indictment. The judge, before sentencing, heard from two witnesses, Kingins, and the arguments of counsel. There is no showing that Kingins made anything other than a good bargain. For the foregoing reasons, we AFFIRM both McKinney's convictions and Kingins's sentence.