Appeal from the United States District Court for the Northern District of California; Robert F. Peckham, District Judge, Presiding; D.C. No. CR-87-0784-RFP.
Wallace, Chief Judge, Goodwin and Fletcher, Circuit Judges.
Daljit Gill appeals his conviction, following a jury trial, for mail and wire fraud, in violation of 18 U.S.C. § 1341. We affirm the conviction, but strike jury costs from the order to pay costs of prosecution.
Mail fraud has two elements: "(1) the formation of a scheme or artifice to defraud, and (2) use of the mails in furtherance of the scheme." United States v. Mitchell, 744 F.2d 701, 703 (9th Cir. 1984). Gill asserts that the government failed to provide sufficient evidence to prove the second element. We disagree.
A conviction is supported by sufficient evidence if, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Gill mailed four weekly reports all but one of which authorized the withdrawal of hundreds of thousands of dollars that were absent from his bank account. Understanding that there was often a three-week delay from the time of dishonored drafts to their discovery by ATC, a rational trier of fact could have concluded that Gill intended the mailings to give "the appearance of legitimacy" to the transactions for as long as ATC's monitoring system allowed, thereby enabling him to defraud the airlines of $1.2 million in ticket sales. United States v. Feldman, 853 F.2d 648, 655 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989).
We reject Gill's argument that the scheme was completed with the sale of the tickets and that the mailings, instead of furthering the scheme, merely placed ATC on notice of it. Gill fails to refute the government's contention that GIT's failure to submit weekly sales reports and the accompanying documents would have triggered default proceedings much sooner than they actually occurred in this case. Gill's argument thus obscures the fact that he was able to make four weeks' worth of massive ticket sales only because he continued to submit the weekly sales reports.
Gill claims that the district court committed reversible errors by admitting testimonial and documentary evidence regarding previous fraudulent transactions engaged in by Gill and by admitting evidence regarding statements he made during a deposition taken in a related civil litigation.
A. Cross-Examination Regarding Previous Fraudulent Transactions
During cross-examination, Gill admitted to falsifying a residential loan application. Afterwards, Gill moved to strike the cross-examination on the ground that the government's purpose was to impeach Gill on a collateral matter. The district court denied the motion. The government also cross-examined Gill and obtained admissions about falsified financial statements he submitted in connection with a credit application for GIT and a loan application to purchase a mini-mart. Gill did not make specific, contemporaneous objections to these last two lines of questioning. Instead, at the close of the entire cross-examination, he made one general objection that the government's exercise had been "irrelevant, immaterial and incompetent" as well as "an attempt to impeach on collateral matters." The court overruled the objection.
"A ruling on the admissibility of evidence cannot be raised on appeal if no contemporaneous [and specific] objection was made at trial unless plain error is shown." United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986); United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.), 111 S. Ct. 363 (1990). Because Gill -- by his own admission -- failed to make specific, contemporaneous objections with regard to each proffer of evidence, the threshold issue is whether admission of Gill's testimony regarding the false statements constituted plain error. "Plain error is shown if the evidence was inadmissible and its admission affected the outcome and [defendant's] right to a fair trial." Houser, 804 F.2d at 570.
In light of the fact that Gill's fraudulent scheme was firmly established by the evidence of the mailed weekly sales reports, authorization forms and deficient GIT bank account, it is highly unlikely that Gill would have been acquitted had the evidence of the falsified statements been excluded. At any rate, Gill's testimony regarding the statements is admissible. "The trial court may permit a party to cross-examine a witness about specific instances of misconduct if they are probative of truthfulness or untruthfulness" and "evidence of a witness" participation in fraudulent ...