11-3442-cr
United States v. Mason

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 28th day of September, two thousand twelve.

Present: PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         DEBRA ANN LIVINGSTON,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           - v. -                      No. 11-3442-cr

PAUL H. MASON, AKA Paul Mason, AKA Paul Henry Mason,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                       MARK A. KAPLAN, Kaplan and Kaplan,
                                               Burlington, Vt.

For Appellee:                                  MICHAEL P. DRESCHER (Gregory L. Waples, on
                                               the brief), Assistant United States Attorneys, for
                                               Tristram J. Coffin, United States Attorney for
                                               the District of Vermont
       Appeal from the United States District Court for the District of Vermont (Sessions, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Paul H. Mason (“Mason” or the “defendant”) appeals from a

judgment of conviction entered by the United States District Court for the District of Vermont

(Sessions, J.), convicting him, following a jury trial, of wire fraud, in violation of 18 U.S.C.

§ 1343, and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. On appeal, Mason

contends that the evidence was insufficient to prove that a phone call placed in November 2004

was an overt act in furtherance of the conspiracy or the use of the interstate wires in furtherance

of the fraudulent scheme, thereby rendering his prosecution on both counts untimely under the

five-year statute of limitations. We assume the parties’ familiarity with the facts and procedural

history of the case.

       A defendant challenging the sufficiency of the evidence bears a “heavy burden.” United

States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004) (internal quotation marks omitted). We

review the evidence “in the light most favorable to the government, crediting every inference

that could have been drawn in the government’s favor.” United States v. Chavez, 549 F.3d 119,

124 (2d Cir. 2008). A conviction must be affirmed if “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).

       In this case, both the wire fraud and conspiracy to commit wire fraud counts were subject

to the five-year statute of limitations set forth in 18 U.S.C. § 3282(a). For a conspiracy to have

occurred within the limitations period, “(1) [it] must still have been ongoing within the five year


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period preceding the indictment, and (2) at least one overt act in furtherance of the conspiratorial

agreement [must have been] performed within that [five-year] period.” United States v. Ben Zvi,

242 F.3d 89, 97 (2d Cir. 2001) (internal quotation marks omitted). “[T]he crucial question in

determining whether the statute of limitations has run is the scope of the conspiratorial

agreement, for it is that which determines both the duration of the conspiracy, and whether the

act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.”

United States v. Salmonese, 352 F.3d 608, 614 (2d Cir. 2003) (internal quotation marks omitted).

In order for the wire fraud prosecution to be timely, there must have been at least one use of the

interstate wires within the applicable limitations period that was “for the purpose” of executing

the fraudulent scheme. See 18 U.S.C. § 1343.

       Mason first argues that the government’s evidence is insufficient to sustain the

convictions because the sole objective of both the scheme and the conspiracy was to defraud the

insurance company and not to defraud Ford Credit. He contends that given this purpose the

scheme and the conspiracy were complete in December 2000 when the insurance company wrote

a check to Ford Credit and thus that the November 1, 2004 call to Ford Credit could not be

construed as an overt act in furtherance of the scheme or conspiracy. This argument is

unavailing. As alleged in the indictment, the purpose of the scheme and conspiracy was not

merely to defraud the insurance company but to “relieve the [d]efendant from having to repay

[the truck] loan.” J.A. 8, 11. This allegation was supported by testimony at trial, including

testimony of his former girlfriend that his purpose in falsely reporting the truck stolen was “[t]o

not have to make all those payments on the truck and to have the truck paid off.” Id. at 94.

Because a balance remained on the truck loan after the insurance company paid the claim, a


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reasonable jury could infer that the scheme and conspiracy were not complete in 2000 and could

interpret Mason’s November 1, 2004 phone call to Ford Credit as a continuation of the scheme

and conspiracy. See United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir. 2009) (noting that

conspiracy is “a continuing crime, that is not complete until the purposes of the conspiracy have

been accomplished or abandoned.” (internal quotation marks omitted)).

       Mason also argues that the November 1, 2004 call to Ford Credit could not be construed

as a continuation of the fraud or an overt act in furtherance of the conspiracy because, during that

call, there is no indication that he lied or otherwise attempted to defraud Ford Credit. He notes

that the evidence at trial revealed that he had previously acknowledged that there was still a

balance due on his loan after the insurance proceeds were applied and that he even made

arrangements to pay it off at the rate of $80.37 per month. He contends that the only reasonable

explanation of the call, as reflected in a subsequent call Mason made to Ford Credit 18 minutes

later after being disconnected, was that he truly believed that the truck loan had been fully paid

off when he paid off a second loan he had with Ford Credit, the loan on the Ford Explorer. Even

assuming that Mason has posited a plausible counter-interpretation of the evidence, the jury was

not compelled to accept it where, as here, there was sufficient evidence to support the

government’s interpretation of the evidence. One of the government’s witnesses, Ms. Blinson,

the Ford Credit representative who received the call, testified with the help of her

contemporaneous notes that, when she told Mason that there was still a $422.43 balance owing

on the truck loan, he responded by saying that the “vehicle was stolen” and the insurance

company had paid. J.A. 138. A reasonable jury could conclude that Mason repeated his false

claim that his truck had been stolen in an effort to persuade Ford Credit to excuse the remaining


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payments due on the loan. Accordingly, because we must view the evidence in the light most

favorable to the government and draw all reasonable inferences in the government’s favor, we

reject Mason’s challenge to the sufficiency of the evidence and affirm the judgment of

conviction.

       We have considered all of the defendant’s remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.


                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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