     Case: 11-30228     Document: 00511647172         Page: 1     Date Filed: 10/27/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 27, 2011
                                     No. 11-30228
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROCKY GLEN BEASLEY,

                                                  Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:09-CR-244-1


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        Rocky Glen Beasley was convicted by a jury of wire fraud and conspiracy
to commit wire fraud.           He was sentenced to one year and one day of
imprisonment and a two-year term of supervised release. Beasley filed a timely
notice of appeal.
        Beasley’s convictions stem from the staged theft of his Ford F-150 pickup
truck by Stephen Yates. The convictions are premised, in pertinent part, on the
fact that he made fraudulent representations in a telephone conversation with

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30228

a claims adjuster for State Farm Insurance Company denying that he had any
knowledge of or involvement with anyone who would have stolen his truck.
Beasley argues that, because there was no evidence that he had made a claim
for the theft of his truck at the time he had that conversation, the Government
failed to prove that he had the intent to defraud required for conviction on either
the conspiracy count or the substantive wire fraud count.
      We review this argument de novo because Beasley preserved the issue for
review by moving for a judgment of acquittal at the close of the Government’s
case and again at the close of all the evidence. See United States v. Ollison, 555
F.3d 152, 158 (5th Cir. 2009). With regard to the element of an intent to
defraud, the Government was required to prove only that the telephone call was
made in furtherance of a fraudulent scheme and that the telephone call was
material to the scheme. See United States v. Valencia, 600 F.3d 389, 431 (5th
Cir.), cert. denied, 131 S. Ct. 285 (2010). In other words, the Government had
to prove “that completion of the alleged scheme depended in some way on the
information . . . that passed through the wire.” United States v. Dowl, 619 F.3d
494, 499 (5th Cir. 2010) (internal quotation marks, citations, and alterations
omitted).
      According to the evidence adduced at trial, Beasley and Yates prearranged
the staged theft of Beasley’s truck. The normal claims procedure at State Farm
sees a policy holder call his agent to report a claim and the agent, in turn,
reporting the claim to the insurance company. An insurance claim is then set
up and assigned to an adjuster who contacts the policy holder and investigates
the claim. The insurance adjuster with whom Beasley had the telephone
conversation at issue would have had no occasion to speak to Beasley absent an
insurance claim having been made. Additionally, no claim for the loss of
Beasley’s truck could have proceeded absent the telephone conversation. The
fact that the indictment alleged that the conversation was had for the purpose
of initiating an insurance claim was mere surplusage. See Valencia, 600 F.3d at

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                                   No. 11-30228

432. Viewing the evidence in the light most favorable to the jury’s verdict, as we
must, we conclude that a rational juror drawing reasonable inferences could
have found beyond a reasonable doubt that the Government proved the element
of intent necessary to sustain Beasley’s convictions. See id. at 431; see United
States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008).
      The district court admitted, without objection from Beasley, a redacted
copy of Beasley’s cellular telephone bill that included activity between the dates
of December 13, 2006, through January 12, 2007.            The redacted bill was
accompanied by a certificate of authentication and showed cellular activity only
between the dates of December 23 and 24, 2006.             The Government later
attempted to introduce an unredacted copy of the bill, which the district court
excluded on the basis that its veracity had not been authenticated. Later, after
the Government established, through Beasley’s testimony, that Beasley received
the bill copy from the cellular provider, that it was his, and that it accurately
reflected his cellular activity, the district court allowed the admission of the bill
copy into evidence. The Government used the bill, in part, to show that Beasley
and Yates had been in contact via telephone several days prior to the staged
theft of Beasley’s truck.
      Beasley argues that the admission of the unredacted bill copy was
erroneous, that such error was not harmless, and that it requires reversal of his
conviction. A properly authenticated telephone bill can be admissible under the
business records exception to the hearsay exclusion rule. See United States v.
Vela, 673 F.2d 86, 89 (5th Cir. 1982) (citing FED. R. EVID. 803(6)). To the extent
the exhibit was a business record for Rule 803(6), Beasley’s testimony was
sufficient to authenticate the unredacted bill copy. See United States v. Wake,
948 F.2d 1422, 1434 (5th Cir. 1991); FED. R. EVID. 901(a). The exhibit could also
reasonably have been admitted under Rule 801(d)(2)(B) or (D). Accordingly, the
district court did not abuse its discretion in admitting the evidence. See United
States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). Even if we were to assume

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                                No. 11-30228

that there was error, such error was harmless in light of the other,
overwhelming evidence of Beasley’s guilt that was introduced at trial and the
cumulative nature of the evidence. See United States v. Hawley, 516 F.3d 264,
268 (5th Cir. 2008); United States v. Hall, 500 F.3d 439, 444 & n.13 (5th Cir.
2007).
      AFFIRMED.




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