IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10870

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EARL MONROE FOX,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

November 2, 1995

Before POLITZ, Chief Judge, WISDOM, and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Earl Monroe Fox appeals his conviction for mail fraud, equity skimming, and aiding and

abetting. He also raises the question of whether the district court committed error when it admitted

evidence o f past disciplinary action against him by the Texas Real Estate Commission. For t he

following reasons we find no error by the district court and affirm Fox’s convictions.

BACKGROUND

Earl Fo x and his wife, Willie, formed T.I.M.N. and Associates in the late 1980's to take

advantage of depressed prices in the Dallas/Fort Worth and Lubbock, Texas, real estate markets.

Through T.I.M.N. Fox acquired at least seventeen homes by offering to assume the payment s o n

existing mortgages in return for the transfer of the property

. He then rented the homes for an amount

less than t he mo nt hly payment owed to the mortgage company. However, instead of applying the

rental income to the mortgage payments, Fox appropriated those monies for pers o nal and family

expenses. He continued collecting rent on the property until foreclosure on the propert y wascompleted and the tenants were evicted.

On June 17, 1993, Fox and his wife were charged with mail fraud, conspir acy, equi ty

skimming, and aiding and abetting mail fraud and equity skimming. At the jury trial sevent een

homeowners testified that they signed a document allowing Fox to assume the loans on their homes

in reliance on his promise to make the mortgage payments.

The renters of the properties also testified against Fox regarding their rent payments. These

rent payments co nst ituted the mail fraud counts of the indictment. One renter, Joseph Strain,

identified his check payments, but he did not specify that he sent his payments to Fox through the

United States mail. Michael DePaul also testified that he mailed rent checks to Fox; but, like Strain,

he did not specify that he meant the United States Postal Service when he used the term “mailed.”

A third person, Elizabeth Jackson, t estified that she mailed a rent check to Fox along with a letter

noticing him she was terminating the tenancy. The postmarked envelope in which her check was

mailed was also introduced as evidence. She said t hat Fo x allowed her to breach her lease and

returned her deposit but that Fox retained her rental payments.

In support of the equity skimming charge, the jury heard Fox’s admis sion on crossexamination that he assumed the mortgages of the houses in question, rented them, and applied the

rental payments to his personal expenses rather than the mortgages. The government also introduced

evidence of disciplinary action by the Texas Real Estate Commission against Fox invo lving activities

preceding the events described in the indictment. The group suspended Fox’s real estate license for

sixty days. In his suspension documents, Fox admitted that

[H]e had entered into a contract whereby he purported to act as trustee for himself

and his wife, and he had agreed to purchase a home; that in the sales contract Fox was required to assume the unpaid principal balance of a first lien promissory note payable

to a mortgage company; that the owners conveyed the property to Fox by warranty

deed, as well as a sig n ed loan assumption agreement; and that Fox promised the

owner that he would make the mortgage payments when due.

Fox also admitted that

he failed to pay the mortgage payments, failed to pa y t he lo an assumption fee, and

failed to file the warranty deed;

. . . he had entered into this contract knowing that he

could not make the mortgage payments called for in the contract and concealed this

information from the owners and their real estate broker.3

The jury acquitted Fox’s wife on all counts of the indictment and found Fox guilty on counts

2 through 12 and 14. The district court entered a judgment of acquittal on mail fraud counts 5-8 and

12 due to insufficient evidence of the use of the United States Postal Service. Fox timely appealed

his remaining convictions for mail fraud and for equity skimming.

DISCUSSION

Sufficiency of the Evidence

Fox argues that the government offered insufficient e vidence to sustain his convictions for

mail fraud and equity skimming. He also asks us to consider whether the district court committed

error by admitting evidence of the suspension of his real estate license under Federal Rule of Evidence

404(b). We first address the sufficiency of the evidence supporting his convictions.

Mail Fraud Convictions

In examining the adequacy of the evidence supporting a jury's verdict we determine whether,

viewing the evidence and the inferences that may be drawn from it in the light most favorable to the

verdict, a rational jury could have found the essential elements of the offense beyond a reasonable

doubt. United States v. Sneed , 63 F.3d 381, 385 (5th Cir. 1995). To convict for mail fraud under

18 U.S.C. § 1341, the government must establish (1) a scheme to defraud, (2) which involves a use

of the mails, and (3) that the mails were used for the purpose of executing the scheme. U nited States

v. Pazos , 24 F.3d 660, 665 (5th Cir. 1994).

Fox makes two points regarding his mail fraud convictions. First, that the government failed

to prove adequately that the United States Postal Service delivered the rent payments he received.

His second contention is that even if the Postal Service were the courier, not all of the rent payments

were transferred via mail and that he in fact collected some checks perso nally. Because the

government could not prove definit ively, through its witnesses, which checks came by mail and which

he collected, there was insufficient evidence to convict him.

Co unts 2, 3, and 4 of the indictment are based upon checks from the Strains, who rent ed

property in Lubbock. Fox says that there was never any testimony at trial that he received the checks4

referred to in those counts via the Postal Service. Therefore, he argues that a rational jury could not

have found beyond a reasonable doubt that he did not collect those particular checks himself nor that,

even had they been mailed, the Postal Service was the means of delivery and not some other carrier.

Counts 9 and 10 concern property rented by DePaul, who testified that he would sometimes

mail the rent checks but did not specify that he used the United States Postal Service. Fox argues that

the term “mail” was used generically throughout the trial to refer to transmission via both the United

States Postal

Service and Federal Express. Therefore, this use was too broad and equivocal to

support the convictions on counts 2, 3, 4, 9, and 10.

Proof of the use of the Postal Service may be made through direct or circumstantial evidence,

but in either case the governmen t must prove such use beyond a mere likelihood or probability.

United States v. Massey

, 827 F.2d 99 5, 999 (5th Cir. 1987). It is a question of fact, that the jury

must resolve on proper instructions. U nited States v. Boyd

, 566 F.2d 929, 937 (5th Cir. 1978). The

government satisfied this burde n for counts 2 through 4 when Strain testified that the exhibits

underlying those counts were copies o f t he checks he mailed to Fox for rent. Similarly, DePaul

testified that the two checks comprising counts 9 and 10 were mailed by him to Fox.

We have held that a rational trier of fact may find from such witness testimony evidence of

mail fraud. U nited States v. Matt

, 838 F.2d 1356, 1359 (5th Cir. 1988). The defendant In M att was

a division manager of a tobacco company. In that capacity he was responsible for preparing two sets

of expense reports. The first set itemized monthly expenses. The second set recorded payments to

retailers for placing promotional displays in their establishments. The scheme involved replacing the

complimentary tobacco products used for the displays with actual resale merchandise. The proceeds

from this merchandise went to Matt. Matt accomplished his deceit by forcing sales representatives

to file false reports concerning the placement of the complimentary goods. He then would mail these

false reports to the company. The mailing of these reports to the company constituted the mail fraud

charge. The defendant argued that the testimony of the government’s only witness as to the receipt

of the mail was insufficient absent supporting evidence. In upholding his conviction, we described5

a jury’s reliance on such testimony as a credibility choice. The facts of the case, especially as viewed

in a light favorable to the government, were enough to support the jury’s finding that Matt had used

the mails to send his reports.

Likewise, as to count 11, we must accept the jury’s belief in Elizabeth Jackson’s assertion that

the rent check made out to Fox was mailed, absent countervailing evidence. Supporting this inference

is the fact that attached to the check was a letter clearly postmarked giving thirty days’ notice before

Jackson was going to terminate the lease. The letter also requested that Fox return her deposit. It

is perfectly reasonable that, since they were attached, the check traveled through the mails along with

the postmarked letter.

Fox says that there was insufficient evidence that he defrauded Jackson because he returned

her deposit and did not penalize her for breaking the lease. This argument is without merit. Fox fails

to note that he returned only the deposit and retained all other rental payments while still failing to

pay any of the mortgage payments on the property.

Contrary to Fox’s second contention that the testimony by itself was too general to mean the

United States Postal Service, the term “mailed” is sufficiently discrete to support such an inference.

To support his argument, Fox cites a Third Circuit case reversing a conviction for mail fraud where,

although the government offered testimony specifically referring to a mailing, it failed to show that

it was the business practice in insurance claims to use the United States Postal Service. U nited States

v. Hart

, 693 F.2d 286 (3d Cir. 1982). Fox’s recital of H art is incorrect. The pivotal term in that case

was “sends.” The government argued that a jury could infer from that wo rd t hat t he claim forms

unde rlying t he mail fraud conviction were mailed. The Third Circuit accepted the government’s

argument and found “sends” to be too ge n eric whereas “mail” denoted a “specific mode of

transmission.” Therefore, H art actually supports our determination that the jury understood “mail”

in its common meaning, that is, the United States Postal Service.

Equity Skimming

Fox agai n raises a sufficiency of the evidence claim in appealing his conviction for equity6

skimming (count 14) under 12 U.S.C. § 1709-2.

Fox argues that the government failed to prove an essential element of the violation, namely

that he acted with the specific intent to defraud the sellers of the real estate or the government. Fox

maintains that the evidence shows he only began renting properties when he was unable to sell the

homes in a t imely manner. He was in the business of buying and selling properties prior to their notes

becoming due, but when the housing market collapsed, Fox rented the properties so that he would

be able to continue to try to sell them. Further, Fox says he informed the sellers and renters that he

intended to sell the properties. He also complains that to impose criminal liabilit y on t his evidence

would effectively make equity skimming a strict liability offense.

We have noted that the equity skimming statute mandates criminal penalties for

[w]hoever, with intent to defraud, willf ully engages in a pattern or practice of (1)

purchasing one- to four-family dwellings

. . . which are

. . . in default within one year subsequent to the purchase and the l oan is ... guaranteed by the Veterans’

Administration, or the loan is made by the Veterans’ Administration, (2) failing to

make payments under the mortgage or deed of trust as the paym ent s become due,

regardless o f whet her the purchaser is obligated on the loan, and (3) applying or

authorizing the application of rents from such dwellings for his own use.

United States v. Thorn

, 917 F.2d 170, 173-74 (5th Cir. 1990). Proof of intent to defraud “may arise

by inference from all of the facts and circumstances surrounding a transaction .” United States v.

Aubrey

, 878 F.2d 825, 827 (5th Cir. 1989). There is no dispute as to whether the Veterans’

Administration backed the loan.

Fox is wrong when he says there must be proof he meant to defraud the government. The

statute speaks for itself, and it says nothing about victimizing the government, or sellers of the real

estate for that matter. S ee United States v. Laykin , 886 F.2d 1534, 1538-39 (9th Cir. 1989), cert.

denied , 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

The scheme underlying count 14 is also the basis of counts 2-4 and 9-11. There is no need

to recount the scheme and the incriminating testimony presented in the prior discussion of the mail

fraud convictions. We need only add that it appears a reasonable jury could conclude that Fox never

intended to pay the mortgages on the properties at issue and that Fox defrauded the sellers of those7

properties by failing to inform them that he would only make the mortgage payments if he sold the

properties at a profit. Despite the fact that Fox made mortgage payments on some of the properties,

we find the evidence sufficient to support the jury verdict on the count of equity skimming.

Admitting Evidence of Prior Disciplinary Action

Fox says the district court erred in admitting evidence under Federal Rule of Evidence 404(b)

of the disciplinary action of the Texas Real Estate Commission. Evidence of prio r acts is never

admissible to show character and action in conformity therewith. It is, however, admissible if relevant

to issues such as intent, plan, knowledge, motive, or absence of mistake. The second concern is that

the prejudicial effect of the evidence not outweigh its probativ e value as proscribed by Rule 403.

United States v. Beechum , 582 F.2d 898, 910-11 (5th Cir.) ( e n banc ), cert. denied

, 440 U.S. 920

(1979). Fox contends that the government failed to satisfy either prong. He tries to distinguish the

Commission’s action as a non-judicial, real estate industry dispute over misrepresentations to a seller.

In contrast, the government is charging him with assuming notes and w illfully failing to make

mortgage payments under those notes. The government correctly characterizes these arguments as

distinctions without a difference. The issue of intent to defraud, an element of the equity skimming

offense, was disputed at trial. In that regard, the Commission’s disciplining of Fox for nearly identical

prior conduct is relevant to intent.

Fox also maintains tha t t he dist rict court failed to make specific findings on the record

regarding the relative weights of the prejudice of such evidence and its probative value. He claims

that he requested such on-the-record findings at several stages before and during the trial and that the

district court was required to make such findings. U nited States v. Anderson

, 933 F.2d 1261, 1269

(5th Cir. 1991).

According to the trial transcript, Fox raised the issue of the admissibilit y of the pri or

disciplinary action during the pre-trial conference. At that time the trial court referred to t he

Beechum balancing test but stated that it did not have enough facts to make the necessary findings

at that time. During the trial, Fox objected to the admission of the evidence but did not specifically8

request an on-the-record articulation of the Beechum ’s probative value/prejudice inquiry.

In United States v. Robinson

, 700 F.2d 205 (5th Cir. 1983), cert. denied

, 465 U.S. 1008, 105

S. Ct. 1003, 79 L. Ed. 2d 235 (1984), we held that

in Rule 404(b) cases an on-the-rec ord art iculation by the trial court of B eechum ’s

probative value/prejudice inquiry [is warranted] when req uested by a party . In the

absence of on-the record findings in response to such a request

, we will be obliged to

remand unless the factors upon which the probative value/prejudice evaluation were

made are readily apparent from the record, and there is no substantial uncertainty

about the correctness of the ruling.

Id. at 213 (emphasis added; f ootnote omitted). Fox’s failure to request specifically an on-the-record

articulation of the Beechum factors in considering the admissibilit y of the extrinsic offense evidence

is fatal to his appeal on this point.

Our holding in Robinson has become well established. In United States v. Acosta-Cazares

,

878 F.2d 945 (6th Cir. 1989), the Sixth Circuit applied Robinson to a defendant’s argument that he

should receive a new trial based on the district court’s failure to make findings in the record when it

ruled on a 404(b) motion by the government. Even though the defendant objected to the evidence,

[a] revi ew o f the record . . . discloses that the issue of probative value/prejudicial

effect was not mentioned by defense counsel during the colloquy with the district

judge.

. . . Thus, the defendant failed to request an on-the-record balancing such as might require reversal under Robinson solely due to the court’s failure to make an express finding on this issue.

Id. at 95 0. S ee also

, United States v. Lavelle

, 751 F.2d 1266, 1278 (D.C. Cir.), cert. denied

, 474

U.S. 817, 1 06 S. Ct. 62, 88 L. Ed. 2d 51 (1985); U nited States v. Merkt

, 794 F.2d 950 (5th Cir.

1986), cert. denied

, 480 U.S. 946, 107 S. Ct. 1603, 94 L. Ed. 2d 789 (1987). Still, even if the district

court had erred in not making such findings, there is little uncertainty that the court properly admitted

evidence of the suspension of Fox’s real estate license.

We review a district court’s decision to admit evidence over a Rule 404(b) objection under

a heightened abuse of discretion standard in criminal cases. U nited States v. Bentley-Smith

, 2 F.3d

1368, 1377 (5th Cir. 1993); United States v. Wisenbaker , 14 F.3d 1022, 1028 (5th Cir. 1994).

Evidence pertaining to the suspension of Fox’s real estate license goes directly to the issue of intent

which is at the heart of this case. Fox admitted at trial that the suspension of his license was a sure9

indication that the Texas Real Estate Commission considered his actions wro ng. His suspension

served as a warning, yet it was not long after his reinstatement that Fox began the scheme to defraud

charged in t he indictment. The government wanted to introduce evidence that Fox admitted to

wrongd o ing. The fact that he again set out to defraud property owners and the government is

relevant given his denial of any such intent. Although this evidence does show a common scheme and

prior bad conduct, it also demonstrates that Fox resumed an activity he knew to be fraudulent.

Because the suspension is so relevant to intent, even had the district court er red by not

performing the Beechum balancing test, we would have to affirm its admissibilit y ruling. Hence, no

remand for such findings would be necessary.

AFFIRMED.