Wire Fraud Conviction and 90 Month Sentence Affirmed
Michael Thomas set fire to numerous properties in a mobile home park and then used the mail to collect insurance money. The government charged Thomas with mail fraud under 18 U.S.C. § 1341, which requires proof of a “scheme to defraud.” At trial Thomas argued the fires were not part of a scheme because they were not a chain of continuous and overlapping events, but rather discrete episodes of alleged criminality, so evidence of the fires as “other acts” was improperly admitted. In United States Of America v. Michael Thomas, No. 19-2969, United States Court of Appeals For the Seventh Circuit (January 22, 2021) dealt with the claim that the jury convicted Thomas improperly, and on appeal he argued that all but one of the fires were inadmissible character evidence. Thomas ignored the fact that he was charged with mail fraud, not arson.
The Born’s mobile home park is a one-square-mile residential community of less than one hundred dwellings, located in North Judson, Indiana. The park does not experience many fires—aside from those in this case, only three in the last 26 years. Thomas was connected to eight blazes there.
Thomas confided in his friend Kyle Nissen that Thomas had a family member start the fire. Less than three weeks before, Thomas took out an insurance policy on the home. He also secured a second policy with another company that went into effect September 17, 2004—the day of the fire. When Thomas requested payment, the insurance companies paid him $75,000.
The next fires occurred on four properties during the night of November 14, 2010. Thomas had recently purchased a new mobile home with a garage at 5081 South 275 West. He originally planned to lease the property to tenants. Thomas also could access the mobile home owned by his mother-in-law at 5326 South A Street. In the months leading up to the fires, Thomas pressured his former wife Jennifer to purchase insurance on both properties, but she refused.
According to Nissen, he and Thomas had already been planning to burn the two homes and later that same day Thomas urgently approached him with the news that Jennifer wanted to cancel the policy. Thomas and Nissen each burned two properties. The authorities determined that all four fires were intentionally set. Nevertheless, Thomas collected over $50,000 from the two insurance policies.
For another fire Thomas received four checks totaling $426,227.31 in insurance money. These four checks served as the basis for four counts of mail fraud on which Thomas was indicted in April 2018. A jury convicted Thomas on all counts and he was sentenced to 90 months’ imprisonment.
Thomas was charged with mail fraud under 18 U.S.C. § 1341, which requires “(1) a scheme or artifice to defraud, (2) the use of the mailing system for the purpose of executing the scheme, and (3) the defendant’s participation in the scheme with the intent to defraud.” [United States v. Seidling, 737 F.3d 1155, 1160 (7th Cir. 2013).]
The fires at Thomas’s properties in 2010 and January 2013
The district court ruled that these fires were evidence of the “scheme or artifice to defraud” required by § 1341. Thomas argued these fires were distinct events, separated by several years, and with unique participants. Thomas asserts only the April 2013 fire can be part of the scheme because that is the discrete event to which the four charged mailings relate. He contends evidence of any other fire is impermissibly tainted by a propensity inference.
The government is “entitled to prove the scheme as a whole” and a scheme is not limited to an isolated instance of conduct. The Seventh Circuit concluded that the district court correctly concluded that the fires in November 2010 and January 2013 on Thomas’s properties were part of the scheme to defraud. They were similar occurrences designed to defraud in a similar way and took place over a relatively short period of time. The fires took place within a span of less than three years (with three on the same day), each property was located within the Born’s mobile home park, and each fire involved a property Thomas owned or in which he had an interest. Even more, less than thirty days before each fire Thomas or his wife took out a new insurance policy on the property, experts reported and testified that each of the fires was arson, and shortly after each fire Thomas requested and received money from the insurance company. Given the overwhelming similarity of these events and their proximity in time, the Seventh Circuit found that the district court did not abuse its discretion in determining that these fires were part of the same scheme.
Because the fires in 2010 and January 2013 on Thomas’s properties were direct evidence of Thomas’s mail fraud scheme. As part of the charged scheme, evidence of these fires was highly probative of proving the crime charged, which was not substantially outweighed by the risk of unfair prejudice to Thomas.
Distinctiveness is key to whether something is proper modus operandi evidence. Events that share singular methods, locations, participants, and scope. The paradigmatic example is the robber who holds up banks in the same geographic area, in a specific manner, wearing the same type of mask or clothing. Because those events are more distinct, they are more probative and less likely to provoke a propensity inference.
As the district court aptly described, the prejudice to Thomas from evidence of the 2004 fire stems from its inclusion with the other fires. On its own, the fire is not particularly prejudicial. The evidence of Thomas’s guilt was overwhelming. The 2010 and 2013 fires were all properly admitted as part of Thomas’s scheme. The testimony of Jennifer Thomas, Nissen, a fire marshal, and insurance experts about these fires was more than enough for a reasonable jury to convict Thomas of mail fraud.
Arson is a violent and dangerous crime. When it is done just to collect money from an insurance company it adds danger to the fraudulent act. I am concerned that it took the insurance industry and the local police agencies that allowed Thomas to successfully defraud a group of insurers multiple times before his greed got to him and he was finally prosecuted. Those of us involved in the investigation of insurance fraud must do better.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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