author: WISEMAN, Chief Judge.

text:
    UNITED STATES of America v. Raymond Gary HAYNES.
    No. 3-84-00209.
    United States District Court, M.D. Tennessee, Nashville Division.
    Oct. 22, 1985.

      William Warren, Asst. U.S. Atty., Nashville, Tenn., for the U.S.
    Aubrey Harwell, Nashville, Tenn., for Haynes.
   MEMORANDUM

WISEMAN, Chief Judge.

Before the Court is a motion by defendant to dismiss the superseding indictment against him. The indictment in this case arises from an alleged scheme to defraud farmers who had guaranteed the repayment of funds borrowed by the Blanton Smith Corporation from the Springfield (Tennessee) Production Credit Association [“PCA”]. Defendant was the president of the Springfield PCA at the time the farmers guaranteed the loans. The indictment alleged three counts of mail fraud (18 U.S.C. § 1341), one count of conspiracy to commit mail fraud (18 U.S.C. § 371), and one count of criminal conflict of interest (18 U.S.C. § 208(a) ). Defendant has moved to dismiss the indictment on four grounds. For the reasons stated below, the Court denies defendant’s motion to dismiss Counts One, Two, Three, and Four, and grants defendant’s motion to dismiss Count Five.

A. Criminal Conflict of Interest

The Court first shall address defendant’s challenges to Count Five of the indictment. Defendant contends that Count Five, alleging a violation of 18 U.S.C. § 208, should be dismissed because the statute does not apply to employees of production credit associations. Generally, this statute imposes penalties on certain classes of government employees if they participate in a government decision in which they have a present or prospective financial interest. See Exchange National Bank of Chicago v. Abramson, 295 F.Supp. 87 (D.C.Minn.1969). The statute applies to officers and employees of the executive branch, of any independent agency of the United States, or of the District of Columbia, and directors, officers and employees of the Federal Reserve Bank. Defendant argues that 18 U.S.C. § 208(a) is inapplicable because a production credit association is not an “independent agency” of the United States.

Production credit associations are federally chartered instrumentalities under the Farm Credit Act of 1933, as amended, 12 U.S.C. §§ 2001 — 2259. 12 U.S.C. § 2091. They fall under the broad umbrella of the Farm Credit System. Although the parties dispute the issue of whether or not production credit associations are independent agencies of the United States, they have failed to detail the government’s involvement, or lack thereof, in the creation and operation of production credit associations.

Few courts have considered the government’s involvement in the operation of production credit associations. Those that have considered the issue as it relates to various statutes have reached conflicting results. The government cites Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979), for the proposition that the federal government:" has “pervasive involvement ... in the creation and operation of production credit associations.” The court in Matter of Sparkman, 703 F.2d 1097, 1101 (9th Cir.1983), relied on this language in stating that “production credit associations are more than private institutions with a federal charter” and held that production credit associations are “federal instrumentalities” which enjoy immunity from punitive damages. As recognized by the dissent in Sparkman, however, the circuit court in Schlake merely refers to the lower court’s “extensive” unreported findings regarding the government’s “pervasive” involvement with production credit associations rather than detailing that involvement itself. Sparkman, 703 F.2d at 1102 n. 1 (Frye, J., dissenting). The dissent also noted that production credit associations are “privately organized, privately owned, and privately operated corporation^], albeit federally chartered.” Id. at 1101. See also Birbeck v. Southern New England Production Credit Association, 606 F.Supp. 1030, 1041 (D.Conn.1985) (except in those areas where Congress specifically has legislated and regulated, “institutions within the Farm Credit System were meant to be treated as local privately-owned entities, citizens of the states in which their principal offices were located, and subject to state law”); Bowling v. Block, 602 F.Supp. 667 (S.D. Ohio 1985) (without addressing the issue, the court characterized production credit association as nonfederal defendant).

Defendant attempts to distinguish independent federal agencies from federally chartered instrumentalities by drawing an analogy between national banks in the Federal Reserve System and production credit associations in the Farm Credit System. While the Court has found no case adopting this reasoning, the Court finds this comparison well-founded and incorporates it as part of its holding. The organization of the Federal Reserve System is similar to that of the Farm Credit System and, like production credit associations, national banks are federally chartered instru-mentalities. First National Bank of Boston v. Belloti, 435 U.S. 765, 779 n. 14, 98 S.Ct. 1407, 1416-17 n. 14, 55 L.Ed.2d 707, 719 n. 14 (1978). National banks are not independent agencies of the United States for purposes of 18 U.S.C. § 208(a). Under this analysis, analogizing to the Federal Reserve System, neither are production credit associations. Therefore, after reviewing the Farm Credit Act of 1971, its legislative history and its subsequent amendments, the Court concludes that a production credit association, much like a national bank, is not an “independent agency” of the United States for purposes of the federal conflicts of interest statute, 18 U.S.C. § 208. Accordingly, Count Five of the indictment is dismissed for failure to state an offense.

B. Mail Fraud

1. Allegation of Fraudulent Scheme

Defendant also contends that Counts One, Two and Three of the indictment, which allege violations of the mail fraud statute, 18 U.S.C. § 1341, must be dismissed. A violation of the mail fraud statute may be established only if the government can prove: (1) a scheme to defraud; and (2) the use of the mails to execute that scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed.2d 435 (1954). See, e.g., United States v. Goodpaster, 769 F.2d 374, 377 (6th Cir.1985) and cases cited therein. Defendant asserts that the confidentiality provisions of the Privacy Act of 1974, 5 U.S.C. § 552a, and federal banking regulations, on which he relied in good faith, imposed on him a legal obligation not to disclose the information pertaining to the financial dealings of the Blanton Smith Corporation which was alleged in the indictment as having been unlawfully withheld from the farmers. Defendant also argues that his failure to disclose an alleged conflict of interest is insufficient to constitute the necessary intent to defraud for purposes of the mail fraud statute. Accordingly, defendant argues no fraudulent scheme exists.

Defendant’s reference to the Privacy Act first must be addressed. The purpose of the Privacy Act is to protect against an invasion of personal privacy by restricting the disclosure by Federal agencies of personal information of individuals without their consent to a limited number of routine uses. See Local 247, American Federation of Government Employees v. Defense General Supply Center, 423 F.Supp. 481 (E.D.Va.1976), aff'd 573 F.2d 134 (4th Cir.1978); see generally Pub.L. 93-579, § 2 (1974). Defendant’s claimed reliance on the Privacy Act is misplaced for two reasons. First, the Blanton Smith Corporation is not an “individual” for purposes of the Privacy Act. See 5 U.S.C. § 552a(a)(2) (definition of “individual”) institutions are not government controlled corporations for purposes of the Privacy Act and the Freedom of Information Act. See note 13 supra. This Court considered the amount of governmental control over production credit associations in an earlier part of this opinion dealing with the federal conflicts of interest statute, 18 U.S.C. § 208, and drew an analogy between production credit association and national banks. The same reasoning applies for the Privacy Act. Therefore, the Court holds that a production credit association is not an “agency” bounded by the constraints of the Privacy Act, 5 U.S.C. § 552a.

Defendant’s claimed reliance on the federal regulations governing operation of the Farm Credit Administration and its affiliated associates as justifying his nondisclosure of information regarding the activities of the Blanton Smith Corporation also is misplaced. Citing Parr v. United States, 363 U.S. 370, 391, 80 S.Ct. 1171, 1183-84, 4 L.Ed.2d 1277, 1291 (1960), defendant argues that an act required to be performed under the “imperative command of duty” imposed by law cannot form the basis for a mail fraud prosecution. In Parr, defendants were nine individuals and two state banking corporations who, through their control of a Texas school board, misappropriated funds of the school district and used the mails in connection with the collection of school taxes. The Supreme Court overturned their mail fraud convictions because the mailings for tax collection purposes were required to be made by state law. The Court stated that even if some of those who are legally required to do the mailing plan to steal some of the moneys when or after received, the scheme to defraud required for a mail fraud conviction is not present. Id. Thus, defendant’s characterization of Parr’s holding is overbroad and misleading. Parr requires that the mailings themselves be required by law. Nothing in the record at this point indicates that the mailings which are the subject of Counts One, Two and Three of the indictment were required by law, leaving a question of fact for the jury.

Defendant’s next objection involves a question of fact. Defendant argues that his good faith, evidenced by his compliance with federal banking regulations, negates any alleged fraudulent intent as a matter of law and thus the first three counts must be dismissed. A defendant’s good faith, however, requires only that a trial court give an instruction on good faith to the jury if there is any evidentiary support for this legal defense to mail fraud. The issue of intent necessarily relies on a factual determination for resolution by the jury. It is inappropriate for consideration on a motion to dismiss.

Defendant also vigorously contests the government’s contention that defendant had a confidential or fiduciary relationship with the farmers on the ground that this theory appears for the first time in the government’s memorandum rather than the indictment. It is well-established that an indictment is sufficient if it fairly informs the accused of the charges against him so as to enable him to prepare his defense and if it adequately enables the defendant to be protected against further prosecution for the same offense. See, e.g., Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038 1047, 8 L.Ed.2d 240, 250-51 (1962); Payne v. Janasz, 711 F.2d 1305, 1312 (6th Cir.), cert. denied, 464 U.S. 1019, 104 S.Ct. 552, 78 L.Ed.2d 726 (1983); United States v. Seelig, 622 F.2d 207, 211 (6th Cir.1980), cert. denied, 449 U.S. 869, 101 S.Ct. 206, 66 L.Ed.2d 89 (1981); see also Fed.R.Crim.Proc. Rule 7(c). Because the indictment fails to allege that the defendant violated a special duty of disclosure based on a fiduciary or confidential relationship, the government may not use this theory at trial to prove the “scheme to defraud” element of mail fraud. The indictment does, however, allege fraud, fraudulent inducement and fraudulent pretenses in obtaining the guarantees and the inherent tangible rights. Accordingly, at trial the government may prove any acts or omissions which constitute common law fraud. It is a well-established principle of mail fraud that false or fraudulent representations may consist of half truths, inaction, or concealment of material facts. See, e.g., United States v. Stanford, 589 F.2d 285, 295-96 (7th Cir.1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); United States v. Bessesen, 433 F.2d 861, 864 (8th Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971); see generally 2 F. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 47.04 (3d ed. 1977). This issue is a factual matter which must await proof. • The government is not required by the Constitution or the Federal Rules of Criminal Procedure to put a defendant on notice in the indictment as to every means by which the prosecution hopes to prove the accused committed the crime. See United States v. Haldeman, 559 F.2d 31, 124 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The defendant may, however, raise these matters by motion at the close of the government’s proof.

For the reasons stated in this subsection, defendant’s motion to dismiss Counts One, Two, and Three of the indictment is denied.

2. Allegation of Mailings “In Furtherance Of” Fraudulent Scheme.

Defendant next contends that Counts Two and Three of the indictment, which allege violations of the mail fraud statute based on separate mailings to two farmer couples, must be dismissed. Defendant argues that the second element of a violation of the mail fraud statute, which is that the mailings were made for the purpose of executing the fraudulent scheme, see, e.g., Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed.2d 435, 444 (1954); United States v. Bibby, 752 F.2d 1116, 1125 (6th Cir.1985) (appeal pending); United States v. Strong, 702 F.2d 97, 100 (6th Cir.1983), cannot be proven.

The completion of the alleged fraud, defendant argues, occurred upon the disbursement of the funds which had been borrowed as a result of the increase in the farmers’ guarantees. The defendant states that the disbursement occurred at least several months prior to the mailings. He characterizes the two letters which are the focus of Counts Two and Three as nothing more than collection letters which were intended to “adjust accounts” between the victims of the alleged scheme. Citing the Sixth Circuit’s opinion in United States v. Maze, 468 F.2d 529, 532-33 (1972), aff'd, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), defendant contends that a mailing made after the proceeds of a scheme have been received may support a conviction for mail fraud only if the mailing was used to “lull” the victim into a false sense of security in order to forestall discovery of the scheme or to delay detection of the scheme until the defendant has had the opportunity to evade capture or steal additional funds.

While it is not necessary for the mailings to be an essential part of the contemplated scheme, the use of the mails must be caused by the defendant in furtherance of the fraudulent scheme in order to satisfy the requirements of mail fraud. Maze, 414 U.S. at 400, 94 S.Ct. at 648, 38 L.Ed.2d at 608; Strong, 702 F.2d at 100. A use of the mails which is not a “step toward receipt of the fruits of the scheme” is not a violation of the mail fraud statute. United States v. Talbott, 590 F.2d 192, 195 (6th Cir.1978) (quoting United States v. Staszcuk, 502 F.2d 875, 880 (7th Cir.1974), modified, 517 F.2d 53, cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975)). Therefore, the mail fraud statute has not been violated if the fraudulent scheme has been consummated by the time the mailing occurs, and the mailing plays no role or only a minimal role in the execution of the scheme. See, e.g., Parr, 363 U.S. at 392-93, 80 S.Ct. at 1184, 4 L.Ed.2d at 1291-92; United States v. Maze, 468 F.2d 529, 532 (1972), aff'd, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).

This Court, must determine whether the mailings are sufficiently related to the scheme to defraud that a conviction under the mail fraud statute could be sustained. United States v. Robinson, 651 F.2d 1188, 1196 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981). The Court concludes that this issue necessarily relies on a factual determination for resolution by the jury. The jury may find that the defendant breached a continuing duty to inform the farmers of the activities of the Blanton Smith Corporation, the negligence of the Springfield PCA, and his own conflict of interest. The jury may also find that the scheme’s completion was dependent in some way on these “collection letters.” See United States v. Kent, 608 F.2d 542, 546 (5th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980). Accordingly, the Court finds that Counts Two and Three of the indictment sufficiently state a violation of 18 U.S.C. § 1341, and denies defendant’s motion to dismiss these counts.

C. Allegation of Conspiracy

Defendant also contends that Count Four of the indictment, which charges defendant with conspiracy under 18 U.S.C. § 371, must be dismissed because he relied in good faith upon federal regulations and therefore lacked the requisite intent for the substantive offense of mail fraud. This issue, also, must be resolved by the jury. As stated earlier, the Court is required only to give a jury instruction on good faith if there is any evidence to support this legal defense to mail fraud. This issue is inappropriate for consideration on a motion to dismiss. Therefore, defendant’s motion to dismiss Count Four of the indictment is denied.

      . As grounds for this motion, Haynes argues that each count in the indictment fails to state an offense as required by Rule 7(c) of the Federal Rules of Criminal Procedure. On December 19, 1984, defendant Haynes was indicted on charges of mail fraud, conspiracy to commit mail fraud, and criminal conflict of interest. Haynes plead not guilty to the charges. On April 17, 1985, the government filed a superseding indictment against Haynes, charging the same offenses but altering some language in the fifth count. For the purposes of this memorandum, the superseding indictment shall be referred to as the indictment.

      .These three counts charge that defendant devised a scheme to raise money to keep the Blanton Smith Corporation in operation and to repay PCA for the money loaned in excess of the authorized limits. The indictment describes the general elements of the scheme as follows:
      On or about January 1, 1980, Gary Haynes devised a scheme to raise money to keep the Blanton Smith Corporation in operation and to repay PCA for the money loaned in excess of authorization. He planned to do this by inducing the individual affiliated farmers to increase the guarantee on their "bird notes” from $2.00 to $2.50 per hen. It was part of the scheme not to inform the farmers of the illegal acts of the Blanton Smith Corporation, of the precarious financial situation of the Blanton Smith Corporation and the reasons for it, of the negligence on the part of PCA in failing to demand copies of the checks used to pay off invoices and to note that the invoices reflected sales of eggs beyond the company’s production capacity, and finally, he planned to conceal his own interest in keeping the Blanton Smith Corporation in business and thereby preserving his lease arrangement for the hatchery in Pleasant View of the Blanton Smith Corporation.
      Count One alleges that defendant placed a letter in the mail addressed to the Federal Intermediate Credit Bank of Louisville ["FICB"] which provided answers to questions posed by the FICB as a precondition for approval of the loans to the Blanton Smith Corporation. Count Two charges that Haynes caused a letter from the Springfield PCA signed by another person to be placed in the mail addressed to two of the victimized farmers, "reaffirming" their liability on the note they had guaranteed. Count Three alleges that Haynes caused a letter from the legal representative of the Springfield PCA to be placed in the mail addressed to two of the farmers, demanding payment on the note they had guaranteed.

      . Count Four alleges that Haynes engaged in a conspiracy to commit mail fraud with Blanton Smith, Jr. and other persons.

      . Count Five alleges that Haynes, as an officer of the Springfield PCA, approved an application for a loan to the Blanton Smith Corporation in a matter in which defendant Haynes and his father had a financial interest, in violation of the criminal conflict of interest statute, 18 U.S.C. § 208(a).

      . This statute was amended in 1977 to extend the conflicts of interest prohibition to Federal Reserve Bank directors, officers, and employees. Pub.L. 95-188, § 205(a) (1977).

      . The objective of the farmer-owned cooperative Farm Credit System is to satisfy the specialized credit needs of American farmers and ranchers while encouraging them to participate through management, ownership, and control of the system. 12 U.S.C. § 2001(a); Daley v. Farm Credit Administration, 454 F.Supp. 953, 954 (D.Minn.1978). The Farm Credit System includes such institutions as the federal land banks, the federal land bank associations, the federal intermediate credit banks, production credit associations, and banks for cooperatives. Each of the institutions of the Farm Credit System is chartered as an instrumentality of the United States by the Farm Credit Administration, an independent agency of the federal executive branch, and is subject to the supervision and regulation of the Farm Credit Administration. 12 C.F.R. § 611.400.
      In the Farm Credit System the nation is divided into twelve districts, each of which has a federal land bank, a Federal Intermediate Credit Bank, and a bank for cooperatives. 12 C.F.R. § 600.10. Each district is served by a number of production credit associations, which are federally chartered instrumentalities. 12 U.S.C. § 2091; 12 C.F.R. § 600.10. Production credit associations generally may finance on a short-term and intermediate-term basis farmers and ranchers, 12 C.F.R. § 600.50, and are managed by shareholder/borrowers.

      . Like the Farm Credit System, the Federal Reserve System includes the Federal Reserve Bank, a federal agency, and national banks, which are heavily regulated commercial enterprises. See generally 12 U.S.C. §§ 221-228. One Federal Reserve Bank is located in each of the twelve Federal Reserve Districts. 12 U.S.C. § 222-223. All national banks are members of the Federal Reserve System. 12 U.S.C. § 221.

      . Defendant points out that the fact that the federal conflicts of interest statute, 18 U.S.C. § 208, was extended in 1977 to cover employees of the Federal Reserve Bank, which the statute had not covered previously, see 1977 U.S. Code Cong. & Admin. News 3636, 3642, indicates that the statute does not apply to officers and employees of production credit associations.

      . An implicit element of a fraudulent scheme which the government must prove is a specific intent to defraud. See, e.g., United States v. Goodpaster, 769 F.2d at 377; United States v. Bohonus, 628 F.2d 1167, 1172 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980).

      . Defendant relies on regulations governing operation of the Farm Credit Administration and its affiliated associates, such as the production credit associations, see note 6 supra. Specifically, defendant relies on regulations which preclude the disclosure of confidential information. 12 C.F.R. §§ 618.8300, 8320.

      . The indictment also charges that, while defendant fully apprised the Federal Intermediate Credit Bank of Louisville ("FICB”) of the financial condition of the Blanton Smith Corporation and the criminal acts of its employees when he applied to FICB for approval of the loan, he did not inform FICB that the farmers/guarantors had not been informed of the same facts. The indictment alleges that FICB would not have approved the loan to the Blanton Smith Corporation had the FICB known that the farmers did not have all the facts upon which to base a decision to increase their guarantees.

      . The scheme to defraud element has been defined by the Sixth Circuit according to a nontechnical standard, which requires the consideration of such factors as moral uprightness, fundamental honesty, fair play and right dealing in the life of the community. See, e.g., United States v. Stull, 743 F.2d 439, 446 (6th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); United States v. Van Dyke, 605 F.2d 220, 225 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979).

      .5 U.S.C. § 552a(b) provides:
      No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be — [emuneration of eleven permitted disclosures].
      By its own terms, the Privacy Act applies only to federal agencies and only protects individuals. The Privacy Act adopts the definition of “agency” as found in the Freedom of Information Act [“FOIA"], which includes "Government controlled corporation^].” 5 U.S.C. § 552(a). See 5 U.S.C. § 552a(a)(11. Courts have helped to define the parameters of the definition’s scope. See, e.g., Windsor v. The Tennessean, 719 F.2d 155, 160 (6th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984) ("agency” does not encompass individual government officials such as United States attorneys for purposes of the Privacy Act); Public Citizens Health Research Group v. Dept. of HEW, 668 F.2d 537 (D.D.C.1979) (reversing lower court decision at 447 F.Supp. 595, which defendant cites as rev'd. on other grounds on this issue); United States v. Miller, 643 F.2d 713, 715 n. 1 (10th Cir.1981) (national bank is not an agency for purposes of Privacy Act); Recap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976) (holding that it is clear that “the [Federal Home Loan Mortgage] Corporation is subject to such substantial control over its day-to-day operations that the dividing line for FOIA purposes must be drawn between national banks and federally-insured savings and loan associations, not covered by FOIA, and entities like the Corporation which ... were intended to be included within the 1974 expansion [of FOIA’s definition of “agency”]). For a thoughtful exposition of the legislative history of this term, see Ehm v. National Railroad Passenger Corporation, 732 F.2d 1250, 1252-55 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 387, 83 L.Ed.2d 322 (1984) (Amtrak found not to be a government controlled agency for purposes of the Privacy Act). This Court must determine whether a production credit association is an "agency” and whether the Blanton Smith Corporation is an “individual” for purposes of the Privacy Act.

      . See note 9 supra.

      . Defendant cites three cases for the proposition that good faith operates as a complete defense to mail fraud: United States v. Hopkins, 744 F.2d 716, 717 (10th Cir.1984); United States v. Fowler, 735 F.2d 823, 828 (5th Cir.1984); and United States v. Sherer, 653 F.2d 334, 337 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981). These cases, however, provide no support for a dismissal of the first three counts of the indictment. Moreover, the government charges that defendant violated the provisions of 12 C.F.R. § 612.2135, which require high standards of honesty and integrity and avoidance of conflicts of interest from officers, directors and employees of Farm Credit institutions.

      . See note 15 supra.

      . The government argues that, under Tennessee common law, the defendant had a legal obligation to disclose to the farmers all information which would have been material to their decision regarding the guarantees. The government bases this proposition on case law which holds that a confidential relationship is one in which a dominant party has the ability to exercise dominion over the dominated party and knows of the trust placed in him. See Edwards v. Travelers Insurance, 563 F.2d 105, 115 (6th Cir.1977) (citing Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn.App.), cert, denied (1973)). The government argues that one who fails to disclose material information before the consummation of a transaction when he is under a duty to do so commits fraud. See Chiarella v. United States, 445 U.S. 222, 227-30, 100 S.Ct. 1108, 1114-15, 63 L.Ed.2d 348, 356-58 (1979) (recognizing this common law rule with respect to the relationship between corporate insiders and stockholders); Edwards, 563 F.2d at 114-15. The government also cites Central States Stamping Co. v. Terminal Equipment Co., 727 F.2d 1405, 1408-09 (6th Cir.1984) (court found that once bank officer undertook to provide information to purchaser regarding financial stability of bank customer, duty to disclose instability of bank customer existed; in addition, duty to disclose arises under Ohio law when one party imposes confidence in the other because of that person’s position, and the other party knows of the confidence placed in him) for this proposition.

      .The government prudently refrained from attempting to apply federal common law to the fiduciary responsibilities of production credit association officers, see Boyster v. Roden, 628 F.2d 1121 (8th Cir.1980), but failed to charge in the indictment that state fiduciary law applied to them. See, e.g., id.; see also Bowling v. Block, 602 F.Supp. 667 (S.D.Ohio 1985) (opinion announced after the indictment in this case was handed down).

      . See note 2 supra for a description of these mailings.

      . In Maze, the defendant was convicted of mail fraud for allegedly devising a scheme to defraud an individual, a bank, and several merchants by unlawfully using the individual’s bank credit card to obtain goods and services. The defendant contended that the sales invoices mailed by the bank and merchants in an attempt to collect the money improperly paid to the defendant were merely incidental to the scheme. The government claimed the mailings were made in "furtherance of” the alleged scheme. The Sixth Circuit Court of Appeals reversed the conviction, holding that the transactions were completed at the time defendant obtained the goods and services, and that it was immaterial to the defendant how or whether the merchants collected the money. 468 F.2d 529 (1972). The Supreme Court affirmed the Sixth Circuit’s reversal of the conviction, holding that the mail fraud statute was not violated because the scheme was completed at the time defendant received the goods and services and the mails were used for the purpose of adjusting the accounts between the merchants, bank, and card holder, rather than for the purpose of executing the defendant’s scheme. Thus, the mailings were not sufficiently closely related to the scheme to bring the defendant's conduct within the statute. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).

      . See note 15 and accompanying text.


source: Caselaw Access Project

author: GENE CARTER, District Judge.

license: Public Domain

text:
    A. Douglas THOMPSON, Plaintiff, v. The CITY OF PORTLAND, Richard Olson, Franklin Noiles and Stephen Robinson, Defendants.
    Civ. No. 83-0028-P.
    United States District Court, D. Maine.
    Oct. 22, 1985.

      Robert Avaunt, Zuckerman & Avaunt, Gray, Me., for plaintiff.

      William J. Kayatta, Jr., Pierce Atwood, Portland, Me., for defendants Noiles, Olson & Robinson.
    Charles A. Lane, Portland, Me., for City of Portland.
   OPINION AND ORDER

GENE CARTER, District Judge.

Findings of Fact

On December 3, 1980, Plaintiff, a brittle, Type 1, blind diabetic, traveled on a Greyhound Bus from Machias, Maine to Portland, Maine. He wore a Medic-Alert necklace identifying himself as a blind diabetic who had recently received a kidney transplant. Protruding from his traveling bag was a collapsible white cane and in his shirt pocket was a bottle of reactose, a drug for treating insulin shock. Plaintiff wore two glass eyes which concealed, at least to passing view, that he is sightless. Although the bus driver operating the bus from Machias to Bangor knew of Plaintiffs impairments, the replacement driver who boarded at Bangor did not. Sometime en route from Bangor to Portland, Plaintiff experienced an insulin shock reaction which was ongoing at the time the bus arrived in Portland. Because of the insulin shock, Plaintiff remembers nothing of what occurred until he awakened in a police cruiser on the way to the Cumberland County Jail.

At about 3:00 a.m. on December 31, after arriving at the bus depot in Portland, the bus driver realized that one person who was supposed to disembark there was unaccounted for. He asked Plaintiff if he wished to get off in Portland and Plaintiff responded “yes.” When Plaintiff failed to move, the bus driver asked him again, five or six times, if he wanted to get off in Portland, and each time Plaintiff said that he did. He did not move, however. Finally, the bus driver warned Plaintiff that he would ask only one more time, at the rest stop at a Dunkin’ Donuts, and if Plaintiff again failed to get off, he would call the police. Plaintiff again said he wanted to get off in Portland. A few minutes later the scene was repeated at Dunkin’ Donuts and the bus driver called the police.

Three police officers responded to the call, defendant officers Franklin Noiles and Steven Robinson, and their supervisor, Defendant Richard Olson. Arriving slightly before the other two, Officer Robinson boarded the bus and found Plaintiff slumped in his seat, looking asleep. When Officer Robinson spoke to him and tried to rouse him, Plaintiff murmured incoherently and was generally unresponsive. Although there had been no mention of alcohol by the bus driver or any of the other passengers, nor any bottles or alcoholic odor present, Officer Robinson assumed that Plaintiff was drunk. When Officer Noiles and Sergeant Olson arrived, Officer Robinson told them that there was a passenger on the bus who refused to leave. After assessing the situation, Sergeant Olson identified himself as a police officer and told Plaintiff that he would have to get off the bus. Plaintiff, whose eyes were open at that time, replied, “I will, I will,” but did not move. Sergeant Olson repeated himself and again Plaintiff responded, “I will, I will,” without moving. Sergeant Olson also thought that Plaintiff was drunk or perhaps suffering from a drug reaction. Sergeant Olson began to shake Plaintiff, telling him that he would have to get off the bus. Having been previously motionless, at this point Plaintiff began to flail his arms. Sergeant Olson and Officer Noiles then restrained Plaintiff’s arms and moved him to the aisle on his knees, where they handcuffed him. At this time, Plaintiff was under arrest. Olson again told Plaintiff that he was a police officer and that Plaintiff should leave the bus, and Plaintiff once again replied, “I will.”

Following what Officer Robinson described as standard procedure when dealing with an intoxicated individual, the officers tried to stand Plaintiff up. Officer Robinson explained that intoxicated people often will revive when placed upright on their feet. Plaintiff did not revive, however, and collapsed in the aisle of the bus. Sergeant Olson asked Plaintiff why he did not leave the bus, to which Plaintiff again responded, “I will, I will,” but did not move. The officers then removed Plaintiff from the bus and placed him in the back floor well of Officer Robinson’s cruiser for transport to the county jail. No one was in the back of the cruiser with him.

Plaintiff awakened to find himself face down on the floor of a car. Officer Robinson told him that the car was a police cruiser, and Plaintiff asked why he was there. Officer Robinson, the driver of the vehicle, told him that he had refused to leave the bus. Plaintiff then explained to Officer Robinson that he was a diabetic coming out of an insulin reaction. Robinson, however, dismissed the remark, telling Plaintiff that diabetics do not come out of insulin reactions, and the police car proceeded to the county jail.

At the jail Plaintiff was offered assistance in leaving the cruiser in what he termed a “baiting” tone. He declined the assistance, wishing to protect himself from cuts and bruises to which diabetics and transplant recipients taking immunosup-pressants are particularly vulnerable. With difficulty, he extricated himself from the well of the cruiser. The officers then began to walk him into the jail. Approximately fifteen paces from the car, one of the officers grabbed the Medic-Alert tag which had fallen from beneath Plaintiff’s shirt, saying, “Hey, he really is a blind diabetic.”

Plaintiff asked a jail officer if he would be charged and was told that the officer did not know. Although no charges were filed, the Court finds, based on Plaintiff's testimony, that he was put into a locked jail cell where he heard other inmates and worried for his safety.

At the jail, it was discovered that Plaintiff did not have all his luggage. Officer Noiles went to retrieve the missing pieces which contained Plaintiff’s medication. Plaintiff was subsequently taken to the airport to catch the flight to Chicago, on which he was a scheduled passenger.

Discussion

Plaintiff seeks compensatory damages under Maine law for false arrest, false imprisonment and excessive use of force by the officers. Plaintiff also seeks both compensatory and punitive damages under 42 U.S.C. § 1983 for violation of his civil rights. The Court finds that Plaintiff did suffer false imprisonment at the hands of the Defendant police officers and a violation of his civil rights by Officer Robinson and that he is entitled to recover damages for his injuries.

State Law Claims

Under Maine law, false imprisonment “involves the unlawful detention or restraint of an individual against his will.” Nadeau v. State, 395 A.2d 107, 116 (Me. 1978). A warrantless arrest, such as that made on Plaintiff, is lawful if a police officer’s senses afford personal knowledge of facts sufficient to warrant a prudent and cautious officer in believing that a Class D or E offense has been or is being committed in his presence by the person arrested. 17-A M.R.S.A. § 15(1)(B) and (2).

Initially, when the officers boarded the bus, informed Plaintiff who they were and asked him to leave, his verbal response and subsequent failure to leave provided probable cause for prudent and cautious officers to believe that Plaintiff was committing a criminal trespass in their presence. See 17-A M.R.S.A. § 402 (1983). Therefore, the Court finds that the initial arrest of Plaintiff was proper, and Defendants are not liable on Plaintiffs claim of false arrest set forth in Count IX.

Plaintiff at trial also appeared to concede that the officers acted reasonably and prudently in handcuffing him since he resisted with flailing arms when they tried to rouse him. The Court agrees that the handcuffing of Plaintiff, whom Sergeant Olson had decided to arrest, although unfortunate, was acceptable police practice, for it ensured the safety of the officers and the other passengers in a situation which, at that point, contained unknown perils. Similarly, the evidence concerning removal of Plaintiff from the bus shows that the officers acted appropriately given the fact that Plaintiff could not walk. No claim of excessive force has been proven on these facts.

After Plaintiff had been restrained, however, and taken from the dark confines of the bus, there was ample opportunity for the police to calmly reassess the situation confronting them. It is .clear from the record that the officers all assumed, on first encountering Plaintiff on the bus, that Plaintiff was inebriated or possibly under the influence of some sort of drug. In the face of a number of discordant facts, the officers never challenged or reassessed that assumption even though the fear for their safety and that of others was over, and there was time for reflection before transporting Plaintiff to the police station. Police work is not formulaic and requires constant reassessment of ongoing situations. Prudent and cautious police officers should not suspend their thought processes merely because it is easier to treat a situation as a familiar one. The public’s servants may not, on assumption alone, treat the traveling citizen as a common drunk.

In this case, from the time he was first approached by the officers, Plaintiff continued to express verbally his willingness to leave the bus. He sat quietly with his hands at his sides and responded when Sergeant Olson initially spoke to him. There were no liquor bottles or cans or evidence of drugs on the bus. There was no odor of alcohol surrounding Plaintiff. The bus driver did not say that Plaintiff had been unruly — merely that he had said that he wanted to get off in Portland but did not get off. In fact, at all times Plaintiff expressed cooperation. He simply did not move. His only movements were the resistive flailings of his arms, which were prompted by Sergeant Olson’s vigorous shaking. These movements, however, were not directed at the officers or threatening in any manner. When the officers tried to stand the handcuffed Plaintiff up, which Officer Robinson testified is standard procedure in dealing with inebriates, Plaintiff did not respond, as intoxicated individuals often do, by snapping out of his stupor. Instead, Plaintiff’s knees buckled, and he collapsed.

These indicia that Plaintiff might not be drunk were sufficient to require prudent and cautious police officers, once Plaintiff was off the bus, to examine, at least cursorily, other possible explanations for his condition and conduct. They might have inquired of the bus driver or the other passengers concerning Plaintiff’s behavior on the bus. They might have looked around Plaintiff’s seat to check for items that might either confirm or dispute the initial hypothesis. If they had done so, they would not have found any bottles or cans that had contained alcohol. They would, however, have found Plaintiff’s traveling bag, from which his white cane protruded. Further investigation, such as a pat-down, might have revealed Plaintiff’s Medic-Alert necklace or bottle of reactose. The Court does not suggest that the officers should have conducted a protracted investigation; even a cursory inquiry would have made the initial assumption seem less valid and perhaps prompted a thorough examination by a streetwise officer. Instead, upon removing Plaintiff from the bus, the officers immediately placed him in Officer Robinson’s cruiser for transport to the county jail.

The officers did not challenge their mistaken assumptions about Plaintiff even after he recovered in the back of the cruiser and informed Officer Robinson that he was a diabetic who had been in an insulin shock. Officer Robinson merely dismissed Plaintiff’s remark, stating that diabetics do not come out of insulin shocks. Officer Robinson made no further effort to verify what Plaintiff had said. The record does not reflect that Officer Robinson relayed the information that he had received from Plaintiff to any of the other officers. If it was so relayed, none of the officers acted on it. No one asked Plaintiff about his condition when he arrived at the jail and, still handcuffed, he extricated himself, out of fear of further injury, from the well of the cruiser where he had been placed. If the officers had asked a few simple questions, the situation might have been clarified so that the officers could have offered valuable assistance to Plaintiff in a situation that was potentially very dangerous to his health. There was not, at the jail, any exigency that would have prevented them from doing so. Instead, not wanting to risk further injury to his wrists or to his vulnerable shins, Plaintiff declined what he described as an unsolicitous offer of assistance in getting out of the cruiser.

The Court does not with this decision prescribe a rule such as that sought by the Plaintiff, that officers be required in all instances to search for a Medic-Alert necklace immediately upon finding a semiconscious individual. Although such a rule would have positive effects for Plaintiff and others like him, the Court is persuaded by the police officers’ testimony that such a practice might well be dangerous for the officers in many situations. It is clear to the Court, however, that the warrantless arrest statute mandating prudence and caution requires police officers to utilize all available information in deciding whether a crime is being or has been committed. If questions are raised by certain pieces of information, some reasonable inquiry is required by the officers so they may be reasonably certain that in making and maintaining an arrest they are acting properly.

Officer Nodes testified that he had had a basic first aid course at the Police Academy. Officer Robinson testified that he had been trained to look for medical emergencies. Sergeant Olson testified that he, too, had received such training, including specific instructions on people who might be having problems related to diabetes. Presumably, the training is designed specifically to permit officers to render aid in cases like the instant one. Such training can only be effective in practice, however, if the officers use the knowledge derived from their training in assessing the situations with which they are confronted in the field. Officer Robinson testified that there was no need to look for a medical emergency here because he thought that Plaintiff was drunk. That blind adherence to a preliminary assumption misses the point of the police training, i.e., that there may be many possible explanations for a given situation which must be realistically assessed.

The Court is certain that the officers, drawing on their training and the information easily available to them, could have determined before he was placed in the police cruiser that Plaintiff was not intoxicated but was in a medical crisis. From that point on, Plaintiff’s detainment was unlawful and all of the officers are liable for false imprisonment.

Liability Under § 1983

In his section 1983 claim Plaintiff asserts his Fourth Amendment right to be free from unreasonable seizures. Specifically, he asserts that the Fourth Amendment reasonableness requirement should be read in light of the fact that many people now wear Medic-Alert identification devices. In its discussion above, the Court has already performed the balancing test which Plaintiff urges here and has found that reasonableness does not require officers to check for Medic-Alert badges before they arrest semiconscious or unconscious individuals. Plaintiffs constitutional claim on this ground must, therefore, also fail.

Plaintiff also asserts that he had an Eighth Amendment right to the provision of adequate medical care, based on Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), in which the Court restated the “government’s obligation to provide medical care for those whom it is punishing by incarceration.” Id. at 103, 97 S.Ct. at 290. Plaintiff argues that in ignoring Plaintiffs medical condition after Plaintiff had informed him of it, Officer Robinson’s “deliberate indifference to [his] serious medical needs,” was conduct which the Supreme Court in Estelle had found actionable under section 1983. Although the Court thinks that the Eighth Amendment right set forth in Estelle v. Gamble is inapplicable here because the Plaintiff was not being punished by incarceration, the Court finds that Officer Robinson’s conduct constitutes a violation of Plaintiff’s substantive due process rights. A substantive due process claim is not a claim of procedural deficiency but, rather, a claim that the state’s conduct is inherently impermissible, that the state’s conduct was such as to shock the conscience of the court and, therefore, to violate the due process clause. Schiller v. Strangis, 540 F.Supp. 605, 614 (D.Mass.1982) (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)).

After having received training in medical emergencies, and having observed the circumstances of the Plaintiff’s condition, Officer Robinson should have at least considered if Plaintiff was in a medical emergency. His total disregard for Plaintiff’s well-being when Plaintiff stated his medical situation for him is indeed shocking. Robinson expressed no solicitude or interest in what Plaintiff, who at that point was face down in the well of the cruiser, had said. Rather, he dismissed Plaintiff’s attempt to inform him with a flippant and incorrect observation. Robinson apparently never broached the subject with the other officers at the jail so that one of them might act on it. Although no great physical harm was occasioned by Officer Robinson’s indifference, there might well have been, and unnecessarily so. Officer Robinson was in no danger, and the offense for which Plaintiff had been arrested was a minor one.

Defendants have tried to minimize Officer Robinson’s callousness by arguing that it would have been impracticable for him to stop on the short trip from Dunkin Donuts to the jail. It is plain, however, that Officer Robinson did nothing to alleviate the situation. The Court finds, therefore, that Officer Robinson is liable to Plaintiff under 42 U.S.C. § 1983 for a violation of his civil rights. The Court finds no such violation on the part of the other Defendants.

Damages

Physical injury and mental distress are compensable under both state tort law and section 1983. Although because of his diabetes and the immunosuppressants Plaintiff was vulnerable to grave injury from abrasions, bruises or cuts, fortunately he did not suffer serious physical harm. He did, however, sustain some bruises and scrapes and considerable pain, for which he was treated for thirty days. Although it is impossible to pinpoint the exact timing of the occurrence of these injuries, the Court feels secure in finding that some of them at least occurred when Plaintiff was placed into the rear floor-well of the police cruiser.

A far more significant component of Plaintiffs damages, however, is the mental distress he suffered as a result of this incident. Healthy, sighted individuals often take their mobility for granted. Plaintiff, on the other hand, testified that after he became blind he took home instruction to learn Braille and how to travel with his disability. Unsatisfied with this training, he moved to Chicago to attend an extensive, residential course to enable himself to be more independent. At its completion, he felt comfortable traveling and traveled on public transportation without difficulty or anxiety around Chicago and from Chicago to his parents’ home in Maine. Plaintiff testified that his experience at the hands of the Defendants has caused him great anxiety and made him less able to travel comfortably. For a period after the incident he was hesitant to use public transportation and took taxis when he needed to travel. Although he now uses public transport, he limits himself to the more rapid conveyances and travels only with great anxiety, sometimes deliberately raising his blood sugar to dangerously high levels to guard against a possible insulin reaction while traveling.

The Court views this anxiety and fear as a very significant injury to a person whose mobility and independence were achieved with such great effort. For this harm and the physical injury he sustained, the Court deems it appropriate that he receive significant compensatory damages. The Court finds the Plaintiffs damages to be $25,000. See Schiller, 504 F.Supp. at 621. Each of the Defendants is to be held jointly liable because each of the bases of recovery is predicated on the same set of facts and the same injuries caused by the same actors. Officer Robinson’s section 1983 violation caused only the same injuries that had already been caused by the three officers acting in concert. The fact that Officer Robinson is liable on both theories of recovery does not affect the amount of the recovery because the amount of compensatory damages available does not depend on the number of theories but on the extent of the injury. Clark v. Taylor, 710 F.2d 4 (1st Cir.1983).

Punitive Damages

The United States Supreme Court has ruled that punitive damages are available in section 1983 actions when the defendant’s conduct involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). In determining that Officer Robinson’s conduct shocked the Court’s conscience, the Court essentially made the requisite finding for a punitive damages award. His conduct clearly showed callous indifference to Plaintiff’s constitutionally protected rights. The Court finds an award in the amount of $500 to be appropriate for purposes of deterrence of such police conduct in the future.

Accordingly, it is adjudged that Defendants Nodes, Olson and Robinson are jointly and severally liable to the Plaintiff for damages in the amount of Twenty-Five Thousand Dollars ($25,000.00). In addition, Defendant Robinson is liable to Plaintiff for punitive damages in the amount of Five Hundred Dollars ($500.00).

So ORDERED; judgment to enter.

      . The complaint sets forth separate causes of action on these three theories although under Maine law all three are encompassed by the tort of false imprisonment. The complaint appeared to use a temporal divider between its claims of false arrest and false imprisonment, asserting the false arrest to have taken place while Plaintiff was on the bus and the false imprisonment to have begun with placement of Plaintiff in the police cruiser. The excessive force claims were based on police use of force in restraining Plaintiff, removing him from the bus, and putting him in the cruiser. Realizing that the complex of events exist on a continuum for purposes of the general tort of false imprisonment, the Court has found it helpful to employ the distinctions set forth by Plaintiff in the complaint. Thus, as will be seen, the Court finds no liability for the portions of the offense labeled false arrest or excessive use of force, but finds liability for false imprisonment on the grounds that the arrest was maintained — not initially made — after it should have become clear that probable cause did not exist.

      . Plaintiffs claim for punitive damages under state law was dismissed. See Order, Civil No. 83-0028-P (D.Me. July 10, 1985).

      . Given the testimony of Stewart Hartford, the bus driver, that the officers did not push Plaintiff when they put him in the cruiser, the Court does not find that excessive force was used in placing Plaintiff in the cruiser. In this case it is not the use of force which gives rise to liability. Plaintiff can, of course, recover for injuries sustained at the hands of the police, see Prentiss v. Shaw, 56 Me. 427 (Me.1869), during the false imprisonment even though the actual acts causing the injury do not give rise independently to liability.

      . In a previous ruling this Court held that Defendants had qualified immunity to suit under section 1983 to the extent that Plaintiff's claims are based on allegations of his arrest without probable cause. That ruling was addressed to Count IX of the complaint as to which, previously in this opinion, the Court has found no state law liability.