IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-11240 _____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MICHELLE D MCKAMEY

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas, Dallas USDC No. 3:99-CR-35-6 _________________________________________________________________ October 6, 2000

Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.

PER CURIAM:**

Defendant-Appellant Michelle D. McKamey appeals her

conviction under

for conspiracy to violate

(b)(1)(A), which provides that “[w]hoever (A) acting

as, or being an officer, director, agent, or employee of, any

person engaged in the business of insurance whose activities

* Circuit Judge of the Seventh Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. affect interstate commerce, . . . willfully embezzles, abstracts,

purloins, or misappropriates any of the moneys, funds, premiums,

credits, or other property of such person so engaged” is subject

to criminal prosecution.

(b)(1)(A) (2000).

McKamey, along with several co-defendants, entered into a “Joint

Stipulation of Facts” with the government, waived her right to a

jury trial, and requested the district court to accept the

stipulated facts as the evidence in the case and to find her not

guilty or guilty of the charged offense based on a written

conclusion of law. The only issue before the district court was

whether the stipulated facts constituted a violation of the

charged offense as a matter of law. The district court found

McKamey guilty, and McKamey timely appealed.

McKamey contends that the district court erred as a matter

of law when it determined that she conspired as alleged in the

indictment. She claims that her intent to blackmail her alleged

co-conspirators compels the conclusion that there was no “meeting

of the minds” between her and her co-conspirators to further the

conspiracy that the co-conspirators were involved in. The

agreement contemplated by § 371 “must have been made prior to or

during the consummation of the substantive crime,” United States

v. Bankston,

(5th Cir. 1979), and can be

established by circumstantial evidence. “‘Where the

circumstances are such as to warrant a jury in finding that the

conspirators had a unity of purpose or a common design and

2 understanding, or a meeting of minds in an unlawful arrangement,

the conclusion that a conspiracy is established is justified.’”

United States v. Hopkins,

(5th Cir. 1990)

(citation omitted). McKamey contends that her effort to

blackmail the co-conspirators compels the conclusion that she

lacked a unity of purpose or a common design and understanding or

a meeting of minds to advance the objectives of the conspiracy.

McKamey relies heavily on the opinion of the Court of

Appeals for the Eleventh Circuit in United States v. Toler,

(11th Cir. 1998). But the very respect in which that

case is different from this one undercuts McKamey’s argument. In

Toler, a defendant was convicted of conspiracy to possess and

distribute crack cocaine after she demanded $500 from her ex-

boyfriend in exchange for the return of the crack cocaine that he

left at her house. See

. The Eleventh Circuit

reversed the conviction and reasoned that, although the

defendant’s action “might support a conviction for criminal

blackmail, unlawful possession of drugs, or another criminal

act,” it did not show beyond a reasonable doubt that she agreed

to join a conspiracy. See

.

As the government points out, McKamey’s argument about the

similarity between this case and Toler would be stronger if

McKamey had started blackmailing her alleged co-conspirators

after they deposited the check payable to Rebecca Hoffman because

McKamey might have more plausibly argued that she did not share

3 their purpose of defrauding the insurance company. Instead, she

insisted that the fraudulent check be given to Hoffman for

deposit in Hoffman’s bank account. Demanding that the fraudulent

check be deposited and that all the proceeds be given to her was

not at odds with the conspiracy; indeed, it depended on the

advancement of the conspiracy to provide her with the proceeds of

the check. The evidence was legally sufficient to convict McKamey

of conspiracy.

McKamey’s judgment of conviction and sentence are AFFIRMED.

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