United States of America v. Marshall Galex

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1621
UNITED STATES OF AMERICA
Appellee,
v.
MARSHALL GALEX
Appellant.
Appeal from the United States District Court
for the Middle District of Pennsylvania
No. 1-02-cr-00028-001
(District Judge: The Honorable Judge A. Richard Caputo)
Before: McKEE, HARDIMAN and GREENBERG, Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
June 2, 2009
(Opinion Filed: August 11, 2009)
OPINION
McKEE, Circuit Judge
Marshall Galex appeals his conviction for various offenses that arose from his
fraudulent receipt of various government benefits. For the reasons that follow, we will
affirm.

-- 1 of 4 --

2
Since we write primarily for the parties who are familiar with this case, we need
not detail the factual or procedural background.
Galex first argues that the government should have been estopped from
introducing evidence that he was not eligible to receive the disputed benefits because the
government had previously awarded him those benefits and he had been receiving
payments for a number of years. He also argues that the evidence was insufficient to
sustain a conviction on any of the Counts in the indictment.
Galex concedes that he did not raise an estoppel argument at trial. See Appellant’s
Br. at 2. Accordingly, our review of his estoppel claim is for plain error. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S.725, 734 (1993). Galex initially challenged the
sufficiency of the evidence at trial by moving for a judgment of acquittal at the close of
the government’s case. We must therefore review the evidence in the light most favorable
to the government as verdict winner and determine if a reasonable jury could have been
convinced beyond a reasonable doubt that Galex committed each of the crimes he was
convicted of. See United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
Galex’s estoppel argument does not merit discussion. Arguing that a successful
fraud can somehow estop the defrauded party from charging the perpetrator with
obtaining benefits through a fraudulent scheme is nothing short of frivolous. Adopting
such an argument would immunize anyone who successfully perpetrates a fraud because
he/she could simply argue that the victim’s reliance on the fraudulent scheme foreclosed

-- 2 of 4 --

3
any challenge to the underlying fraudulent misrepresentations. It is readily apparent from
the evidence here that the government’s approval of Galex’s benefits over the years establishes
nothing more than the success of his fraudulent scheme. It certainly does not support his claim
that he was eligible for the benefits he received.
Galex’s challenge to the sufficiency of the evidence to convict for mail fraud is
equally frivolous. The elements of mail fraud are: “(1) the defendant’s knowing and
willful participation in a scheme or artifice to defraud, (2) with specific intent to defraud,
and (3) the use of the mails or interstate wire communications in furtherance of the
scheme.” United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001) (citing United States
v. Clapps, 732 F.2d 1148, 1152 (3d Cir. 1984)).
Here, the government introduced surveillance tapes showing Galex “bending,
lifting and throwing logs, standing, sitting, walking without difficulty, reaching above his
head and shoulders...driving a truck, operating a wood-splitter, lifting firewood...and even
throwing firewood;” all while he was claiming to be disabled and unable to work. See
Appellee’s Brief at p. 10-11.
In his 2002 application for total disability, Galex claimed he suffered from various
mental disorders which prevented him from working. However, the government
introduced the testimony of several physicians who stated that the objective tests revealed
no support for Galex’s claim of neck and back pain. Similar testimony directly
contradicted Galex’s claims that he was unable to work due to alleged mental health
disorders. That evidence included a 1999 psychological evaluation of Galex that

-- 3 of 4 --

4
determined he did not suffer from or manifest a mental disorder. His fraudulent
misrepresentations to the contrary clearly caused benefit checks to be sent through the
mails. Accordingly, the evidence was clearly sufficient to support his conviction.
For all of the above reasons, we will affirm the judgment of conviction.

-- 4 of 4 --