Committing Insurance Fraud & Forgery While on Probation Requires Jail Time
Read the full article at https://lnkd.in/gfeBFRAi and at https://zalma.com/blog plus more than 4150 posts.
Posted on April 22, 2022 by Barry Zalma
Dustin Jungvirt, appealed the sentence imposed following his guilty plea to insurance fraud, claiming the district court failed to properly consider which sentencing option would best rehabilitate him. In State Of Iowa v. Dustin Jungvirt, No. 21-1130, Court of Appeals of Iowa (April 13, 2022) the Iowa Court of Appeals resolved the dispute.
BACKGROUND FACTS
The State charged Jungvirt with insurance fraud, claiming he filed false claims with his insurance carrier. Jungvirt was alleged to have committed the offense while on probation for child endangerment causing bodily injury. The State later added a charge for fraudulent practice. After Jungvirt’s arrest, he was released to the Iowa Department of Corrections for supervision.
In May 2020, Jungvirt was arrested for assault while displaying a dangerous weapon. Due to the arrest, the court revoked Jungvirt’s pretrial release. Jungvirt entered a plea agreement on September 11, admitting to the probation violation and pleading guilty to insurance fraud. He also entered a plea of guilty to four counts of forgery in a separate case. As part of the plea agreement, the State agreed to recommend Jungvirt for a residential treatment facility if Jungvirt was deemed appropriate for placement in the facility. If Jungvirt was denied a placement in a residential facility, the State could recommend any legal sentence.
The court received a presentence investigate report (PSI) which recommended probation and placement in a Davenport residential correctional facility (RCF).
Jungvirt failed to appear for sentencing, resulting in the court issuing a bench warrant for his arrest. He was not apprehended until May 2021. Due to his absconding, the RCF would not approve him for placement.
Jungvirt, after being charged with new crime and returning to the court, expressing chutzpah, asked for probation, highlighting as mitigating factors his desire to see family, his limited criminal history, mental-health and substance-abuse issues, and progress he had made toward his education. The State urged the court to impose a prison sentence.
The court sentenced Jungvirt to a prison term of five years for insurance fraud, to run consecutively to the two-year sentence for Jungvirt’s forgery convictions.
DISCUSSION
Jungvirt contended the district court abused its discretion when it sentenced him to a prison term rather than probation. He ignored the reasoning of the sentencing court who, during the sentencing hearing, the court explained its reasoning as follows:
In every case, my duty under the law is to review what is available to me in terms of community resources and to determine what the appropriate rehabilitative plan for you would be, but to always remember first and foremost that the public must be protected.
In doing so, I look at the seriousness of the crimes, the effect the crimes have upon members of the community, your willingness to accept change and treatment, and what’s available within the community to assist you in this process.
The first thing that jumps out at me in looking at the file is that you had a plea agreement for probation. You were at the RCF and something happened and you were out to warrant, then, from October 22nd to May 30th. You knew at that time you pled guilty. You knew you had to take care of these matters and you made no effort to do so, which tells me that you were absconding from your responsibilities and obligations for the crimes you committed.
It’s not completely inconsistent with your criminal history. While these charges are more serious than maybe what you had in the past, you do have a history of failing to appear and a history of violating terms of probation.
I do consider as mitigating any substance abuse or mental health issues that you have.
What’s also concerning to me is that looking at the file, case number 312, you were on probation with a sentencing date of July 19th, 2018, and then comes the insurance fraud case that you’re here on today that happened after that, and it appears while you were on probation . . . .
And then, while you were awaiting trial on pretrial release in that matter, you pick up all the forgery charges that you’ve pled to in 505.
So each time when you committed a crime, before you resolved it, while you were still on some form of probation, you committed another crime. To me, that warrants incarceration.
The Court of Appeals concluded, faced with the clear and logical statement made by the sentencing court, properly considered the defendant’s chances of reform, criminal history, mitigating factors such as mental health and substance abuse, the resources available to the defendant, the effect Jungvirt’s crime had on the community, and what punishment would best protect the public. In particular, the court emphasized Jungvirt’s consistent pattern of engaging in illegal activity while on probation or pretrial release. The court determined incarceration was necessary.
A district court is not bound by the recommendations in a PSI. Due to its consideration of the relevant factors, the total lack of respect for the court system, the criminal actions when on probation, it became obvious that the district court did not abuse its discretion concerning Jungvirt’s sentence. Accordingly, the court affirmed the sentence.
ZALMA OPINION
It is time that trial and appellate courts stop coddling insurance fraud criminals with probation and half-way-houses and deter the crime with real prison time. That Dustin Jungvirt had the unmitigated chutzpah, on such a ling series of criminal conduct, to claim the court improperly sentenced him to prison was an amazing waste of the time of two courts and should have been condemned with more than affirming the sentence and the addition of serious sanctions.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
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 practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].
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This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
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