United States v. Shavin

• Decision Date: 13 April 1961
• Docket Number: No. 13062.,13062.
• Citation: 287 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathan W. SHAVIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

287 F.2d 647 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Nathan W. SHAVIN, Defendant-Appellant.

No. 13062.

United States Court of Appeals Seventh Circuit.

February 14, 1961.

Rehearing Denied April 13, 1961.

Anna R. Lavin, William T. Kirby, Chicago, Ill., for appellant, Charles A. Bellows, Chicago, Ill., of counsel.

Robert Tieken, U. S. Atty., John F. Grady, Asst. U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and PLATT, District Judge.

PLATT, District Judge.

The grand jury returned an indictment of nine counts charging the defendant with using the mails to defraud in violation of the Criminal Code, Title 18 U.S. C. § 1341. At the first trial the jury disagreed and was discharged. On the second trial the Government dismissed Counts 1, 5 and 7, and the jury found the defendant guilty only on Counts 6 and 8. The district court denied the defendant's motions for judgment of acquittal, for new trial in arrest of judgment, and sentenced the defendant for a period of one year and one day, and imposed a fine of $1,000.00 on each count. From these rulings the defendant has appealed.

The defendant presents fourteen contested issues. In substance "the errors relied on arise out of the sufficiency of the indictment, the jurisdiction of the court, failure to grant defendant's motions for judgment of acquittal, double jeopardy, the untimely allowing of amended bills of particulars, rulings on evidence, the instructions, and the failure to grant defendant's motion in arrest of judgment and for a new trial." (Defendant's brief p. 2.)

The defendant first maintains that the indictment is defective. The first count of the indictment in substance charges that prior to September 3, 1952, and continuing to the date of filing the indictment, November 5, 1956, the defendant devised and intended to devise a scheme and artifice to defraud for the purpose of obtaining money by false and fraudulent pretenses and representations from certain insurance companies with offices located in the city of Chicago, Illinois, which were the insurance carriers for individuals and corporations against whom clients of the defendant had claims for personal injuries, and which insurance carriers included seven named companies. The scheme and artifice to defraud charged that the defendant would serve as attorney for various persons in the presentation of personal injury claims; that the defendant would obtain the names of insurance carriers of the individuals and corporations to whom the personal injury claims were to be presented; that the defendant would obtain bills from the physicians who had treated his clients for the injuries they had sustained; that the defendant would prepare documents which purported to be copies of these bills which would be false in that they would show a higher fee for medical services which were submitted to the insurance carriers of the individuals and corporations; and that the defendant would represent to the insurance carriers that the purported copies were true copies of medical bills with the intent thereby to induce the insurance carriers to pay greater amounts of money in settlement of personal injury claims than they would otherwise have been willing to pay. Count 1 also charged, applicable only to Count 6, that it was further a part of the same scheme to defraud for the defendant to attempt to prevent by fraudulent devices and false representations the discovery by the insurance company that the purported copies were, in fact, false. These allegations set forth in Count 1 of the indictment are realleged, by reference, in Counts 6 and 8. Count 6 in addition thereto charges that on December 10, 1953, at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, the defendant for the purpose of executing the aforesaid scheme and artifice to defraud, and attempting to do so, did place and cause to be placed in an authorized depository for mail matter, a letter, with enclosures, addressed to: Odis Little, M.D., 3005 E. 92nd Street, Chicago, Illinois, which said letter was to be sent and delivered by the Post Office Establishment of the United States. Count 8 also charges that on or about April 5, 1954, at Chicago, Illinois, in the same district, the defendant for the purpose of executing the aforesaid scheme and artifice to defraud, and attempting to do so did place and cause to be placed in an authorized depository for mail matter a letter, enclosing a purported copy of a medical bill for the treatment of Louis Venturi, Jr., addressed to: U. S. Fidelity and Guaranty Co., 170 W. Jackson Boulevard, Chicago, Illinois, Attention: Mr. O'Kane, which letter was to be sent and delivered by the Post Office Establishment of the United States.

The defendant first argues that the indictment is insufficient in that it charges an intention to defraud definite insurance companies by name, and fails to give a valid reason for the omission of other carriers, such as a statement by the grand jury that certain insurance companies were to the grand jury unknown. The defendant relies upon Larkin v. United States, 7 Cir., 1901, 107 F. 697. In the Larkin case the defendant challenged the sufficiency of the indictment by demurrer specifically in the district court upon the ground relied upon here. We find no specific statement such as in the Larkin case by the defendant in his motions to dismiss. Furthermore, the defendant has failed to demonstrate that he was prejudiced in the trial by this technical objection. Such a technical objection, presented only on appeal, should not be recognized. Since the adoption of Federal Rules of Criminal Procedure, 18 U.S.C., and in particular Rule 7(c) and (d) technical objections to indictment are not valid where the elements of the offense are clearly set forth. Stapleton v. United States, 9 Cir., 1958, 260 F.2d 415, 17 Alaska 713. The two necessary elements for the violation of "18 U.S.C.A. § 1341 are (1) the formation of a scheme with an intent to defraud, and (2) the use of the mails in furtherance of that scheme." Lemon v. United States, 9 Cir., 1960, 278 F.2d 369, 373. The indictment here definitely charges the defendant, as a practicing attorney, with a continuing scheme to defraud insurance companies by falsely representing the amount of the medical bills to insurance carriers against whom the defendant's clients had claims. It includes certain named companies. We are of the opinion that the indictment sufficiently charges the two necessary elements of the offense and by specifically describing the mailing, the gist of the offense, the defendant is protected from being placed in jeopardy a second time for the same offense.

The defendant next contends that because Count 1 of the indictment was dismissed, it is no longer a part of the indictment and cannot be incorporated into Counts 6 and 8. This point is valueless since Rule 7, Fed.Rules Crim. Proc., 18 U.S.C. expressly provides that allegations made in one count may be incorporated by reference in another count. This method of incorporating by reference has been approved. United States v. Garrison, 7 Cir., 1960, 280 F.2d 493. We consider the method used by drawing lines through the words of Count 1 was proper to delete the inapplicable portions.

The defendant also maintains that the judgment for acquittal should have been granted at the first trial and that the failure by the trial court to do so placed the defendant in jeopardy twice for the same offense. The defendant has failed to convince this court that there was not sufficient evidence at the first trial to convict the defendant on Counts 6 and 8. Therefore the district court correctly denied the motion for acquittal and ordered a new trial. In substance the evidence at the first trial as to Counts 6 and 8 was the same as in the second trial on these counts. We will discuss the motion for acquittal on the second trial later in this opinion.

The defendant next contends that the amendment of the bill of particulars which was filed more than three years after the indictment, but more than fifty days prior to the second trial, was prejudicial. Rule 7(f), Fed.Rules Crim. Proc., 18 U.S.C. provides for amendment of a bill of particulars. The length of time which may elapse when amendment shall be permitted is a matter in the sound discretion of the trial court. We do not believe that the trial court abused its discretion because the defendant was given ample time to prepare his defense. United States v. Bender, 7 Cir., 1955, 218 F.2d 869, 874, certiorari denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253.

We come next to the defendant's motion for acquittal which in substance is that the Government failed to prove the defendant guilty as charged in Counts 6 and 8 of the indictment beyond a reasonable doubt. In the determination of whether or not the proof was sufficient to establish the defendant's guilt it must be borne in mind that after a verdict of guilty this court must consider "only the evidence favorable to the verdict and such reasonable inferences as the jury may have drawn therefrom." United States v. O'Brien, 7 Cir., 1949, 174 F.2d 341, 343.

In regard to Count 6 of the indictment, the record is clear that Dr. Little's bill for the care of the defendant's client Copley was $68.00. The amount of the bill submitted by the defendant to the General Accident Fire and Life Assurance Corporation, Ltd., was $200.00. The evidence demonstrates that the medical bills, which are termed "specials", are to be considered in the determination of the amount that the insurance company would pay in the settlement of a law suit. It is a reasonable inference that the defendant, as a lawyer in having settled many personal injury cases, must have known that the insurance company in the settlement of its cases took this information into...