306 F.2d 834 (5th Cir. 1962), 19375, Stevens v. United States

Docket Nº:19375.
Citation:306 F.2d 834
Party Name:William Dallas STEVENS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:July 26, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 834

306 F.2d 834 (5th Cir. 1962)

William Dallas STEVENS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19375.

United States Court of Appeals, Fifth Circuit.

July 26, 1962

          Rehearing Denied Aug. 15, 1962.

         Robert J. Malinak, Houston, Tex., for appellant.

         Edward L. Stahley, Asst. U.S. Atty., Clinton Ashmore, U.S. Atty., Richard W. Ervin, III, Asst. U.S. Atty., Tallahassee, Fla., C. W. Eggart, 1st Asst. U.S. Atty., Pensacola, Fla., for appellee.

         Before CAMERON, JONES and GEWIN, Circuit Judges.

         JONES, Circuit Judge.

         The appellant, William Dallas Stevens, and others, were charged by indictment with violation of the Mail Fraud Statute, 18 U.S.C.A. § 1341. This is one of a number of cases in which the United States claimed that the defendants staged fake automobile accidents for the

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purpose of defrauding insurance companies. In one of these cases, Everitt, et al., v. United States, 5th Cir.1960, 281 F.2d 429, Stevens was a successful appellant in obtaining the reversal for a new trial of a conviction upon the same indictment as was the basis for the conviction which is here under review. The most recent of these cases is Glenn, et al. v. United States, 5 Cir., 30 F.2d 536. 1 Stevens, on the retrial, was convicted on one count of a two-count indictment. He filed a motion for a new trial which was overruled and has appealed, asserting three specifications of error.

          Count 1 of the indictment charged that the defendants formed a scheme and artifice to defraud an insurance company, and 'for the purpose of executing the aforesaid scheme and artifice and attempting to do so caused to be delivered by the Post Office establishment of the United States a letter addressed to' the named insurance company which had been sent by a designated person and had transmitted described documents. The appellant's first contention is that the indictment is fatally defective and does not charge a violation of the statute 2 in that it failed to charge that Stevens knowingly caused the letter and documents to be delivered through the mail. The exact question was before the Court in the recently decided Glenn case where the contention there and here made was rejected, the Court saying that 'the element established by 'knowingly' is satisfactorily described by the phrase, 'for the purpose of executing the aforesaid scheme and attempting to do so. '' As was there held, so we hold here that the indictment was sufficient.

         The appellant moved for a directed verdict of not guilty and the motion was overruled. The second assertion of the appellant is that error was committed by the ruling. The ground assigned is that the evidence was not sufficient to establish the use of the mails. The mailing was alleged to have been of a letter addressed to The Hartford Accident and Indemnity Company, Midyette-Moore Building, Tallahassee, Florida, which letter had been sent by R. C. Evans, Panama City, Florida, transmitting affidavits of Roscoe Law and Rondel Kirkland. R. C. Evans was an attorney in Panama City who at that time was representing Ronnie J. Everitt, a claimant in one of the car accident cases which the Government claimed was phony. The Hartford office in Tallahassee was, it seems, in charge of its claim agent, Glenn Sears. It was his testimony that the Evans letter was received through the mail. He further testified that the mail sent to Hartford or to him was placed in a post office box in the Tallahassee post office from which it was picked up by his secretary who took it to the office, opened it and placed it on Sears' desk. The Evans letter was placed on Sears' desk.

          We do not think it is necessary, as Stevens urges, that there be positive and direct testimony that there was a placing in the mails, or positive and direct testimony of a taking from the mails. The showing of the customs, usages and practices in the course of business with evidence of the letter appearing in the customary channel of mail matter is enough to carry the question to the jury. United States v. Berg, 3 Cir. 1944, 144 F.2d 173; United States v. Leathers, 2 Cir. 1933, 135 F.2d 507.

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         The use of the mails may be established, like most other facts, by circumstantial evidence. The proofs made were such as warranted a submission to a jury and would justify the inferences as are implicit in a verdict of guilty. McNear v. United States, 10 Cir. 1932, 60 F.2d 861. And see Everitt v. United States, 5 Cir. 1960, 281 F.2d 429. The evidence is not materially different from that in the first trial, of which this Court said that it did not think the judgment should be rendered for failure of the evidence to make out a case for submission to the jury. We are of the same opinion with respect to the record now before us.

         We come now to Stevens' third specification of error. As its final clincher witness to prove that the automobile accident was faked, the Government called Jimmy Dazey. After a few questions to provide background, Dazey was asked:

         'Was that accident a faked or planned wreck?'

         Dazey answered:

         'That accident was a-- was a wreck; it was a genuine wreck. My car-- his car blinded me, I pulled across the white line, Mr. Stevens' car hit an embankment and rolled with him in the car.'

         Government counsel asserted surprise and asked leave to cross-examine Dazey as an adverse witness. The request was granted. Government counsel's questions,...

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