U.S. v. Dotson

Decision Date18 April 2005
Docket NumberNo. 04-30086.,04-30086.
Citation407 F.3d 387
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David DOTSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

William P. Gibbens (argued), Stephen A. Higginson, Asst. U.S. Atty., Brian M. Klebba, New Orleans, LA, for U.S.

Franklyn Ray Mickelsen, Jr. (argued), Broden & Mickelsen, Dallas, TX, for Dotson.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

David Dotson (Dotson) appeals his convictions for mail fraud and obstruction of justice stemming from claims he made for disability benefits. We affirm the convictions.

Facts and Proceedings Below

On April 5, 2001, Dotson reported a back injury to his employer, the New Orleans Police Department. He told a representative of the City's worker's compensation administrator that he incurred the injury as a result of falling from a fence while chasing a suspect in the course of his job as a police officer. Based on a doctor's certification that he was unable to return to work in any capacity, he was classified as "temporarily totally disabled" and began receiving the maximum worker's compensation benefits allowed by state law, as well as the balance of his salary from the police department. On April 23, 2001, Dotson reported additional injuries to his shoulder and chest, incurred two days earlier as he chased suspects attempting to steal a car from in front of his house. In addition to being eligible for worker's compensation benefits through the police department, Dotson had purchased a supplemental disability policy in 1997 from the Police and Firemen's Insurance Association (PFIA). He filed claims with PFIA for the above injuries in July of 2001, and began receiving monthly benefit checks from PFIA in addition to the worker's compensation benefits.

During the time Dotson received disability benefits, he also worked part-time as a night security guard at a local grocery store. He did not inform either the worker's compensation administrator or PFIA of this work. According to the contemporaneous notes and later testimony of the administrator's representative, she specifically asked Dotson during a conversation in October of 2001 whether he had been able to do any other work, and he replied that he had not. When Dotson filed his claims with the PFIA, he signed blank forms which were later filled in by the local agent using information obtained from the agent's interview of Dotson. The claim forms Dotson signed include a notation that "[t]otal disability implies absolute physical incapacity to perform duties or work of any kind, resulting from sickness or injuries." One of the questions on the claim form asks whether the claimant is "still disabled and unable to work at any job."

In late October of 2001, Dotson's job at the grocery store was terminated after the store's owner was contacted by FBI agents investigating Dotson for possible fraud of the worker's compensation system. In mid-November of 2001, FBI agents informed the store's owner that a check for over $5,000 from Dotson to the owner had been deposited in one of the owner's accounts earlier that month.1 Dotson and his attorney met with an FBI agent and an Assistant United States Attorney (AUSA) in late November of 2001. At that time, Dotson presented the AUSA with a copy of a letter from Dotson dated May 1, 2001 and addressed to the commander of the police department's Administrative Duty Division (ADD). In the letter Dotson informs the commander that he would be working at the grocery store while out injured. Copies of the letter were subsequently found in Dotson's file at the ADD and in his personnel file kept by his precinct.

In December of 2002 a federal grand jury issued a 20-count indictment against Dotson. Counts 1 through 15 of the indictment were for mail fraud, under 18 U.S.C. § 1341, of the City of New Orleans, Counts 16 through 18 were for mail fraud of PFIA, and Counts 19 and 20 were for obstruction of justice. One obstruction count alleged that Dotson had planted the letter he presented to the AUSA into the police department's files, and that he had not given the letter to the police commander. The other obstruction count alleged that Dotson's check to the grocery store owner in November 2001 was an attempt to influence a witness.

The case was tried before a jury in September of 2003. In addition to testimony from personnel of PFIA and the worker's compensation administrator that the insurers had not been told of Dotson's other employment, the government offered testimony from police department personnel that the letter from Dotson found in his files was not properly logged and hole-punched. The government further offered testimony from an ex-girlfriend of Dotson's who said Dotson told her he planted the letter in one of the files, and from the grocery store owner, who said he did not have any loans outstanding to Dotson at the time the store received a check from Dotson in early November. There was also evidence that Dotson had increased the benefit level of his PFIA policy in February of 2001, and that he had asked the grocery store in early April of 2001 to remove him from the payroll and instead pay him in cash.2 Dotson presented testimony from a fellow officer that he had run into Dotson at the precinct station in May of 2001 and that Dotson had shown him the letter that was later found in Dotson's personnel and ADD files. Dotson's counsel also elicited testimony indicating that the police department's document logging and filing procedures were not always precisely followed by department personnel. With respect to the PFIA benefits, Dotson submitted evidence that the PFIA policy issued to him defined disability in terms of "your job," in apparent contradiction to the language on the claim form.

At the close of the government's evidence and again at the close of all the evidence the defendant moved for a judgment of acquittal on the PFIA mail fraud counts. The defendant argued that disability insurance policies are required under Louisiana law to consider a claimant "totally disabled" as long as he cannot perform his former job, whether or not he can perform some other job. Therefore, according to the defendant, he was entitled to disability benefits despite working at the grocery store, and cannot have defrauded PFIA by not disclosing that job. The district court denied the motion without prejudice to its being renewed after trial depending on the verdict. The jury found Dotson guilty on all counts, but the defendant submitted no further motions or briefing on the PFIA counts. On January 21, 2004 the district court sentenced Dotson to 21 months' imprisonment for each count, to be served concurrently, a special assessment of $2,000, and restitution of the $11,252 he had received from the City of New Orleans and the $5,280 he had received from PFIA.

Discussion

On the same theory raised in his motions for acquittal, Dotson argues that the evidence presented at trial was insufficient to convict him on Counts 16-18 involving defrauding PFIA. In the event that his conviction on Counts 16-18 is vacated, Dotson further argues that he should receive a new trial on the remaining counts because of prejudicial "spillover" to these counts of evidence and accusations involving the vacated counts. In addition to disputing these arguments on their merits, the government argues that Dotson has waived his assertion of error on Counts 16-18.

I. Standard of Review

Because Dotson properly renewed his motion for judgment of acquittal at the close of all the evidence, we apply the usual standard of review to Dotson's challenge to the sufficiency of the evidence on Counts 16-18. See United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989). In other words, we view the evidence and inferences therefrom in the light most favorable to the jury's verdict, and hold the evidence is sufficient if a rational jury could have found the defendant guilty beyond a reasonable doubt. Id.; United States v. Moser, 123 F.3d 813, 819 (5th Cir.1997).

II. Waiver

The government argues that Dotson waived his challenge to his conviction on Counts 16-18 by failing to (1) brief the issue before trial as provided in the court's pretrial order, and (2) renew the motion and provide additional briefing after the jury's verdict. The only case the government cites in support of waiver by failing to brief an issue before trial involves failure to move for suppression of evidence before trial. United States v. Chavez-Valencia, 116 F.3d 127, 129-33 (5th Cir.1997). Motions to suppress evidence must be made pretrial, however, according to Rule 12(b)(3) of the Federal Rules of Criminal Procedure, and untimely 12(b)(3) motions are waived unless the court grants relief from the waiver. FED. R.CRIM. PROC. 12(b)(3)(C), 12(e).3 No argument has been made that a challenge such as Dotson's is in a category requiring it to be raised pretrial. Furthermore, even if raising the issue pretrial were required, and even if failure to raise the issue resulted in waiver as it does for 12(b)(3) motions,4 the court can grant relief from such a waiver. The district court's denial of the motion without prejudice and statements that it would entertain post-trial briefing on the issue indicate that the court did not consider the issue waived.

With regard to Dotson's failure to renew the motion or provide briefing after the trial, the government cites no authority finding a forfeiture or waiver on these grounds. On the other hand, the Ninth Circuit has held that declining to provide additional briefing requested by the trial court did not constitute a waiver when the issue had been argued before the court. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1130 (9th Cir.2002). By moving for judgment of acquittal after the government's evidence and again after all of the...

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9 cases
  • United States v. Hoffman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 24, 2018
    ...of a scheme to defraud violates federal law regardless whether they independently violate state law. See United States v. Dotson , 407 F.3d 387, 393 (5th Cir. 2005).C. The Hoffmans also argue they are entitled to a new trial because the district court rejected their proposed jury instructio......
  • United States v. Evans
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 12, 2018
    ...and (3) the specific intent to defraud." United States v. Lucas , 516 F.3d 316, 339 (5th Cir. 2008) (quoting United States v. Dotson , 407 F.3d 387, 391-92 (5th Cir. 2005) ). The action here pertains to the first and last elements—"scheme to defraud" and "intent to defraud"—as Evans does no......
  • United States v. Spalding
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 26, 2018
    ...mails," not wires, "to execute [the] scheme." United States v. Lucas , 516 F.3d 316, 339 (5th Cir. 2008) (quoting United States v. Dotson , 407 F.3d 387, 391–92 (5th Cir. 2005) ); accord 18 U.S.C. § 1341. For both crimes, showing a "scheme to defraud" requires proof that Spalding "made some......
  • United States v. Jones, CRIMINAL ACTION NO: 10-284
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • April 3, 2012
    ...Further, even if Mitchell waived this issue, the Court can grant relief from this waiver. Fed. R. Crim. P. 12(e); United States v. Dotson, 407 F.3d 387, 390 (5th Cir. 2005)("[E]ven if raising the issue pretrial were required, and even if failure to raise the issue resulted in waiver as it d......
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1 books & journal articles
  • White collar crime's gray area: the anomaly of criminalizing conduct not civilly actionable.
    • United States
    • Albany Law Review Vol. 72 No. 1, January 2009
    • January 1, 2009
    ...2008 WL2307360 (2008) (holding that a mail fraud conviction requires the '"specific intent to defraud."' (quoting United States v. Dotson, 407 F.3d 387, 391-92 (5th Cir. 2005))); United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006) ("Violation of the wire-fraud statute requires the spe......

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