407 F.3d 387 (5th Cir. 2005), 04-30086, United States v. Dotson

Docket Nº:04-30086.
Citation:407 F.3d 387
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David DOTSON, Defendant-Appellant.
Case Date:April 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 387

407 F.3d 387 (5th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


David DOTSON, Defendant-Appellant.

No. 04-30086.

United States Court of Appeals, Fifth Circuit.

April 18, 2005

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.

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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

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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...

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