United States v. Perez

Citation489 F.2d 51
Decision Date02 January 1974
Docket NumberNo. 71-1066.,71-1066.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mayo PEREZ et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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James F. Mulla, Jr., New Orleans, La. (court-appointed), for Perez.

Douglass Culp, New Orleans, La. (court-appointed), for Trahan.

John P. Keegan, New Orleans, La. (court-appointed), for Prudhomme.

Milton P. Masinter, New Orleans, La. (court-appointed), for Evans.

F. Irvin Dymond, New Orleans, La., for Perego & Hennigan.

E. Howard McCaleb, III, New Orleans, La., (court-appointed), for DeVille.

Edward M. Baldwin, New Orleans, La., for Shaheen and Ernest C. Hamilton.

Russell J. Schonekas, New Orleans, La., for Tunis & Loridans.

Jerry A. Kirby, Monroe, La., for Loridans.

Dr. Wilson Morris, pro se.

Ernest C. Hamilton, pro se.

Daniel J. Markey, Jr., Asst. U. S. Atty., New Orleans, La., Mark Richard, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 2, 1974.

JOHN R. BROWN, Chief Judge:

The facts of this case, in a purely legalistic sense, need no embellishment in a literary sense to classify this as a piece of prose that could well be called a second "American tragedy." It would be an American tragedy, not only because the events took place here,1 but because it is just another instance in which large numbers of Americans get willingly involved in enterprises which reflect a lack of compunction, possibly even a proclivity, to enter into the proverbial "get-rich-quick scheme" evidencing not only a disregard for law but, sadly, also a deafness to conscience. As we undertake our profound but prosaic role of adjudicating these cases, what we see is not pleasant. It reveals a wreckage of promising professional careers, evidence of deliberate and unabashed attempts to prey upon financially pressed expectant mothers for gain and the seemingly all too eager participation by a large cast of characters in a patently illegal undertaking.

The Scheme

A recital of the facts must precede resolution of the issues raised on appeal. The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.

As the scheme evolved, the participants even coined their own terminology which, though alien to the uninitiated, became known to all those who participated. This glossary of modern day crookedness was quite descriptive. Certain participants were known as "recruiters". The recruiters function, not unnaturally, was to recruit others who assumed titles commensurate with their organizational function. There were the "hitters", whose function it was to drive the "hitter" vehicle in each collision which supposedly was to be liable for causing the accident. Then there was the "target" vehicles. The occupants of the "target" were known as the "driver" and the "riders". It was determined at the outset that pregnant women made exceptionally good riders as they could claim pregnancy related injuries which would be both hard to disprove and easily settleable with the insurance carriers. Throughout the scheme there was an effort made on the part of the participants to use vehicles and drivers which were covered by high limits of liability insurance.

According to a pre-arranged timetable, the "hitter" vehicle would strike the "target" vehicle either broadside or in the rear end. The occupants of the "target" vehicle—the driver and riders—and occasionally some of those in the "hitter" vehicle, feigning injuries, would be sent to a particular doctor and lawyer who would facilitate phony claims by creating a medical history for treatment of non-existent injuries and making a demand on the appropriate insurance company.2

The key to immediate financial gain in each staged collision was advances paid by the attorneys to the "riders" for whom allegedly false claims were being submitted. These advances were paid in the form either of cash payments or loans from local financial institutions, co-signed by the attorney handling the claim. Of the usual advance ranging from $250 to $500, part was retained by the rider-claimant with the rest being distributed among the organizers, recruiters, and others who assisted with various aspects of staging the wreck. When the claim was ultimately settled with the insurance carrier, the proceeds would be applied to (i) repay the advancing attorney or in such cases, to liquidate the guaranteed bank loan and (ii) to pay the inflated doctor's bill, not infrequently, with kickbacks going to both the organizers and the participating attorneys in addition to their usual shares.

The feature of this case which brought it into federal court was that, in the course of asserting and negotiating for settlement the fraudulent claims of the voluntary victims, the United States mails were used. For ease of reference, we have set out a description of the staged collisions for which proof was adduced at trial in Appendix I of this opinion. We have also set out in Appendix II the participants of those staged collisions described in the indictment and proved at trial. Appendix III of this opinion contains the participants of those collisions for which proof was adduced by the government at trial, but which were not described in the indictment.*

The Proceedings Below

On April 3, 1967, the Grand Jury returned a thirteen-count indictment against the appellants and nine others charging them all with conspiracy to violate the mail fraud statute (18 U.S.C.A. § 371), and selected defendants with the additional offense of violating the mail fraud statute (18 U.S.C.A. § 1341).3

The Result Of The Trial

Following the close of the Government's case, the trial court entered judgments of acquittal as to the defendants, Elda DeMary and Jimmy Vital. See App. II: (3) and (4). Additionally, the trial court dismissed five substantive counts for insufficient evidence.4 After almost two months of trial, the case against the remaining thirteen defendants was submitted to the jury, and on December 18, 1970, a verdict of guilty was returned as to all defendants except Nolan Breaux, who was acquitted. See App. II: (7). The defendant, Andrew L. Prudhomme, was acquitted on one substantive count but convicted of three other substantive counts as well as the conspiracy count and the defendant, William R. Trahan, was acquitted on two substantive counts but convicted of another substantive count in which he was charged as well as the conspiracy count. Subsequent to the trial, the trial court entered an order dismissing the indictment as to the defendants, Walter Borsch and Roosevelt Prater. For ease of reference we have set out in appendix V the sentences imposed by the District Court for each of the counts under which the appellants were convicted below. The record before us on appeal numbers upwards from 10,000 pages contained in thirty-eight bulging volumes including the exhibits.5

Multi-Party—Multi-Attacks

Each of the twelve who were convicted, all appellants here, alleges prejudicial error was committed below entitling him to reversal. The various grounds asserted are (i) variance between the indictment and the proof, (ii) misjoinder of offenses and denial of severance, (iii) inadequate and prejudicial instruction by the court, (iv) denial of motions for a bill of particulars, (v) lack of a speedy trial and (vi) insufficiency of the evidence. These contentions will be taken up separately in the order recited here.6

Single Or Multiple Conspiracies

All appellants assert that a variance existed between the indictment charging a single conspiracy involving multiple defendants and the proof which, at best they claim, revealed plural conspiracies involving multiple parties which, admittedly, overlapped upon one another in personnel.

The necessity for distinguishing between evidence which tends to show a single overall conspiracy and that which tends to show several separate conspiracies, a frustrating and challenging task indeed, has been faced by this court before. United States v. Morado, 5 Cir., 1972, 454 F.2d 167; United States v. Lloyd, 5 Cir., 1970, 425 F.2d 711; Jolley v. United States, 5 Cir., 1956, 232 F.2d 83; Brooks v. United States, 5 Cir., 1947, 164 F.2d 142; United States v. Cruz, 5 Cir., 1973, 478 F.2d 408. The necessity for drawing this distinction derives from our interest, clearly our duty, in jealously protecting those accused from the possible transference of guilt of others accused, at least in the eyes and minds of a jury, which so often is claimed to be encountered where en masse prosecutions are undertaken for a conglomeration of separate offenses. The object of such an inquiry must be, in the first instance, to ascertain whether (i) such a variance between the indictment and the proof actually exists and, if it does, (ii) to determine whether substantial rights of an accused are in fact affected by the variance. United States v. Morado, supra, 454 F.2d at 170. To conclude in the negative on element (i), of course, would obviate inquiry on (ii).

Here, the thirteen-count indictment was so structured that counts I through XII alleged specific substantive violations of the mail fraud statute against certain of the appellants while count XIII charged all of the appellants with conspiring to violate the mail fraud statute. Count XIII set forth 22 overt acts as being committed in furtherance of the alleged conspiracy in addition to mailings enumerated in counts I through XII which it incorporated by reference. Count XIII also incorporated by reference the...

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