U.S. v. Weatherspoon

Decision Date12 July 1978
Docket NumberNo. 77-1875,77-1875
Citation581 F.2d 595
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arnetta WEATHERSPOON, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph A. Lamendella, Chicago, Ill., for defendant-appellant.

David J. Yeres, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, BAUER, Circuit Judge, and JAMESON, Senior District Judge. *

BAUER, Circuit Judge.

Following a jury trial, Arnetta Weatherspoon was convicted of sixteen counts of violating the racketeering, mail fraud and false statements statutes, 18 U.S.C. §§ 1001, 1341, 1961-63. The evidence presented at trial showed that Weatherspoon, who operated a beauty college approved for veterans' vocational training by the Veterans Administration, knowingly caused false student enrollment cards and attendance certificates to be mailed to the Veterans Administration in furtherance of a scheme to defraud that agency. On appeal, Weatherspoon raises numerous contentions in support of her claim that her convictions should be reversed. She argues: (1) that the Government failed to lay a proper foundation for admission of certain computer printouts into evidence, (2) that the Government breached a discovery agreement with her counsel, (3) that she could not be prosecuted under the mail fraud statute for conduct subject to the reach of the false statements statute, (4) that the mail fraud counts failed to charge use of the mails, (5) that the certifications she falsely made were too ambiguous to support a false statements prosecution, (6) that one who causes several mailings to be made in furtherance of a single scheme to defraud cannot be prosecuted for engaging in a "pattern" of racketeering activity within the meaning of 18 U.S.C. § 1962(c), and (7) that the district court improperly amended the indictment by deleting a portion thereof.

I.

Weatherspoon owned and operated Arnetta's Beauty College in Chicago, where she offered courses in cosmetology and beauty culture to tuition paying students. In January of 1970, Weatherspoon received approval to accept veterans as students from the Department of Veterans Affairs of the State of Illinois, a contractual agent of the Veterans Administration of the United States. She was authorized to enroll no more than 42 veteran students out of a total student body of 50. The veteran students thereby became eligible to receive veterans' educational benefits from the VA for attending Weatherspoon's vocational school.

To obtain benefits, the veteran made formal application to the VA, which issued an eligibility certificate. The VA would refer eligible veterans to Arnetta's, and an enrollment certificate for each student would be completed by an authorized official at the school. Upon receipt of the enrollment certificate, the VA would issue a check covering educational expenses and tuition along with an attendance card. A full-time student was required to attend class thirty hours per week in fulfillment of his course requirements in order to obtain the maximum monthly benefit payment, which ranged from $220 to $500 per student. Both the student and Weatherspoon were required to certify attendance.

The indictment charged that Weatherspoon engaged in a scheme to defraud by enrolling students in excess of her authorized limit and by falsely certifying the attendance of her students. The evidence did in fact show those charges to be true, and Weatherspoon does not challenge the sufficiency of the evidence as such, but rather raises the other issues noted above.

II.

Weatherspoon first assigns error in the trial court's admission of a series of computer printouts, which established that she had enrolled over six times as many veterans as students than she had been authorized to do. In essence, Weatherspoon contends that the Government failed to lay a proper foundation for admission of the printouts, which were simply a computerized compilation of information taken from the enrollment certification forms submitted by Weatherspoon and keypunched onto a tape fed into the computer. We disagree that an insufficient foundation was laid.

Pursuant to the testimony of a VA supervisory employee who was familiar with the preparation and use of the printouts, the Government showed to the satisfaction of the trial court (1) what the input procedures were, (2) that the input procedures and printouts were accurate within two percent, (3) that the computer was tested for internal programming errors on a monthly basis, and (4) that the printouts were made, maintained and relied on by the VA in the ordinary course of its business activities. Moreover, all the enrollment certificate forms submitted by Weatherspoon, which formed the data base fed into the computer, were made available to defense counsel for inspection. Defense counsel also had adequate opportunity to inquire into the accuracy of the input procedures and programming used. Under the circumstances, we believe that a sufficient showing of the reliability of the printouts was made to warrant their admission into evidence under the standards set out in United States v. Liebert, 519 F.2d 542, 547 (3rd Cir. 1975), and United States v. Russo, 480 F.2d 1228 (6th Cir. 1973), Cert. denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974).

III.

Weatherspoon next complains that the Government breached a discovery agreement made with her counsel to provide her with a list of government witnesses a "reasonable time" prior to trial so that she would have a sufficient opportunity to prepare to meet their testimony. According to Weatherspoon, because the Government did not provide the witness list until two weeks before trial, the trial court should have granted her motion to preclude the government witnesses not mentioned in the indictment itself from testifying. We disagree.

We recognize, of course, that the court is empowered to impose sanctions on the Government for intentional noncompliance with pretrial discovery orders or agreements. E. g., United States v. Jackson, 508 F.2d 1001, 1005-1008 (7th Cir. 1975). We cannot agree, however, that exercise of our supervisory power is warranted in the circumstances of this case. The list of potential government witnesses in this case was virtually inexhaustible, and the task of interviewing potential witnesses and determining whom the Government would call at trial was an arduous one. Inasmuch as the Government turned over its witness list as soon as such witnesses had been selected, the Government cannot be charged with bad faith or intentional noncompliance with its informal discovery agreement. Moreover, we cannot see how the defense was prejudiced by the inevitable delay in the production of the witness list. Almost all the witnesses who appeared at trial were known to the defendant, as most were former students of Arnetta's whose testimony could have easily been anticipated by Weatherspoon. Inasmuch as defense counsel did not even find it necessary to ask for a continuance in order to prepare to meet the witnesses' testimony, we must assume that the two-week notice of its witnesses given by the Government was a "reasonable" time within which to prepare Weatherspoon's defense to their testimony. In any event, we do not believe prejudice resulted from any delay in turning over the witness list.

IV.

Weatherspoon next contends that she could not properly be charged under the mail fraud statute for the same acts which supported her convictions under the false statements statute. According to Weatherspoon, because the false statements statute, 18 U.S.C. § 1001, criminalized her submission of false enrollment certificates to the VA, she could not simultaneously be charged with violating the mail fraud statute, 18 U.S.C. § 1341, simply because she used the mails to submit the false enrollment certificates. We again disagree.

In support of her argument, Weatherspoon relies on United States v. Henderson, 386 F.Supp. 1048 (S.D.N.Y.1974), wherein the court held that the defendant was not subject to prosecution and punishment under the mail fraud statute, 18 U.S.C. § 1341, for mailing income tax returns whose falsity formed the basis for the defendant's simultaneous prosecution under various criminal provisions of the Internal Revenue Code, 26 U.S.C. §§ 7202-07. In the course of so holding, the court reasoned that the mail fraud statute was designed to serve as a stopgap device to deal on a temporary basis with new forms of fraud until particularized legislation could be devised to deal directly with the villainous activity. Id. at 1053, citing United States v. Maze, 414 U.S. 395, 405-06, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974) (Burger, J., dissenting). The court found in Congress's subsequent enactment of the criminal antifraud provisions of the Internal Revenue Code a latent intent to preempt the field of sanctions available for tax fraud violations, an intent that would be undermined if the Government were allowed to obtain "multiple sentences reaching staggering, if not utterly unrealistic, years of imprisonment" by prosecuting violators simultaneously under the mail fraud statute and the Code. Id. at 1053-54.

Although Henderson lends an aura of plausibility to Weatherspoon's argument, we find it of no help to her here. Even if we were to agree that Henderson is good law, 1 it would not apply here, for there is nothing in either the language or the legislative history of the false statements statute, 18 U.S.C. § 1001, reflecting any Congressional intent to create a hierarchy of sanctions that would preempt the application of the mail fraud statute, 18 U.S.C. § 1341, to the submission of false statements to a government agency through the use of the mails. We note that the mail fraud statute has long been used in concert with statutes proscribing the making of false statements to a government agency, and no question has heretofore been...

To continue reading

Request your trial
96 cases
  • United States v. Computer Sciences Corp.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • March 5, 1981
    ...Am.Crim.L.Rev. 282-86 (1980). 11 In making this decision, this court is aware of the Seventh Circuit's holding in United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978). In Weatherspoon the court held that a defendant could be charged with both mail fraud under § 1341 and making false ......
  • Saine v. AIA, INC., Civ. A. No. 83-K-1726.
    • United States
    • U.S. District Court — District of Colorado
    • March 21, 1984
    ...Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (8th Cir.1983) (retirement community); United States v. Weatherspoon, 581 F.2d 595 (7th Cir.1978) (beauty college); United States v. Lemm, 680 F.2d 1193 (8th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74......
  • U.S. v. Coachman
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 9, 1984
    ...v. Mahler, 579 F.2d 730, 731 n. 2 (2d Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978); United States v. Weatherspoon, 581 F.2d 595, 600 (7th Cir.1978), and therefore, there is no occasion to resort to the doctrine of lenity. See note 26 ...
  • US v. Regan
    • United States
    • U.S. District Court — Southern District of New York
    • May 18, 1989
    ...involving prosecution for mail and wire fraud and for making false claims to the United States government); United States v. Weatherspoon, 581 F.2d 595, 599-600 (7th Cir.1978) (distinguishing Henderson in case involving prosecution for mail fraud and for making false statements to the Unite......
  • Request a trial to view additional results
14 books & journal articles
  • Racketeer influenced and corrupt organizations.
    • United States
    • American Criminal Law Review Vol. 49 No. 2, March 2012
    • March 22, 2012
    ...Line Pilots Ass'n Int'l, 901 F.2d 404, 434 (5th Cir. 1990) (finding pilot union an enterprise). (92.) See United States v. Weatherspoon, 581 F.2d 595, 597-98 (7th Cir. 1978) (finding beauty college approved for veterans' vocational training by Veterans Administration an enterprise), abrogat......
  • Racketeer Influenced and Corrupt Organizations
    • United States
    • American Criminal Law Review No. 59-3, July 2022
    • July 1, 2022
    ...AFL-CIO, 901 F.2d 404, 425, 434 (5th Cir. 1990) (f‌inding a pilot union to be an enterprise). 103. See United States v. Weatherspoon, 581 F.2d 595, 597–98 (7th Cir. 1978) (f‌inding that a beauty college approved for veterans’ vocational training by Veterans Administration to be an enterpris......
  • Racketeer influenced and corrupt organizations.
    • United States
    • American Criminal Law Review Vol. 51 No. 4, September 2014
    • September 22, 2014
    ...Line Pilots Ass'n Int'l, 901 F.2d 404, 434 (5th Cir. 1990) (finding pilot union an enterprise). (94.) See United States v. Weatherspoon, 581 F.2d 595,597-98 (7th Cir. 1978) (finding beauty college approved for veterans' vocational training by Veterans Administration an enterprise), abrogate......
  • Racketeer influenced and corrupt organizations.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...Line Pilots Ass'n Int'l, 901 F.2d 404, 434 (5th Cir. 1990) (finding pilot union an enterprise). (84.) See United States v. Weatherspoon, 581 F.2d 595, 597-98 (7th Cir. 1978) (finding beauty college approved for veterans' vocational training by Veterans Administration an (85.) See United Sta......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT