U.S. v. Zicree

• Decision Date: 08 November 1979
• Docket Number: 79-1875,Nos. 78-5613,s. 78-5613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruth ZICREE, Harold Kaufman and Fredesvinda Mercedes Gonzalez, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Harold KAUFMAN and Ruth Zicree, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1381

605 F.2d 1381

UNITED STATES of America, Plaintiff-Appellee, v. Ruth ZICREE, Harold Kaufman and Fredesvinda Mercedes

Gonzalez, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Harold KAUFMAN and Ruth Zicree, Defendants-Appellants.

Nos. 78-5613, 79-1875.

United States Court of Appeals,

Fifth Circuit.

Nov. 8, 1979.

Michael J. Osman, Miami, Fla., for Zicree & Kaufman.

Angus M. Stephens, Jr., Coral Gables, Fla., for Gonzalez.

Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in case no. 78-5613.

Robert M. Duboff, Michael J. Osman, Miami, Fla., for defendants-appellants in case no. 79-1875.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., for plaintiff-appellee in case no. 79-1875.

Joel N. Rosenthal, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases.

Appeals from the United States District Court for the Southern District of Florida.

Before THORNBERRY, CLARK and KRAVITCH, Circuit Judges.

THORNBERRY, Circuit Judge:

In this consolidated appeal from multiple convictions for mail fraud, we must decide whether the evidence adduced at trial is sufficient to support the convictions, whether the appellants were improperly joined together in one trial, whether the trial judge erred in denying appellants' motion for a new trial on the basis of newly discovered evidence, whether the trial judge erred in presenting a particular Allen charge, and whether the trial judge erred in allowing an expert witness to testify for the government. Because we believe that the trial judge ruled correctly on each of these issues, we affirm the convictions in the court below.

I.

The government brought mail fraud and conspiracy charges against eleven participants in an alleged scheme to inflate medical bills for personal injury plaintiffs in the Miami area. The alleged participants included the appellants Dr. Kaufman, his assistant, Ruth Zicree, and his former associate, Dr. Gonzalez plus attorney Anthony Capodilupo and seven of Capodilupo's employees.

The scheme allegedly began in January, 1972, when Florida's no-fault insurance statute ¹ took effect. The statute required automobile accident victims to accumulate over $1,000 in medical expenses before they could sue for pain and suffering. The government alleged that Capodilupo employed several "runners" who contacted accident victims and offered to help the victims make money from the accident. The runners referred these victims to Capodilupo who would explain how the victims needed to run up their medical bills above the $1,000 threshold in the no-fault statute. Capodilupo then referred the victims to doctors such as Kaufman and Gonzalez. These doctors allegedly gave the victims unnecessary treatments and billed the victims for these treatments plus other treatments and services that the doctors never actually performed. After the victims' bills exceeded the $1,000 statutory threshold, Capodilupo would bring suit on behalf of the victims against the other drivers' insurance carriers for pain and suffering. Most of the suits were settled for a few thousand dollars.

The indictment covered alleged acts over the period from January, 1972, to November, 1977. Throughout this period Ruth Zicree worked as Dr. Kaufman's secretary; she helped prepare medical reports and bills among other jobs. Dr. Gonzalez worked with Dr. Kaufman in his office from January, 1973, until January, 1974. In 1974, Dr. Gonzalez opened her own office a few blocks down the street from Dr. Kaufman's office, and continued her medical practice throughout the period covered in the indictment.

The government brought one count of conspiracy and 188 counts of mail fraud relating to thirty-three different accident victims against the eleven defendants. At the conclusion of the government's case at trial, appellants moved for a severance and for acquittal. The judge granted a severance of the eight-person "lawyer group" from the appellants, and denied the motion for acquittal. Before submitting the case to the jury the judge dismissed twenty-eight counts of mail fraud relating to eight patients against the appellants. The jury returned guilty verdicts against Kaufman and Zicree on eight mail fraud counts relating to two patients, and against Gonzalez on eighteen mail fraud counts relating to four patients. The jury acquitted all appellants of the conspiracy charges.

Kaufman received a sentence of three years on one count to run consecutively with concurrent three-year sentences on the other counts. He was fined $1,000 for each count. Zicree received a sentence of one year on each count, all sentences to run concurrently. Zicree's sentence was modified to require one day's imprisonment, plus probation for the remainder of her concurrent sentences. She was fined $300 for each count. Gonzalez received a sentence of three years on each count, all sentences to run concurrently. She was fined $500 for each count.

II.

Appellants contend that the evidence adduced at trial is insufficient to support their mail fraud convictions. Under the mail fraud statute, 18 U.S.C. § 1341, ² the government must prove beyond a reasonable doubt (1) a scheme to defraud, and (2) causing a mailing for the purpose of executing the scheme. United States v. Shryock, 537 F.2d 207, 209 (5 Cir. 1976), Cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977). In evaluating the sufficiency of the evidence, we must consider the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The test for sufficiency of the evidence necessary to support denial of a motion for acquittal is whether the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the defendant's innocence. United States v. Lonsdale, 577 F.2d 923, 925 (5 Cir. 1978).

Appellants contend that our decision in United States v. Herberman, 583 F.2d 222 (5 Cir. 1978), requires a reversal of their convictions. In Herberman a jury convicted a doctor on twenty of twenty-eight counts for making false Medicare statements requesting payment for services he allegedly did not perform. On appeal we reversed four of the twenty convictions because the evidence was insufficient to establish guilt. These four counts related to four different patients. Three of the patients testified at trial that the treatments they received were actually consistent with the doctor's Medicare statements. The fourth patient testified repeatedly that he did not know whether or not he had received a treatment that the government contended had never been given. Because the testimony by these patients failed to indicate that the doctor's statements about these particular patients were false, and because the government produced no other testimony specifically relating to these four charges, we held that general evidence about the doctor's practices would be insufficient by itself to establish that he made false statements with particular regard to these four patients:

The government's proof depended primarily on the testimony of the patients of Dr. Herberman and the testimony of the patients on these four counts was clearly insufficient. The general testimony of the investigators, the people from HEW and the ex-employees was not tied to any particular count. Without the patients' testimony, there was no case.

583 F.2d at 231.

We agree with appellants that the Herberman decision should guide our analysis in this case, but we find that the evidence adduced by the government at trial satisfies the requirements in Herberman. As in Herberman, the government provided ample background evidence to establish that a fraudulent scheme existed. Witness Patricia Hope worked as a secretary in Kaufman's office for eight or nine months from mid-1972 until the beginning of 1973. She testified that Kaufman instructed her to record treatments for patients who did not actually receive them. According to Hope, many patients signed the office register, then left the office without seeing a doctor or receiving treatment. In January, 1974, Hope began secretarial work for Gonzalez. She testified that Gonzalez instructed her to follow Kaufman's practice of recording treatments that had not been performed. Another of Gonzalez's employees, Wendy Jones, confirmed Hope's testimony and added other examples of fraudulent billing by Gonzalez. Kaufman himself testified that he was aware of the $1,000 no-fault threshold, and that he kept special records for patients referred to him as automobile accident victims by attorneys such as Capodilupo.

Against this background of general evidence indicating the existence of a mail fraud scheme, the government presented specific testimony from each of the patients related to the counts upon which the appellants were convicted. Kaufman and Zicree were convicted upon counts relating to patients Lacey and Raiford. Lacey testified that he made only six visits to Kaufman's office, although the government produced mailings to show that Kaufman had billed Lacey for sixteen visits. Raiford testified that he made no more than six visits to Kaufman's office, although Kaufman billed him for twenty-eight visits. Gonzalez was convicted on the count relating to Lacey, a patient at Kaufman's office during the period that Gonzalez worked with Kaufman, as well as on counts relating to Durden, Patricia Hope, and Rickford Hope, who were Gonzalez's patients after she opened her separate office. Durden testified that she made only two visits to Gonzalez's office, although Gonzalez billed her for fifteen visits. Patricia Hope, who worked as Gonzalez's secretary, testified that she made ten to fifteen visits to Gonzalez as a patient, although Gonzalez billed her for forty-nine visits. Rickford Hope testified that he made about thirty-one visits to Gonzalez; but Gonzalez billed him for fifty-seven visits. In contrast to the testimony of the four patients...