687 F.2d 63 (5th Cir. 1982), 82-3054, United States v. Drury

Docket Nº:82-3054.
Citation:687 F.2d 63
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward R. DRURY, Defendant-Appellant.
Case Date:September 15, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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687 F.2d 63 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward R. DRURY, Defendant-Appellant.

No. 82-3054.

United States Court of Appeals, Fifth Circuit

September 15, 1982

Michael S. Fawer, Ronda C. Lustman, Clark A. Richard, New Orleans, La., for defendant-appellant.

John Patrick Deveney, Harry W. McSherry, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GEE and GARZA, Circuit Judges.

PER CURIAM:

This is an appeal of mail fraud convictions stemming from a kickback scheme between appellant Drury, a Louisiana attorney representing plaintiffs in personal injury actions, and one Macaluso, a New Orleans physician to whom Drury referred most of his clients. The financial arrangements between the two, like most of the facts in this case, are undisputed.

It was Drury's custom to sign contracts with his clients in which he agreed to accept 40% of any settlement of the claim as his fee. Macaluso submitted his medical bills to Drury for payment. On settling with the insurance company, Drury would deduct his 40% fee and 100% of the face amount of the doctor's bill, forwarding the balance to the client. Pursuant to an agreement with Macaluso, however, Drury then remitted to the doctor only 85% of the doctor's medical bill, pocketing the remaining 15% himself.

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Drury never disclosed to any client that he was skimming Macaluso's fees. Macaluso was the only physician with whom Drury had this arrangement; and, after 1974 or 1975 when a uniform 15% was always taken by Drury off the doctor's collections, two-thirds of Drury's referrals were to Macaluso.

Drury was indicted by a grand jury on 21 counts of mail fraud and one count of conspiracy to commit mail fraud. After a two-day bench trial, the court found Drury not guilty of conspiracy but guilty of the 21 counts of mail fraud. He was sentenced to five years in prison (all but fours months suspended, with three years probation) and fined $1,000 on each count.

Sufficiency of the evidence

As we stated in United States v. Yanes, 628 F.2d 294, 295 (5th Cir. 1980), we must

examine the evidence in the light most favorable to the government, making reasonable inferences and credibility choices in favor of the verdict of the trier of fact .... The verdict must stand if the trial judge is justified in finding the evidence inconsistent with any reasonable hypothesis of the defendant's innocence .... The test is the same whether the evidence is direct or circumstantial.

(citations omitted).

Drury was charged in counts 2-22 with operating a scheme "to cause insurance carriers to pay inflated settlements based on false medical statements, as well as to cause the clients of Mr. Drury to pay expenses in excess of that which were incurred." The district court in effect bifurcated each count, as if Drury had been charged with two schemes to...

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