U.S. v. Osum, 91-3299

• Decision Date: 25 September 1991
• Docket Number: No. 91-3299,91-3299
• Citation: 943 F.2d 1394
• Parties: 34 Fed. R. Evid. Serv. 1126 UNITED STATES of America, Plaintiff-Appellee, v. Larry A. OSUM, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1394

943 F.2d 1394

34 Fed. R. Evid. Serv. 1126

UNITED STATES of America, Plaintiff-Appellee, v. Larry A. OSUM, Defendant-Appellant.

No. 91-3299

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 25, 1991.

Joseph C. Bartels, Mark D. Kuss, New Orleans, La., for defendant-appellant.

Harry W. McSherry, Jr., Peter G. Strasser, John O. Braud, Asst. U.S. Attys., and Harry Rosenberg, U.S. Atty., New Orleans, La., for U.S Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Larry A. Osum (Osum) was convicted, following a jury trial, of conspiring to commit mail fraud, in violation of 18 U.S.C. § 371, and of six substantive mail fraud counts under 18 U.S.C. § 1341. He brings this appeal challenging (1) the transfer of his case to a different judge upon the government's motion, (2) the admission of evidence concerning subsequent uncharged offenses, (3) the sufficiency of the evidence, and (4) the admission of summary evidence under Federal Rule of Evidence 1006. We affirm.

Facts and Proceedings Below

Viewed most favorably to the government, the evidence reflected the following.

Osum was employed as a bus driver for the Regional Transit Authority (RTA) in New Orleans. On July 19, 1985, Osum was driving his bus in the median lane of Canal Street when an automobile on his right began to make a left turn. The two vehicles merged together, the front bumper of the car making light contact with the front right door of the bus. Osum told the other driver immediately after the collision that he was not hurt. Osum had the responsibility under RTA policy to fill out an accident report and to indicate therein if any passengers or pedestrians were claiming injuries from the accident. Osum did not list anyone as having been injured. When the RTA claims adjuster interviewed Osum about two weeks after the accident, Osum stated that the jolt from the collision had not been strong enough to knock anyone from their seats, and that no passengers had complained of injury.

Shortly after the accident, Isaac Joshua (Joshua), another RTA bus driver, approached Osum and told him that an attorney for whom Joshua worked would file a claim and obtain money for Osum. Joshua also told him that he had two persons--his niece and nephew, Myrna and Earl Daniels--whom he wanted to "appoint to the accident" if Osum would vouch that they had been passengers on the bus. Osum agreed, and the following day he met in Joshua's attorney's office with Joshua, the attorney, and the two Danielses. Osum told the Danielses where and how the accident had occurred. The attorney, Allen Katz (Katz), directed them to a Dr. John Lindner for treatment and paid Joshua $500 for producing Osum and the Danielses.

Subsequently, Osum, Myrna Daniels, and Earl Daniels filed claims with the General Accident Insurance Company for injuries purportedly sustained in the July 19th accident. Theirs were the only injury claims filed in connection with the accident. Medical records furnished by Katz indicated that Osum had been treated by Dr. Lindner on twenty occasions from July 19th to November 18th for acute lumbar sprain, that Earl Daniels was treated by Dr. Lindner on nineteen occasions, and that Myrna Daniels was treated on twenty occasions. Myrna Daniels testified at trial that she actually visited Dr. Lindner only five or six times, that she was told she could simply call the doctor's office rather than appear in person in order to be counted as having made an office visit, and that she was prescribed medication on one occasion but did not take it. General Accident paid $2,875 to each of the 3 claimants. Katz used the mails to send a notice of the claims, and later medical reports, to the insurance company's attorney.

On August 3, 1985, Osum was involved in an almost identical accident while driving an RTA bus on Canal Street. After again telling his RTA supervisor and RTA claims adjuster that there were no injuries in the accident, Osum procured Katz's assistance in filing claims for himself and five other persons against the car's insurer, Avis Rent-a-Car. The claimants included Osum's uncle (George Sterling) and Osum's father- and mother-in-law. All claimants were treated by Dr. Lindner. The 6 claims were ultimately settled for a total of approximately $18,000. Osum, who claimed to have sprained his right thumb and sustained an injury to his lower back in the August 3rd accident, was also treated by Dr. Bruce Samuels from August 8th to December 23rd, 1985. On the medical history form that Osum submitted to Dr. Samuels, he made no mention of any previous back injuries and did not indicate that he was currently receiving treatment from Dr. Lindner for a lower back injury. On December 23rd, Dr. Samuels released Osum after determining that he had no pain and that he had full movement in both his back and his thumb.

Finally, on December 7, 1985, Osum was involved in a third minor accident of the same nature between the bus he was driving and an automobile, for which attorney Katz filed claims against the car's owner, Hertz Rent-a-Car. The three claimants in this accident were Osum, Mark Sterling, and Marvin Sterling. Mark and Marvin Sterling were Osum's nephews and the sons of George Sterling, a claimant in the August 3 accident. The medical records submitted with this claim showed that Osum was treated by Dr. Lindner on twenty occasions between December 13, 1985, and April 7, 1986 for a sprained right thumb and a lower back injury, but there was no indication in the records that Osum had had any previous back or thumb injuries. The medical records indicated that one of these visits occurred on December 23rd, which according to Dr. Samuels' records from the previous accident was the same day that Dr. Samuels discharged Osum as completely recovered.

On July 13, 1990, an indictment was filed charging Osum with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, and with six substantive mail fraud offenses, in violation of 18 U.S.C. § 1341, all in connection with the claims filed for the July 19th accident. Under the Eastern District of Louisiana's system of random case allotment, the case was assigned to Section I, presided over by Judge Henry A. Mentz, Jr. On July 17, 1990, the government moved to transfer the case to Section G, Judge Morey L. Sear's section of the court. All previous indictments in the RTA bus frauds investigation had been transferred to Section G. Judge Sear had presided over the joint trial of Isaac Joshua and another RTA bus driver, Gloria Buckles, and had accepted guilty pleas from approximately forty other co-conspirators. The government argued that because Judge Sear was familiar with the conspiracy, transfer to his court would be "the most efficient use of judicial resources." Judge Mentz granted the motion over the opposition of defense counsel.

Also prior to trial, the government filed memoranda stating their intention to introduce evidence of the claims made by Osum and his relatives for the two subsequent accidents on August 3rd and December 7th, and of their intention to use a summary witness and charts to summarize evidence pertaining to the three bus accidents and the related insurance claims. The defense did not express any opposition to these proposals prior to trial. On the first day of trial, defense counsel objected to the introduction of evidence of claims from the two subsequent accidents. The court held that the evidence was admissible. Defense counsel did not then object to the government's use of a summary witness, although counsel successfully moved for the designated summary witness to be excluded from the courtroom except when testifying. When the government was ready to present the witness, defense counsel did object, arguing that the records were not voluminous enough to warrant his use. The court overruled the objection, noting, among other things, that defense counsel had not objected at the outset of trial, and the government had proceeded with its case in reliance on its plan to present the detailed claims information in summary form.

The jury found Osum guilty on all seven counts. The court imposed a sentence of 15 months in prison, 3 years' supervised release, and a $3,000 fine.

Discussion

I. Transfer of the Case

Osum argues that the justification given by the government for the transfer to Judge Sear had no statutory basis in the Federal Rules of Criminal Procedure or the local rules of court and that, lacking a valid statutory basis, the transfer should be regarded as impermissible forum shopping. He argues that the transfer circumvented the Eastern District's random allotment system, noting that if a judge finds it necessary to recuse himself, the ordinary procedure is for the case to be reassigned through the same random process.

In response, the government draws on cases dealing with changes of venue to argue that because a defendant has no constitutional right to a trial within a particular division of a judicial district, In re Chesson, 897 F.2d 156, 158 (5th Cir.1990) (per curiam); United States v. Dickie, 775 F.2d 607, 610 (5th Cir.1985), then a fortiori there can be no right to a trial in a particular court section or before a particular judge. ¹

Although the government's argument is correct as far as it goes, the intra-district transfer cases also establish that a court may not transfer a case, or deny a defendant's motion for transfer, if the defendant makes a strong showing that the action would be prejudicial. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991). The court in those cases must balance the defendant's concerns--either extensive pretrial publicity or the inconvenience of standing trial at a different location--with the interest in...