Barnard v. United States

• Citation: 342 F.2d 309
• Decision Date: 20 April 1965
• Docket Number: No. 17746.,17746.
• Parties: George James BARNARD and Philip Weinstein et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

342 F.2d 309 (1965)

George James BARNARD and Philip Weinstein et al., Appellants, v. UNITED STATES of America, Appellee.

No. 17746.

United States Court of Appeals Ninth Circuit.

February 3, 1965.

Rehearing Denied April 20, 1965.

COPYRIGHT MATERIAL OMITTED

Dwight L. Schwab, Denton G. Burdick, Jr., Hutchinson, Schwab & Burdick, Portland, Or., for appellant Philip Weinstein.

Alan R. Jack, Oregon City, Or., Peter A. Schwabe, Jr., Portland, Or., for appellants George James Barnard, John Norris Barnard, William Mack Lasiter and Raymond Knippel.

Sidney I. Lezak, Acting U. S. Atty., Portland, Or., A. Lawrence Burbank, Sp. Asst. to the U. S. Atty., Dist. of Or., San Francisco, Cal., for appellee.

Before JERTBERG, Circuit Judge, MADDEN, Judge, Court of Claims, and DUNIWAY, Circuit Judge.

DUNIWAY, Circuit Judge:

These five appeals are from judgments of conviction rendered against the appellants after a jury trial upon an indictment for violation of Title 18, U.S.C. § 1341 (mail fraud) and Title 18, U.S.C. § 371 (conspiracy).

The indictment alleged that the defendants had planned and carried out certain automobile collisions, in each of which an automobile, which we may call the weapon car, would be intentionally crashed into the rear end of another automobile which we may call the target car. The weapon car's driver and owner would be insured by liability insurance against liability for damage to persons or property, caused by the operation of the weapon car. The target car would be occupied by two or three persons who were aware that the collision was going to occur. They would pretend that they had suffered injuries to their necks and backs as a result of the collision; would make claims and, if necessary, file suits against the driver and owner of the weapon car, which claims or suits would be answered by the insurance companies which carried the liability insurance on the weapon car. The collisions all occurred in Portland, Oregon.

The mail fraud feature of the case, which brought it into the federal court, was that, in the course of negotiation for settlement of the fraudulent claims of the voluntary victims, and the payment of the claims, the United States mails were used.

The appealing defendants are Philip Weinstein, George James Barnard, John Barnard, William Lasiter and Raymond Knippel. The charges in the indictment may be summarized as follows:

Counts I and II. George Barnard, Arthur Roscoe Smith and Larry Warren Hayes are the named defendants. The staged accidents occurred on February 16, 1960. Hayes drove the weapon car, Smith the target car. George Barnard was convicted under these counts and sentenced to three years on each, concurrent.

Count III. George Barnard, Donald William Johnstone, Patricia Ann Deplois, Knippel and Lasiter are the named defendants. The staged accident occurred on September 5, 1959. Johnstone drove the weapon car, Deplois the target car. George Barnard was convicted under this count and sentenced to four years, consecutive to his sentence under counts I and II. Knippel and Lasiter were also convicted, and each sentenced to four years.

Counts IV and V. George Barnard, Darrel Wayne Saunders and David Leon Boisjolie are the named defendants. The staged accident occurred on October 16, 1958. One Swertfeger, alias Scott, drove the weapon car, one Rose the target car. George Barnard was convicted under these counts and sentenced to three years under count IV, concurrent with his sentence under count I, and to four years under count V, concurrent with his sentence under count III.

Count VI. George Barnard, Leland Arthur Deegan, Geraldine Ruth Deegan, Darrel Wayne Saunders and Weinstein are the named defendants. The staged accident occurred on September 11, 1958. One Boisjolie drove the weapon car, Mrs. Deegan the target car. George Barnard was convicted under this count and sentenced to three years, concurrent with his sentence under count I. Weinstein was also convicted, and sentenced to four years.

Counts VII and VIII. George Barnard, Ronald Eugene Allison, John Norris Barnard, Charles Harry Geigerich, alias Rich, and Weinstein are the named defendants. The staged accident occurred on August 8, 1958. Geigerich drove the weapon car, Allison the target car. George Barnard was not convicted on these counts. John Barnard was convicted on both counts and sentenced to three years on each, concurrent. Weinstein was also convicted on both counts, and sentenced to four years on each, the sentence on count VII being consecutive to that on count VI, that on count VIII concurrent to that on count VI.

Count IX. All named defendants, and nine others, are named in this count. It charges a conspiracy to use the mails to defraud and lists as overt acts the acts stated in the preceding eight counts, plus certain other overt acts in any of which, of the appealing defendants, only George Barnard, Knippel and Lasiter are alleged to have participated. All appealing defendants were convicted on this count, and they were sentenced as follows: George Barnard to four years, consecutive to his sentences on counts I and III, a total of eleven years; John Barnard to three years, concurrent to his sentences on counts VII and VIII, a total of three years; Lasiter to four years, concurrent to his sentence under count III, a total of four years; Knippel the same; Weinstein to four years, concurrent to his sentence under count VII, a total of eight years, plus a fine of $3500.

COUNT IX, the over-all conspiracy.

Count IX charges that all of the planned collisions and the obtaining of money from insurance companies for real or pretended injuries attributable to the collisions were carried on pursuant to a single plan to do these things. All of the appellants, at the close of the government's evidence, and again at the close of all the evidence, moved for judgments of acquittal on count IX, asserting that there was a variance between that count of the indictment and the proof. They urged that the evidence, at most, showed nothing more than a succession of separate conspiracies to defraud.

We think the appellants are right. The indictment named twenty-eight persons. The indictment charged five planned collisions. There was evidence of a sixth one, not charged in the indictment. The government's evidence shows that of the twenty-eight persons, twenty-two were connected with only one of the collisions mentioned in the evidence; three were connected with two collisions; one was connected with three collisions and one, George Barnard, was connected with five.

George Barnard planned each collision with the group of persons who were to take part in that collision. It might be inferred that his idea was that he would set up a succession of such collisions, since he intended to share in the money extracted from the insurance companies, and he did not intend to be a passenger in any of the colliding vehicles. There was, and in the nature of the case, could have been, no discussion with those designated to ride in the cars that were to be in a particular accident to the effect that the activity in which they were to engage was to be repeated by them at suitable intervals. There is no evidence that any plan that there were to be other collisions, participated in by others than themselves, was discussed with them. The fact that George Barnard may, at the time he talked to a particular small group of persons about their collision, have had in his mind, undisclosed to them, ambitious thoughts about other collisions, does not mean that he was conspiring with them, and they with him, about other collisions which they were not thinking about. There was not a conspiracy for a succession of fraudulent collisions. There was, as the appellants urge, at most, a succession of separate conspiracies, each one about a collision in which the particular group of conspirators was to engage. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 and Rocha v. United States, C.A. 9, 288 F.2d 545 are decisions elaborating the reasons upon which our conclusion is based. None of the convictions of the appellants under count IX can stand.

THE COUNTS OTHER THAN COUNT IX.

COUNTS VII and VIII — John Barnard.

John Barnard was a passenger in the target car. There was no direct testimony that he had knowledge of the planned accident. An inference that he did have such knowledge, merely from the fact that he was in the automobile, would not be unreasonable. Other evidence of his association with his brother George, who does not question the sufficiency of the evidence on which he was convicted, was not very convincing. The government made much of the fact that John Barnard had borrowed money from Weinstein on several occasions, one of them two months before the date of the collision in which he was involved, a time when, so far as the evidence shows, no one had even thought of staging a planned collision. In these circumstances we think it possible that he may have been prejudiced by the efforts of the government to involve all the defendants in all the collisions on its theory that there was one over-all conspiracy. We will reverse the conviction of John Barnard, and remand his case to the district court for a new trial. See Kotteakos v. United States, supra.

COUNTS I-VI — George Barnard.

George Barnard does not assert that the evidence was insufficient to sustain his conviction on these counts. He does complain that he was, shortly before the beginning of the trial on September 13, 1961, incarcerated, with bail set at figures beyond his reach, and was thereby prevented from investigating testimony and other evidence and otherwise assisting his court-appointed lawyer in his defense. The facts relating to his incarceration are these: He and the other defendants were indicted on the mail fraud charges on January 20, 1961. Soon thereafter he was released on $2500 bail. The trial was set for May 2, later postponed to the...