Belvin v. United States, 17500.

• Decision Date: 05 January 1960
• Docket Number: No. 17500.,17500.
• Citation: 273 F.2d 583
• Parties: William BELVIN, James E. Clanton, Clifton Hawkins and Wallace Hawkins, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

273 F.2d 583 (1960)

William BELVIN, James E. Clanton, Clifton Hawkins and Wallace Hawkins, Appellants, v. UNITED STATES of America, Appellee.

No. 17500.

United States Court of Appeals Fifth Circuit.

January 5, 1960.

Zach H. Douglas, Jacksonville, Fla., W. Fred Turner, Panama City, Fla., S. Gunter Toney, Tallahassee, Fla., for appellants.

F. E. Steinmeyer, III, Asst. U. S. Atty., Wilfred C. Varn, U. S. Atty., Tallahassee, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and JONES, Circuit Judges.

RIVES, Chief Judge.

This appeal is from judgments of conviction upon five separate indictments, consolidated for trial, charging use of the mails,¹ and of interstate telephones² to defraud insurance companies by obtaining collision or liability insurance on automobiles and collecting on staged or faked automobile collisions.

The indictments name as the alleged victims the Virginia Mutual Insurance Co., Richmond, Virginia; the Allstate Insurance Company, Skokie, Illinois; the Iowa Mutual Insurance Company, DeWitt, Iowa; the Travelers Insurance Company, Hartford, Connecticut; and the Casualty Reciprocal Exchange (Bruce Dodsen and Company, Kansas City, Missouri); adding after the name of each "and divers other persons to the Grand Jury unknown."

1. The appellants complain that the named victim is not specified to be either an individual, a partnership, or a corporation. That there is no merit in the contention sufficiently appears from a reference to Rules 2, 7(c), and 52(b) of the Federal Rules of Criminal Procedure, 18 U.S.C., "designed to eliminate technicalities in criminal pleading and to simplify procedure,"³ especially when it is considered that, under common-law pleading, the better considered cases did not require averment of the character of an association or legal entity where that was not essential to a description of the offense.⁴

2. Appellants contend that the use of the mails or of the interstate telephone must be either by the wrongdoer himself or by his agent or employee. The law is so well settled to the contrary that we do no more than quote the rule as last stated in Pereira v. United States, 1954, 347 U.S. 1, 8, 9, 74 S.Ct. 358, 363, 98 L. Ed. 435:

"Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he `causes\' the mails to be used. United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836."

3. Appellants contend that the confession of James E. Clanton was admitted without proof of the corpus delicti. As argued, this contention goes not to the mere order of proof,⁵ but to the absence throughout of corroboration of the confession or proof of the corpus delicti. The extent of the corroboration of a confession necessary as a matter of law for a judgment of conviction has been discussed in recent decisions by the Supreme Court⁶ and by this Court.⁷ Certainly there must be either substantial independent evidence which would tend to establish the trustworthiness of the confession, or else independent evidence as to some, if not indeed all, of the elements of the offense.

As to two of the indictments, Nos. 1339 and 1340, there was no direct proof of fraud except by the confession of Clanton. As to the other three indictments, Nos. 1341, 2267, and 2268, the Government offered testimony of other witnesses that the accident was faked or that the scheme was fraudulent. As to the two indictments first mentioned, the Government contends that the fraudulent character of one alleged accident and claim may be inferred from proof that other similar accidents during the same period were faked. On that issue we agree with the Government for reasons disclosed in our discussion of the appellants' next contention.

4. Appellants contend that the district court erred in allowing the Government to inquire on cross-examination about other accidents not covered in the indictments.

While the Government was presenting its case in chief, the district court ruled repeatedly that testimony as to accidents not covered in the indictments was inadmissible. However, upon cross-examination of each of the three defendants who testified in his own behalf,⁸ the court allowed the Government, over the objections of the defendants, to inquire about other accidents in which they had been involved. The Government concedes that this course was inconsistent with the principle that contradiction or impeachment of a witness may be shown only on matters material to the substantive issues of the trial.⁹ The Government relies, however, upon the rationale of Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, and urges that this evidence should have been admitted by the district court when it was offered by the Government as part of its main case for the purpose of proving fraud.

The Michelson case, supra, while recognizing the general rule that the Government may not prove defendants' prior trouble with the law or specific criminal acts, points out that,

"There are * * * well-established exceptions where evidence as to other transactions or a course of fraudulent conduct is admitted to establish fraudulent intent as an element of the crime charged. See, e. g., Fall v. United States, 60 App. D.C. 124, 49 F.2d 506, certiorari denied, 283 U.S. 867, 51 S.Ct. 657, 75 L. Ed. 1471; Hatem v. United States, 4 Cir., 42 F.2d 40, certiorari denied, 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987."

335 U.S. at pages 475, 476, note 8, 69 S. Ct. at page 218.

In the early case of Wood v. United States, 1842, 16 Pet. 342, 360, 10 L.Ed. 987, the Court said:

"The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty."

The principles have been fully discussed in Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, 681, et seq., and in 2 Wigmore on Evidence, 3rd ed., § 300, et seq. We agree with the Government's contention that most, if not all, of the evidence offered as to other accidents should have been admitted as a part of the Government's case in chief for the purpose of proving fraud.

Ordinarily evidence proper in chief may be admitted on rebuttal in the sound discretion of the court. 23 C.J.S. Criminal Law § 1051. Under the circumstances of this case, however, the procedure adopted worked unfairly to the defendants. Each defendant had a constitutional right not to be a witness against himself. Each of them knew that when he took the stand his voluntary offer of testimony was a waiver, but a waiver restricted to relevant facts. Brown v. Walker, 1896, 161 U.S. 591, 597, 598, 16 S.Ct. 644, 40 L.Ed. 819; Johnson v. United States, 1943, 318 U.S. 189, 195-197, 63 S.Ct. 549, 87 L.Ed. 704. Belvin was the first of the defendants to take the stand. Based on the previous rulings of the Court, Belvin had a right to believe that evidence as to other accidents was not relevant. It cannot be held that Belvin voluntarily subjected himself to cross-examination with reference to such accidents not covered in the indictment. Further, that procedure deprived the defendants, all represented by the same counsel, of the full opportunity to searching cross-examination of the witnesses against them to which they would have been entitled had the evidence been admitted as a part of the Government's case in chief. In our opinion, the district court, in the light of its previous rulings, erred in overruling the objections of the defendants to Belvin's cross-examination about such other accidents.

It is not necessary to decide whether like rulings on the cross-examination of Wallace Hawkins and Clifton Hawkins were also erroneous, because the error as to the cross-examination of Belvin was prejudicial to the two Hawkins and also to Clanton, each of them having been involved, according to the inquiries, in some of the other accidents.

That error requires a reversal of each of the judgments of conviction, and it is not entirely necessary to discuss appellants' few remaining contentions. We do so, however, because they have a bearing either on what has been said or upon the conduct of a new trial or trials.

5. The appellants other than Clanton contend that Clanton's confession so prejudiced them that the district court erred in denying their motions for mistrial. Clanton's confession goes into meticulous detail as to the collisions covered by the indictments and as to other alleged accidents. It comprises a little over seven single-spaced typed pages. It describes Wallace Hawkins as the ringleader in the series of faked accidents and mentions his name over eighty times and repeatedly implicates the other defendants. Apparently, neither counsel nor his co-defendants knew that Clanton had confessed, and they were taken by surprise when his confession was introduced in evidence. The other three defendants then promptly moved for a mistrial to protect their constitutional rights to be confronted with the witness against them and to have an opportunity to cross-examine that witness. Amendment 6 to the Constitution. The district court denied the motions for mistrial,...