Friscia v. United States, 6740.

• Decision Date: 21 April 1933
• Docket Number: No. 6740.,6740.
• Citation: 63 F.2d 977
• Parties: FRISCIA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

63 F.2d 977 (1933)

FRISCIA et al. v. UNITED STATES.

No. 6740.

Circuit Court of Appeals, Fifth Circuit.

April 1, 1933.

Rehearing Denied April 21, 1933.

Howard P. Macfarlane, R. C. Brown, and Le Roy Allen, all of Tampa, Fla., and Warren Doyle, of New Orleans, La., for appellants.

W. P. Hughes, U. S. Atty., of Jacksonville, Fla., and Nathan R. Graham, Asst. U. S. Atty., of Tampa, Fla.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

BRYAN, Circuit Judge.

Appellants, Augustine Friscia, Peter Friscia, Mario Pearla, and Lewis Puglisi, were convicted, upon five counts of an indictment drawn under 18 USCA § 338, of using the mails for the purpose of executing a scheme to defraud.

The first count of the indictment — after setting out that on October 2, 1931, an apartment house described by lot and block numbers, the title to which was in Augustine Friscia, was destroyed by fire, and that before the fire a policy in the sum of $3,000, insuring the apartment house against loss by fire, was issued "by Associated Underwriters, Inc., a corporation under the laws of the state of Illinois, and an attorney in fact of Chicago Lloyds, an aggregation of individuals not incorporated, insurers" — alleges that while the insurance policy was still in force appellants devised a scheme to obtain from the insurers the amount of the insurance by falsely pretending and representing that the fire which had destroyed the apartment house "was an accidental fire, and one concerning which, under their said insurance contract and policy, said insurers were then liable to pay that amount, when, as each of said defendants then and there well knew, said fire was not an accidental fire, but, as each of the said defendants then and there well knew, was one originated by acts, designs and procurements on the part of said defendants, and one concerning which said insurers then were not and would not be liable upon said contract and policy; which said money said defendants were thereupon to convert to their own use, according to said scheme and artifice, and said insurers thereby defrauded thereof." Finally it was alleged that on November 30, 1931, appellants, for the purpose of executing the fraudulent scheme, placed in the post office at Tampa, Fla., for delivery to the addressees a sworn statement and proof of loss addressed to Chicago Lloyds and Associated Underwriters, Inc., at Chicago, Ill.

The second count is identical with the first, except that it alleges the issuance of a $15,000 fire insurance policy on the same apartment house. The third and fourth counts are also in the same form, except that they allege the issuance of fire insurance policies for $3,000 and $15,000, respectively, on an adjoining apartment house, which it is alleged was burned on November 6, 1931. The fifth count had to do with a fire insurance policy for $4,000 upon household goods in the building described in the first count.

The assignments of error relate to: (1) The denial of a motion to quash the indictment, (2) an order overruling a demurrer to the indictment, (3) sufficiency of the evidence, (4) instructions given by the court to the jury, and (5) requests to charge which were refused.

The motion to quash alleges that the evidence before the grand jury was incompetent and based upon hearsay, and prays for permission to inspect the minutes kept by the grand jury. Supporting affidavits by Augustine Friscia and counsel are to the effect that in so far as they could ascertain the grand jury considered only the transcript of testimony given before the county solicitor of Hillsborough county, who made an investigation concerning the burning of the apartment houses, the testimony of a local insurance agent and another witness who only claimed to have knowledge of circumstances attending the burning of the buildings. The indictment was returned on February 24, 1932; but the motion to quash was not filed until April 18, 1932, the day the case was called for trial. The grounds of the demurrer are: (a) That the indictment fails to charge a scheme to obtain any definite sum of money, but on the contrary alleges that no money or other thing of value was to be obtained as a result of the scheme; and (b) that the indictment is fatally defective, because it does not give the names of the individual members of Chicago Lloyds, or state that their names were unknown.

It is undisputed that the lots on which the apartment houses stood were conveyed in June, 1931, to Augustine Friscia; that fire insurance policies were issued to expire in one year on the buildings in July and August, and on the household goods in September, all as set forth in the indictment; that the building described in the first and second counts was destroyed by fire on the night of October 2, and the other building on the night of November 6; that proofs of loss in which it was stated that the fires were of unknown origin were received through the mail by the insurers. The proofs of loss represented that each building was subject to a $7,000 mortgage, and copies of assignments of such purported mortgages from one Massari to one Siragusa, dated September 28, 1931, were introduced in evidence. The proof of loss relating to the building destroyed in the first fire identified it by street number, but also stated the lot and block numbers. A policy for $4,000 was also taken out on the household goods in the building which was destroyed by the second fire, but no proof of loss was submitted under it, doubtless for the reason that during the time which elapsed between the two fires that policy was canceled by the insurance company. There was testimony for appellants to the effect that in the year 1931 the reproduction value of each apartment building was between $18,000 and $21,000. Augustine Friscia took the stand and testified that he paid $5,000 for the two pieces of property. However, he admitted that he insured the buildings and arranged to have them burned for the purpose of collecting the insurance, and then in order to avoid suspicion went to New York before the first, and stayed there until after the second, fire. But he undertook to exonerate his codefendants by claiming that his confederate was one Gus Perez.

The evidence of participation in the scheme by each of the other appellants was as follows: Peter Friscia, Augustine's brother, was a lawyer. He too testified in his own behalf. He admitted that on the morning of October 3 he accompanied the fire marshal, at the latter's request, to the scene of the first fire which had occurred the night before; that they went into the building that had not then been burned, where he saw streamers of heavy brown paper tacked up and strung in the hallways and in almost every room in the building, detected the scent of gasoline on a mattress, and observed a big hole in the floor downstairs, where the fire had been put out, which had either been burned or "put there on purpose"; that he saw springs without beds or mattresses, and that afterwards he prepared proof of the loss from the first fire and submitted it to a firm of more experienced lawyers, who prepared it for mailing. A member of the firm of lawyers so consulted testified that this proof of loss was put in an envelope addressed to the insurers and returned to Peter Friscia, and that later he became suspicious of the entire transaction and told the Friscia brothers his firm refused to have anything further to do with the claims against the insurers. Peter Friscia further testified that after this interview, upon being assured by his brother Augustine that the latter was innocent of any wrongdoing and believed that the building had been burned by his enemies, he was convinced that his brother was telling him the truth, and therefore decided to handle by himself all further matters connected with the collection of the insurance. Peter Friscia made this profession of his own innocence and good faith notwithstanding his admission that before the fire he told his brother that the latter had made a bad investment, and notwithstanding also his statement that after the first fire he and his father employed appellant Puglisi to continue to watch over and take care of the apartment houses. After the second fire he prepared proofs of...