State v. Olkon
| Decision Date | 26 January 1981 |
| Docket Number | No. 50966.,50966. |
| Parties | STATE of Minnesota, Respondent, v. Ellis OLKON, Appellant. |
| Court | Minnesota Supreme Court |
Collins, Buckley, Sauntry & Haugh, Theodore J. Collins and Dennis W. Hagstrom, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Asst. County Atty., Chief, App. Div., David W. Larson, Asst. County Atty., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
Certiorari Denied January 26, 1981. See 101 S.Ct. 954.
Defendant, Ellis Olkon, was charged with two counts of conspiracy to commit theft by swindle over $2,500 and two counts of attempted theft by swindle over $2,500. These charges were brought after defendant Olkon collected monies from two insurance companies for the purported automobile accident injuries of a client even though he was apprised that the client was not in fact injured. The client, who unbeknown to defendant was an undercover police officer, had requested that defendant act as his attorney in presenting the false claims to the insurance companies. Prior to trial, defendant moved to dismiss the indictment on the ground that prosecutorial misconduct had occurred during the grand jury proceedings and on the ground that the indictment was multiplicious. These motions were denied. Defendant waived a jury trial on the defense of entrapment. Therefore, the defense was tried before the court at the omnibus hearing. The trial court determined that defendant was not entrapped into the commission of any offense. After a jury trial, the jury returned a verdict of guilty on the two counts of attempted theft by swindle but was unable to reach a verdict on the two counts of conspiracy. Subsequent to trial, a Schwartz hearing was held because there had been allegations of juror misconduct. Defendant moved for a new trial and, in the alternative, for a judgment of acquittal. These motions were denied and judgment was entered against defendant. We affirm.
In early 1978, Walter Powers, a Hennepin County police officer who worked often on undercover narcotics investigations, was requested by Hennepin County Detective John Meath to take part in an undercover investigation of medical fraud activities. As a part of this plan, Deputy Powers established a doctor-patient relationship with Dr. Robert Coifman, a medical fraud suspect, by consulting with Dr. Coifman on three occasions for Powers' purported allergy problems. Deputy Powers identified himself to Dr. Coifman as "Eugene Bowers", the cover name which Powers was to use throughout the investigation. During some of these visits, Powers-Bowers was accompanied by Deputy Sheriff Pamela Lavarre, who used the cover name of "Elizabeth Saunders" and who posed as the girl-friend of Bowers.
On June 16, 1978, Powers-Bowers and Lavarre-Saunders went to Dr. Coifman's office and told Coifman that they had been in a car accident the night before. Powers-Bowers complained of lower back pain but did not receive any treatment during that visit or during his next visit to Dr. Coifman. Dr. Coifman and his business manager, Nathan Neff, discussed the possibility of therapy and the wearing of a neck brace with Powers-Bowers. On June 20, Powers-Bowers and Lavarre-Saunders returned to Dr. Coifman's office and only saw Neff, who referred them to defendant Olkon, a Minneapolis lawyer, for legal assistance.1 The police department had not intended to investigate Olkon until Neff made this reference.
Prior to the June 16 visit with Dr. Coifman, Powers-Bowers was issued a driver's license and a Hennepin County welfare card in his fictitious name. With the cooperation of the Edina Police Department, a fictitious police accident report was prepared on a standard Department of Public Safety form. The report indicated that Bowers and Saunders, while driving in a 1977 Ford van, were rear ended by one Joseph Barnes at 1:10 a. m. on June 16, 1978, and that property damage of $700 and physical injuries resulted from the accident. Powers-Bowers was also listed, in his fictitious name, as the owner of the van involved in the accident and was given a falsified repair bill for the van in the amount of $313.60. State Farm Mutual Insurance Company, at the request of the Hennepin County Sheriff's Department, provided Bowers with insurance coverage which included personal injury protection. The Travelers Insurance Company, the insurer of Joseph Barnes, and State Farm were fully informed of the fictitious nature of the accident and of the investigation plan. The insurance companies were requested to settle without contest any claims made against them on behalf of Bowers. The Hennepin County Sheriff's Department also contacted the Hennepin County Medical Society and requested that they delay the filing of charges against Dr. Coifman for about 30 days.
On June 22, 1978, Powers-Bowers called defendant's office to make an appointment with defendant. The conversation which ensued and subsequent calls to and interviews in the Olkon office were tape recorded by Powers-Bowers by means of a small transmitter and receiver. Powers-Bowers spoke with Debra Juhl, defendant's paralegal secretary. He identified himself as Eugene Bowers and told her that he had been referred to Olkon by Nathan Neff, that he had been involved in a car accident, and that he and Saunders had been injured and were in treatment with Dr. Coifman. Juhl contacted Bowers later that day and gave Bowers an appointment to see defendant the following Monday. Powers-Bowers agreed to come unless he was admitted into the hospital in the interim.
On the afternoon of Monday, June 26, 1978, Powers-Bowers and Lavarre-Saunders went to defendant's law office. They were casually dressed and Powers-Bowers wore a neck brace or "soft collar." They were met by Debra Juhl who had them execute legal retainer agreements and medical release forms. Powers-Bowers gave Juhl a copy of the police accident report. Juhl testified at trial that Powers-Bowers moved stiffly, appeared to be in pain, and gave no indication that he was not an injured person.
Powers-Bowers and Lavarre-Saunders then went into defendant's office. They identified themselves to defendant as Bowers and Saunders, indicated that they were cohabiting, and told defendant they were unemployed. They described the accident to defendant and gave him insurance information. Lavarre-Saunders indicated that she had pain in her shoulders and lower neck and had headaches. Powers-Bowers stated that he had lower back pain and would be hospitalized. They also discussed their treatment with Dr. Coifman and defendant expressed skepticism concerning Dr. Coifman because his bills were high and because he treated patients with hypnotherapy, a procedure not highly recommended by the medical profession. At this meeting, the following also transpired ("O" represents Olkon, "P" represents Powers-Bowers):
After this meeting, defendant notified the Travelers Insurance Company that an accident had taken place and that a possible cause of action existed. Defendant also informed State Farm of the accident and indicated that State Farm should deal directly with their insured, Bowers. Defendant forwarded to the insurance companies the accident report and repair bill.
In March and early July 1978, Debra Juhl called the Hennepin County Medical Society and asked whether there were any complaints against Dr. Coifman regarding his overcharging for services. Juhl was informed that Dr. Coifman was a member in good standing of the society.
On August 15, 1978, Powers-Bowers was admitted to the Metropolitan Medical Center by Dr. Coifman. While there, Powers-Bowers underwent treatment for lower back pain. He was also examined by Dr. Joseph Engel, a consulting psychiatrist who had no relationship to Dr. Coifman. As a result of this examination, Dr. Engel concluded that Bowers had a minor spine sprain and nerve root irritation. His consultation report indicated his diagnosis:
Diagnosis is lumbar spine sprain with a mild right sided radiculitis and a cervical spine block sprain of a milder extent.
Dr. Engel also reported to State Farm that Bowers had a mild lower back and neck condition but that it was too early to indicate any permanency. Defendant received and reviewed these reports and other reports from the medical center which delineated Powers-Bowers' treatment there.
Powers-Bowers' next contact with defendant was on September 1, 1978, when he visited defendant at his law office. Powers-Bowers questioned defendant concerning the possibility of an early settlement of the insurance claims and defendant stated that it was too early for a medical...
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