Stevens v. United States

• Decision Date: 15 August 1962
• Docket Number: No. 19375.,19375.
• Citation: 306 F.2d 834
• Parties: William Dallas STEVENS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

306 F.2d 834 (1962)

William Dallas STEVENS, Appellant, v. UNITED STATES of America, Appellee.

No. 19375.

United States Court of Appeals Fifth Circuit.

July 26, 1962.

Rehearing Denied August 15, 1962.

Robert J. Malinak, Houston, Tex., for appellant.

Edward L. Stahley, Asst. U. S. Atty., Clinton Ashmore, U. S. Atty., Richard W. Ervin, III, Asst. U. S. Atty., Tallahassee, Fla., C. W. Eggart, 1st Asst. U. S. Atty., Pensacola, Fla., for appellee.

Before CAMERON, JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge.

The appellant, William Dallas Stevens, and others, were charged by indictment with violation of the Mail Fraud Statute, 18 U.S.C.A. § 1341. This is one of a number of cases in which the United States claimed that the defendants staged fake automobile accidents for the purpose of defrauding insurance companies. In one of these cases, Everitt, et al., v. United States, 5th Cir.1960, 281 F.2d 429, Stevens was a successful appellant in obtaining the reversal for a new trial of a conviction upon the same indictment as was the basis for the conviction which is here under review. The most recent of these cases is Glenn, et al. v. United States, 5 Cir., 303 F.2d 536.¹ Stevens, on the retrial, was convicted on one count of a two-count indictment. He filed a motion for a new trial which was overruled and has appealed, asserting three specifications of error.

Count 1 of the indictment charged that the defendants formed a scheme and artifice to defraud an insurance company, and "for the purpose of executing the aforesaid scheme and artifice and attempting to do so caused to be delivered by the Post Office establishment of the United States a letter addressed to" the named insurance company which had been sent by a designated person and had transmitted described documents. The appellant's first contention is that the indictment is fatally defective and does not charge a violation of the statute² in that it failed to charge that Stevens knowingly caused the letter and documents to be delivered through the mail. The exact question was before the Court in the recently decided Glenn case where the contention there and here made was rejected, the Court saying that "the element established by `knowingly' is satisfactorily described by the phrase, `for the purpose of executing the aforesaid scheme and attempting to do so.'" As was there held, so we hold here that the indictment was sufficient.

The appellant moved for a directed verdict of not guilty and the motion was overruled. The second assertion of the appellant is that error was committed by the ruling. The ground assigned is that the evidence was not sufficient to establish the use of the mails. The mailing was alleged to have been of a letter addressed to The Hartford Accident and Indemnity Company, Midyette-Moore Building, Tallahassee, Florida, which letter had been sent by R. C. Evans, Panama City, Florida, transmitting affidavits of Roscoe Law and Rondel Kirkland. R. C. Evans was an attorney in Panama City who at that time was representing Ronnie J. Everitt, a claimant in one of the car accident cases which the Government claimed was phony. The Hartford office in Tallahassee was, it seems, in charge of its claim agent, Glenn Sears. It was his testimony that the Evans letter was received through the mail. He further testified that the mail sent to Hartford or to him was placed in a post office box in the Tallahassee post office from which it was picked up by his secretary who took it to the office, opened it and placed it on Sears' desk. The Evans letter was placed on Sears' desk.

We do not think it is necessary, as Stevens urges, that there be positive and direct testimony that there was a placing in the mails, or positive and direct testimony of a taking from the mails. The showing of the customs, usages and practices in the course of business with evidence of the letter appearing in the customary channel of mail matter is enough to carry the question to the jury. United States v. Berg, 3 Cir. 1944, 144 F.2d 173; United States v. Leathers, 2 Cir. 1933, 135 F.2d 507. The use of the mails may be established, like most other facts, by circumstantial evidence. The proofs made were such as warranted a submission to a jury and would justify the inferences as are implicit in a verdict of guilty. McNear v. United States, 10 Cir. 1932, 60 F.2d 861. And see Everitt v. United States, 5 Cir. 1960, 281 F.2d 429. The evidence is not materially different from that in the first trial, of which this Court said that it did not think the judgment should be rendered for failure of the evidence to make out a case for submission to the jury. We are of the same opinion with respect to the record now before us.

We come now to Stevens' third specification of error. As its final clincher witness to prove that the automobile accident was faked, the Government called Jimmy Dazey. After a few questions to provide background, Dazey was asked:

"Was that accident a faked or planned wreck?"

Dazey answered:

"That accident was a — was a wreck; it was a genuine wreck. My car — his car blinded me, I pulled across the white line, Mr. Stevens\' car hit an embankment and rolled with him in the car."

Government counsel asserted surprise and asked leave to cross-examine Dazey as an adverse witness. The request was granted. Government counsel's questions, Dazey's answers, and the participation by the court, are thus shown by the record:

"Q. By Mr. Stahley, Government Counsel Have you made any statement to Postal Inspector Callahan relating to the events you have talked about here just now?

"A. I sure did.

"Q. I want to hand you this —

"A. I would like to make a statement about that statement; may I?

"THE COURT: Yes, sir.

"Q. Do you need to read the statement when you are making your statement?

"A. No. in 1958 the electric — not electrical inspector, postal inspector came to my house and told me that Inspector Callahan wanted to talk to me in the post office in — uptown in Memphis. I said all right. I had no idea what that was about, the visit, or anything about it. So I went the next day and was carried into the — to his office, or the one that he was using. He right off the bat asked me some questions about my brother-in-law being involved in some wrecks, and I knew nothing of them and indicated so. Well, right off the bat he more or less — he scared me. He said that if I didn\'t play ball with them that he would have me locked up within twenty-four hours, this was carried before a Grand Jury and indicted and locked up. And he said he realized that he knew the condition of my wife, we were expecting a baby, and the fact that we had lost a baby the year before, and under those circumstances I signed a statement. But I would have signed anything about right then, because it scared me.

"Q. Was the statement you signed the truth?

"A. I couldn\'t be sure, I — he was making it up, and I was answering yes and no and —"

"Q. Did you give another statement to an insurance investigator relating to this same set of facts situation?

"A. I gave a — gave my insurance company a statement, I am sure.

"Q. I am talking about insurance investigators.

"A. No.

"Q. I want to hand you this statement that you gave to — I want to hand you this; ask you if you can identify it? It is a matter of three pages.

"A. That is my signature.

"Q. Is that there your signature, too?

"A. That is my signature. But as far as what —

"Q. Is that there your signature too?

"A. As far as what is in it, I couldn\'t be sure to that — to that.

"Q. Well, let me refresh your memory, if I can, by pointing to the —

"A. It has been —

"Q. Certain things that are in it, and see if you can recall them as being what you said at that time. Let me call your attention to this one here, this paragraph here.

"A. Well, that was five years ago, and I couldn\'t be sure as to when I met Mr. Stevens.

"Q. Is that the signature — is that your signature on the bottom of that page?

"A. Yes, it is. And like I said, at that time I — I would have signed anything to keep from going to jail.

"THE COURT: The question is whether or not you related those facts as set out in that statement about the Byhalia accident.

"MR. STAHLEY: This one.

"THE COURT: — to Mr. Callahan on that occasion; did you or didn\'t you?

"WITNESS: Yes, sir; I — I must have submitted these; yes, sir.

"THE COURT: Did you give him those facts?

"WITNESS: I —

"MR. STAHLEY: Start with this paragraph.

"THE COURT: Read them.

"MR. STAHLEY: Take your time.

"WITNESS: Yes, sir.

"THE COURT: All right.

"Q. Are these facts that you gave Inspector Callahan the truth of the situation as it occurred at Byhalia, Mississippi, during that time?

"A. That particular paragraph is; I — I didn\'t go into any more —

"THE COURT: Let me have that statement; we are wasting a lot of time. Did you tell Callahan on or about the 22nd of May, 1958, Postal Inspector Callahan, that you and Billy set up plans for a wreck to be staged someplace in the vicinity of Memphis; did you tell him that or anything to that substance and effect?

"WITNESS: Yes, sir.

"THE COURT:

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