U.S. v. Chavis, 84-1305

• Decision Date: 27 August 1985
• Docket Number: No. 84-1305,84-1305
• Citation: 772 F.2d 100
• Parties: 18 Fed. R. Evid. Serv. 1232 UNITED STATES of America, Plaintiff-Appellee, v. Alan Louis CHAVIS and Lambert Daniel Slisz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 100

772 F.2d 100

18 Fed. R. Evid. Serv. 1232

UNITED STATES of America, Plaintiff-Appellee, v. Alan Louis CHAVIS and Lambert Daniel Slisz, Defendants-Appellants.

No. 84-1305.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1985.

Samuel H. Bayless, Jack Paul Leon, San Antonio, Tex., for A. Chavis.

Roy R. Barrera, Sr., William McQuillen, San Antonio, Tex., for L. Slisz.

Helen Eversberg, U.S. Atty., Sidney Powell, Mitch Weidenbach, Asst. U.S. Atty., Robert Michael Duffey, Sp. Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

ON SUGGESTIONS FOR REHEARING EN BANC

Before RUBIN, WILLIAMS and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Treating the suggestions for rehearing en banc as petitions for panel rehearing, it is ordered that the petitions for panel rehearing are DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestions for Rehearing En Banc are DENIED.

The panel opinion issued July 1, 1985, is withdrawn and the following opinion is issued in its place.

Alan Louis Chavis and Lambert Daniel Slisz attack their convictions for mail fraud, a violation of 18 U.S.C. Sec. 1341. Chavis and Slisz assert numerous grounds of error; finding that such error as may have occurred below was harmless, we affirm.

Chavis and Slisz' legal problems stem from the activities of a number of companies owned by Chavis. Each of these companies conducted its operations in essentially the same fashion, with minor factual variations not relevant to this appeal. Typical of their modus operandi was that of Chavis' original company, American Association of Home Income Programs (AAHIP). Through classified advertisements and circulars, AAHIP represented that the company sought individuals to perform work in their homes. For example, the AAHIP materials stated:

You would make $58.90 tomorrow and $353.88 next week if you had your AAHIP membership package in your hands right now. (We also need homeworkers to process envelopes. We pay you $41 per 100 envelopes. Details in box at bottom of page).

The box at bottom of page read as follows:

AAHIP needs dependable homeworkers to work for us in our circular mailing program immediately. The home office will pay you $41 for every 100 envelopes you mail according to instructions, 41 cents per envelope. We pay for all postage and shipping expenses.

Individuals desiring to join the "home income program" were required to send a "membership fee" of $20 (other companies' fees ranged from $10 to $20), which was represented to be "the only money that you will ever have to pay to AAHIP." The company's materials promised a refund if the homeworker did not earn the promised amounts. On paying the membership fee, the worker received additional materials from the company which informed them that their duties would not be processing envelopes, but would instead involve placing at their own expense classified ads like those to which they had responded. The promised "salary" was actually a payment for each response received from these ads and forwarded to the company. ¹ Any homeworker requesting a refund was sent a letter admonishing them not to request a refund until they had given the "plan" an "honest try," as they had "promised."

All of the companies named in the indictment were owned by Chavis, but several of the companies were in large part operated by Slisz. Slisz received mail, including complaints, performed various banking duties, distributed materials describing the various programs, and performed miscellaneous other functions on behalf of the companies.

Chavis was originally indicted on twenty counts of mail fraud; Slisz was indicted for seven. After a joint trial, Chavis was convicted on nineteen counts, Slisz on seven. In this appeal, Chavis and Slisz jointly protest the following issues:

(1) The district judge's failure to recuse himself;

(2) A number of evidentiary rulings;

(3) The form of various jury instructions and the failure to give various other instructions;

(4) Submission of the text of 18 U.S.C. Sec. 1341 to the jury after the jury had been instructed; and

(5) The district judge's refusal to allow post-verdict polling of the jury.

Slisz individually challenges the following: (1) The joinder of his trial with that of Chavis; (2) failure to sever his trial from that of Chavis; (3) sufficiency of the evidence to support his conviction; (4) sufficiency of the indictment under which he was charged; and (5) the district judge's failure to compel discovery of an anonymous informant's call to a postal inspector. Finally, Chavis challenges the district judge's refusal to allow him to submit a portion of his income tax return showing a sizeable donation to a church.

I. RECUSAL

Chavis and Slisz' motion for recusal was based solely on Judge Suttle's grant of a preliminary injunction against them in a separate civil action brought by the post office. Thus, Chavis and Slisz argue that the judge's partiality may be questioned, largely because he "made findings of fact concerning ultimate issues." This need not detain us long. "[F]amiliarity with defendants and/or the facts of the case that arises from earlier participation in judicial proceedings is not sufficient to disqualify a judge from presiding at a later trial." In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 965 (5th Cir.), cert. denied, Mead Corp. v. Adams Extract Co., 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980).

II. EVIDENTIARY RULINGS

A. Better Business Bureau Records and Brochures

Chavis and Slisz' primary defense was "good faith" or lack of intent, based primarily on the companies' refund policies. To support this defense, Chavis and two of his employees testified that dissatisfied customers always received refunds, and no attempts were made to discourage those seeking refunds. In rebuttal, the government called the operations manager of the San Antonio Better Business Bureau, who testified about the BBB's methods of handling complaints against area businesses. Essentially, when the BBB received complaints, they were forwarded to the business and a record was kept of the complaint, the business' response, and the ultimate disposition of the claim. These records were summarized in "complaint logs." Letters complaining that Chavis' companies discouraged or refused refunds and the BBB's complaint logs concerning these complaints were admitted into evidence.

Chavis and Slisz contend that these records and complaints were admitted to prove the truth of the matters contained in them, and are therefore hearsay. They note that the primary defense in the trial was that of good faith, a major component of which was the contention that the companies promptly made refunds when requested. Based on two isolated and vague comments in the government's closing argument and one question posed to the BBB representative, Chavis and Slisz contend that the BBB records were used directly to rebut their evidence that refunds were always made on request. We disagree. The government did not use these letters and related records complaining of appellants' failure to make refunds for the truth of the individual complaints but rather to show that defendants were notified of the complaints. See Fed.R.Evid. 801(c); United States v. Middlebrooks, 431 F.2d 299, 301 (5th Cir.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622 (1971). The jury was instructed that this evidence could be considered only for that limited purpose.

The government also used a BBB-compiled brochure concerning "envelope stuffing schemes" in its examination of Chavis. This brochure was originally admitted, over objection, in the government's cross-examination of a defense expert. Chavis complains that this brochure was hearsay. Since this brochure does not appear to have been properly authenticated, its admission into evidence may have been erroneous. Given the volume of evidence introduced at trial and the relatively minor role this brochure played, however, any error in its admission was harmless.

B. Texas Attorney General's Files

Chavis and Slisz produced the testimony of Barbara Dupont, one of Chavis' employees, who authenticated various letters from satisfied customers of Chavis' companies. These letters indicated that Chavis' companies would, on request, prepay advertising expenses incurred by homeworkers. Dupont and Chavis both had testified that the companies offered to prepay advertising expenses if necessary. The government was allowed in cross-examining Dupont to inquire into and introduce into evidence portions of complaint files maintained by the Texas Attorney General's office. The materials admitted were one complaint form from a Mr. Grogman, and two brochures or letters from Chavis' companies to other complaining parties. A letter from the Texas Attorney General's office and Chavis' handwritten reply were introduced along with the Grogman complaint.

The defendants contend that the materials were used substantively to prove the truth of the matter asserted--that advertising expenses were not paid in advance by the companies. Further, they contend that these documents were not authenticated properly. The government, on the other hand, again contends that the complaint was admitted to rebut Chavis and Slisz' assertions of good faith refund policy by proving that they had notice of the complaint that a refund was not made. The brochures or letters, it asserts, were introduced to rebut Chavis' assertions that the company's materials had been amended to reflect that homeworkers would be required to pay certain expenses. We agree with the government that the complaint was not admitted to prove the truth of the matter asserted in it, but rather as proof of...