U.S. v. Duncan, No. 89-4849

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, KING, and DUHE; DUHE
• Citation: 919 F.2d 981
• Parties: 32 Fed. R. Evid. Serv. 749 UNITED STATES of America, Plaintiff-Appellee, v. Samuel DUNCAN, Jr., Grace Duncan, Gay Nell Duncan, Marshall Sutton, Angela F. Turner, Arthur D. Wilson, and Oscar L. Wilson, Defendants-Appellants.
• Docket Number: No. 89-4849
• Decision Date: 14 December 1990

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919 F.2d 981 32 Fed. R. Evid. Serv. 749 UNITED STATES of America, Plaintiff-Appellee,
v.
Samuel DUNCAN, Jr., Grace Duncan, Gay Nell Duncan, Marshall
Sutton, Angela F. Turner, Arthur D. Wilson, and
Oscar L. Wilson, Defendants-Appellants. No. 89-4849. United States Court of Appeals,
Fifth Circuit. Dec. 14, 1990.
Rehearing Denied Jan. 16, 1991.

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Bobby L. Culpepper (court appointed), Jonesboro, La., for defendants-appellants.

William J. Flanagan, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana (CR-88-30012-01).

Before GOLDBERG, KING, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

The defendants raise a litany of issues to challenge their convictions for mail fraud and conspiracy. They contend that the district court improperly denied their motion for change of venue and erred in fourteen different evidentiary rulings. They also argue that the court erred by denying their motion for mistrial based on a comment by the judge and by refusing their proposed jury instructions. Finally, they assert that the evidence adduced at trial was insufficient to sustain their convictions and that the court imposed excessive sentences. We find no error and affirm the judgment of the district court.

FACTS

The defendants participated in a scheme to defraud insurance companies. Over a period of several years, each defendant purchased numerous hospitalization policies. Each policy provided that the insured would receive a predetermined sum of money for each day spent in the hospital, regardless of other coverage.

The indictment charged that on many occasions, the defendants sought admission

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to hospitals after reporting accidents that never occurred or after staging accidents. According to several witnesses, the defendants participated in planned collisions in which a driver, carrying a carload of conspirators, intentionally swerved out of his lane and careened into another car.

The evidence indicated that Samuel Duncan and Grace Duncan, husband and wife, were the ringleaders of the conspiracy. Each was hospitalized over twenty times and collected over $300,000 in insurance proceeds. Mr. Duncan's sister Gay Nell, another defendant, entered the hospital three times within a seven-month period and collected over $50,000. The insurance companies mailed the Duncans checks for these amounts.

The other four defendants were close friends and relatives of the Duncans. Each of the four was hospitalized between ten and nineteen times during a five-year period and each collected over $75,000. These defendants also received payments by mail.

The government indicted the seven defendants for mail fraud and conspiracy. After a two-week trial, the jury found all seven defendants guilty.

DISCUSSION

Denial of Intradistrict Transfer

The defendants first argue that the district court erred in denying their motion for change of venue from Monroe to Alexandria. They assert that this intradistrict change of venue was required because of their residence and because of unfavorable pretrial publicity in Monroe. Specifically, they claim that a fair trial was impossible because of a barrage of publicity generated by the earlier trial of different defendants for the same offenses. We disagree.

The sixth amendment requires that a criminal trial be held in the district in which the alleged crime occurred. In re Chesson, 897 F.2d 156, 158 (5th Cir.1990). These defendants, therefore, had a constitutional right to trial in the Western District of Louisiana; however, they had "no constitutional right to trial in a particular division within that district." Id. (citing United States v. Dickie, 775 F.2d 607, 610 (5th Cir.1985); Franklin v. United States, 384 F.2d 377, 378 (5th Cir.1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968)).

An intradistrict transfer is not required absent a strong showing of prejudice. United States v. Dickie, 775 F.2d 607, 609 (5th Cir.1985); United States v. Malmay, 671 F.2d 869, 876 (5th Cir.1982). The defendants provide no evidence of extensive pretrial publicity other than unsubstantiated assertions in their brief. Furthermore, they have failed to show that any publicity was inflammatory and that it resulted in pervasive community prejudice. Absent such a showing, we have no reason to believe that the district judge abused his discretion in denying the defendants' request for an intradistrict transfer. See United States v. Parker, 877 F.2d 327, 330 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 199, 107 L.Ed.2d 153 (1989).

Evidentiary Rulings

The defendants contend that the district court erred in fourteen different evidentiary rulings. Common to all these challenges is the abuse-of-discretion standard with which we review rulings on the admission of evidence. See United States v. Hutson, 821 F.2d 1015, 1019 (5th Cir.1987); United States v. Acosta, 763 F.2d 671, 693 (5th Cir.), cert. denied sub nom. Weempe v. United States, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985). The defendants' complaints on evidentiary rulings can be grouped into four general categories.

1. Admission of Records

The defendants first claim that the court erred in admitting into evidence the records of insurance companies. They challenge the admissibility of these records on a variety of grounds, arguing that (1) they were not sufficiently authenticated under rule 901; ¹ (2) they are not proper

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business records under rule 803(6); ² and (3) they were made by a person without personal knowledge in violation of rule 602. ³

Representatives of insurance companies came to court and authenticated the records. The prosecutor clearly established the prerequisites for admitting the records under the business records exception. ⁴ But the defendants argue that the insurance company records contained other unauthenticated medical records and statements by doctors. They contend that these medical records and statements are hearsay not falling within the business records exception of rule 803(6).

We reject this argument. The insurance companies compiled their records from the business records of hospitals. Because the medical records from which the insurance company records were made were themselves business records, there was no accumulation of inadmissible hearsay. See Hutson, 821 F.2d at 1019.

There is no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to its accuracy. United States v. Iredia, 866 F.2d 114, 119-20 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989); Theriot v. Bay Drilling Corp., 783 F.2d 527, 533 (5th Cir.1986). Furthermore, there is no requirement that the records be created by the business having custody of them. Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319 (5th Cir. Unit A 1981); United States v. Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980).

Instead, the "primary emphasis of rule 803(6) is on the reliability or trustworthiness of the records sought to be introduced." Veytia-Bravo, 603 F.2d at 1189. The district court has great latitude on the issue of trustworthiness. Hutson, 821

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F.2d at 1020; Mississippi River Grain Elevator, Inc., 659 F.2d at 1319. Hospitals and insurance companies rely on these records in conducting business. We hold, therefore, that the district court did not err in admitting them under Federal Rule of Evidence 803(6) upon proper authentication by their custodian.

Even if the insurance company records contained some medical information not taken from actual hospital records, that information was admissible as nonhearsay evidence. The Federal Rules of Evidence exclude from the category of hearsay any "statement by a person authorized by the party to make a statement concerning the subject" and any "statement by the party's agent ... concerning a matter within the scope of the agency." Fed.R.Evid. 801(d)(2)(C)-(D).

A patient routinely authorizes the release of medical records for use by insurance companies. A medical provider without express authority to release information would be acting as the patient's agent in obtaining payment of medical expenses from insurance companies. We therefore conclude that all information in the insurance company records was admissible either under the business records exception or as nonhearsay evidence.

2. Testimony of Kathy Riggs

The defendants also claim that the testimony of Kathy Riggs, a former supervisor of one defendant, was inadmissible because it was irrelevant or unduly prejudicial. The prosecutor showed Riggs a disability statement purportedly prepared by the defendant's employer. Although the signature at the bottom read "Kathy Riggs," the witness denied that the signature was hers.

The Federal Rules of Evidence define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." Fed.R.Evid. 401. The testimony in question was obviously relevant, because a forged disability statement increases the probability that the defendant's claims were fraudulent. This evidence tended to rebut the contention that the defendants innocently filed insurance claims for genuine medical problems.

It is true that someone other than a defendant could have forged the supervisor's signature on the disability statement. However, since it is unlikely that anyone else had a motive to forge this document, an inference of guilt could also be drawn. Since a reasonable inference could be drawn from this evidence, the evidence was both relevant and admissible.

Under Federal Rule of Evidence 403, relevant evidence "may be excluded if its probative...