U.S. v. Edgar
Decision Date | 05 March 1996 |
Docket Number | No. 95-1190,95-1190 |
Citation | 82 F.3d 499 |
Parties | UNITED STATES of America, Appellee, v. Charles Martin EDGAR, Defendant, Appellant. . Heard |
Court | U.S. Court of Appeals — First Circuit |
Appeal from the United States District Court for the District of Massachusetts [Hon. Edward F. Harrington, U.S. District Judge].
Frances L. Robinson, Boston, MA, with whom Davis, Robinson & White, was on brief, for appellant.
James C. Rehnquist, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for the United States.
Before SELYA, STAHL, and LYNCH, Circuit Judges.
Charles Martin Edgar, formerly a U.S. Department of Commerce employee, was convicted of three counts of making false statements on his federal workers' compensation claims, and of one count of mail fraud arising from a false automobile accident claim to an insurer. He was acquitted on other charges, including bankruptcy fraud. 1 Edgar was sentenced to one year and one day in prison plus two years of supervised release and was fined $5000.
His appeal argues that joinder of the bankruptcy fraud, workers' compensation fraud and insurance fraud was improper, as was the refusal to sever. He strongly asserts reversible error in the testimony of his civil-claim attorney before the grand jury which, he alleges, violated his attorney-client privilege. He also argues that the issue of materiality of the alleged false statements should have been submitted to the jury under the rule established later in United States v. Gaudin, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), that denying him discovery was error, and that the evidence was insufficient to convict in any event. We affirm.
Two arguments merit close discussion. Edgar argues that it was improper and harmful for the government to have joined such disparate charges as workers' compensation fraud, auto insurance fraud and bankruptcy fraud into a single indictment, saying the common allegation of fraud is too weak a thread to sew them all together, and that the counts should have been severed. While the argument has some force, he was acquitted on the bankruptcy charge and we find no harm to him from its joinder with the other charges.
Edgar also argues that the government trampled on his attorney-client privilege and that this denied him due process. The government subpoenaed to the grand jury the lawyer who had represented Edgar on the automobile accident claim. The lawyer's initial declinations to answer questions about Edgar's communications on grounds of attorney-client privilege gave way in the face of continued questioning by the prosecutor. Edgar says he first learned of his attorney's grand jury testimony after he was indicted and before trial. While troubled by what happened, we find that there was no prejudice to Edgar at trial and therefore his remedy, if any, is not the vacating of his conviction.
Edgar's checkered reporting on his employment status undergirds all counts on which he was convicted. In 1984 Edgar filed claims for compensation to the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor based on back injuries suffered in a 1981 plane crash, allegedly work-related. The claim eventually ripened to a claim of total disability from 1987 on. The federal government paid him benefits, after objecting, for injury for the period from 1981 through 1986. It had balked at paying beyond 1986, but Edgar again won on appeal and he was paid to 1989. In May of 1991, in an effort to get payments for certain periods between 1989 and 1991, he submitted three forms CA-8 to the OWCP. These documents formed the basis for the counts of conviction. On other dates, he submitted other forms CA-8 as well as forms EN1032-0389 ("1032"). These forms are important to the OWCP in considering claims for continuing compensation.
The forms CA-8 required that certain information be provided if the claimant was working. The employment information is used by OWCP to determine a claimant's wage earning capacity, and thus the level of his benefits. Edgar was in fact working as a self-employed accountant during this period, but he did not provide the information required. Nor did he mention that he operated and managed a bar, which he also owned, from 1985 to 1990. 2 Instead, Edgar reported that he was neither self-employed nor employed by others. The forms include a warning that any "false statement, misrepresentation, [or] concealment of fact" could subject the submitter to a felony prosecution. Edgar says the forms were not material, as the department had already turned him down on this claim. But, based in part on those forms, he did receive continuing compensation for the post-1989 period. All told, he received more than $250,000 in benefits from the government.
In January 1987 Edgar was involved in an automobile accident and asserted he injured his back and could not work. Attorney Robert Koditek represented him in his claims for injury and lost income against the other driver's insurer and to his own insurance carrier, Commercial Union. Edgar submitted a form to his own insurer, purportedly executed by a company bookkeeper but in fact forged by Edgar, stating, as to lost income, that his accounting company paid him a yearly salary of $45,600. Attorney Koditek, representing Edgar, submitted a demand letter to Commercial Union on October 12, 1988, asserting that Edgar had been totally disabled as a result of the auto accident and demanding the policy limits be paid him. In support of Edgar's claim for damages for lost income, the letter attached "copies of Mr. Edgar's federal income tax returns for the years 1985, 1986, and 1987." Those signed returns showed income for 1985 of $62,392 and for 1986 of $61,876. But Edgar had never filed any tax return in either 1985 or 1986; so, the government charged, the representation was false. On January 16, 1989, Commercial Union settled Edgar's claim, paying him $75,000. Attorney Koditek testified at trial that Edgar had supplied him with the copies of the tax returns given to Commercial Union to support his claim.
The 37 count indictment returned against Edgar charged three fraudulent schemes. The first 24 counts charged Edgar with mail fraud, alleging that Edgar had wrongfully obtained money through the mails ( and had made false statements to the , the disability checks)Department of Labor. These counts were premised on Edgar's falsely representing his employment and earning capacity in connection with his disability claim from 1989 to 1992. Another count involved Edgar's submission, through Attorney Koditek, of false documents and a demand letter making false statements to his automobile insurer in 1988. The remaining twelve counts charged Edgar with filing documents containing false statements in 1991 in connection with Edgar's bankruptcy. The scheme alleged was that Edgar filed a bankruptcy petition in California, falsely representing California was his state of domicile, listing a false social security number and concealing assets and income from his former wife and other creditors.
Edgar argues that the counts charging these three schemes should not have been joined because they were insufficiently similar. He argues that the single common characteristic, misrepresentation of material facts, was not enough to satisfy the standards for joinder. He also argues that evidence of one scheme would not be admissible in a trial on another scheme and thus the jury could infer from the evidence of one fraud that Edgar was predisposed to engage in another fraud.
Edgar's argument that there was an improper joinder of claims against him in the indictment, which the district court refused to undo, raises two concerns. Edgar argues first that there was not sufficient similarity among the counts of conviction to permit joinder. Second, he postulates a harmful spillover effect from all of the counts, even those on which he was acquitted, which prejudiced him and led to his conviction. He also claims that, apart from the initial wrongful joinder, the district court should have allowed his motion for severance.
The standard for joinder is set forth in Rule 8(a), Fed.R.Crim.P., which provides:
Two or more offenses may be charged in the same indictment ... if the offenses charged ... are of the same or similar character....
"Similar" does not mean "identical," United States v. Werner, 620 F.2d 922, 928 (2d Cir.1980), and similarity must be analyzed in terms of how the government saw its case at the time of indictment. United States v. Natanel, 938 F.2d 302, 306 (1st Cir.1991), cert. denied, 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). As Judge Friendly commented in Werner, under the mandate of the Speedy Trial Act, joinder serves the purposes of economy of resources. 620 F.2d at 928. Denial of a motion for relief from misjoinder is reviewed de novo. United States v. Chambers, 964 F.2d 1250 (1st Cir.1992). Further, a misjoinder is not reversible if it was harmless. United States v. Lane, 474 U.S. 438, 444-50, 106 S.Ct. 725, 729-32, 88 L.Ed.2d 814 (1986); United States v. Randazzo, 80 F.3d 623, 628 (1st Cir.1996).
Edgar also argues that even if joinder was proper, his motion to sever the different schemes should have been granted. Under Rule 14, Fed.R.Crim.P., "[i]f it appears that a defendant ... is prejudiced by a joinder of offenses ..., the court may order ... separate trials of counts." The denial of a motion for severance is reviewed for abuse of discretion, and must be affirmed unless there is a "strong showing of evident prejudice." United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.1993).
In determining whether counts are properly joined, this court considers such factors as "whether the charges are laid under the same statute, whether they involve similar...
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