U.S. v. Hutchings

• Decision Date: 28 January 1985
• Docket Number: No. 84-1059,84-1059
• Citation: 751 F.2d 230
• Parties: 17 Fed. R. Evid. Serv. 1274 UNITED STATES of America, Appellee, v. Robert R. HUTCHINGS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 230

751 F.2d 230

17 Fed. R. Evid. Serv. 1274

UNITED STATES of America, Appellee, v. Robert R. HUTCHINGS, Appellant.

No. 84-1059.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 19, 1984.

Decided Dec. 26, 1984.

Rehearing and Rehearing En Banc Denied Jan. 28, 1985.

Charles Alan Seigel, St. Louis, Mo., for appellant.

Pamela H. Bucy, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Robert R. Hutchings appeals from his conviction on five counts of mail fraud, six counts of wire fraud, and three counts of transporting checks in interstate commerce, knowing them to have been taken by fraud. The district court ¹ sentenced him to fifteen years imprisonment, followed by five years probation. The charges stemmed from Hutchings' alleged scheme to defraud CUPAC, an insurance premium finance company. Having considered Hutchings' many allegations of error, we find none to be of merit and affirm the conviction.

I. Background

From 1975 until 1983, Hutchings was president of United States Central Underwriting Agency (U.S.C.), an insurance agency. In addition Hutchings owned three corporations: Anmat Corporation (Anmat), Meramec Investment Corporation (Meramec), and RJE Enterprises (RJE). The evidence at trial established that Hutchings arranged to obtain insurance policies on Anmat, Meramec, and RJE from North-West Insurance Company (North-West), through its wholly owned subsidiary, Mid-Continent. Hutchings directed Clark Stagner, an employee of U.S.C., to contact several insurance premium finance companies to compare quotations as to financing terms on the policies.

Deciding to finance the policies through CUPAC, a Massachusetts premium finance company, Hutchings assigned Stagner to handle the transactions. Specifically, Hutchings instructed Stagner to tell CUPAC that the policies were to be obtained through North-West at the following premiums: Anmat, $60,000.00; Meramec, $547,000.00; and RJE, $305,000.00. These amounts, Hutchings advised Stagner, included large "fees" which U.S.C. would receive to use as "working capital;" the premiums were inflated ten to one-hundred times the actual amounts charged by the insurance companies. ² In addition, Hutchings told Stagner to state in the finance agreements that Anmat, Meramec, and RJE had made significant down payments on the policies to U.S.C. as their insurance agent, when in fact no such down payments were made. A representative from CUPAC testified that had CUPAC known the amounts represented as premiums actually included fees, and that no down payments had been made, the company would not have financed the premiums.

According to the standard practice, CUPAC sent checks for the amounts financed (a total of $787,985.00) to U.S.C., as agent for Anmat, Meramec, and RJE, with the understanding that U.S.C. would forward to North-West this amount as well as the alleged down payment. As is true in all premium financing arrangements, Anmat, Meramec, and RJE had assigned to CUPAC as collateral the right to cancel the policies and collect the unearned premium refund from the insurance company, in the event of default. When Anmat, Meramec, and RJE missed their repayment to CUPAC, CUPAC tried to exercise its power to cancel the policies and collect the premium refund from North-West, and discovered that the policies had been cancelled without North-West ever receiving any money from U.S.C., except $4,252.50.

Hutchings was indicted and tried on five counts alleging mail fraud in violation of 18 U.S.C. Sec. 1341, ³ six counts alleging wire fraud in violation of 18 U.S.C. Sec. 1343, ⁴ and three counts of transporting checks in interstate commerce, knowing them to have been taken by fraud, in violation of 18 U.S.C. Sec. 2314, ⁵ all in connection with the scheme to defraud CUPAC. In addition Hutchings was charged with three counts of mail fraud in connection with two alleged schemes to defraud the Curators of the University of Missouri and the Kansas City Board of Police Commissioners through misrepresentations concerning the amount of premium due on policies issued to them. The jury acquitted Hutchings on these three counts. At the trial, Hutchings' defense as to the CUPAC charges was that no misrepresentations were made to CUPAC with respect to the Anmat, Meramec, and RJE premiums, because the premium amounts represented to CUPAC properly included the fees going to Hutchings and U.S.C. The jury convicted Hutchings on all fourteen counts relating to the scheme to defraud CUPAC, and he now makes numerous allegations of error before this court.

II. Grand Jury Proceedings

Taking Hutchings' arguments in the order discussed in his brief, Hutchings first asserts that the postal inspectors who served him with the grand jury subpoenas intentionally misled him to believe that he was not a target of the grand jury investigation. In particular, Hutchings states that seven of the eight subpoenas were directed to various corporations, not to Hutchings himself, and directed him as "Chairman and/or Custodian of Records" of the corporations to produce some corporate records and documents. Further, the postal inspectors never informed Hutchings that he, personally, was the target of the investigation, nor did they advise him of his Fifth Amendment rights. Because of this "deception," which Hutchings asserts circumvented the exercise of his Fifth Amendment right not to produce documents which may have tended to incriminate him, Hutchings claims that the indictment against him should have been dismissed, or that the evidence seized by the grand jury should have been suppressed.

Hutchings' argument is not well taken. Although Hutchings argues that the corporations for which he was subpoenaed as custodian of the records are "no more than sole proprietorships" and thus he was entitled to the Fifth Amendment privilege, no such privilege extends to these corporate records. A corporate officer cannot claim his privilege against compulsory self-incrimination to avoid producing corporate records in response to a grand jury subpoena directed to the corporation, Wilson v. United States, 221 U.S. 361, 384-85, 31 S.Ct. 538, 545-46, 55 L.Ed. 771 (1911); Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 2183, 40 L.Ed.2d 678 (1974), or to the individual corporate officer himself. Dreier v. United States, 221 U.S. 394, 400, 31 S.Ct. 550, 55 L.Ed. 784 (1911); Bellis, 417 U.S. at 88, 94 S.Ct. at 2183. In addition, the subject of a subpoena has no privilege not to produce handwriting exemplars, fingerprints, or photographs, items which the eighth subpoena directed Hutchings to provide. See United States v. Dionisio, 410 U.S. 1, 6-7, 93 S.Ct. 764, 767-768, 35 L.Ed.2d 67 (1973).

Hutchings contends that the postal inspectors' failure to inform him that he was a subject of the investigation prevented him from exercising his Fifth Amendment privilege. The Supreme Court has held, however, that the Government need not warn a grand jury witness that he is a potential defendant. "[T]he prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are." United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1820, 52 L.Ed.2d 238 (1977). Thus Hutchings cannot assert that the postal inspectors' failure to advise him that he was a target of the grand jury investigation abrogated his Fifth Amendment right.

In United States v. Plesons, 560 F.2d 890, 893-95 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 452 (1977), this court held that neither the failure to warn the defendant that he was a potential defendant or to advise him of his Fifth and Sixth Amendment rights, nor the failure to secure effective waiver of those rights required the suppression of the subpoenaed documents. Although we limited the holding in Plesons to the facts of that case, we find more than enough similarities between the cases to reach the same conclusion here. As in Plesons, the record here reveals no actual or inherent coercion or compulsion of the defendant. The inspectors served Hutchings in his office, during regular working hours. The inspectors suggested to Hutchings on their visit that he talk to his attorney, and also provided him with a written statement of his right against self-incrimination and his right to consult an attorney. That Hutchings had benefit of counsel at every encounter with the postal inspectors indicates that he was not misled as to his status in the investigation, as he asserts. The trial court properly denied Hutchings' request to either dismiss the indictment against him or to exclude the evidence obtained through the subpoenas.

III. Denial of the Motion to Sever

Hutchings next maintains that he is entitled to a new trial because the trial court erred in failing to sever Counts I-III of the indictment from Counts IV-XVII. Counts I-III related to the alleged schemes to defraud the Curators of the University of Missouri and the Kansas City Board of Police Commissioners, whereas the remaining counts concerned the alleged scheme to defraud CUPAC. Hutchings alleges that the counts were misjoined in violation of Fed.R.Crim.P. 8(a), ⁶ or alternatively, were prejudicially joined in violation of Fed.R.Crim.P. 14. ⁷

In resolving questions of joinder, we first consider whether the counts were properly joined under rule 8(a). See United States v. Rodgers, 732 F.2d 625, 628-29 (8th Cir.1984). Rule 8(a) does not require that offenses be of identical nature before they can be joined properly; rather, joinder is appropriate even if the offenses are of similar character, or constitute parts of a common scheme or plan. We are satisfied that the joinder of the counts in the indictment complied with rule 8(a)....