U.S. v. Maker

• Decision Date: 28 December 1984
• Docket Number: 83-5862,Nos. 83-5806,s. 83-5806
• Citation: 751 F.2d 614
• Parties: UNITED STATES of America, Appellant, v. Robert James MAKER, a/k/a Robert Maker, a/k/a R.J. Mahar; Constance Bridget Sullivan, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 614

751 F.2d 614

UNITED STATES of America, Appellant, v. Robert James MAKER, a/k/a Robert Maker, a/k/a R.J. Mahar Constance Bridget Sullivan, Appellees.

Nos. 83-5806, 83-5862.

United States Court of Appeals Third Circuit.

Argued June 7, 1984.

Decided Dec. 28, 1984.

J. Alan Johnson, U.S. Atty., Paul J. Brysh (Argued) Asst. U.S. Atty., Pittsburgh, Pa., for appellant.

Thomas A. Livingston (argued), Livingston, Miller, O'Malley & Clark, Pittsburgh, Pa., for appellee Maker.

John L. Doherty (argued), Manifesto & Doherty, P.C., Pittsburgh, Pa., for appellee Sullivan.

Before WEIS and BECKER, Circuit Judges and ACKERMAN, District Judge. ^*

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by the government pursuant to 18 U.S.C. Sec. 3731 (1982) from the dismissal of a mail fraud indictment presents difficult questions regarding the interpretation of the double jeopardy clause of the fifth amendment. It also requires us to consider the elements necessary for proof of a single scheme to defraud.

The indictment charged the defendants, Robert James Maker and Constance B. Sullivan, with a single scheme to defraud in connection with insurance claims arising out of two motor-vehicle accidents in which Maker was involved. See 18 U.S.C. Sec. 1341 (1982). After the jury was sworn and proceedings were commenced, the district court ordered separate trials with respect to the counts arising from each scheme, and also ordered separate trials for each defendant. Subsequently, relying on United States v. Camiel, 689 F.2d 31 (3d Cir.1981), the court dismissed the indictment, holding that the evidence could not support an indictment based on only a single scheme, but rather that a separate scheme arose from each accident.

The defendants seek to uphold the district court's order of dismissal and argue preliminarily that this appeal, which seeks a reinstatement of the indictment and consequent trial thereon, is barred by the double jeopardy clause. Notwithstanding the fact that the indictment was dismissed after a jury was impanelled, we conclude that the double jeopardy clause does not bar this appeal, and that, if the government is able to prove the allegations in the indictment, such evidence would be sufficient to support a conviction based on a single scheme. We therefore reverse the judgment of the district court and remand the case for trial. We then consider whether the district court abused its discretion in ordering separate trials. Given our conclusion that the district court erred in determining that the allegations of the indictment necessarily involved two separate "schemes," we hold that the court abused its discretion in ordering separate trials on the counts arising from each accident. Finally, we conclude that the district court did not abuse its discretion in ordering separate trials for the two defendants.

Resolution of the legal issues presented in this case requires that we first describe in some detail the allegations of the indictment.

I. THE INDICTMENT

The defendants were named in an indictment charging eighteen counts of mail fraud in furtherance of a single scheme to defraud. According to the indictment, the scheme began when Maker was involved in a motor-vehicle accident on March 25, 1976, and continued after he was involved in a second accident on August 14, 1977. ¹ Neither of the accidents was staged; rather, Maker simply sought to turn them to his account. Generally, the indictment alleges that Maker carried out this scheme by providing three different insurance companies with false information: first, that he had been employed as a boilermaker until each accident rendered him unable to continue that work; and, second, that he did not pursue any other work during the time he was receiving wage-loss benefits from the three companies. ² We turn to the specifics.

A. The Royal Globe Policy Claims

On April 27, 1976, Maker applied for benefits, including wage-loss benefits, in connection with the March 25, 1976, accident, from the Royal Globe Insurance Company. ³ Maker stated that, prior to the accident, he had been earning an average of $400 a week as a journeyman with the Boilermakers Local 154 working out of Pittsburgh. The indictment alleges, however, that Maker had actually been living in Florida for over a year before the accident and had received no income from employment out of Local 154 for that period. Maker received wage-loss benefits from Royal Globe for the period beginning on the date of his accident through July 15, 1977, at which time the maximum of $25,000 had been paid under the policy. Id. at 7A (p 9). On January 6, 1977, Maker also applied for compensation for domestic services provided by Sullivan. The indictment alleges that this claim was fraudulent because Maker was able to perform ordinary domestic chores throughout this period. See id. (p 10). The indictment also alleges that on August 9, 1977, Maker and Sullivan submitted sworn statements to Royal Globe indicating that Maker had been incapacitated from April 1976 until the date of the statement and that he had paid Sullivan $140 a week for domestic services that she had performed while Maker was injured. Id. at 8A (p 14).

Finally, the indictment alleges that on June 20, 1979, Maker sought from Royal Globe an additional $22,500 as compensation for wages lost as a result of the March 25, 1976, accident. Id. at 11A (p 27). This request was submitted to a Board of Arbitrators, which, on March 24, 1980, awarded Maker $20,000 of the requested benefits. Id. (p 29). Royal Globe paid Maker the $20,000 on April 3, 1980. Id. (p 30).

B. The Erie Insurance Company Policy Claims

The indictment further alleges that, on September 13, 1977, Maker initiated legal action in the Court of Common Pleas for Allegheny County against Erie Insurance Company, the insurer of the driver of the car involved in the March 25, 1976, accident. ⁴ Id. at 8A (p 15). On several occasions, according to the indictment, Maker supported this claim with false statements to the effect that he had been physically unable to return to work after the March 26, 1977, accident, ⁵ that he had resided in Pittsburgh and had been employed as a boilermaker out of Local No. 154 prior to the accident, ⁶ and that he had worked as a boilermaker for a total of only three days from the date of the accident until the end of March 1979. ⁷

The suit against Erie concluded on March 28, 1979, when Maker was awarded $5,000. Id. at 10A (p 24). Erie then allegedly paid Maker $5,000 on June 27, 1979. Id. at 11A (p 28).

C. The State Farm Insurance Claims

On April 20, 1977, Maker applied for an automobile insurance policy that included coverage for lost wages of up to $2,500 a month, with a ceiling of $50,000. Id. at 7A (p 12). When he applied for this policy, which was assigned to the State Farm Insurance Company, Maker allegedly represented that he was employed as a boilermaker with Local No. 154. Id. ⁸

The indictment alleges that Maker filed a claim with State Farm for damages resulting from his August 14, 1977, accident. This claim, filed on October 13, 1977, stated that Maker had been earning $568 plus overtime each week before the August accident, but that he had been unable to work after the accident. See id. at 8A (p 16). State Farm acted on this claim on November 2, 1977, paying Maker for wage-loss benefits retroactive to August 15, 1977. State Farm then reimbursed Maker for his alleged wage losses at a rate of $1,087.42 every two weeks until March 19, 1979. Id. at 8-9A (p 17). ⁹ After State Farm terminated the wage-loss payments, Maker allegedly instructed his attorney to write letters on April 5 and 18, 1979, and May 9, 1979, to State Farm asking that the benefits be continued and stating that Maker would initiate legal action in the absence of such payments. Id. at 10-11A (p 25).

D. Employment as a Boilermaker

The indictment alleges that there were four periods of time during which Maker was employed as a boilermaker at the same time that he was receiving wage-loss benefits from one or more insurance companies. ¹⁰ The first period was from April 1 to August 3, 1977, during which, the indictment alleges, Maker worked as a boilermaker for the Babcock and Wilcox Construction Company, using the name Robert Makar. Id. at 7A (p 11). This is a time period for which Maker allegedly requested and received wage-loss benefits from Royal Globe and for which Maker and Sullivan allegedly requested domestic-service reimbursements. ¹¹

Maker was next employed during two periods for which, according to the indictment, it can be inferred that he received wage-loss benefits from two, and possibly all three, insurance companies. The indictment alleges that Maker worked for 67 1/2 hours as a boilermaker during January 1978, again using the false name of Robert Makar. Id. at 9A (p 19). It then alleges that during May and June 1978, Maker was employed as a boilermaker by Schneider, Inc., under his real name, and by both United States Steel Corp. and Bottum, Inc., under the name Robert Makar. Id. at 10A (p 22). During these two time periods, Maker allegedly received wage-loss benefits from State Farm based on the disabling injuries caused by the second accident. One could infer from the indictment that the $20,000 paid by Royal Globe to Maker as a result of the arbitration process was intended, in part, to reimburse Maker for wage losses during these time periods. Finally, one could also infer from the indictment that part of the $5,000 judgment against Erie was intended to reimburse Maker for wage losses during these two periods. See supra page 617.

Finally, the indictment alleges that from April 6, 1979, to August 6, 1979, Maker worked as a boilermaker for the Babcock and Wilcox Construction Company, using a false name, and for the Simakas Brothers Construction Company, using two false names. Appendix at 11A (p 26). As set out above, the indictment alleges that during this...