U.S. v. Regner

• Decision Date: 19 May 1982
• Docket Number: No. 80-1462,80-1462
• Citation: 677 F.2d 754
• Parties: 10 Fed. R. Evid. Serv. 856 UNITED STATES of America, Plaintiff-Appellee, v. Sandor REGNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 754

677 F.2d 754

10 Fed. R. Evid. Serv. 856

UNITED STATES of America, Plaintiff-Appellee, v. Sandor REGNER, Defendant-Appellant.

No. 80-1462.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1981.

Decided May 19, 1982.

William H. Randall, Culver City, Cal., for defendant-appellant.

Brad D. Brian, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, ANDERSON and FERGUSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Regner appeals from his conviction under 18 U.S.C. § 1341 for mail fraud. We affirm.

In February, 1974, Regner purchased a health insurance policy from the CNA Insurance Company of Chicago, Illinois. Five months later, Regner, an American citizen, travelled to his native Hungary. Upon his return to this country, he submitted a claim to CNA based on alleged hospitalization in Hungary. Regner stated in that claim that an injury sustained in a taxicab accident placed him in a Hungarian hospital from July 26 to August 10, 1974.

The insurance company requested documentation of Regner's claim. Regner had his insurance agent send CNA bills from the Gyor County Hospital in Romand, Hungary. After numerous demands from Regner and his attorney, CNA mailed Regner a check for $3,600 in satisfaction of his claim.

In February, 1980, Regner was indicted on one count of mail fraud, 18 U.S.C. § 1341. A jury trial ensued, and Regner was found guilty.

On this appeal, Regner raises the following issues: (1) that the district court abused its discretion by admitting certain evidence of Regner's prior insurance claims because the evidence was irrelevant, that inquiry about the prior insurance claims was beyond the scope of direct examination of Regner, and that the district court should have given a contemporaneous limiting instruction upon admission of the evidence; (2) that the district court abused its discretion in granting defendant a continuance limited to five weeks while defendant had requested a six-months' continuance; and (3) that the admission of certain certified foreign public documents violated defendant's Sixth Amendment right to confrontation of witnesses. None of the above contentions merit reversal of Regner's conviction. We therefore affirm.

I. Evidence of Regner's Prior Insurance Claims and Benefits

On cross-examination of Regner, the Government was permitted, over Regner's objections, to inquire into Regner's historical claims for and receipt of various insurance benefits. Regner proposes three errors regarding this inquiry. He argues that evidence of his past insurance claims was irrelevant, that such questioning exceeded the scope of direct examination and, once admitted, the district court erred by not giving a limiting instruction to the jury.

Regner's claim of irrelevance is founded upon Fed.R.Evid. 401, 402, and 403, especially the latter which provides that all relevant evidence is to be admitted unless "its probative value is substantially outweighed by the danger of unfair prejudice, ... or misleading the jury...." Regner argues that any probative value of evidence of his prior insurance claims was outweighed by the prejudice that resulted from its receipt, that the evidence cast Regner as a "scourge upon society" in the eyes of the jury.

The trial court's determination under Fed.R.Evid. 403 is to be given great deference and this court will reverse only when there is an abuse of discretion. United States v. Larios, 640 F.2d 938, 941 (9th Cir. 1981), and cases cited therein. The district court admitted the inquiry for the limited purpose of rebutting Regner's testimony on direct exam to the effect that he lacked knowledge of filing insurance claims. The Government argued for admissibility also on the grounds that the evidence was probative of prior similar acts, presumably under Rule 404(b) as proof of motive, intent, plan, etc., However, the district court, in a sidebar conference, reserved judgment upon the admissibility of the inquiry under 404(b), and apparently was never called upon to provide a specific determination of that question. We will reserve judgment on that issue as well.

At least to the extent that the evidence was probative of Regner's credibility regarding his testimony that he was unfamiliar with insurance claims, we find no abuse of discretion in admitting this inquiry. For this same reason, we must reject Regner's argument that the examination of Regner's prior insurance claims was beyond the scope of his direct examination. ¹ The examination was related to and probative of Regner's familiarity with filing insurance claims, an inquiry directly related to Regner's credibility. The district court did not abuse its discretion. See United States v. Carlson, 423 F.2d 431, 440 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970).

Regner also claims that the district court erred in not giving an immediate instruction to the jury which would have informed them of the limited admissibility, for credibility purposes, of the evidence of Regner's prior insurance claims. This argument fails for a number of reasons. First, a district court is not required to give a limiting instruction to the jury unless counsel requests one. Fed.R.Evid. 105; United States v. Drebin, 557 F.2d 1316, 1325 (9th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978), reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). During the sidebar conference initiated by defense counsel's objections to the admissibility of evidence of Regner's prior insurance claims, defense counsel only requested that the record reflect that the evidence was being introduced for a limited purpose. Defense counsel did not request a limiting instruction at that time, and the court acknowledged that the record reflected the limited admissibility. In addition, any failure to give a limiting instruction in the absence of the request does not rise to "plain error" under the circumstances of this case. Cf. Drebin, supra, at 1325.

Finally, Regner fails to demonstrate that he was prejudiced by the court's failure to give the limiting instruction. When ruling on defense counsel's objections to the admissibility of the inquiry into the past insurance claims, the district court declared in open court that "(t)he matter is material because of the defendant's earlier testimony about seeming lack of knowledge of filing insurance claims, and only for that purpose am I allowing it in." R.T. at 122. We do not suggest that the court's response to counsel's objection would suffice as a limiting instruction where a specific request for such is made. However, under the circumstances of the trial in this case, the court's statement stood as a limiting admonition of sorts and serves to weaken Regner's claim of prejudice from the lack of any limiting instruction. Moreover, Regner's guilt was established by evidence independent of the evidence of the prior insurance claims. As will be set forth more fully below, the Government's evidence indicated that Regner had sent CNA fictitious hospital records and a receipt which was not for his own medical treatment, but for his stepson's. Such evidence was in and of itself sufficient to support the jury's verdict.

II. The Continuance

Regner argues that the district court erred in not granting his April 10, 1980, request for a six-month continuance, receiving instead a continuance for only five weeks-to May 28, 1980. Regner claims that under the circumstances of this case, especially the fact that much of the prosecution's evidence was derived in Hungary and, consequently, attempts to interview Government witnesses would be met with delay in obtaining visas, etc., that the district court abused its discretion in granting less than the continuance requested. We disagree.

As for the suggestion that defense counsel needed the full continuance in order to contact and interview Hungarian witnesses, defense counsel conceded at the hearing on the continuance motion that he could probably accomplish those objectives in less time than the six months he had requested. Supp. R.T. at 3.

In addition, defense counsel never requested a further continuance of the trial date. At no time did defense counsel inform the district court that he had been unable to obtain evidence from Hungary or that he had been unable to obtain a visa. The record indicates that, until the guilty verdict was returned, Regner was content to be tried on May 28, 1980. Regner cannot now claim that he was prejudiced by proceeding to trial on that date.

III. Confrontation Issues

Regner acknowledges that authenticated foreign public documents are admissible through a combination of Fed.Rules of Evid. 803(10) and 902(3), ² yet he argues for the first time on this appeal that his Sixth Amendment right to confrontation of witnesses was violated by the admission of certain foreign public documents at his trial. ³ Usually, errors not raised below will not be considered on appeal unless the proper resolution is beyond any doubt or where "injustice might otherwise result." Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976), quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). See also, Jaffe v. Alexis, 659 F.2d 1018, 1022 (9th Cir. 1981), and Michael-Regan Co., Inc. v. Lindell, 527 F.2d 653 (9th Cir. 1975). While we recognize that this court may discretionarily review questions not raised in the district court, Singleton, supra, we decline to do so here because Regner fails to convince us that a clear violation of the Confrontation Clause existed and sufficient evidence is presented in the record to support Regner's conviction regardless of any assumed prejudicial admission of the foreign public documents. These observations require further elaboration.

Regner would have...