U.S. v. Tadros

• Decision Date: 15 November 2002
• Docket Number: No. 01-4242.,01-4242.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nazih TADROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 999

310 F.3d 999

UNITED STATES of America, Plaintiff-Appellee, v. Nazih TADROS, Defendant-Appellant.

No. 01-4242.

United States Court of Appeals, Seventh Circuit.

Argued September 26, 2002.

Decided November 15, 2002.

Eric Wilson (argued), Office of U.S. Atty., Chicago, IL, for Plaintiff-Appellee.

Anthony M. Montemurro (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury found Nazih Tadros guilty of mail fraud and wire fraud for engaging in a scheme to defraud several insurance companies by submitting false information to them about a purported disability and his ability to work. The defendant claims that the government failed to disclose information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the government failed to prove the elements of the fraud beyond a reasonable doubt, and that the indictment was returned after the relevant statute of limitations had expired. We affirm.

I.

Over the course of several years, Tadros submitted applications for insurance policies with four different insurance companies and applied for benefits under the terms of those policies. The government indicted Tadros alleging that he used mail and wire services to knowingly supply false information both in the applications for insurance coverage and for benefits under those policies in violation of 18 U.S.C. §§ 1341 and 1343, and 26 U.S.C. § 7206(1).

The fraudulent scheme was fueled by an April 5, 1993 car accident in which Tadros was rear-ended by another vehicle. The reporting police officer did not note any physical injuries to either party and recorded the physical condition of both parties as normal. Tadros sought treatment for neck and back pain the following day at a local emergency room. An x-ray of his neck and back revealed some arthritis and an old compression fracture, but nothing more. After an uneventful visit, Tadros was released with a prescription for a pain reliever and a muscle relaxant.

The crux of the government's allegation is as follows: in an effort to collect money from various insurance agencies which insured the defendant, Tadros fraudulently represented that the injuries he sustained in the August 1993 car accident were greater than they actually were, that these and other health problems prohibited him from working, and that his occupation required physical labor that he could not perform. The government contended that Tadros transmitted this fraudulent information by mail and wire in violation of 18 U.S.C. §§ 1341, 1343. Because the defendant claims that the jury's verdict was not supported by the evidence, below we review the relevant evidence elicited at the trial.

The evidence produced at trial indicated that Tadros was the owner and president of "Super Jet," a small Chicago grocery store. The fraud scheme had a recurring pattern: when Tadros applied for insurance coverage he claimed he was the owner or manager of a grocery store who performed no manual labor. When applying for benefits under the policies, Tadros claimed he was a laborer in a grocery store — stocking shelves, unloading trucks, maintaining machinery, and working behind the meat counter. Tadros' employees testified that Tadros was the owner and boss who did the paper work in the store and did not perform manual labor. In addition, none of the testifying employees recalled that Tadros had missed work for any extended period of time other than for an occasional vacation.

The scheme to defraud involved four insurance companies: Mutual Trust Life Insurance Company ("Mutual Trust"), Fireman's Fund Insurance Company (Fireman's), New York Life Insurance Company ("New York Life"), and Prudential Insurance and Financial Services ("Prudential"). In November 1990, Tadros completed an application with Mutual Trust for a disability insurance policy describing his work duties as "office, traveling... no labor." (Tr. 383). Shortly thereafter, Mutual issued him a disability policy.

On August 6, 1993, Tadros filed a claim with Mutual for total disability benefits, stating that he had sustained neck and back injuries and a concussion in a car accident. On the disability form he described his job title as that of a clerk or store maintenance worker. He alleged both on the claim form and in an interview with a Mutual employee that his duties included manual labor such as unloading merchandise, building displays, and stocking shelves, and that he had not been able to return to work since the accident.

Although it refused to accept liability, in December 1993, Mutual Trust made a partial payment to Tadros while it continued to investigate his claim. After negotiating with his attorney, Mutual Trust subsequently settled the remainder of his claim in May, 1994, for $94,050.

Around the same time that Tadros submitted his disability claim to Mutual, he also filed a Worker's Compensation claim against Super Jet with the Illinois Industrial Commission. Fireman's insured Super Jet against work-related injury claims and Tadros claimed that he had been injured while on a work-related errand.¹ Fireman's required that Tadros see three different independent medical examiners regarding his claim of total disability. Each of the doctors came to varying conclusions about the condition of Tadros' back, neck, and shoulders, but all agreed on one thing — the defendant was not totally disabled and could perform the types of office work required of a grocery store owner or manager.

During his visits to the various medical examiners, Tadros continued to present fraudulent information about the nature and extent of his injuries and the nature of his job duties. Tadros told the first doctor, Dr. Gireesan that he had worked as a clerk at a grocery store, but that he was not currently working. During his initial exam of Tadros on December 1, 1993, Dr. Gireesan found that the defendant had an injury to the disk area between the vertebrae in his back and a grinding sensation in his shoulder, but he advised Tadros that he could continue with light work such as office work. Dr. Gireesan recommended that Tadros see another doctor, Dr. Monaco, regarding his shoulder pain. Dr. Monaco recommended left shoulder surgery which the defendant never sought. During a second visit to Dr. Gireesan, on January 6, 1994, the doctor diagnosed Tadros as having impingement syndrome of the left shoulder. He advised Tadros to refrain from work until the pain was under control. During his final visit with Tadros, on May 17, 1994, Dr. Gireesan advised him that he could return to light duty work.

Next, Tadros saw Dr. Brackett. Dr. Brackett examined Tadros and some of his medical records and doubted the credibility of Tadros' reports of pain. He administered a few tests which indicated to Dr. Brackett that the defendant was malingering and exaggerating the extent of his pain. Dr. Brackett recommended that Tadros return to work without restriction.

The third independent medical examiner, Dr. Haskell, concluded, based on reviews of MRIs performed by other doctors, that although Tadros had some injury to his spine and shoulder, he was not totally and permanently disabled and could perform sedentary and light work, such as that of a store manager or clerk.

In 1993, Fireman's hired a company to conduct surveillance of Tadros in order to investigate his claim of disability. Over the course of several surveillance sessions, the private company observed Tadros leaving his house, driving, pumping gas, doing various errands, going to Super Jet for several hours at a time, and talking on the telephone at Super Jet.

Tadros' claim against Fireman's remained pending before the Illinois Industrial Commission until he voluntarily dismissed it in March, 2000.

Having successfully received $94,050 from Mutual on May 9, 1994, the very next day, Tadros signed a completed application for disability insurance with New York Life. The application consisted of several parts. On the first portion of the application, Tadros indicated that he was the manager of a grocery store. On the medical portion of the application, he indicated that the only prior medical treatment he had received in the ten previous years was for high blood pressure. He claimed he had not received "advice about any treatment, surgery or diagnostic testing which was not completed." (Tr. 566). On a third portion of the application he indicated that he had been treated for "back, spine, or bone disorders" resulting from an accident on April 5, 1993, but that the condition had lasted for only "a few weeks." (Tr. at 564-65). New York Life issued Tadros a disability insurance policy in October 1994.

On February 10, 1997, Tadros made a claim against the New York Life disability policy alleging total disability. He claimed that he had been disabled since June 1996 from a combination of diabetes, high blood pressure, fatigue, and dizziness. Dr. George Georgelos, a chiropractor, certified his disability for this claim. Tadros did not ask his regular cardiologist, who he saw every few months, to certify his disability. Tadros also submitted a "Description of Occupation" form in May 1997 indicating that from 1994 until 1995 his primary job duties involved office work and bookkeeping and that from November 1995 through May 1996 his job duties changed to include maintenance, working as a meat man, some office work, stocking and loading.

After some investigation, New York Life refused to pay Tadros' claim, and instead rescinded his policy and returned his premiums.

The government also alleged that as part of the fraud scheme the defendant applied for and received a whole life insurance policy through Prudential Insurance and Financial Services ("Prudential"). The whole life policy allowed insureds to take loans against the accumulated cash value of the policy. It also included a provision which allowed the...