United States v. Hutul

• Decision Date: 12 January 1970
• Docket Number: No. 15952-15956.,15952-15956.
• Citation: 416 F.2d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry P. HUTUL, Robert Sacks, Herbert Basan, Nancy Mitchell, and Vito Lombardi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

416 F.2d 607 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Harry P. HUTUL, Robert Sacks, Herbert Basan, Nancy Mitchell, and Vito Lombardi, Defendants-Appellants.

Nos. 15952-15956.

United States Court of Appeals Seventh Circuit.

September 9, 1969.

Certiorari Denied January 12, 1970.

COPYRIGHT MATERIAL OMITTED

Charles A. Bellows, Jason E. Bellows, Sherman C. Magidson, John R. Sullivan, Warren D. Wolfson, Milton Blum, John J. Cleary, Chester T. Kamin, Kenneth J. Burns, Richard E. Gorman, Chicago, Ill., for appellants; Bellows, Bellows, & Magidson, Chicago, Ill., of counsel.

Thomas A. Foran, U. S. Atty., Michael B. Nash, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel.

Before CASTLE, Chief Judge, and CUMMINGS and KERNER, Circuit Judges.

Certiorari Denied January 12, 1970. See 90 S.Ct. 573.

CASTLE, Chief Judge.

On July 9, 1964, the Grand Jury filed a sixteen-count indictment against the defendants-appellants and three others,¹ charging them with defrauding by use of the mails, various named insurance companies by means of knowingly false pretenses and representations, between January 1, 1959 and January 1, 1962. Each of the first fifteen counts charged the defendants with violations of 18 U.S.C. § 1341 (mail fraud) and Count 16 charged them with conspiracy to violate § 1341, in violation of 18 U.S.C. § 371. Counts 1, 2, 10, 11 & 14 were dismissed on the motion of the Government. The various defendants were convicted of certain of the remaining counts.² Each defendant, except Mitchell, was sentenced to five year concurrent prison terms on each count on which he was convicted. Mitchell was sentenced to concurrent one year terms on counts 3 and 7, and to two years probation to commence at the termination of such terms.

The indictment concerned six alleged automobile "accidents" and claims for lost wages allegedly resulting from injuries sustained therein.³ The alleged fraudulent representations and their antecedent circumstances followed a similar pattern in each instance and involved the use of the mails in the transmittal of the claims and data furnished to support them.⁴ This will be detailed more fully in the summaries hereinafter made of the record disclosures concerning each of the "accidents" and the resulting claims. In some instances the defendants were successful in securing settlements from the insurers involved.

The nature of the contentions advanced by the defendants on appeal necessitates a discussion of each "accident," the alleged parties thereto, and the representations made thereof, as disclosed by the evidence taken in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Accident No. 1. The first accident which was the subject of a count of the indictment occurred in Chicago, Illinois, on April 4, 1959, between a truck which had been rented that day by Alan Wolfe and insured by Allstate Insurance Company, and a car driven by Frank Ciconti. That evening Wolfe returned the truck to its lessor, Big City Express, whose owner noticed little or no damage to the vehicle. Prior to this incident, an application for a driver's license had been filed by someone who identified himself as Vito Iosco, and a temporary permit was issued.⁵ This permit was used that same day in connection with the opening of a bank account at the Franklin Park Bank in the name of Vito Iosco, and the next day Marie's Answering Service was employed in the name of Anthony Iosco. Both Ioscos gave the same address: 1108 23rd Avenue, Melrose Park, Illinois.

On April 9, 1959, Defendant Hutul filed an attorney's lien with Wolfe and Big City Express, stating that he represented six claimants: Frank Ciconti, Laura Young, John Janus, Michael Birdcill, Herbert Schwerdlin, and Thomas Bobis. A similar statement of representation was sent by mail to Allstate that same day, along with "lost time statements" for each claimant.⁶ These statements, in the form of a questionnaire, were on Hutul's legal stationery and indicated that they had been sent to "Vito Iosco, d/b/a MAGIC HOUSEWARES COMPANY" to be completed and returned. Each such statement described the "position held" with Magic Housewares by each claimant, his or her salary, and the time lost. The real Anthony and Vito Iosco, father and son, lived at the Melrose Park address but had never run or heard of a business called Magic Housewares, nor had they ever employed any of the claimants or received mail from Hutul regarding the case. The real Ioscos were cousin and uncle of defendant Sacks and were acquainted with defendant Lombardi.

Thereafter, Allstate assigned a claims examiner to the case, who was unable to find two of the claimants at the addresses given. Hutul filed suit in August, 1959. In October, Hutul represented to an Allstate claims evaluator the nature of the claimants' alleged jobs with Magic Housewares and showed the latter checks drawn on the Franklin Park Bank allegedly signed by Vito Iosco and payable to the various claimants. Hutul also displayed the Ioscos' "employment records" indicating time and wages lost, and asked for an offer in settlement. In November 1959, Vincent Vaccarello, one of Allstate's attorneys, took depositions of the claimants. Hutul, who was acquainted with Mitchell, was present at each deposition. At trial, Vaccarello identified claimant Laura Young as defendant Mitchell, and claimant Herbert Schwerdlin as defendant Basan.⁷ Mitchell's sister, whose address had been given by claimant Laura Young,⁸ testified that she had received one letter addressed to Laura Young and had given it to defendant Mitchell. Allstate settled the claims arising from accident No. 1 for a total of $8,360.10, making checks payable to each claimant and Hutul as his or her attorney.

Accident No. 2. On April 15, 1959, an application for a driver's license was filed in the name of Victor Gattling, 2450 North Austin Boulevard, Chicago, and a temporary permit was issued. The physical description given on this application matched defendant Lombardi's and the above address was that of Lombardi's brother, Anthony. The same day a driver's license was obtained in the name of Burton Orwitz, who was later identified as defendant Basan.⁹ The address given for the license was that of Basan's sister-in-law, Goldie Orwitz, and the car used for the driver's test was Basan's 1956 Cadillac.¹⁰

The next day, the "accident" occurred between an Aagard Electric Company truck and a car driven by "Victor Gattling" (allegedly defendant Lombardi) which was owned by one John Lombardi. The driver of the truck testified that the other vehicle pulled in front of him and put on its brakes. On July 20, 1959, defendant Hutul sent the insurer of the truck, Commercial Union Group Insurance Company, a letter stating that he represented four claimants as the result of the accident: Burton Orwitz, Victor Gattling, Frank Lassaco, and John Beaverut. Enclosed with the letter were lost time statements similar to those used in accident No. 1, as well as the rest of the accidents. The alleged employer was Losito Sales Co., owned by Ralph Losito, and located at 717 North Ridgeway, Chicago. The real Ralph Losito, who lived at that address, testified that he did not operate any such company, and that the address was a two-family dwelling where defendant Sacks had lived in 1957 or 1958. No such company was registered or licensed in Illinois in 1959 or operated from the address given. Cancelled checks of Losito Sales Company were seen in the front office of White Vending Machine Company by Edward Crawford, an ex-salesman of White Vending.

Hutul, who had been previously acquainted with Basan, submitted a written statement "taken from Burton Orwitz" on August 28, 1959. During that month, Hutul filed suit in Cook County Circuit Court on behalf of the claimants, and mailed three notices to the named defendants' attorneys in connection therewith.¹¹

Accident No. 3. On April 28, 1959, an accident occurred in front of Sacks' White Vending Machine Company¹² between a car driven by one Elizabeth Williams and a double-parked automobile which Mrs. Williams testified contained two men.¹³ The next day Hutul sent Mrs. Williams a notice of attorney's lien which stated that he had been retained by four claimants who had all allegedly been in the automobile: Nancy Mitchell; Robert J. Sacks; Robert Forbes; and Robert Fishman. Lost wages statements were mailed by Hutul to Mrs. Williams' insurer, Aetna Casualty Insurance Company,¹⁴ which indicated that Forbes and Fishman were employed by White Vending at a salary of approximately $230 per week, that Mitchell was a telephone sales girl earning $225 per week, and that each had lost from three to five weeks time as a result of the "accident." The address given for claimant Fishman was that of a Joseph Fishman who had nothing to do with the accident, but who was a long-time friend of defendant Basan. Suit was subsequently filed by Hutul on behalf of the four claimants.

Aetna's investigators and attorneys were unable to contact or depose either Forbes or Fishman, but did depose Mitchell, in the presence of an associate of defendant Hutul. At that deposition, Mitchell stated that she earned only $90-$95 per week at White Vending and that she had been in the car hit by Mrs. Williams and injured in the accident when thrown to the floor. Sacks was also deposed by Aetna's attorneys, in Hutul's presence, and stated that Mitchell had been earning $225 per week prior to her layoff due to the accident and was receiving $75 per week after her return. Sacks stated that, on the advice of his attorney, Hutul, he would not produce White Vending Company's employment records, which had been subpoenaed. This lawsuit was subsequently dropped.

Accident No. 4. On April 16, 1959, a driver's license was issued in the name of Ralph Windmaur, who was later identified as defen...