United States v. Pope

• Decision Date: 27 August 1969
• Docket Number: No. 19408.,19408.
• Citation: 415 F.2d 685
• Parties: UNITED STATES of America, Appellee, v. Charles W. POPE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.2d 685 (1969)

UNITED STATES of America, Appellee, v. Charles W. POPE, Appellant.

No. 19408.

United States Court of Appeals Eighth Circuit.

August 27, 1969.

Robert F. Wilson, Cedar Rapids, Iowa, for appellant, Fred C. Fisher, Jr., Cedar Rapids, Iowa, on the brief.

Asher E. Schroeder, U.S. Atty., Sioux City, Iowa, for appellee, and filed brief.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

MATTHES, Circuit Judge.

The defendant was indicted in six counts for using the mails to defraud three insurance companies in violation of 18 U.S.C. § 1341. Each of the counts was premised upon use of the mails on six different dates in 1963 and 1964 in furtherance of the fraudulent plan. The jury acquitted the defendant on Counts I, II, III and V and convicted him on Counts IV and VI. These two counts involved use of the mails on February 11, 1964, and April 8, 1964, respectively. The district court entered judgment on the jury verdicts and imposed a fine of $750 for each offense, for a total of $1,500. This timely appeal followed.

SUFFICIENCY OF THE EVIDENCE

Defendant explicitly challenges the sufficiency of the Government's evidence to make a jury issue and urges that the court erred in not granting his motion for judgment of acquittal offered at the close of the Government's case. Implicit in defendant's brief is the further claim that the court should have entered a judgment of acquittal at the close of the whole case. We disagree and hold that the evidence, viewed in the light most favorable to the verdict, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Teel v. United States, 407 F.2d 604 (8th Cir. 1969); Latham v. United States, 407 F.2d 1 (8th Cir. 1969), supports the convictions.

The record shows and the Government concedes that the defendant sustained disabling injuries as a result of an automobile accident which occurred on January 7, 1963. At that time defendant was insured under two health and accident policies issued by Monarch Life Insurance Company, Springfield, Mass. These policies provided for payment of a total of $450 monthly indemnity for a maximum period of 24 months in one policy and five years in the other.¹

The defendant periodically filed claims and it appears that Monarch paid defendant benefits approximating $8,900 from January 22, 1963 to on or about April 8, 1964.²

Defendant's troubles emanated from two claims for benefits under the Monarch policies. These claims were submitted on forms furnished by Monarch. On one side the insured was required to and did answer questions relating to his physical condition. He admitted signing this part of the claim. The other side of the form contained the "attending physician's statement." One of the two claims in question, the subject of Count IV, was purportedly signed on February 6, 1964, by Dr. T. H. Blake as the attending physician. Dr. Blake, an orthopedic surgeon, was one of eight doctors in Jackson Bone and Joint Clinic, Jackson, Miss. The letter "T" appeared below the doctor's purported signature. Miss Elsie Thorne was the office manager of the clinic and was authorized to sign Dr. Blake's name to patient's claims for insurance benefits. The physician's statement showed on its face that the patient (defendant) "will * * be continuously totally disabled (unable to work) from 8/63, * * * through unable to state." Attached to the claim was a supporting letter dated February 5, 1964, also purportedly written and signed by Dr. Blake (the letter "T" appeared below the doctor's signature) in which the doctor reviewed in some detail his diagnosis and treatment of defendant's injuries. This claim was mailed from Jackson, Miss. to Monarch in Springfield, Mass. The claim was approved on or about February 11, 1964. On that day Monarch issued and mailed to defendant at Cedar Rapids, Iowa, where he resided, two checks, one for $400 and the other for $500, covering the amount of benefits due under the disability policies for a period of two months.

The other claim form, the subject of Count VI, was signed by defendant on March 3, 1964, and purportedly signed by Dr. Blake as the attending physician on March 5, 1964. The letter "T" also appeared under Dr. Blake's signature on this claim. In the physician's portion of the form it was stated in substance that defendant had been continuously, totally disabled from August 2, 1963, through "unable to state." A photocopy of a letter dated February 28, 1964, purportedly written by Dr. Blake also accompanied this claim. The claim and supporting data were mailed from Jackson, Miss. on or about March 7, to Monarch. Pursuant thereto the Company issued two checks on April 8, 1964, one for $520, the other for $500. They were payable to "Attorney Stanley M. Nielsen and Charles Pope" and were mailed to them on the same day at Cedar Rapids, Iowa.

Counts IV and VI were prosecuted on the theory that the defendant had devised a plan to defraud Monarch by presenting claims which had been fabricated and were not genuine; that the two demands discussed above were false and fictitious in that neither Dr. Blake nor anyone acting authoritatively for him had prepared the "physician's statements", had signed such statements or had written the supporting letters. Our review of the voluminous record convinces us that there was substantial evidence to support the Government's position.

Dr. Blake and Miss Thorne testified unequivocally that they had not completed or signed the physician's statement in support of either claim. The information supplied on the forms did not coincide with Dr. Blake's office records to which he referred during the course of his testimony. Dr. Blake also stated that the stationary used in the preparation of the supporting letters was obsolete and had not been used by the clinic for a number of years prior to February, 1964. There was evidence, however, indicating that some of the obsolete letterheads were later discovered in the physiotherapy room of the clinic.

A number of other employees of the clinic, including Dr. Blake's wife, corroborated the testimony of Dr. Blake and Miss Thorne. In fact, Dr. Blake stated that, contrary to the information shown in the physician's statement, he had not seen or examined the defendant since November 3, 1963. Additionally, there was expert testimony to the effect that the physician's statements were not prepared by use of any typewriter that was in the clinic at the time the statements were purportedly prepared.

Defendant apparently rests his challenge to the evidence on the erroneous premise that it was necessary for the Government to prove by direct testimonial evidence that the defendant or someone acting for him had falsified the claim forms, the supporting letters and had forged Dr. Blake's signature thereto. We are not persuaded by this argument. It is true that the Government did not establish, by direct evidence, the identity of the person or persons who had prepared the "physician's statements," the letters, and had forged the doctor's signatories. However, there was an abundance of circumstantial evidence from which the jury could properly infer, as it manifestly did, that the defendant directly or indirectly participated in the preparation and execution of the fictitious "attending physician's statements," and the supporting data. It is, of course, fundamental that an offense may be proved by and rest upon circumstantial evidence. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Peterson v. United States, 411 F.2d 1074 (8th Cir. 1969); Doss v. United States, 355 F.2d 663, 667 (8th Cir. 1966); DeVore v. United States, 368 F.2d 396, 399 (9th Cir. 1966).

In our view, the guilt or innocence of defendant turned in large part on the issue of credibility. Defendant asserted that after he had completed the patient's part of the claim forms in question, one was mailed and the other delivered in person to the clinic in Jackson, Miss. for completion; that what occurred thereafter was unknown to him. He unequivocally disclaimed any knowledge of the identity of the person or persons who had completed that part of the formal claim designated for use by the attending physician. On the other hand, as shown above, the Government, by an abundance of evidence, established facts from which the jury obviously inferred that the physician's part of the claim forms, which was crucial to affirmative action by the insurance company had been falsified, and that the defendant directly or indirectly participated in the fraud.

There is no claim that the mails were not used to further the unlawful plan. We therefore conclude that the district court properly denied defendant's motions for judgment of acquittal.

JENCKS ACT

Defendant also complains of the failure of the court to require the production of certain documents in the possession of the Government. Rule 16(b), Fed.R.Crim.P., provides for the discovery of investigative reports by Government agents and statements of prospective Government witnesses only as authorized by 18 U.S.C. § 3500, the Jencks Act. Under this Act, after a Government witness has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement of the witness in its possession "which relates to the subject matter as to which the witness has testified."

The material requested by defendant appears in exhibits 1, 2, 3 and 6 which the trial court scrutinized in camera. Upon examination of the exhibits and the two postal inspectors largely responsible for their preparation, Judge McManus ordered the production of portions thereof and found the remainder did not fall within the purview of the Jencks Act.

In sustaining Judge McManus' rulings we are mindful of the admonition of the Supreme Court in Palermo v. United States, 360 U.S. 343, 353, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), reiterated in Campbell v. United States, 373 U.S. 487, ...