United States v. Surtain
| Decision Date | 26 March 2013 |
| Docket Number | No. 11-30525,11-30525 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. JERMAINE SURTAIN; CHARLES MOSS; DAVID SAMUELS, Defendants-Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court
for the Eastern District of Louisiana
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
*
Defendants-Appellants appeal their convictions and sentences on various counts relating to their involvement in three insurance fraud schemes. For the reasons that follow, we VACATE David Samuels's sentences on Counts 12 and 13 of the superseding indictment, REMAND for resentencing on one of those counts (at the government's election), and AFFIRM in all other respects.
On December 4, 2009, the grand jury returned a superseding indictment against Defendants-Appellants David Samuels, Charles Moss, and Jermaine Surtain, variously charging them and three other co-defendants with one count of conspiracy to commit mail and wire fraud under 18 U.S.C. § 371, three counts of mail fraud under 18 U.S.C. § 1341, seven counts of wire fraud under 18 U.S.C. § 1343, one count of use of fire to commit obstruction of justice and two counts of use of fire to commit mail fraud under 18 U.S.C. § 844(h)(1), one count of making a false statement under 18 U.S.C. § 1001, and aiding and abetting under 18 U.S.C. § 2 as to the wire fraud, mail fraud, and use-of-fire counts. The charges arose from separate insurance fraud schemes that culminated in arson, murder, and the destruction of a van used in the killing.
At trial, cooperating co-defendant Damian Landry testified that Samuels worked with him at Volunteers of America, an elder care provider in New Orleans. When Landry and his wife fell behind on mortgage payments for her house in 2002, Samuels advised Landry to increase his insurance coverage on the house and burn it down for the proceeds. Landry agreed, and Samuels set out to find someone who would set fire to the house for a share of the insurance money. Samuels ultimately recruited Moss, an army buddy of his from Detroit.
Landry testified that on the day the house burned down, he and Samuels reported to work, and Landry then left to get breakfast. Samuels and Moss met Landry later that morning and told him they would burn the house that day. Samuels gave Landry the keys to his green Chrysler van, and Landry gave Samuels the keys to a white 1991 Chevrolet with temporary tags. The car was unregistered, making it impossible to trace. At Samuels's direction, Landry went to a client's house so that he would have an alibi.
A neighbor testified that he was at home when he heard an explosion from across the street. When he got to the window, he saw Landry's house burning.He also saw a man with a burned face and hair leave the house and enter an older white car with temporary tags, which then sped away. Landry received a phone call from his probation officer, who told him that his house was on fire. Before Landry could return home, Samuels called and told him to come to Samuels's house. When he arrived, Samuels and Moss entered Landry's vehicle. Moss's face was burned, and Samuels said they had to take Moss to the hospital. Landry refused, and Samuels instead had his brother Chris take Moss. Landry then returned home to find his house destroyed. He and Samuels later took the white Chevrolet to a wrecking yard to be demolished.
Landry filed a fire insurance claim on the house, but did not mention the arson to the insurance company. Because the insurance payment he received was not as large as he had anticipated, he used it to pay the mortgage company and did not tell Samuels that he had obtained the money. After Samuels pressured him for the insurance proceeds several times (sometimes violently), Landry gave Samuels $3,000 from his tax refund.
Landry further testified that while the fire insurance claim was pending in July 2003, he accompanied Samuels to insurance agent Stefan James's office. Samuels and James (a cooperating co-defendant in this matter) discussed obtaining $100,000 to $150,000 of insurance coverage on the life of Treyor Winston August, Samuels's cousin. To that end, Samuels unsuccessfully sought to convince Landry to pose as August.
James testified that he knew Samuels through his wife, who also worked at Volunteers of America. James had sold life insurance policies to Samuels and Samuels's wife, and had socialized with Samuels on occasion. James described Samuels as a braggart, and testified that Samuels once said he would have his cousin killed for stealing drugs from him. Several weeks after making this statement, Samuels came to James's office with Landry.
Even though James was aware of Samuels's fraudulent and murderous intentions, he ultimately sold Samuels a "double-indemnity" life insurance policy. This meant that although the policy's face value was $75,000, it would pay out $150,000 if August's death were accidental. Samuels structured the policy in this way because any policy with a face value of $100,000 or more would have prompted the underwriter to collect the insured's blood and urine, and administer a medical exam. August surely would have become aware of the policy had he been asked for these things. The policy's beneficiaries—Samuels and his mother, Teresa—were falsely listed as August's brother and mother. Although August was listed as the policy's owner, Samuels signed August's name on the application, had his own address listed on the policy to prevent August from discovering its existence, and also noted on the application that August should not be contacted at his workplace regarding the policy. Samuels was involved in three subsequent fraudulent policies: (1) He took out a second policy on August's life for $25,000, the beneficiary being his sister, co-defendant Maria Samuels; (2) he provided information to allow James to obtain a $25,000 policy on August's life; and (3) he obtained a $90,000 "key man" policy on August's life, the beneficiary being his company, Sam's Realty and Maintenance.
Samuels's brother Chris, who had taken Moss to the hospital following the Landry house fire, testified that Samuels asked him to kill August for $20,000. Samuels showed him one of the fraudulent life insurance policies to demonstrate a means of payment. Chris testified that he was unwilling to kill his cousin, but, wanting to stall Samuels and warn August, said he would do it. Chris told August of Samuels's plan and the insurance policy, and gave him a gun for protection. As he related at trial, however, he felt that August did not take the threat seriously.
Apparently becoming impatient that Chris had not killed August, Samuels eventually sought someone else for the task. According to phone records,Samuels placed two calls on April 24, 2004 to Surtain, who was his sister's ex-boyfriend and the father of her child, and who had recently returned to New Orleans. Kelvin Marshall, who three years later would be apprehended with Surtain in a burglary, testified that between 9:00 and 10:00 PM on April 24th, Surtain called him to obtain nine-millimeter rounds for a pistol. Marshall went to a friend's house on Cortez Street to retrieve the ammunition. He then gave it to Surtain, who was waiting outside with his girlfriend. The girlfriend dropped Marshall off at a nearby bar; Surtain test-fired the pistol out the vehicle's window along the way. The girlfriend dropped Surtain off on Canal Street near Warren Easton High School.
August's girlfriend testified that Samuels came to her house on April 24th to ask for August. Although August was not home the first time Samuels came by, Samuels returned a second time after he had come back from work. Samuels stayed for a while, then left. Around nightfall, Moss came to August's home in Samuels's green van. Moss spoke with August, left, then returned between 8:00 and 8:30 PM. He and August left between 9:00 and 9:30 PM, purportedly to celebrate August's birthday. Samuels attended a church service that night.
Samuels later told a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that August had been shot in "the van," ran away, struggled with the shooter, and was shot once more. A trail of blood consistent with this version of events was found at the murder scene. An eyewitness testified that he and his wife were driving south on Bienville Street between 9:50 and 10:00 PM on April 24th. Shortly after they crossed Jefferson Davis Parkway, the witness saw a man bending over another man on the median, and noticed the man on the ground had a large amount of blood on his shirt. As the witness drove away, the first man shot the other one in the head. An autopsy revealed that August had been shot six times, including once in the head. Police recovered spent nine-millimeter casings from the murder scene.
Surtain's girlfriend testified that Surtain called her later that night to pick him up because police were in the area. She picked him up about two blocks away from Jefferson Davis Parkway, and dropped him off on Cortez Street. Marshall testified that Surtain returned to the house on Cortez Street that night. Surtain's jeans were covered in blood. The next day, Surtain told Marshall and others that "he shot a dude" who then wrestled Surtain to the ground, causing him to drop the gun. Surtain said that he "slammed the dude," retrieved the gun, and shot him again. James testified that Samuels told him he had cleaned out blood from the van with bleach or ammonia.
At 10:53 PM on April 24th, Samuels called James, and said, To avoid suspicion, James advised Samuels to wait before filing a claim. Samuels's sister's claim was filed in June 2004, and his mother's claim was filed in July 2004. The insurance companies denied the claims due to misrepresentations on the...
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