United States v. Unger, 13336.
| Decision Date | 27 November 1961 |
| Docket Number | No. 13336.,13336. |
| Citation | 295 F.2d 889 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Daniel P. UNGER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. O'Brien, U. S. Atty., Robert S. Atkins, and John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellant.
Maurice J. Walsh, Chicago, Ill., for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
Daniel P. Unger was named as defendant in a ten count indictment filed in the district court on January 23, 1959, charging use of the mails to defraud, in violation of Section 1341 of Title 18, United States Code.1 In some of the counts M. Edward Ushkow was also named as a defendant.
On motion of Unger to dismiss the indictment for insufficiency, the district court, adopting an opinion explaining its 1958 dismissal of a prior indictment against Unger, considered the pending motion to dismiss the 1959 indictment for failure to allege a fraudulent scheme under § 1341, and ordered a dismissal of the indictment herein. This appeal by the government followed.
The indictment, in the first count, charges, inter alia:
The August 1957 Grand Jury charges that at all times mentioned in this indictment Daniel P. Unger, defendant herein, was engaged in the practice of law at Chicago, Illinois; that at all times mentioned in this indictment M. Edward Ushkow, defendant herein, was engaged in the practice of medicine at Chicago, Illinois; that commencing at a time which is not exactly known to the Grand Jurors, but which was prior to August 20, 1954, and continuing to about May of 1958, the said Daniel P. Unger and the said M. Edward Ushkow devised and intended to devise a scheme and artifice to defraud and for the purpose of obtaining money by false and fraudulent pretenses and representations from * individuals and corporations involved in motor vehicle collisions and from insurance companies engaged in the business of insuring individuals and corporations against liability for personal injury arising out of the operation of motor vehicles.*
2. It was a part of the scheme and artifice to defraud that the defendant Unger would present personal injury claims on behalf of various persons involved in motor vehicle collisions, which persons are hereinafter referred to as claimants.
3. It was a further part of the scheme and artifice to defraud that the defendant Unger would obtain the names of the insurance companies intended to be defrauded, that is, the insurance carriers of the individuals and corporations against whom the aforesaid personal injury claims were to be presented.
4. It was a further part of the scheme and artifice to defraud that, at the instance of defendant Unger, the defendant Ushkow would cause to be prepared and permit the preparation of certain written reports which would purport to describe injuries and symptoms found by him after physical examination of the claimants, and which would purport to describe treatment administered to the claimants by the defendant Ushkow.
5. It was a further part of the scheme and artifice to defraud devised and intended to be devised by the defendants Unger and Ushkow that the aforementioned reports would be false and fraudulent, in that said reports would list and describe non-existent and fictitious injuries and symptoms, and would list treatment not administered nor recommended by the said Ushkow.
6. It was a further part of the scheme and artifice to defraud that the defendant Ushkow would prepare and cause to be prepared bills for the fictitious treatments listed in the aforementioned reports.
7. It was a further part of the scheme and artifice to defraud devised by the defendants Unger and Ushkow that the defendant Unger, well knowing the aforementioned reports and bills to be false and fraudulent as aforesaid, would submit said reports and bills to the individuals, corporations and insurance companies intended to be defrauded, and that the said Unger would represent and pretend to the said individuals, corporations and insurance companies that the said reports and bills were true and correct, with the intent thereby to induce the said individuals, corporations and insurance companies to pay money in settlement of the claims presented by Unger based upon the fictitious injuries and symptoms described in the said reports.
In support of the action of the district court, Unger's counsel refers us to that part of the indictment which we have indicated as lying between the asterisks in the above quotation. Counsel says that this language is vague, ambiguous, uncertain and indefinite and that it was the intention to conceal rather than inform of the nature and cause of the accusation.
The remainder of the first count recites that "on or about December 30, 1954, at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, and within the jurisdiction of this Court" the named defendants "for the purpose of executing the aforesaid scheme and artifice, and attempting to do so, did cause to be placed in an authorized depository for mail matter an envelope addressed to:
"American Automobile Insurance Co 175 West Jackson Blvd Chicago, Illinois.
Attention: Mr. Dick Anderson, which envelope contained the following: a letter dated December 30, 1954; a medical report and bill of M. Edward Ushkow, M.D., purporting to describe and set forth the injuries, symptoms, and treatment of Cleto Quesada, and the medical fee charged therefor; a medical report and bill of Herbert M. Smulson, M.D., purporting to describe and set forth the injuries, symptoms and treatment of John Loster, and the medical fee charged therefor; and a purported copy of a statement from Midwest Electric Co. concerning John R. Loster's absence from work. The said envelope, containing the said enclosures, was to be sent and delivered by the Post Office Establishment of the United States; in violation of Section 1341, Title 18, United States Code."
Counts two to ten inclusive are similar to that part of the first count above described except that other persons and insurance companies, dates, etc., are mentioned.
While it does not appear from the indictment that the individuals, corporations and insurance companies intended to be defrauded were known by Unger at the time the alleged scheme to defraud was entered into with his codefendant, it is not necessary that such be the case. The indictment sufficiently alleges that the...
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...of the offense, the defendant is protected from being placed in jeopardy a second time for the same offense." See United States v. Unger, 295 F.2d 889, 891 (7th Cir. 1961). To the extent that the indictment here fails to spell out the details of the alleged scheme or the representations in ......
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