The opinion of the court was delivered by: MARSH
After conviction by a jury, the defendant, Robert K. Stitt, filed a "Motion in Arrest of Judgment, or in the Alternative, for New Trial". No grounds appear in the motion to authorize arrest of judgment under Rule 34 F.R.Crim.P., therefore, that motion will be denied. The alternative motion for a new trial will also be denied.
The defendant's first three reasons for a new trial have no merit. The verdict was not against the weight of the evidence, the credible evidence, or the applicable law.
We briefly summarize the facts in the light most favorable to the verdict winner. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Dukow, 465 F.2d 688 (3rd Cir. 1972).
For over a year Mr. Stitt had been associated with Dale M. Carter and Richard M. Ranalla as their counsel. They were in his office almost daily. Their activities were questionable and ultimately they pleaded guilty to two crimes of a fraudulent nature. During this association, Mr. Stitt advised them how to obtain money (property damages and exaggerated medical expenses) by staging a "perfect accident", i.e., a rear-end collision at a red light. To allay Carter's fear of being caught, Stitt stated that he had previously accomplished this. In early November, 1972, Stitt brought up the fact that Carter and Ranalla "had accumulated a considerable amount of legal fees" in connection with the formation of a corporation called Baby Memories, Incorporated and other business matters. Carter and Ranalla explained that the business was not doing well. (Tr. pp. 54-55). Also in early November, Carter by his own testimony related that he had decided he would "definitely have to get rid of [his] car." (Tr. p. 47). Stitt suggested that a staged rear-end collision would serve to clear up both matters, i.e., the legal fees owed to him and the desire of Carter to get rid of his car, since Stitt's end of the accident claim would be enough to cover the legal fees. (Tr. p. 55).
Within a week, Carter and Ranalla obtained the cooperation of their employee, Rosemary D'Ercole. According to the plans she was to run her car into the rear of Carter's car, a 1970 Lincoln Continental. The plan was finalized in Stitt's office on the day before the "accident". On advice of Stitt, Carter had previously obtained automobile insurance from Nationwide Insurance Company under the name of Martin D. Carter, because as Dale M. Carter he had a poor driving record and was unlikely to obtain automobile insurance.
After the fake collision Stitt told Carter and Ranalla to go to Shadyside Hospital, obtain medical services from Dr. Kann and request him to prescribe therapy to be administered by Frank Matrozza, a physical therapist. Subsequently, according to Stitt's instructions, Matrozza submitted padded bills for unperformed therapy treatment to Carter and Ranalla. Nationwide paid $920.87 for damage to Carter's Lincoln which according to the plan was to be destroyed after a period of time. Shortly after the accident Nationwide advised that it would cancel the Carter policy. Thereupon, Stitt told Carter to give him $200 and he would have the Lincoln stolen and promptly destroyed and thus enable Carter to claim the value of a "repaired" stolen vehicle before the expiration date. Instead of destroying the car, Stitt's henchman partially burned it. After negotiations with Stitt, Nationwide paid $1,918.95 to satisfy a G.M.A.C. lien on the Lincoln and the remainder of $792.55 to Carter. Stitt settled the personal injury claims of Carter and Ranalla against D'Ercole with State Farm Insurance Company, D'Ercole's insurer, for $3,500 after expenses. Each received $959 and Stitt received $960. D'Ercole received $655 from State Farm for damage to her car and gave $400 to Carter and Ranalla. The planned destruction of D'Ercole's automobile was abortive. Altogether the two insurance companies were mulcted out of approximately $7,750 as the consequence of the staged collision. The jury found that the mails were used on 8 occasions in perpetration of the fraud.
There was ample evidence, if believed, to support the jury's verdict that the defendant Stitt was guilty of the charged accusations of conspiracy and mail fraud beyond a reasonable doubt. "Evaluating the credibility of witnesses is for the jury * * *." United States v. Brown, 471 F.2d 297, 298 (3rd Cir. 1972); United States v. Dukow, supra.
Since the jury had acquitted the defendant Bookmeyer, Stitt in his brief argues that the verdicts are inconsistent under the evidence presented. However, it is well established that verdicts of a jury in a criminal case need not be consistent. Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932); Cf. United States v. American Stevedores, Inc., 310 F.2d 47 (2d Cir. 1962); Bridgman v. United States, 183 F.2d 750, 753 (9th Cir. 1950) mail fraud; Whealton v. United States, 113 F.2d 710, 717 (3rd Cir. 1942) mail fraud; United States v. Dukow, 330 F. Supp. 360, aff'd on other grounds, 465 F.2d 688 (3rd Cir. 1972).
The defendant's 4th reason for a new trial asserts that " the court committed error in sending the indictment out with the jury when the indictment was not evidence * * *."
The 16-page indictment contained 10 counts. The conspiracy count consisted of 5 pages and specified 8 parts of the conspiracy and 9 overt acts. It seems logical that the jury should have access to the indictment so that its members could, if desired, discuss and test the proofs with the alleged means of perpetrating the conspiracy, and to determine whether one of the alleged overt acts had been established by the evidence, as well as find if one or more of the 9 substantive counts of mail fraud had been proved. The jury did find the defendant Stitt not guilty of substantive count 10, and found Bookmeyer not guilty of all counts. Without the indictment as a guide, it would be most difficult for any fact-finder, judge or jury, to accurately and intelligently pass upon each count and each overt act in the light of the evidence.
After the prospective jurors were sworn they were instructed as follows:
"Now, the indictment returned by the Grand Jury is a formal document which the Government uses to commence its charge against the defendants and upon which it brings its case into court and the indictment serves no other trial purpose whatsoever. The sole purpose of an indictment is to serve as an accusation or charge which the United States makes against the defendants. It serves to inform the defendants of the crime with ...