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December 22, 1976


The opinion of the court was delivered by: MARSH

 The defendants, Joseph A. Iezzi, Albert D. Milani, D.C., James D. Potter, M.D., Elias Yurick, D.O., Paul N. Scolieri, Louis D. Adams, Robert L. Plusquellec, Bernard L. Shapiro, D.D.S., Louis A. DeSantis, Anthony Crivelli, Sr., and Louis C. Boscia, were tried on a charge of conspiracy to defraud an insurance company by use of the mails, 18 U.S.C. § 371, and eighteen substantive counts of mail fraud, 18 U.S.C. § 1341. Five substantive counts were dismissed by the court. Elias Yurick was acquitted. The remaining defendants were all convicted of conspiracy and each was found guilty of mail fraud, ranging from the conviction of Crivelli on one count to the conviction of Boscia on all thirteen counts.

 Seven defendants, Dr. Potter, Scolieri, Adams, Plusquellec, DeSantis, Crivelli and Boscia, *fn1" filed motions for arrest of judgment, judgment of acquittal, or for a new trial; one defendant, Iezzi, filed only a motion for a new trial. All filed briefs except Boscia.

 It does not appear in the motions or briefs that the indictment does not charge an offense, or that the court was without jurisdiction, hence the motion in arrest of judgment will be denied.

 Taking the view of the evidence most favorable to the prosecution, as required, we think the verdicts of guilty against ten of the defendants who stood trial were supported by evidence beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Dukow, 465 F.2d 688, 689, 692 (3rd Cir. 1972). We are not convinced that there were errors requiring that a new trial be granted to any defendant.

 Briefly, the prosecution proved by overwhelming evidence that defendants Boscia, Scolieri, DeSantis, Plusquellec, along with Kenneth Ferris, who pleaded guilty, and Thomas Cherubin, an unindicted conspirator who was granted immunity, conspired to stage a fake motor vehicle accident with the intent to defraud the St. Paul Mercury Insurance Company, one of the St. Paul Insurance Companies (St. Paul).

 Boscia had influenced Cherubin to take out an automobile insurance policy with St. Paul. Boscia paid the premium on the policy and gave Cherubin $1,000 prior to the staged accident. After the staged accident Boscia gave Cherubin another $1,000 and $50 for airplane tickets to return to Erie.

 In the early morning of November 25, 1973, after previous abortive attempts, Boscia intentionally drove Cherubin's Chevrolet Blazer into the rear of Scolieri's car while the latter was stopped at an intersection in West Homestead, Allegheny County, Pennsylvania. Before the collision, Scolieri and his passengers, Ferris and Plusquellec, had vacated the Scolieri car and Cherubin and DeSantis had vacated the Cherubin vehicle. Afterwards, Cherubin went to a nearby police station to report the accident. Joseph Iezzi pretended he had been a passenger in Cherubin's car and pretended he had been injured in the collision.

 By the time the police arrived, DeSantis had reentered the Cherubin vehicle and the others were standing around. DeSantis, Ferris, Plusquellec and Scolieri pretended they had been injured in the fake collision and the police took them to the Homestead Hospital where all except DeSantis left the same day. DeSantis, who had suffered a prior heart attack, stayed in the hospital for treatment of his heart until December 6, 1973. Boscia and Cherubin left the scene, taking the Cherubin vehicle to Iezzi's Body Shop where it was to be repaired. From there they went in Boscia's car to Cherubin's apartment where Boscia gave Cherubin instructions with respect to reporting the accident to the insurance company. Cherubin then took a plane for Erie where he was then working.

 With extensive cooperation of Louis Adams, the claims manager for St. Paul who handled the claims against Cherubin's policy, all the foregoing, except Cherubin and Boscia, received money from St. Paul for alleged injuries.

 Thereafter, with the professional cooperation of Dr. Albert Milani, Dr. James Potter, Dr. Bernard Shapiro, Dr. Jack Pincus, who was not tried, and others who were not indicted, St. Paul paid the participants and their respective doctors and car repairmen in excess of $80,000 for hospitalization, alleged bodily injuries, alleged lost wages, car repairs, et cetera.

 Specifically, Dr. Milani joined the conspiracy and provided false medical bills and false medical reports for DeSantis and Iezzi. DeSantis received four drafts totalling $9,100 for which he signed a release. Iezzi received three drafts totalling $4,885 of which one draft of $305 was issued to Iezzi and Dr. Milani and one draft of $105 was issued to Iezzi as reimbursement for Dr. Yurick's bill.

 Dr. Potter joined the conspiracy in Henderson, Nevada, and provided Ferris with a false medical bill on a Henderson Clinic form and a false medical report on an insurance form. Ferris, like the other participants, had no injuries and was never examined by Dr. Potter. Nor was Ferris ever treated or even seen by Dr. Charles Ashman, a dentist who had his office near the Henderson Clinic. A false dental bill for Ferris totalling $2,360 was submitted to the insurance company on Dr. Ashman's letterhead and billhead accompanied by a medical report form on which someone other than the doctor had signed Dr. Ashman's name. The evidence shows that Boscia paid $200 to Gail Richmond, an employee of Dr. Ashman, to obtain a blank letterhead and billhead of Dr. Ashman. She also told Boscia some dental nomenclature to be used to complete the false bill and medical report. *fn2"

 Dr. Shapiro joined the conspiracy and provided Scolieri with a false dental bill in the sum of $3,380. Dr. Pincus provided him with a false medical bill of $485 and a false medical report. Scolieri received three drafts from St. Paul for bodily injuries and fictitious wage loss in the sum of $25,000. In addition, to cover the repairs to his car, he received a draft for $2,025 which he deposited in the bank account of Circus-Circus, the Las Vegas hotel for which he worked as a junket operator. He also received $641.77 to pay a false car rental agreement with Crivelli Chevrolet.

 Dr. Pincus provided Plusquellec with a false medical report and a bill for $95 which was paid by St. Paul. Monsour Hospital was paid by a draft for $1,895 and Braddock Hospital was paid by a draft for $74.75, for medical treatment and hospitalization rendered Plusquellec for an injury to his knee which occurred prior to November 25th, 1973. In addition, Plusquellec received three drafts for bodily injuries and fictitious wage loss in the total sum of $25,750, which drafts were endorsed in his name and cashed by Casey Babuscio who gave the money to Boscia. How much he gave Plusquellec is not known.

 St. Paul paid for the repair of Cherubin's vehicle by a draft made out to Cherubin, the finance company, and Iezzi Auto Body in the sum of $521.91.


 The defendants contend that they are entitled to a new trial because the court abused its discretion in failing to grant their individual and joint motions for severance. Rule 14, Fed.R.Crim.P. They rely on United States v. Sica, 560 560 F.2d 149 (3rd Cir. October 20, 1976).*We think their reliance is misplaced.

 To grant a motion for severance a defendant must show something more than the fact that a separate trial might offer him a better chance of acquittal. 8 Moore, Federal Practice para. 14.04 [1] at 14-14.2 - 14-15 (2nd ed. 1976). The test for prejudice is:

". . . whether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted."

 Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969). See also Peterson v. United States, 344 F.2d 419, 422 (5th Cir. 1965); United States v. Kahn, 381 F.2d 824, 839 (7th Cir. 1967); United States v. Stitt, 380 F. Supp. 1172, 1176 (W.D.Pa. 1974), aff'd 510 F.2d 971 (3rd Cir. 1975).

 The defendants allege prejudice by their inability to call co-defendants to testify on their behalf. The defendants Potter, Crivelli, Shapiro and Adams testified in defense. The defendant Jack Pincus, M.D., was severed because of the inability of his retained counsel to attend the trial due to serious family illness. Although Dr. Pincus was not on trial, no defendant subpoenaed him to testify.

 An intention of a movant to have a co-defendant testify has never been considered as a ground for severance. None of the movants have shown nor asserted that any non-testifying defendant's version of the facts would have any exculpatory effect; or that any non-testifying defendant would more likely testify if a movant were tried separately. The movants' bare assertions that the joint trial deprived them of the testimony of their co-defendants, without a showing of the likelihood of their testimony being given in separate trials, and without any evidence that their testimony would tend to exculpate the movants, is not sufficient to show prejudice. Tillman v. United States, supra, 406 F.2d at 936; Brown v. United States, 126 U.S. App. D.C. 134, 375 F.2d 310, 316-17 (1967).

 The unsupported possibility that a co-defendant would testify in a severed case does not render a refusal to sever erroneous. United States v. Kahn, supra, 381 F.2d at 841. Thus, to justify severance for reason of testimony, a defendant must make a showing that the testimony of a co-defendant would be exculpatory in effect and that the co-defendant would in fact testify. United States v. Somers, 496 F.2d 723, 731 (3rd Cir. 1974); Tillman v. United States, supra, 406 F.2d at 936.

 Since Boscia, DeSantis and Yurick had previously been convicted in this court at Criminal 75-04 of similar charges arising from the staging of a fake motor vehicle accident it would be highly unlikely that they would have testified if severance had been granted. Had they testified, it is very likely that their testimony would have been subject to substantial, damaging impeachment. United States v. Finkelstein, 526 F.2d 517, 523-525 (2nd Cir. 1975).

 None of the defendants made a showing that any co-defendant would testify if the trials had been severed. See United States v. Stitt, supra, 380 F. Supp. at 1176, involving another fake motor vehicle accident staged in this district.

 We think the motions to sever were properly denied.


 Most of the defendants, relying on United States v. Klein, 515 F.2d 751 (3rd Cir. 1975), argue that the evidence was insufficient to sustain their convictions.

 Iezzi argues that the evidence fails to establish that he had the required knowledge of the conspiracy's illicit purpose. We disagree. The evidence was convincing that Iezzi was not present at the scene of the staged accident. Boscia, who was present, pretended he was Iezzi. Later, Iezzi gave a false statement to Inspector Trainor that he was injured in the accident as a passenger in Cherubin's vehicle. He gave a false account of the treatment he received from Drs. Yurick and Milani. It was shown that Boscia assisted Iezzi in settling his false claims against the insurance company, and disposed of the proceeds of the settlement. Iezzi's signature was identified on two of the drafts issued by the defendant Adams on behalf of St. Paul in connection with the Iezzi settlement.

 The evidence that Iezzi filed and settled claims with St. Paul for injuries and medical expenses allegedly sustained in an accident in which he was actually not present provided facts and circumstances which clearly disclosed Iezzi's knowledge of the illicit purpose of the conspiracy and scheme to defraud the insurance company.

 Adams argues that the evidence was insufficient to establish his required knowledge of the conspiracy's illicit purpose. It is sufficient to note that the evidence against Adams ranged from the testimony of Cherubin that he understood from Boscia that he had nothing to worry about, to the testimony of Ferris that his only meeting with Adams was at the Carlton House lounge in the presence of Boscia and that the accident was not even discussed at that time.

 It was proved that Adams failed to follow up indications that Plusquellec and DeSantis had been involved in previous accidents; that he failed to secure background information on Scolieri even though advised to do so by his supervisor; that he accepted Scolieri's false dental charges without proper investigation especially in the absence of any suggestion of injury to Scolieri's mouth or teeth; and that he failed to procure copies of Homestead Hospital records. Also to be considered are: Adams' inability to explain how he was able to reach Cherubin by phone; his false accounts of the Iezzi and Ferris settlements; and, his insistence that Boscia had nothing to do with the settlements of the false claims in the light of overwhelming evidence that Boscia engineered the conspiracy and was seen with Adams during the time Adams was settling Scolieri's claim. Adams authorized most of the drafts paid by St. Paul. These circumstances and many others not mentioned show clearly Adams' knowledge of the illicit purpose of the conspiracy and the scheme to defraud the insurance company for which he worked.

 Plusquellec argues that the evidence was insufficient to establish that he had the requisite knowledge of the illegal purpose of the conspiracy. It was proved that Plusquellec participated in the conspiracy; that he was present at the scene of the fake accident; that he did not sustain any injuries; that Eugenia Butera signed a false employment letter for him following the fake accident; that her signature on the letter submitted to St. Paul was a forgery; that he misrepresented his employment at the Pagoda Beauty Shop; that he filed a false claim and was issued three drafts by St. Paul for a total of $25,750; that at least two of the drafts were endorsed by Plusquellec, and all three were cashed by Casey Babuscio who gave the money to Boscia. This evidence was ample proof of his knowledge of the illicit purpose of the conspiracy and scheme to defraud.

 Boscia, DeSantis and Scolieri did not brief the issue of sufficiency of the evidence. Boscia managed the conspiracy from the beginning to the end and undoubtedly reaped a harvest. Boscia and DeSantis were in Cherubin's vehicle at the scene on November 25th. DeSantis got out of the vehicle while Boscia drove it into the rear of the empty Scolieri car. DeSantis got back into the vehicle and was found therein by the police, who knew him as a prior coronary victim and immediately took him to Homestead Hospital. His false claims were paid by St. Paul.

 It is eminently clear that Boscia and DeSantis, as well as their companions, had knowledge that morning of the illicit purpose of the conspiracy to defraud Cherubin's insurance company which purpose was fully accomplished.

 Scolieri had driven Plusquellec and Ferris to the scene of the accident in his Chevrolet Caprice. They vacated the car and Scolieri permitted Boscia to run Cherubin's Blazer into the rear of the Caprice. Scolieri's false claims were paid by St. Paul. He, like the other participants, was a member of the conspiracy and had knowledge of its illicit purpose.

 Likewise, it was proved beyond a reasonable doubt by persuasive circumstantial evidence that Dr. Milani, Dr. Potter, Dr. Shapiro and Mr. Crivelli had knowledge of the illicit agreement to defraud an insurance company and voluntarily joined the original conspirators in perpetrating the fraud. The jury was convinced of their participation and that each could reasonably foresee that the mails would be used in perpetration of the fraud. As to the specific substantive counts of which each conspirator was convicted, the jury found that the mailings therein specified were in furtherance of an essential step in the execution of the fraudulent scheme. See Pereira v. United States, 347 U.S. 1, 8-9, 98 L. Ed. 435, 74 S. Ct. 358 (1952).

 Dr. Potter's complicity has heretofore been stated. In addition, his preparation of a false bill for medical services he did not perform for Ferris and of a false medical report which reflected a history of the accident of November 25th 1975; a diagnosis of the injuries sustained (although Ferris did not sustain any injuries); a report of x-rays allegedly taken at Henderson Clinic; and a prescription for treatment allegedly made necessary by the accident, were critical to his guilty knowledge of an illicit agreement to defraud an insurance company. Insurance cases represented a large part of the business of Henderson Clinic and Dr. Potter's practice included treatment of many insurance claimants. Obviously the jury did not believe Dr. Potter's exculpatory explanations and was entitled to consider the false explanation as circumstantial evidence of guilt. ...

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