It is our opinion that the motions for a new trial based upon private conversations between excused juror No. 12, Miss Boyle, and juror No. 11, Miss Perry, as communicated to two other jurors, John Deiger and Mary Fagan, should be denied. United States v. Brasco, supra, 516 F.2d at 819.
ADDITIONAL ARGUMENTS OF DEFENDANT SCOLIERI
ADMISSIBILITY OF DOCUMENTS FROM INSURANCE COMPANY FILES
Scolieri argues that the records of St. Paul were inadmissible in evidence as they violated the hearsay rule.
Title 28 U.S.C.A. § 1732 makes admissible in all judicial proceedings civil or criminal, records made in and pertaining to the regular course of business. Wheeler v. United States, 93 U.S. App. D.C. 159, 211 F.2d 19, 23 (1953). All other circumstances of the making of such writing or record, including the lack of personal knowledge of the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. Landay v. United States, 108 F.2d 698, 705 (6th Cir. 1939).
Rule 803(6), Federal Rules of Evidence, specifically provides that business records collected in the regular course of business are not excluded by the hearsay rule.
The exhibits admitted in this case were identified by the custodian of the records and the business procedure used in the development of the records was fully presented. See Rule 901, Federal Rules of Evidence.
We think the St. Paul records were admissible.
THE COURT'S ALLEGED FAILURE TO CHARGE ON COLLATERAL MAILINGS
Scolieri argues that he was prejudiced by the failure to charge as he requested with respect to collateral mailings. We think the charge accurately stated the law and left to the jury the issue of whether the specified mailings were in furtherance of an essential part of the fraudulent scheme.
SUFFICIENCY OF THE MAILINGS
Scolieri argues that the mailings identified in the substantive counts were collateral to the scheme. The court dismissed five counts it thought were collateral. The remaining thirteen substantive counts were the subject of testimony and the facts so established provided an adequate basis for a finding by the jury that the mailings were in furtherance of an essential part in the execution of the fraudulent scheme. Pereira v. United States, supra.
THE COURT'S CHARGE ON ACCOMPLICE TESTIMONY
Scolieri relies on Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972), as authority that the instructions were erroneous with respect to testimony of an accomplice. The prosecution called accomplices Cherubin, Ferris and Richmond to testify for the prosecution. Scolieri did not call an "accomplice" to testify in his behalf. Dr. Shapiro, Adams and Crivelli testified in their own behalf and they were defendants, not accomplices. Cf. United States v. Sweeney, 532 F.2d 747 (3rd Cir. 1976). We think the accomplice charge was correct.
BROADENING THE INDICTMENT
We see no merit in Scolieri's argument that the court broadened the indictment by reading the statutes involved to the jury. The specific offenses charged were clearly identified and their elements stated.
ADDITIONAL ARGUMENTS OF DEFENDANT CRIVELLI
FAILURE OF COURT TO GIVE REQUESTED INSTRUCTION IN POINT NO. 13
Crivelli alleges error in that the court failed to instruct the jury according to Crivelli's point for charge No. 13 which was affirmed.
Counsel for Crivelli argued the substance of the point to the jury as he had a right to do.
Point 13 reads as follows:
"13. You are instructed that defendant Crivelli has not been charged by the government, in its indictment, with participating in the alleged mail fraud conspiracy by virtue of the fact that Crivelli Chevrolet repaired defendant Scolieri's automobile. Although documents and testimony have been admitted into evidence relating to the repair of Scolieri's automobile, you are instructed not to consider this evidence in your determination relative to defendant Crivelli's innocence or guilt, but you may consider it relative to the government's contentions against other defendants."
During the trial on September 19th after the noon recess, at Crivelli's request, the court gave the following limiting instruction:
"Well ladies and gentlemen of the jury, Exhibit 8E has been admitted into evidence, Government's Exhibit 8E has been admitted in evidence, being an estimate of Crivelli Chevrolet for repairing a Chevrolet Coupe, and that exhibit has been admitted, but has not been admitted and has no bearing in the case of the government against Mr. Anthony Crivelli, Sr., because the government has not charged Anthony Crivelli, Sr., with submitting a false estimate for repairs, and he has not been charged with submitting any kind of repair bill. So although the exhibit is in evidence, it is no evidence against Anthony Crivelli, Sr. Is that satisfactory Mr. Martin?