On Appeal from the United States District Court for the Western District of Pennsylvania; No. 76-124.
Rosenn, Higginbotham, Circuit Judges, and Barlow, District Judge.*fn*
HIGGINBOTHAM, Circuit Judge
Defendants Louis Boscia, Robert Plusquellec, Paul Scolieri, Louis DeSantis, James Potter, Albert Milani, Bernard Shapiro, Anthony Crivelli and Louis Adams are appealing convictions on charges of violating the federal mail fraud statute, 18 U.S.C. § 1341 (1970) and of conspiring to commit mail fraud in violation of the federal conspiracy statute, 18 U.S.C.§ 371 (1970). The convictions are affirmed.
Defendant Elias Yurick, an osteopath, was acquitted at trial. The proceedings against defendant Jack Pincus, a physician, were severed when his attorney's wife became ill shortly before trial. The charges against defendant Pincus have now been dropped. Kenneth Ferris pled guilty to conspiracy charges and testified for the prosecution. Joseph Iezzi was convicted at trial and has not appealed. Thomas Cherubin, an unindicted co-conspirator, was given a grant of immunity and testified for the prosecution.
Evidence supporting the following facts was presented to the jury. The jury's verdict is consistent with their finding these facts.*fn1
In August of 1973, pursuant to a scheme developed by Boscia, Thomas Cherubin purchased an automobile casualty insurance policy from the St. Paul Mercury Insurance Company with money supplied by Boscia.
Boscia, Cherubin, Ferris, DeSantis, Scolieri and Plusquellec met on the evening of November 24, 1973 at a cocktail lounge in downtown Pittsburgh. A meeting the previous night had proven abortive. After the meeting, the conspirators searched for an accident site. In the early morning of November 25, 1973, Boscia intentionally drove Cherubin's Chevrolet Blazer into the rear of Scolieri's car which was stopped at an intersection in Allegheny County, Pennsylvania. Scolieri and his passengers, Ferris and Plusquellec, had vacated Scolieri's car before the accident. Boscia's passengers, Cherubin and DeSantis, had also vacated the Blazer prior to the collision. Afterwards, Cherubin reported the accident to the police. Boscia represented himself to be Iezzi.
False claims for personal injuries were submitted by Iezzi, Ferris, DeSantis, Scolieri and Plusquellec. These claims included false medical reports and bills for professional services by defendants Potter, a physician, Milani, a chiropractor, and Shapiro, a dentist. These claims also included a false car rental agreement provided by defendant Crivelli. These fraudulent claims were processed with the cooperation of defendant Adams, a claims supervisor for the insurance company, who made no substantial investigation of the claims despite instructions to do so from his superior.
The grounds of appeal are discussed below.
1. EXTRANEOUS COMMUNICATIONS WITH JURORS
On October 14, 1976, in the midst of the trial, juror Patricia Boyle was excused because of the death of her boyfriend. That evening, at the request of defendant Boscia, but without the knowledge of any counsel or any other co-defendant, an investigator called Ms. Boyle to find out the name of her deceased boyfriend. Ms. Boyle told juror Pamela Perry of the phone call and Ms. Perry mentioned it to some other jurors. Ms. Boyle also informed the Court of the phone call. On October 18, 1976, while the jury was deliberating, Judge Marsh informed counsel for all parties of the call from the investigator to Ms. Boyle and announced his intention to interview her. The next day, Judge Marsh interviewed Ms. Boyle in camera and first learned that she had spoken with Ms. Perry. That same day, after the verdict, Judge Marsh interviewed Ms. Perry who told him that she had spoken of the call to jurors Latcheran and Deiger who were then interviewed on October 27, 1976. Juror Fagan was interviewed the next day when the judge was told that she had also heard of the call. The investigator who made the call was also interviewed.
All interviews were in camera and outside the presence of counsel. All persons interviewed were sworn at the commencement of the interviews, the interviews were transcribed and the transcripts were made available to counsel. Judge Marsh made specific findings on the basis of the interviews. He found that only juror Perry knew that the call to Ms. Boyle came from anyone ...