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United States v. Martinez

argued: January 22, 1990.

UNITED STATES OF AMERICA, APPELLANT
v.
GILBERTO MARTINEZ



On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Crim. No. 84-00105-02.

Sloviter, Hutchinson, and Cowen, Circuit Judges.

Author: Sloviter

SLOVITER, Circuit Judge.

Opinion OF THE COURT

Gilberto Martinez, the appellee, was convicted under the mail fraud statute for his participation in a scheme to fraudulently obtain for a co-conspirator a medical license from the Commonwealth of Pennsylvania. After serving his sentence, Martinez filed a writ of error coram nobis, seeking to vacate his conviction on the ground that the Commonwealth was not deprived of property within the meaning of the statute. The district court granted the writ, from which the government appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Facts and Procedural History

Martinez does not deny that he assisted Brian Murach, who is not a party to this appeal, to fraudulently obtain from the Commonwealth of Pennsylvania a license for Murach to practice medicine. Murach, who was a medical student in Mexico, paid Pedro de Mesones to arrange his admission to the Universidad Centro de Estudios Tecnologicos (CETEC), a private medical school in the Dominican Republic, based in part on courses Murach purportedly took at a Mexican medical school, and to assist Murach in obtaining a fraudulent medical degree from CETEC, based on forged documents falsely indicating that Murach had completed the 72-week clinical rotation required for graduation. Murach received his degree from CETEC in June 1983.

Martinez participated in this scheme by obtaining forged transcripts representing that Murach had attended the Universidad Valle Del Bravo in Reynosa, Mexico for four semesters when, in fact, Murach had never attended that University and had attended a different institution, Universidad del Noreste School of Medicine, for only two semesters. Martinez sent the fraudulent transcripts through the United States mails to de Mesones sometime in August 1983, and Murach subsequently included these transcripts in his application for a permanent license to practice medicine in the Commonwealth.

Murach was then accepted into a family practice residency program at the Delaware County Memorial Hospital in Pennsylvania after passing the examination for the Educational Commission for Foreign Medical Graduates, which is given to all graduates of authorized foreign medical schools seeking to practice in the United States. After completing his one-year residency, Murach passed the Federation Licensing Examination (FLEX), and obtained a permanent license to practice medicine in the Commonwealth.

On July 12, 1984, a federal grand jury returned an indictment against Martinez and Murach. Murach was charged with seven counts of mail fraud under 18 U.S.C. § 1341 and one count of conspiracy to commit mail fraud under 18 U.S.C. § 371. Martinez was charged with one count of conspiracy to commit mail fraud under 18 U.S.C. § 371. The indictment specifically charged Martinez with the overt act of "[sending] through the United States Mail an envelope containing original transcripts from Valle de Bravo in Brian Murach's name to Pedro Mesones." App. at 33-34. The indictment charged that the substantive offense underlying the conspiracy was

a scheme and artifice to defraud the Commonwealth of Pennsylvania and its citizens by obtaining a license to practice medicine in the Commonwealth of Pennsylvania, by means of false and fraudulent pretenses, representations and promises to the Commonwealth of Pennsylvania, State Board of Medical Education and Licensure, the defendant well-knowing that said representations were false and fraudulent when made.

App. at 19.

Following a jury trial, Martinez and Murach were convicted on December 17, 1984 of all counts charged in the indictment. Martinez' post-trial motion for a new trial was denied, and he was sentenced on June 25, 1985 to two years' probation and 400 hours, later reduced to 200 ...


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