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UNITED STATES v. JOHNSON

March 27, 1969

UNITED STATES OF AMERICA
v.
SID JOHNSON, ALSO KNOWN AS THE REVEREND; WHIT JOHNSON, ALSO KNOWN AS DEUCE; LESLIE S. KAPLAN; CURTIS ALLEN; JOE LOUIS BECKOM; OTIS MARION; GEORGE RILEY; WILLIE ROGERS, ALSO KNOWN AS ELIZE ROGERS; JOHN TABOR; WILLIAM TAYLOR AND JESSE WARD.



The opinion of the court was delivered by: Robson, District Judge.

 
       MEMORANDUM AND ORDER ON THE PRELIMINARY MOTIONS OF
    DEFENDANTS WHIT JOHNSON, LESLIE S. KAPLAN, WILLIE ROGERS,
         JOE LOUIS BECKOM, CURTIS ALLEN AND SID JOHNSON

This seventeen-count indictment was brought against eleven defendants. Counts One through Sixteen charge all of the defendants with devising a scheme to defraud numerous insurance companies and self-insured corporations by staging planned automobile and pedestrian accidents, and by thereafter presenting fraudulent claims by use of the United States mails, in violation of 18 U.S.C. § 1341. Count One sets forth the scheme. The defendants, and other persons induced by them, allegedly faked accidents and filed inflated claims in which they claimed to be victims of both legitimate and fabricated accidents. The defendants then caused the victims of these accidents to visit the offices of the defendant Leslie S. Kaplan, a licensed physician, who, as part of the scheme, prepared medical bills and reports reflecting nonexistent or inflated treatment and medication. The reports prepared by Dr. Kaplan also allegedly reflected nonexistent or inflated injuries. The defendants then allegedly submitted the false medical bills and reports to an attorney, insurance companies, and self-insured corporations named in the indictment. All of the defendants except Leslie S. Kaplan allegedly prepared false wage loss verifications arising out of the planned accidents. These allegedly fraudulent claims were also submitted to an attorney, insurance companies, and self-insured corporations. Count One further charges that for the purpose of executing the alleged scheme, certain named defendants knowingly placed, or caused to be placed, in the United States mails, on a given date, a letter to a named addressee. Counts Two through Sixteen incorporate that portion of Count One setting forth the alleged scheme. Each of these subsequent counts sets forth a separate mailing, and each gives the date of the mailing, the particular defendants who deposited or caused the deposit of the letter in the United States mail, and the addressee. Count Seventeen charges each and every defendant with knowingly conspiring to commit the offenses set forth in Counts One through Sixteen, and sets forth certain alleged overt acts committed in furtherance of the conspiracy, in violation of 18 U.S.C. § 371.

The defendants Whit Johnson, Leslie S. Kaplan, Willie Rogers, Joe Louis Beckom, Curtis Allen and Sid Johnson have submitted preliminary motions for this court's ruling.

MOTIONS TO DISMISS THE INDICTMENT

The defendants Kaplan, W. Johnson, Rogers, Beckom and S. Johnson have moved this court to dismiss the indictment on the ground that it lacks specificity. However, an indictment is sufficient if it clearly sets forth the requisite elements and essential facts of the offense charged. Rule 7(c), Federal Rules of Criminal Procedure. The two essential elements of an offense under 18 U.S.C. § 1341 are formation of a scheme with intent to defraud, and the use of the United States mails in furtherance of the scheme. Strauss v. United States, 347 F.2d 691 (7th Cir. 1965); United States v. White, 355 F.2d 909 (7th Cir. 1966). The indictment outlines the scheme and specifically describes the mailings. Therefore, this court finds that the defendants are given sufficient information to enable them to prepare their defenses and to plead any judgment in bar of future proceedings. Friedman v. United States, 347 F.2d 697 (8th Cir. 1965); United States v. Shavin, 287 F.2d 647, 649, 90 A.L.R.2d 888 (7th Cir. 1961). The indictment clearly meets the standards of Rule 7(c), and the motions are denied.

The defendant W. Johnson contends that the indictment should be dismissed because of a delay between the commission of the offenses charged and the return of the indictment. The occurrences in question allegedly took place between November, 1964, and May, 1967. The indictment was returned on September 5, 1968. Prosecution must be initiated within five years of the alleged commission of a noncapital offense. 18 U.S.C.A. § 3282 (1954). The instant prosecution was clearly initiated within the period of limitations. The defendant has not shown any prejudice caused by the complained of pre-indictment delay. Absent such a showing, a lapse of time within the statute of limitations does not violate the defendant's rights, and the motion is therefore denied. United States v. Deloney, 389 F.2d 324 (7th Cir. 1968); United States v. Curry, 278 F. Supp. 508 (N.D.Ill. 1967).

The defendant S. Johnson claims that the indictment should be dismissed because the Government is guilty of purposeful delay in initiating this prosecution. To substantiate this claim, the defendant Johnson asserts that one William Kaper was indicted on January 1, 1966 (66 CR 44), for allegedly violating the same mail fraud statute. After pleading nolo contendere, on May 13, 1966, Kaper received a suspended sentence, was placed on probation for two years, and fined $2,000. On March 8, 1967, Kaper's probation was terminated. The defendant S. Johnson states that he believes that prior to May, 1966, Kaper was working for the Government as an informer, and that the Government delayed the instant indictment in order to utilize Kaper's services and rehabilitate him so that he would appear more credible as a Government witness. These conclusory allegations fail to establish bad faith or purposeful delay on the part of the Government. The offenses charged occurred over a three and a half year period, continuing until May, 1967. Investigation of the numerous incidents of mail fraud allegedly perpetrated by the eleven defendants necessarily involved a great deal of time. This court does not find that a year and several months can be construed as an unreasonable or purposeful delay in light of the investigation incident to the preparation of this case. Nor does this court find that an allegation that the Government utilized the services of an informant as a part of this investigation establishes wrongful delay or bad faith. Courts are reluctant to read wrongful motivation into the exercise of prosecutorial discretion in the face of only conclusory allegations. E.g., United States v. Hanrahan, 255 F. Supp. 957, 961 (D.D.C. 1966), aff'd Tynan v. United States, 126 U.S. App.D.C. 206, 376 F.2d 761 (1967), cert. den. 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967); United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967).

The defendant Kaplan alleges that the indictment should be dismissed because the sixteen separate counts "fragmentize" the indictment. In order to determine whether just one offense or multiple offenses are charged, the court must ascertain whether each count requires proof of an additional fact which the others do not so require. Harris v. United States, 237 F.2d 274, 276 (8th Cir. 1956); Creed v. United States, 283 F.2d 646 (10th Cir. 1960). Each count of this indictment requires proof not common to the others, and the motion is therefore denied.

MOTIONS FOR BILLS OF PARTICULARS

The defendants S. Johnson, W. Johnson, Kaplan and Allen have moved this court for extensive bills of particulars relating to the defendants' implementation of the alleged scheme, evidentiary details concerning the Government's case, and prospective Government witnesses. These requests do not clarify the charges contained in the indictment, but rather seek disclosure of the Government's evidence prior to trial. See United States v. Crisona, 271 F. Supp. 150, 155-157 (S.D.N.Y. 1967). It is within the discretion of the court to deny requests for evidentiary details. United States v. Wells, 387 F.2d 807 (7th Cir. 1968); United States v. Micele, 327 F.2d 222 (7th Cir. 1964). Therefore, these portions of the motions are denied.

The defendants seek transcriptions or reports prepared by Government witnesses concerning conversations made during the life of the scheme. Such statements are not subject to production until the witnesses have testified at trial. 18 U.S.C. § 3500. These requests are therefore denied.

The defendants Kaplan and W. Johnson have requested the criminal records, if any, of the codefendants and of the Government's prospective witnesses. These requests are beyond the scope of a bill of particulars, and are therefore denied. Rule 7(c), Federal Rules of Criminal Procedure.

MOTIONS FOR SEVERANCE

The defendants have moved this court for severances and for relief from prejudicial joinder. The court finds that the defendants were properly joined under Rule 8(b), Federal Rules of Criminal Procedure, which allows joinder where the defendants are alleged to have participated in the same act or transaction constituting an offense. Severance of defendants under Rule 14, Federal Rules of Criminal Procedure, is within the discretion of the trial court. United States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967); Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Where proof of the charges against the defendants is dependent upon the same evidence, as is the case here, severance should not be granted except for the "most cogent reasons." United States v. Kahn, supra; United States v. Smith, ...


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