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April 30, 1990


The opinion of the court was delivered by: BUA


 This order concerns the various pretrial motions filed by defendant Jeffrey Dell. For the reasons stated herein, defendant's motions are denied.


 A. Factual Allegations

 The charges in this case concern the residence at 1305 James Avenue in Long Lake, Illinois, owned by defendant Jeffrey Dell ("Dell") and his wife Patricia. In 1981, Dell and his wife purchased a homeowner's insurance policy which insured their James Avenue residence, as well as the personal property contained therein, against loss by fire damage. They purchased the insurance from American National Fire Insurance Company ("American National"). The government claims that from about October 1981 up to the date of the indictment in this case, Dell and his mother, co-defendant Ruth Dell ("Ruth"), devised and participated in a scheme to defraud American National out of the proceeds of the homeowner's policy. Dell and Ruth allegedly implemented their fraudulent scheme with the help of Lorraine Janik, a real estate agent, and Carl Kelly, a/k/a Sean O'Kelly (hereinafter "O'Kelly"). Specifically, the government alleges that defendants hired O'Kelly to burn down the James Avenue residence. Further, defendants also allegedly solicited O'Kelly to pose as a buyer of the James Avenue residence and to sign a phony real estate sales contract purportedly obligating O'Kelly to purchase the home, which had been for sale since about March 15, 1981. In that manner, the government claims, defendants hoped to eliminate any appearance of a motive on their part for burning down the house.

 The government claims that due to the efforts of Dell and O'Kelly, the James Avenue residence was substantially destroyed by arson on approximately January 2, 1982. After the fire, Dell sought to recover the proceeds of the insurance policy from American National. On about May 14, 1982, and October 28, 1982, Dell submitted to American National sworn statements in proof of loss forms in which he stated that the loss resulting from the fire did not originate from any act, design, or procurement on his part.

 When American National refused to pay his claim, Dell filed a civil lawsuit in federal court seeking recovery from American National in the amount of $ 97,000 (Case No. 83 C 1783, assigned to Judge Parsons). The government claims that in connection with the trial of that case in April 1986, Dell falsely testified that O'Kelly was a bona fide purchaser of the James Avenue residence. The government also claims that defendants solicited O'Kelly to falsely testify at the trial that he was a bona fide purchaser. The government further alleges that Dell solicited Janik to falsely testify that O'Kelly was an actual purchaser of the property and that she was the real estate agent who had shown O'Kelly the house and prepared the real estate contract for O'Kelly to sign, when in fact she had never met O'Kelly and had not prepared any contract.

 B. Charges

 The indictment contains twelve counts. Counts One through Seven allege that defendants committed mail fraud in violation of 18 U.S.C. § 1341. These counts are based on the mailing of certain pleadings which were filed in connection with Dell's civil suit to recover the proceeds of the American National homeowner's policy. Specifically, the pleadings from that case which form the basis of the government's charges in this case are: Dell's amended complaint (Count One); American National's answer to the amended complaint (Count Two); American National's notice of deposition and subpoena to Dell (Count Three); American National's trial subpoena to Janik (Count Four); Dell's motion for new trial (Count Five); American National's motion to strike Dell's motion for new trial (Count Six); and Dell's reply brief in support of his motion for new trial (Count Seven). The government claims that defendants are liable for mail fraud because each of the above pleadings was mailed in furtherance of their scheme to defraud American National.

 Counts Eight through Eleven assert charges only against Dell. Count Eight alleges that Dell violated 18 U.S.C. § 1623 by committing perjury during his testimony in his civil suit against American National. Count Nine charges that Dell violated 18 U.S.C. § 1622 by procuring Janik to commit perjury during Dell's civil case, and Count Ten charges that Dell further violated § 1622 by procuring perjured testimony from O'Kelly during the same trial. Count Eleven alleges that Dell obstructed justice in violation of 18 U.S.C. § 1503 by advising O'Kelly to lie to federal investigators.

 Finally, Count Twelve names only Ruth as a defendant. Count Twelve charges her with obstruction of justice in violation of § 1503 for encouraging ...

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