Appeals from the United States District Court for the Northern District of Indiana, Hammond Division.
Nos. 2:94 Cr 104, 2:96 Cr 17 Rudy Lozano, Judge.
Before BAUER, FLAUM, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
Argued September 27, 1996
Automobile accidents have been an unfortunately common occurrence ever since the invention of the car, and, equally regrettably, they often give rise to both personal injuries and significant property damage. Everett Warren saw the opportunity to skim money from insurance companies in these basic facts: stage phony accidents, exploit the medical profession so that fraudulent insurance claims could be filed, and pocket the money. This is not the first time we have seen his handiwork. See United States v. Boatner, 99 F.3d 831 (7th Cir. 1996). These consolidated appeals present the claims of Darren Green, Demetrius Lardydell, Adrienne Williams, Dirk Green, and Governor Earl Warren (which, as far as we can tell, is his real name) from their convictions and sentences on counts relating to mail fraud and conspiracy to commit mail fraud. Williams challenges both her conviction and her sentence, while the other four appellants raise only Sentencing Guidelines arguments before this court. After reviewing the entire record, we affirm the judgments in the cases of Darren Green, Demetrius Lardydell, Adrienne Williams and Dirk Green. We dimiss the appeals of Governor Earl Warren.
Everett Warren, who pleaded guilty to two counts of mail fraud in a separate proceeding, was clearly the mastermind behind the "accidents" at issue here. On April 26, 1989, Everett invited Dirk and Darren, along with Darren's wife Lisa and their child, to participate in a staged accident. They agreed, whereupon Everett took Lisa's 1984 BMW (on which she had uninsured motorist coverage) and backed it into a steel post, causing damage to the car. He then gathered up the debris, and drove with Darren, Dirk, Lisa, and the child to Gary, Indiana. Once there, Everett arranged the damaged BMW near a stop sign and the Greens climbed in; Everett carefully spread the debris behind the car and called the police.
The Greens informed the officer who responded that their car had been struck by a hit-and-run driver. They feigned injuries and wound up in the emergency room of a local hospital, where they were treated for nonexistent injuries. In the weeks that followed, the Greens made repeated trips to a doctor (who may not have been part of the conspiracy), which had the effect of inflating the medical bills upon which they could then base a settlement demand. Darren then retained a lawyer who filed a claim against the company that had written the uninsured motorist policy for the BMW. The company paid a total of $36,655 to settle the claim, of which Darren kept $11,500.
The next staged accident occurred quite some time later, on February 21, 1993. This time Everett used his own car and had Lardydell and three other persons pose as the injured passengers. The modus operandi was similar to the 1989 scheme. After being "treated" both in the emergency room and by a doctor for his phony injuries, Lardydell retained attorney Richard Levinson to file a claim with Allstate, which had insured Everett's car. Levinson and Everett had a standing arrangement under which Everett directed automobile accident victims (sometimes bona fide) to Levinson, and Everett received a fee for his "finder" services that depended on the amount eventually recovered from the insurance company. For the Lardydell incident, Allstate placed $40,000 in reserve, but it never paid on the claim because the FBI discovered the fraudulent scheme in time to alert the company.
In addition to these two accidents, Everett oversaw the staging of at least seven others, including one where Governor Earl posed as one of the injured. Everett sent Governor Earl to Adrienne Williams at the Lakeside Medical Clinic. Williams, a nurse at the Clinic, already had a working relationship with Everett. For a referral fee of $100 per patient, she referred accident victims to Everett, who would then send them along to Levinson. When Governor Earl showed up, Williams told him that he would have to see the doctor once, but that she would then "take care" of everything else. This turned out to mean that she would oversee the creation of a fraudulent bill from Lakeside, which stated that Governor Earl had been to the Clinic a whopping 41 times. That bill was then used to obtain settlements from insurance companies. Others whom Everett had sent to Williams received similarly false billing statements, which were used in the same way. Among them were two undercover postal inspectors, who participated in Everett's phony accidents and were referred to Lakeside. Although neither one of them received any therapy at the Clinic and had not stepped foot inside it more than three times, one received a bill showing 25 visits for therapy and the other a bill showing 26 such visits.
The scheme eventually unraveled, and on October 20, 1994, the grand jury handed down an indictment charging these appellants and 23 others with mail fraud and conspiracy to commit mail fraud, in violation of 18 U.S.C. sec.sec. 371 and 1341. Darren Green pleaded guilty to two counts of mail fraud; he was sentenced to four months' imprisonment and four months' home detention and was ordered to pay $11,500 in restitution. Lardydell went to trial on one count of conspiracy to commit mail fraud and four counts of mail fraud and was found guilty by the jury on all charges; he received a sentence of 22 months' imprisonment. Williams also chose to go to trial on charges of conspiracy to commit mail fraud and 16 counts of mail fraud. After three of the substantive counts were dismissed, the jury found her guilty on the conspiracy count and five counts of mail fraud; she was acquitted on eight more counts of mail fraud. She was sentenced to 14 months' imprisonment and ordered to pay $10,993 in restitution. Dirk Green chose the guilty plea route; for the two counts of mail fraud to which he pleaded guilty, he received 15 months' imprisonment and an obligation to pay $6,000 in restitution. Last, Governor Earl Warren pleaded guilty to two counts of mail fraud. When the time came for sentencing, however, he failed to appear. Later, he was arrested on a bench warrant, charged with failure to appear (to which he also pleaded guilty), and received a consolidated sentence for the original offense and the failure to appear of 12 months' imprisonment.
Although these cases have been consolidated throughout because of their common factual basis, the arguments each appellant makes before this court are distinct enough that we find it more convenient to discuss their appeals individually. All but Williams complain only about their sentences, while she attacks her convictions as well. We therefore begin with her appeal, and then turn to the other four.
1. Adrienne Williams, No. 96-1057
Williams offers two reasons why her conviction should be set aside: first, she claims that the court should not have permitted the introduction of evidence relating to her receipt of referral fees from Everett, and second, she claims that her right to a fair trial was violated when jury instruction no. 8 incorporated the entire indictment, including the counts that had already been dismissed against her. At the outset, she faces substantial procedural problems with both these arguments. She did not object to the introduction of the referral fee evidence at trial, which means that this court can review the issue only for plain error. United States v. White, 903 F.2d 457, 466 (7th Cir. 1990); United States v. Newman, 965 F.2d 206, 213 (7th Cir. 1992). With respect to the jury instruction claim, she argued at trial only that language from the counts dismissed against her "cannot be a part of the indictment presented to the jury, because it's not part of the indictment any more." She did not in any way indicate that her objection was based on the due process clause and was thus of constitutional dimension. Federal Rule of Criminal Procedure 30 requires a party to "stat[e] distinctly the matter to which the party objects and the grounds of the objection." As we said in ...