Petition — Greene v. United States

farms Con, |

FILEQOD

oct 2% 198

MICHAEL RODAK, JR.CLERK

in the Supreme Court of the United States

OCTOBER TERM, 1978

MERLE O. GREENE, JR. and JULIA GREENE,

| Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES R. WyRSCH

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

Attorney for Petitioners

E. L, MENDENHALL, INCc., 926 Cherry Street, Kansas City, Mo, 64106, (816) 421-3080

INDEX

RINE CURIIIII sisnscstivncncnsnnestacucigssiesnrnverhuredacsuianadedebiecueechenemy Lian

UII, 2.01 -dccsndenteictsssasisnenidadannsionsaencensiltonanelesinmcaiiddeiacaemais aan

GS: » PN a cae ae te 2

Constitutional and Statutory Provisions Involved ........ 2

| ee TASTE ATS LTO TO a

Reasons for Granting the Writ 2.020020... 9

See. .sisasasemecbinesiandioaasbssdineasdamericabelapaioeiiiasaiiaana aan

I GI iaceteshitsicichestcoseencecnsstnnticiecnnieennleineeinababainanaaes Al

IT. is icthsscciseeitelbectbecidedatireniaesalectuaipclcaslcicetidalssiahbcaiaguimanel A29

Citations

CASES

Baker v. United States, 401 F.2d 958 (D.C. Cir., 1968),

NG, i, oe es re CD chinese 14

Carbo v. United States, 314 F.2d 718 (9th Cir., 1963) ... 10

Cataneo v. United States, 167 F.2d 820 (4th Cir., 1948) 16

Chubet v. United States, 414 F.2d 1018 (8th Cir., 1969) 13

Cupo v. United States, 359 F.2d 990 (D.C. Cir., 1966),

UG, Gitta, TE TER. BD CIE) aeciccescstccccncssnnensetssnnscs 13

Glasser v. United States, 315 U.S. 60 (1942) 2.0000... 12

King v. United States, 355 F.2d 700 (1st Cir., 1966) ... 14

Kotteakos v. United States, 328 U.S. 750 (1946) ........ 13

Ingram v. United States, 272 F.2d 567 (4th Cir., 1959) 14, 16

McElroy v. United States, 164 U.S. 76 (1896) _....... ——

Metheany v. United States, 365 F.2d 90 (9th Cir. 1966) 13

Schaffer v. United States, 362 U.S. 511 (1960) _.......... 13, 15

United States v. Bell, 573 F.2d 1040 (8th Cir., 1978) ....10, 11

li

United States v. Bova, 493 F.2d 33 (5th Cir., 1974) .... 14

United States v. Brandom, 431 F.2d 1391 (7th Cir.,1970) 16

United States v. Branker, 395 F.2d 881 (2nd Cir., 1968),

cert. den., 393 U.S. 1029 (1969) ............. aidaabatibeLicemacuadnt 16

United States v. Cafaro, 455 F.2d 323 (2nd Cir., 1972),

enrk emk., GOO TE. DES CUI ves ee oics 12

United States v. Dixon, 562 F.2d 1138 (9th Cir., 1977) 11

United States v. Dearing, No. 77-1112 (10th Cir., Aug.

ER, LEE ns CIC Ses NT vo ERR DN 10

United States v. Eagleston, 417 F.2d 11 (10th Cir., 1969) 14

United States v. Enright, 23 Cr.L. 2335 (6th Cir.,

LE ROE, TOT ERAT ALM 10, 11, 12

United States v. Geaney, 417 F.2d 116 (2nd Cir., 1969) 10

United States v. Gougis, 374 F.2d 758 (7th Cir., 1967) 14

United States v. Graci, 504 F.2d 411 (3rd Cir., 1974) 14, 16

United States v. Grow, 394 F.2d 182 (4th Cir., 1968) ... 11

United States v. Gutierrez, 576 F.2d 269 (10th Cir.,

ME en ohn. eee ee 12

United States v. James, 576 F.2d 1121 (5th Cir., 1978)

Rif in pr ci ERE ARE RANA OES Wa Tea 10, 11, 12

United States v. Jones, 542 F.2d 186 (4th Cir., 1976) .... 12

United States v. Kelly, 349 F.2d 720 (2nd Cir., 1965),

cert. den., 384 U.S. 947 (1966) .............22......c.-ccsssccssceseese 13, 16

United States v. Krogstad, 576 F.2d 22 (3rd Cir., 1978) 10

United States v. Lawler, 413 F.2d 622 (7th Cir., 1969) 11

United States v. Levine, 546 F.2d 658 (5th Cir., 1977) 14,16

United States v. Macklin, 573 F.2d 1046 (8th Cir., 1978)

Sin ennncestscoeapicicectuaets bosieipadiostenmtncap eon aaadasaatoanedsoaamaananieassaien 10, 11, 12

United States v. Madsen, 573 F.2d 1046 (8th Cir., 1978) 10

United States v. Mardian, 546 F.2d 973 (D.C. Cir., 1976) 16

United States v. Marionneaux, 514 F.2d 1244 (5th Cir.,

INTE: chcccincacssiedednscaclamccaiagadhineswbehsenecnenduetlaciancetetataietihccpecataebcsedee 14

Ill

United States v. Martorono, 557 F.2d 1 (1st Cir., 1977) 12

United States v. Nixon, 418 U.S. 683 (1974) oo... 11,12

United States v. Ong, 541 F.2d 331 (2nd Cir., 1976) ........ 16

United States v. Park, 531 F.2d 754 (5th Cir., 1976) ... 16

United States v. Petrozziello, 548 F.2d 206 (lst Cir.,

RRM eet NE AIIM SN en oleae Ree 10, 11

United States v. Reynolds, 489 F.2d 4 (6th Cir., 1973),

GCOne, ame, GEG Te. TH CET) aac sess csccsecsnenesse 14

United States v. Roselli, 432 F.2d 879 (9th Cir., 1970),

one. Gen., Ge Ui Ge (ite) se... 14

United States v. Santiago, 24 Cr.L. 2045 (7th Cir., Aug.

Be I sanaahcteadedindainepiailctunaanitaGeatcabioaetinaid didcstecmoesiaseasts 11

United States v. Spector, 326 F.2d 345 (7th Cir., 1963) 14

United States v. Stanchich, 550 F.2d 1294 (2nd Cir.,

Mpa iened ss08 OA Rete ate tena met er Re Ma 12

United States v. Trowery, 542 F.2d 623 (3rd Cir., 1976) 12

United States v. Turbide, 558 F.2d 1053 (2nd Cir., 1977),

cert. den., 434 USS. ........ » Be BAA. 431 (0977) ................ 14

United States v. Whitehead, 539 F.2d 1023 (4th Cir.,

IEE. bsepsesenchinnbicibunpiiainatsiiistbieusamaiiaiicibdaiidaiinebcastecisceden 14

United States v. Wilkinson, 513 F.2d 227 (7th Cir., 1975) 11

United States v. Wood, 550 F.2d 435 (9th Cir., 1976) ... 11

CONSTITUTIONAL PROVISIONS AND STATUTES

U. S. Constitution, Amendment Six 00

Be Ss ED aoihiretreciciciece uC pok Abe PO CERO

18 U.S.C.

ae 6

IV

Federal Rules of Criminal Procedure

Ries oF oe ee 2,5, 13, 14, 15

ee Pose 2,5, 13, 15

Rule 52(a) o.oo ieee A 2,6, 12

Federal Rules of Evidence

I I cesicseeiecscicecossencenmnnenenlionaionesssna apnea 2, 3, 9, 12

Rule 801 (d) (2) (EB) ....0.............ccc.000- elite cemamaaietonion

MISCELLANEOUS

Annot., Necessity and Sufficiency of Independent Evi-

dence of Conspiracy to Allow Admission of Extra-

judicial Statements of Coconspirators, 46 A.L.R. 3d

t .: | Snare: RIN CN EPs ar PTE 7

Bergman, The Coconspirator’s Exception: Defining

the Standard of Independent Evidence Test Under

the New Federal Rules of Evidence, 5 Hofstra L.Rev.

Be CE sxe cabbies _cnecicondcnchaiapiadinitaneinacaaes

Decker, “Joinder and Severance in Federal Criminal

Cases: An Examination of Judicial Interpretation

of the Federal Rules,” 53 Notre Dame Lawyer 147

COIW GD sitcinninenscouneisectcesienteltaiidatatant daca ncvniiisbnaieeatsial tian aane

J. Weinstein & M. Berger, Weinstein’s Evidence, § 801

(d)(2)(E)[01] (Matthew Bender & Co. 1975) [here-

inafter cited an Welnsbein) q...inc

Kessler, The Treatment of Preliminary Issues of Fact

in Conspiracy Litigations: Putting the Conspiracy

Back Into the Coconspirator Rule, 5 Hofstra L.Rev.

Note, “Harmless Error and Misjoinder Under the

Federal Rules of Criminal Procedure: A Narrow-

ing Division of Opinion,’ 6 Hofstra L.Rev. 533

2,4

14

(1978) aN since eaeaaiade ——-

Vv

Recent Developments, The Preliminary Question of the

Existence of Conspiracy for Admitting Statements

Under Federal Rules of Evidence 801(d)(2)(E) and

(at IO eet EES lO a Ae a om

The Continuing Vitality of the Federal Common Law

of Evidence, 1 ATLA Criminal Reports, pp. 37-40

aca,

In the Supreme Court of the United States

OCTOBER TERM, 1978

MERLE O. GREENE, JR. and JULIA GREENE,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners, Merle and Julia Greene, petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra,

pp. Al-A26) is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on August 16, 1978. (App. A, infra, p. A26). Petitioners’

timely motion for rehearing or for rehearing en banc was

denied on September 28, 1978. (See App. B, infra, p. A29).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

Lo)

QUESTIONS PRESENTED

1. (a) Whether Rule 104 of the Federal Rules of

Evidence requires the Trial Court to decide the threshold

question of whether to admit statements of a conspirator

under Federal Rules of Evidence 801(d)(2)(E) and, if

so, (b) what standard does the Trial Court use in deter-

mining this question, and (c) may the Trial Court consider

statements of co-conspirators in deciding whether the Gov-

ernment has met its burden of proof of showing evidence

of a conspiracy so as to admit into evidence the co-con-

spirator’s statements?

2. (a) Whether the “Harmless Error” Rule may be

applied pursuant to Rule 52(a) of the Federal Rules of

Criminal Procedure so as to affirm Petitioners’ convictions

on substantive counts when there has been a misjoinder

of offenses and defendants under Rule 8, Federal Rules

of Criminal Procedure; (b) Whether the decision of the

Eighth Circuit in this case is in conflict with applicable

decisions of this Court and of another circuit court of

appeals if this case is perceived as being governed by

Rule 14, Federal Rules of Criminal Procedure.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. Constitution, Amendment Six.

Amendment Six

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining Witnesses in

his favor, and to have the Assistance of Counsel for

his defence.

18 U.S.C. Section 371.

§ 371. Conspiracy to commit offense or to defraud

United States

If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, or any agency thereof in any manner

or for any purpose, and one or more of such persons

do any act to effect the object of the conspiracy, each

shall be fined not more than $10,000 or imprisoned

not more than five years, or both.

If, however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor only,

the punishment for such conspiracy shall not exceed

the maximum punishment provided for such misde-

meanor. June 25, 1948, c. 645, 62 Stat. 701.

Federal Rules of Evidence 104.

Rule 104. Preliminary Questions

(a) Questions of admissibility generally. Pre-

liminary questions concerning the qualification of a

person to be a witness, the existence of a privilege,

or the admissibility of evidence shall be determined

by the court, subject to the provisions of subdivision

(b). In making its determination it is not bound

by the rules of evidence except those with respect

to privileges.

(b) Relevancy conditioned on fact. When the

relevancy of evidence depends upon the fulfillment

of a condition of fact, the court shall admit it upon,

or subject to, the introduction of evidence sufficient

to support a finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibil-

ity of confessions shall in all cases be conducted out

of the hearing of the jury. Hearings on other prelimi-

nary matters shall be so conducted when the interests

of justice require or, when an accused is a witness,

if he so requests.

(d) Testimony by accused. The accused does

not, by testifying upon a preliminary matter, subject

himself to cross-examination as to other issues in the

case,

(e) Weight and credibility. This rule does not

limit the right of a party to introduce before the

jury evidence relevant to weight or credibility.

Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1930.

Federal Rules of Evidence 801(d) (2) (E).

Rule 801. Definitions

* * *

(d) Statements which are not hearsay. A state-

ment is not hearsay if—

* * “

(2) Admission by party-opponent. The

statement is offered against a party and is * * *

(E) a statement by a coconspirator of a party

during the course and in furtherance of the con-

spiracy.

Federal Rules of Criminal Procedure 8.

Rule 8. Joinder of Offenses and of Defendants

(a) Joinder of Offenses. Two or more offenses

may be charged in the same indictment or information

in a separate count for each offense if the offenses

charged, whether felonies or misdemeanors or both,

are of the same or similar character or are based

on the same act or transaction or on two or more

acts or transactions connected together or constituting

parts of a common scheme or plan.

(b) Joinder of Defendants. Two or more defen-

dants may be charged in the same indictment or infor-

mation if they are alleged to have participated in

the same act or transaction or in the same series

of acts or transactions constituting an offense or of-

fenses. Such defendants may be charged in one or

more counts together or separately and all of the defen-

dants need not be charged in each count.

Federal Rules of Criminal Procedure 14.

Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the government

is prejudiced by a joinder of offenses or of defendants

in an indictment or information or by such joinder

for trial together, the court may order an election

or separate trials of counts, grant a severance of de-

fendants or provide whatever other relief justice re-

quires. In ruling on a motion by a defendant for

severance the court may order the attorney for the

government to deliver to the court for inspection in

camera any statements or confessions made by the

defendants which the government intends to introduce

in evidence at the trial.

As amended Feb. 28, 1966, eff. July 1, 1966.

Federal Rules of Criminal Procedure 52 (a).

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error, defect, irregu-

larity or variance which does not affect substantial

rights shall be disregarded.

STATEMENT

The United States charged Petitioners Merle O.

Greene, Jr., his mother, Julia Greene, and a relative of

the Greenes, Carolyn Fuel’ in a ten-count indictment in

the United States District Court for the Western District

of Missouri with mail fraud and conspiracy to commit

mail fraud in violation of 18 U.S.C., Secs. 3, 371 and 1341.

Count I charged all defendants with conspiracy; Petitioner

Merle Greene was also charged in Counts II, III, IV, V,

VI, VIII, and X with mail fraud; Petitioner Julia Greene

was also charged in Counts IX and X of mail fraud;

Carolyn Fuel was also charged in Counts III, IV, VII

and VIII of mail fraud. The jury acquitted Carolyn Fuel

of the charge in Count VIII; the Court after verdict by

the jury of guilty acquitted Julia Greene of the charges in

Count IX.?

On appeal the United States Court of Appeals of the

Eighth Circuit found insufficient evidence to convict on

certain charges and reversed the convictions of Carolyn

Fuel on Counts III and IV; and reversed the convictions

1. Carolyn Fuel is not a party to this Petition.

2. The Trial Court sentenced Merle Greene to a term of

two (2) years on Count II and concurrent terms of three (3)

years probation on each of the other counts, the probation to be

consecutive to the terms of imprisonment on Count II. Julia

Greene was given a term of three (3) years probation on the

counts on which she was convicted.

of all parties on Count I (the conspiracy count). The

Appeals Court, however, affirmed the conviction of Fuel

on Count VII; the conviction of Julia Greene on Count

X; and the convictions of Merle Greene on Counts II,

III, IV, V, VI, VIII and X.

The Indictment in general alleged that the three de-

fendants had defrauded different insurance companies by

submitting fraudulent documentation to obtain money from

such companies in connection with automobile accident

and insurance claims. The Indictment covered the period

from January 1, 1973 to August 1, 1975.* During the

course of a week and a half long trial, the Government

introduced evidence of claims of eight automobile acci-

dents, four burglaries and one automobile larceny, although

the substantive counts of the Indictment were based on

only three automobile accidents and three of the burglaries.

There was no evidence that any of the automobile acci-

dents, burglaries or larceny were “staged”; the Govern-

ment’s theory rested partially upon evidence that the docu-

mentation submitted to recover under policies of insurance

was fraudulent.

At trial, Petitioners objected to the introduction of

any co-conspirator’s statements being introduced against

them on the conspiracy count on the grounds that there

was no evidence at all at this point in the trial showing

the existence of a conspiracy. The Trial Court ultimately

refused to make any determination, preliminarily or other-

wise, as to the sufficiency of the evidence as to the con-

spiracy to this point of the trial and rather left the matter

to the jury to make the determination whether a conspiracy

existed so as to permit its consideration of statements

3. For a more detailed recitation of te facts of this case,

Petitioner refers the Court to the Opinion of the Eighth Circuit,

App. pp. A2-A4, and Government’s Ex. 163, appended thereto.

of co-conspirators in deciding the fate of Petitioners on

the conspiracy count. The Government was thus able

to introduce against Petitioners as being in furtherance

of the conspiracy the statements of Fuel as to a June

5, 1975 accident and a February 6, 1975 burglary loss

which had no connection with these Petitioners; and as

to Petitioner Julia Greene, statements as being in further-

ance of the conspiracy of Merle Greene’s April 24, 1973,

April 11, 1974, and October 22, 1974 and June 6, 1975

accident claims and his January 1, 1973, December 2, 1973,

and September 9, 1975 burglary and larceny claims—all

of which had nothing to do with Julia Greene.

The Trial Court did instruct the jury it was to weigh

the evidence against each defendant individually and sepa-

rately.

REASONS FOR GRANTING THE WRIT

1. Introduction.

This Court should grant the writ of certiorari in this

case because the decision of the Court of Appeals conflicts

with the decisions of other courts of appeals on the same

matter and has decided an important question of federal

law—concerning the construction of Rule 104, Federal

Rules of Evidence—which has not been but should be

settled by this Court. Had the Trial Court correctly

applied Rule 104, Federal Rules of Evidence, to the facts

of this case, co-conspirator statements would never have

been admitted against Petitioners as there never was ad-

duced evidence showing the existence of a conspiracy.

The appellate court was in error for not reversing Peti-

tioners’ convictions and applying Rule 104 to the facts

of this case, i.e., the preliminary question of the existence

of co-conspirator statements.

l(a). The decision below conflicts with the provi-

sions of Rule 104, Federal Rules of Evidence, which requires

that the Trial Court—not the jury—make the preliminary

4. The cases concerning this issue have been the topic of

much discussion in the legal literature: Recent Developments,

The Preliminary Question of the Existence of Conspiracy for Ad-

mitting Statements under Federal Rules of Evidence 801(d) (2)

(E) and 104(a); The Continuing Vitality of the Federal Common

Law of Evidence, 1 ATLA Criminal Reports pp. 37-40 (Sept. 1978);

Kessler, The Treatment of Preliminary Issues of Fact in Con-

spiracy Litigations; Putting the Conspiracy Back Into the Cocon-

spirator Rule, 5 Hofstra L.Rev. 77 (1976); Bergman, The Cocon-

spirator’s Exception: Defining the Standard of Independent Evi-

dence Test Under the New Federal Rules of Evidence, 5 Hofstra

L.Rev. 99 (1976): Annot., Necessity and Sufficiency of Inde-

pendent Evidence of Conspiracy to Allow Admission of Extra-

judicial Statements of Coconspirators, 46 A.L.R. 3d 1148 (1972);

J. Weinstein and M. Berger, Weinstein’s Evidence, Section 801(d)

(2) (E)[01] (Matthew Bender and Co. 1975) [hereinafter cited

as Weinstein].

10

determination of admissibility of co-conspirator’s state-

ments made in furtherance of the conspiracy. Although

the Eighth Circuit’s opinion in this case cited with approval

its decisions in U.S. v. Madsen, 573 F.2d 1046 (8th Cir.,

1978) and U.S. v. Bell, 573 F.2d 1040 (8th Cir., 1978),

required the trial court to make the preliminary determina-

tion of admissibility under Rule 104, the Court declined

to make these decisions “retroactive”. However, Rule 104,

Federal Rules of Evidence, was in effect long before the

trial of this cause, having been enacted on January 2,

1975 by the Congress, Pub.L. 93-595, Section 1, 88 Stat.

1926.

In U.S. v. Petrozziello, 548 F.2d 206 (1st Cir., 1977),

the Court also held that the preliminary determination

of whether to admit co-conspirator’s statements was for

the Trial Court, and not the jury. The Sixth and Fifth

Circuits have also adopted the position of the Eighth and

First Circuits on this issue. U.S. v. Enright, 23 Cr.L. 2335

(6th Cir., June 20, 1978); U.S. v. James, 576 F.2d 1121 (5th

Cir., 1978). The Second, Ninth and Tenth Circuits are ap-

parently of the same view although the jury is given the

ultimate decision whether to admit the evidence. U.S. v.

Geaney, 417 F.2d 116 (2nd Cir., 1969); Carbo v. U.S., 314

F.2d 718 (9th Cir., 1963); U.S. v. Dearing, No. 77-1112 (10th

Cir., Aug. 21, 1978). The Third Circuit cases are unclear

although the latest decision from that court appears to per-

mit the jury to make the preliminary finding. U.S. v.

Krogstad, 576 F.2d 22 (3rd Cir., 1978).

Under the practice of the Trial Judge making the

preliminary determination of admissibility, if it is later

determined after the evidence is admitted that the prose-

cutor failed to meet his burden of proof on the conspiracy

issue a mistrial must be ordered. U.S. v. James, supra,

at p. 1132; U.S. v. Macklin, 573 F.2d 1046, at pp. 1046, 1049;

U.S. v. Petrozziello, supra, at p. 23, n. 3.

11

The Fourth and Seventh Circuit decisions are still to

the effect that the matter is for the jury to decide. U-S.

v. Grow, 394 F.2d 182, 203 (4th Cir., 1968): U.S. v. Lawler,

413 F.2d 622, 627-28 (7th Cir., 1969); U.S. v. Wilkinson, 513

F.2d 227 (7th Cir., 1975).

1(b). This Court has held in dictum that the standard

the trial court must follow in determining the threshold

question of whether the prosecution had adduced sufficient

evidence to admit the statements of co-conspirators was

“substantial, independent evidence of the conspiracy, at

least enough to take the question to the jury.” U.S. v.

Nixon, 418 U.S. 683, 701, n. 14 (1974). One commentator

has stated that, even with this pronouncement, the Su-

preme Court has not offered any definitive guidance in

this area. “And has not adopted a standard supported by

adherents of either position.” Bergman, supra, at p. 103.

The various courts of appeals, however, differ widely

on the test to be used. In U.S. v. James, the Fifth Cir-

cuit case cited supra, the Court held that a “preponder-

ance of the evidence” test should prevail. To like effect

are the Eighth Circuit’s decisions in U.S. v. Macklin and

U.S. v. Bell, cited supra; the Sixth Circuit’s decision in

U.S. v. Enright, cited supra; the First Circuit’s decision

in U.S. v. Petrozziello, cited supra; and the Seventh Cir-

cuit’s decision in United States v. Santiago, 7th Cir. 8/22/78,

24 Cr.L. 2045.

The Ninth Circuit requires only that a prima facie

case of conspiracy be established and held that slight evi-

dence of the defendant’s and the declarant’s connection

to it is sufficient. U.S. v. Wood, 550 F.2d 435, 442 (9th

Cir., 1976); U.S. v. Dixon, 562 F.2d 1138 (9th Cir., 1977).

The Second, Third and Fourth Circuits require a “fair

preponderance” of the evidence although the Second Cir-

cuit’s definition of “fair preponderance” is less than a

12

“prima facie” definition.* U.S. v. Stanchich, 550 F.2d 1294

(2nd Cir., 1977); U.S. v. Trowery, 542 F.2d 623 (3rd Cir.,

1976); U.S. v. Jones, 542 F.2d 186, 203-04 (4th Cir., 1976).

The Tenth Circuit follows this Court’s test laid out in

U.S. v. Nixon, supra; see U.S. v. Gutierrez, 576 F.2d 269

(10th Cir., 1978).

1(c). Finally, various circuit courts of appeals are

in conflict on the issue of the type of evidence which

may be considered on the preliminary question of the

admissibility of the co-conspirator’s statements. Prior to

the enactment of the Federal Rules all courts required

that the admissibility of a co-conspirator’s statement be

determined upon proof aliunde—on evidence exclusive of

the statement itself. See, eg., Glasser v. U.S., 315

U.S. 60, 75 (1942). Rule 104(a) of the Federai Rules of

Evidence, however, specifically provides that the judge

may consider hearsay in making his determination of pre-

liminary questions. In U.S. v. Martorono, 557 F.2d 1 (ist

Cir., 1977), the Court read the rule to permit the Court

to consider the co-conspirator’s statements sought to be

admitted in deciding whether existence of the conspiracy

had been established. The Fifth, Eighth, and Sixth Circuits

have now expressly disagreed with the decision in

Martorono. U.S. v. James, op. cit., at p. 1044 (5th Cir.

1978); U.S. v. Enright, supra, at p. 7, n. 4 (6th Cir.); U.S.

v. Macklin, supra, at p. 1046.

2. Introduction.

The Court of Appeals in the instant case in effect

applied the “harmless error” rule (Rule 52(a), Federal

5. The Second Circuit test would apparently permit admis-

sion of conspirator statements on a substantive count even though

the trial court had dismissed the conspiracy for insufficiency.

U.S. v. Cafaro, 455 F.2d 323 (2nd Cir.), cert. denied, 406 U.S.

918 (1972).

13

Rules of Criminal Procedure) in affirming Petitioners’ sub-

stantive count convictions after holding that there was

insufficient evidence to convict Petitioners on the con-

spiracy count. In so doing, the decision of the Eighth

Circuit is in conflict with decisions of other Federal courts

of appeals Alternatvely, if this case is perceived as being

governed by the provisions of Rule 14, Federal Rules of

Criminal Procedure, the Eighth Circuit’s opinion in this

case is in conflict with this Court’s decision in Schaffer

v. U.S., 362 U.S. 511 (1960), and with the Second Circuit’s

decision in U.S. v. Kelly, 349 F.2d 720 (2nd Cir., 1965),

cert. denied, 384 U.S. 947 (1966).

2(a). There can be no doubt that the Eighth Circuit

decision holding there was no conspiracy resulted in a

misjoinder of offenses and defendants under Rule 8, Fed-

eral Rules of Criminal Procedure. See McElroy v. U.S.,

164 U.S. 76 (1896), at 81: ‘“Joinder cannot be sustained

where the parties are not the same and where the offenses

are in nowise parts of the same transaction.” Kotteakos

v. U.S., 328 U.S. 750 (1946), at pp. 764-65.

The Eighth Circuit’s decision’ in this case in determin-

ing that any error was harmless is in accord with the

Second, Ninth, and District of Columbia Circuits® in this

6. The holding of the appellate court that there was in-

sufficient evidence of the conspiracy results in a misjoinder of

offenses and defendants under Rule 8, Federal Rules of Criminal

Procedure.

7. There appears to be also an intra circuit conflict in the

Eighth Circuit. See Chubet v. U.S., 414 F.2d 1018, 1020 (8th Cir.,

1969).

8. There appears to be also an intra circuit conflict in the

Ninth Circuit. See Metheany v. U.S., 365 F.2d 90, 94-95 (9th

Cir., 1966).

9. There appears also to be an intra circuit conflict in the

District of Columbia Circuit. See Cupo v. U.S., 359 F.2d 990,

993 (D.C. Cir., 1966), cert. denied, 385 U.S. 1013 (1967).

14

regard. See, e.g., U.S. v. Turbide, 558 F.2d 1053 (2nd Cir.),

cert. denied, 98 S.Ct. 421 (1977); which held:

“It is well-settled in this circuit that the harmless

error doctrine applies to misjoinder of counts under

Fed. R. Crim. P. 8(b) ... [W]hen evidence tending

to prove the charge that should have been severed

would nevertheless have been admissible at the trial

of the objecting codefendant, and was admitted subject

to appropriate limiting instructions, any error was

harmless.”

Accord: U.S. v. Roselli, 432 F.2d 879, 901 (9th Cir., 1970),

cert. denied, 401 U.S. 924 (1971); Baker v. U.S., 401 F.2d 958,

973-74 (D.C. Cir., 1968), cert. denied, 400 U.S. 965

(1970).

However, the First, Third, Fourth, Fifth, Sixth,

Seventh, and Tenth Circuits take the position that a mis-

joinder under Rule 8 amounts to prejudice per se. U.S.

v. Levine, 546 F.2d 658 (5th Cir., 1977); U.S. v. Whitehead,

539 F.2d 1023, 1026 (4th Cir., 1976); U.S. v. Marionneauz,

514 F.2d 1244, 1248 (5th Cir., 1975); U.S. v. Graci, 504

F.2d 411, 413-14 (3rd Cir., 1974); U.S. v. Bova, 493 F.2d

33, 35 (5th Cir., 1974); U.S. v. Reynolds, 489 F.2d 4, 6

(6th Cir., 1973), cert. denied, 416 U.S. 988 (1974); U.S.

v. Eagleston, 417 F.2d 11, 14 (10th Cir., 1969); U.S. v.

Gougis, 374 F.2d 758, 762 (7th Cir., 1967); King v. U.S.,

355 F.2d 700, 704-05 (1st Cir., 1966); U.S. v. Spector, 326

F.2d 345, 350-51 (7th Cir., 1963); Ingram v. U.S., 272 F.2d

567, 570-71 (4th Cir., 1959). For excellent discussions of

the Problem, see Decker, “Joinder and Severance in Fed-

eral Criminal Cases: An Examination of Judicial Inter-

pretation of the Federal Rules,” 53 Notre Dame Law-

yer 147 (1977); Note, “Harmless Error and Misjoinder

15

Under the Federal Rules of Criminal Procedure: A Nar-

rowing Division of Opinion,” 6 Hofstra L.Rev. 533 (1978).

2(b). It is to be noted that Schaffer v. U.S., 362 U.S.

511 (1969), a five-to-four decision of this Court, is inappli-

cable to the facts of this case as Schaffer involves a con-

struction of Rule 14, Federal Rules of Criminal Procedure,

which provides for relief from prejudicial joinder. Schaffer

assumed that there had been a proper joinder in the first

place under Rule 8, and found no prejudice to the defen-

dants. Schaffer did not hold that the harmless error rule

applied to Rule 8 misjoinders, and, in any event, had

the Supreme Court in Schaffer found the joinder improper

under Rule 8, it would have, it is respectfully urged,

adopted a per se rule and found prejudice from the im-

proper joinder.’® Alternatively, Petitioners urge that the

decision of the Eighth Circuit in this case is contrary

to Schaffer, as in Schaffer and decisions construing this

case the “bad faith” of the prosecutor is a consideration

in deciding whether prejudice occurred. The Eighth Cir-

cuit’s opinion overlooked and did not touch upon the “good

faith” aspect of the Prosecutor’s decision to charge a con-

spiracy. See U.S. v. Brandom, 431 F.2d 1391 (7th Cir.,

1970); U.S. v. Branker, 395 F.2d 881 (2nd Cir., 1968),

cert. denied, 393 U.S. 1029 (1969); U.S. v. Ong, 541 F.2d 331

(2nd Cir., 1976). In U.S. v. Branker, the court defined

“good faith” as “the reasonable expectation that sufficient

proof {of the charge] would be forthcoming at trial.”

At p. 887. In the present instance, it was perfectly clear

10. The trial court in the instant case indicated serious doubts

about the propriety of the conspiracy charge and indicated he felt

there would be a problem in the event the appellate court found

insufficient evidence of the conspiracy, which it did. The court

indicated that the evidence on the conspiracy charge may have

prejudiced the defendants on the substantive charges. (Transcript

p. 92; Sentencing Transcript p. 1).

16

to the trial court, as mentioned above, that there probably

wasn’t enough evidence of the conspiracy charge. It was

also perfectly clear to the Eighth Circuit there was no such

proof, and it should have been perfectly clear to the Gov-

ernment, especially after the exclusion of the statement

of Fuel. The Government’s theory of conspiracy, it is

to be noted, was based upon the erroneous notion that

Defendants were related by blood. In U.S. v. Levine,

546 F.2d 658 (5th Cir., 1977), the court held, inter alia,

that an improper joinder based upon the prosecutor’s er-

roneous legal interpretation required vacation of defen-

dant’s convictions. In these circumstances, it would ap-

pear that the conspiracy charge was added by the prose-

cutor to lend credence to the other counts. The defendants

thus should be entitled to a new trial on the substantive

counts.

If this case is perceived as being governed by Rule

14, F.R.Cr.P., then the Eighth Circuit’s decision is in conflict

with the decision of the Second Circuit in U.S. v. Kelly,

349 F.2d 720 (2nd Cir., 1965), cert. denied, 384 U.S. 947

(1966). In Kelly, the Court indicated that a severance

should be granted when the evidence against one defendant

is far more damaging than the evidence against the moving

party. See Discussion of this Rule in U.S. v. Mardian, 546

F.2d 973 (D.C. Cir., 1976), at p. 977. There can be no doubt

under the Second Circuit test, that both Petitioners were

severely prejudiced by the evidence as to the conspiracy

and by the fact as to Julia Greene, that the evidence

against Merle Greene was much stronger."

11. It is well-settled, however, that Rule 14 only applies

once a threshhold determination has been made that joinder is

proper under Rule 8. U.S. v. Park, 531 F.2d 754, 760 (5th Cir.,

1976); U.S. v. Graci, 504 F.2d 411, 413 (3rd Cir., 1974); Ingram

v. U.S., 272 F.2d 567, 570 (4th Cir., 1959); Cantaneo v. U.S., 167

F.2d 820, 823 (4th Cir., 1948).

17

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be granted.

JAMES R. WyrRScH

Attorney for Petitioners

October 1978

Al

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 77-1876

United States of America,

Appellee,

v.

Carolyn Porter Fuel,

Appellant.

No. 77-1896

United States of America,

Appellee,

Vv.

Merle O. Greene, Jr. and Julia Greene,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri

Submitted: May 15, 1978

Filed: August 16, 1978

Before HEANEY, BRIGHT and STEPHENSON, Circuit

Judges.

HEANEY, Circuit Judge.

Merle O. Greene, Jr., Julia Greene and Carolyn Por-

ter Fuel were charged in a ten-count indictment with

mail fraud and conspiring to commit mail fraud in viola-

A2

tion of 18 U.S.C. §§2, 371 and 1341. Greene and Julia

Greene were convicted on all counts with which they

were charged, and Fuel was convicted on all but one

count with which she was charged.' The trial court subse-

quently entered a judgment of acquittal as to Julia Greene

with respect to a substantive count. Each appellant raises

several issues on appeal. For the reasons discussed below,

we reverse each appellant’s conviction for conspiracy and

the convictions of Fuel on Counts III and IV. We affirm

the appellants’ remaining convictions an the substantive

counts.

I. Factual Background.

Count I of the indictment charged the appellants with

engaging in a conspiracy from January 1, 1973, until Au-

gust 1, 1975, to defraud and obtain money from different

insurance companies by submitting fraudulent claims on

insurance policies in connection with automobile accident

and burglary claims. During the pendancy of the alleged

conspiracy, Greene submitted eleven claims against nine

insurance companies arising out of seven purported auto-

mobile accidents, two purported burglaries and one pur-

ported automobile larceny. He was paid approximately

$15,328 by the insurance companies. During the same

period, Julia Greene submitted four claims to four insur-

ance companies arising out of three automobile accidents

and one burglary. She was paid approximately $3,475

by the insurance companies. Fuel submitted five claims

1. Julia Greene and Fuel were given concurrent two-year

terms of imprisonment on each count. The sentences of imprison-

ment were suspended and they were each placed on probation

for three years. Greene was given a two-year sentence of im-

prisonment on Count II. He was also given two-year sentences

of imprisonment on each of the remaining counts with which he

was convicted, but these sentences were suspended and Greene

was given a three-year term of probation to run consecutively

to the term of imprisonment.

A3

to four insurance companies arising out of four automobile

accidents and one burglary. She was paid approximately

$2,823 by the insurance companies.

Fraudulent medical reports, work-loss letters, receipts

and vehicle repair estimates were submitted in support

of some of the claims. The documentation used to support

some of the later claims was a duplication of the documen-

tation used to support earlier claims by one or more of

the appellants. One of the insurance policies obtained

by Greene had been obtained by misrepresentation. No

question is raised as to the validity of some of the claims.

The individuals submitting the claims were generally re-

lated to one another by blood or marriage. Julia Greene

is the mother of Merle Greene, and Carolyn Porter Fuel

is the cousin of Merle Greene’s wife. Individuals submit-

ting claims included Merle Greene’s wife, brother, niece

and children.

In the nine substantive counts, the appellants were

charged with violation of the mail fraud statute by causing

certain letters and reports to be mailed to insurance com-

panies in connection wiih the fraudulent claims mention .d

above. Greene was charged in Counts II, III, IV, V, VI,

VIII and X; Julia Greene was charged in Counts IX and

X; and Fuel was charged in Counts III, IV, VII and VIII.

The trial lasted a week and a half. Prior to trial,

Fuel had filed a motion for severance which was denied.

On September 12, the government began presenting evi-

dence. It produced twenty-six witnesses and nearly two

hundred exhibits. The government concluded its case-

in-chief on September 19. At that time, motions for judg-

ments of acquittal were filed by both the Greenes and

Fuel. Fuel also filed a motion for severance. Fuel did

not testify. She presented two witnesses for impeachment

A4

purposes and rested her case on September 19. Greene

testified on his own behalf, but Julia Greene did not.

The Greenes presented four witnesses and rested their

case on September 20. At the close of all the evidence,

each of the appellants again filed motions for judgments

of acquittal, and Fuel again filed a motion for severance.

The jury returned its verdict on September 21. It found

all of the appellants guilty on Count I, the conspiracy

count. it also found Greene guilty on Counts II, III,

IV, V, VI, VIII and X (these counts involved $6,430);

Julia Greene guilty on Counts [IX and X (these counts

involved no money); and Fuel guilty on III, IV and VII

(these counts involved $1,368). It acquitted Fuel on Count

VIII. The trial court denied the motion for severance

and the motions for judgments of acquittal, except as

to Count IX where it granted a judgment of acquittal

as to Julia Greene. This appeal followed.

Il. Sufficiency of the Evidence.

Greene, Julia Greene and Fuel attack the sufficiency

of the evidence supporting each of their convictions.2, We

view the evidence in the light most favorable to the verdict

rendered, Glasser v. United States, 315 U.S. 60, 80 (1942);

United States v. Wofford, 562 F.2d 582, 585 n. 1 (8th

Cir. 1977), and take as established all reasonable inferences

which tend to support the action of the jury. United

States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert.

denied, 419 U.S. 853 (1974). It is well established that

circumstantial evidence does not differ in principle

from direct evidence, and that in order for a jury

2. Fuel did not waive her motion for a judgment of acquittal

at the close of the government’s case by presenting evidence as

the evidence did not add to the government’s case-in-chief. Cephus

v. United States, 324 F.2d 893, 897 (D.C. Cir. 1963).

AS

to convict on circumstantial evidence it is not neces-

sary that the evidence exclude every reasonable hypo-

thesis except that of guilt but simply that it be suffi-

cient to convince the jury beyond a reasonable doubt

that the defendant is guilty.

United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.),

cert. denied, 423 U.S. 893 (1975). See Holland v. United

States, 348 U.S. 121 (1954); United States v. Jackson, 549

F.2d 517, 529-530 (8th Cir.), cert. denied, 430 U.S. 985

(1977); United States v. Carlson, 547 F.2d 1346, 1360 (8th

Cir. 1976), cert. denied, 431 U.S. 914 (1977). We have

carefully reviewed the record with these principles in mind

and have concluded that there is insufficient evidence to

support the appellants’ convictions on the conspiracy count,

but that there is sufficient evidence to support Greene’s

convictions on Counts II, III, IV, V, VI, VIII and X; Julia

Greene’s conviction on Count X; and Fuel’s conviction

on Count VII.

A. Conspiracy Count.

The indictment charged, and the government’s position

both at trial and on appeal, has been that the appeliants

were involved in a single conspiracy, over a thirty-three-

month period, to defraud insurance companies. The evi-

dence does not support this position. To prove the ex-

istence of a conspiracy, the government must establish

the existence of an agreement between at least two con-

spirators to effect the object of the conspiracy, United

States v. Jackson, supra at 530; United States v. Skillman,

442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833

(1971), and that at least one overt act was committed

in furtherance of the conspiracy. United States v. Dona-

hue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United

States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 US.

A6

818 (1962). To convict an individual of conspiracy, it

is not necessary for the government to prove that the

individual knew all of the conspirators or was aware of

all of the details of the conspiracy, but it is necessary

to establish that the individual knowingly contributed to

the furtherance of the conspiracy. United States v. Jones,

545 F.2d 1112, 1115 (8th Cir. 1976), cert. denied, 429 U.S.

1075 (1977); United States v. Hester, 465 F.2d 1125, 1127

(8th Cir. 1972); Nassif v. United States, 370 F.2d 147,

152 (8th Cir. 1966).

In this case, the government simply failed to establish

the existence of an agreement between the appellants to

defraud insurance companies. In so holding, we recognize

that an agreement need not be express or formal, United

States v. Jackson, supra at 531, and that it may be estab-

lished by circumstantial evidence. Id., United States v.

Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied,

417 U.S. 915 (1974). Here, the government produced no

statement or admission of the appellants which would indi-

cate a common plan or agreement.* Nor did the govern-

ment establish facts and circumstances from which the

existence of an agreement could be inferred.

The government failed to establish that the alleged

automobile accidents and burglaries either were “staged”

or nonexistent. Thus, a conspiracy to defraud could only

be proved by establishing that the appellants agreed to

submit fraudulent documentation in support of any claim

3. The government indicated in its opening statement that

it would prove by Fuel’s own admission that she was not involved

in two of the automobile accidents for which she submitted

claims. However, the trial court refused to permit the govern-

ment to introduce Fuel’s written admissions because of a possible

denial of the appellant’s constitutional right of confrontation under

Bruton v. United States, 391 U.S. 123 (1968). The trial concluded

that Fuel’s admissions were voluntary and were made with full

knowledge of her constitutional rights.

AT

which might arise. We find insufficient evidence from

which to infer the existence of such an agreement. Ini-

tially, we note that it is difficult to understand how an

agreement to defraud could exist that would only come

into play at the happening of a fortuitous event—that

is, the occurrence of an automobile accident or a burglary.

Even if this hurdle is crossed, however, we are faced

with the fact that the government also failed to establish

that either Fuel or Julia Greene was aware that medical

reports submitted on their behalf, or on behalf of others

involved in the same accident, were fraudulent,‘ or that

either of them knew that other documentation submitted

with respect to automobile accident claims by Greene on

his own behalf was fraudulent. While there is evidence

to convict Fuel and Julia Greene on substantive counts

of mail fraud in connection with respect to their individual

burglary claims, there is no evidence of any knowledge

or connection with the burglary claims of Greene.

In sum, the evidence shows that a number of related

individuals, including the appellants, submitted a series

of questionable insurance claims. That is not enough to

satisfy the government’s burden of proof and to sustain

the jury’s verdict. Guilt may not be inferred from “mere

association.” United States v. Graham, 548 F.2d 1302, 1312

(8th Cir. 1977); United States v. Frol, 518 F.2d 1134, 1137

(8th Cir. 1975). In order to sustain a criminal conviction,

we must be convinced that the evidence does more than

merely raise a suspicion or possibility of guilt. United

States v. Blunk, 561 F.2d 111, 116 (8th Cir. 1977); United

States v. Jones, supra at 1115. As we have held “[s]ur-

mise cannot be permitted in a criminal case.” Id. The

4. The government did establish by inference that Greene

knew the medical records were fraudulent by establishing that

Greene himself had written on the patient card submitted on be-

half of his niece.

A8

evidence presented by the government is simply insuf-

ficient to establish beyond a reasonable doubt that the

appellants knowingly engaged in a single overall conspiracy

to defraud insurance companies.®

We can understand how the jury arrived at the

result it did on the conspiracy count. A large chart, which

has been duplicated and is attached hereto (Government’s

Exhibit No. 163), was prepared by the government and

used by it during the course of the trial. In our view,

this chart oversimplified the evidence. It tended to indi-

cate an association where none was established. When

the verbal testimony and the exhibits are carefully ex-

amined, the inference that the government sought to estab-

lish by use of the chart simply disappears.

The trial court was aware of the dangers inherent

in the use of the chart and was concerned throughout

the trial with the government’s attempt to prove a con-

spiracy. He refused to permit the chart to be received

as an exhibit and to be taken by the jury into the jury

room. He did, however, with some reluctance, permit

the chart to be used during the course of the trial. We

cannot say that he abused his discretion in so doing, but

we have no hesitancy in holding that when the record

as a whole is examined, the existence of a conspiracy

simply was not proved.

5. Nor do we feel that the government established the exist-

ence of separate conspiracies as to the submission of the accident

and the burglary claims. There is not sufficient evidence to con-

vince a fair minded jury beyond a reasonable doubt that Fuel or

Julia Greene participated in either conspiracy. Thus, we need

not consider this case in light of the test for fatal variance estab-

lished in Kotteakos v. United States, 328 U.S. 750 (1946), and its

progeny. See, e.g., United States v. Anderson, 552 F.2d 1296 (Sth

Cir. 1977); United States v. Butler, 494 F.2d 1246 (10th Cir. 1974);

United States v. Varelli, 407 F.2d 735 (7th Cir. 1969).

A9

B. Substantive Counts.

The substantive offense proscribed by 18 U.S.C. $1341,

the mail fraud statute, is closely related to the offense

of conspiracy set forth in 18 U.S.C. §371. United States

v. Donahue, supra at 1135; Isaacs v. United States, supra

at 725. There are, however, differences between a substan-

tive violation of the mail fraud statute and a conspiracy

to violate the statute.* Because of the differences, it is

not necessarily inconsistent that a person be found guilty

on the substantive counts but not on the conspiracy count.

Cf. United States v. West, 549 F.2d 545, 553 (8th Cir.),

cert. denied, 430 U.S. 956 (1977). We must, however,

carefully examine the strength of the evidence with respect

to each of the substantive counts in order to insure that

the appellants’ convictions on the substantive counts are

sufficiently supported and are not merely the result of

evidence introduced with respect to the conspiracy count.

Cf. United States v. Anthony, 565 F.2d 533, 538-539 (8th

Cir. 1977).

In order to establish a violation of 18 U.S.C. $1341,

the government must prove the existence of a scheme

to defraud and the mailing of a letter for the purpose

of executing the scheme. Pereira v. United States, 347

6. Unlike conspiracy, a scheme to commit mail fraud may

be conceived and executed by one person. United States v. Dona-

hue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States,

301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818 (1962).

Second, when a

person is charged with a substantive violation of §1341 * * *

it is not necessary for the government to prove that he in-

tended to use the mails * * * in furtherance of his fraudulent

scheme; it is sufficient if they were in fact used; but where

the charge is conspiracy to violate [§1341], the government

must also show that the scheme contemplated the use of the

medium in question. Isaacs v. United States, supra, and Blue

v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied,

322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944).

United States v. Donahue, supra at 1135.

Al0

U.S. 1, 8 (1954); United States v. Cady, 567 F.2d 771,

773 (8th Cir. 1977); United States v. Brown, 540 F.2d

364, 373 (8th Cir. 1976). Since the term “scheme,”

as used in $1341, connotes some degree of planning by

the perpetrator of the mail fraud, it is essential that the

government establish an intent to defraud. United States

v. Nance, 502 F.2d 615, 618 (8th Cir. 1974), cert. denied,

420 U.S. 926 (1975). While the government must establish

beyond a reasonable doubt that the appellants acted with

an intent to defraud, United States v. Williams, 545 F.2d

47, 50 n.2 (8th Cir. 1976), direct evidence of intent is

not required. United States v. Arnold, 543 F.2d 1224,

1225 (8th Cir. 1976), cert. denied, 429 U.S. 1051 (1977).

The requisite intent may be inferred from all the facts

and circumstances surrounding the appellants’ actions. Id.;

United States v. Nance, supra at 618. Section 1341 “reaches

schemes in which the defendant did not himself place

any matter in the mails; it is sufficient to show that

he ‘caused’ the mailings.” United States v. Calvert, 523

F.2d 895, 903 (8th Cir. 1975), cert. denied, 424 U.S. 911

(1976); United States v. Brickey, 426 F.2d 680, 684 (8th

Cir.), cert. denied, 400 U.S. 828 (1970). The Supreme

Court set forth the appropriate standard in Pereira v.

United States, supra: ‘Where one does an act with knowl-

edge that use of the mails will follow in the ordinary

course of business, or where such use can reasonably be

foreseen, even though not actually intended, then he

‘causes’ the mails to be used.” Id. at 8-9.

We turn to a consideration of the sufficiency of the

evidence with respect to each of the substantive counts.

1. Count II.

Greene was charged with causing his attorney to mail

a fraudulent work-loss letter to Travelers Insurance Com-

All

pany with respect to a claim arising out of an acci-

dent, allegedly occurring on July 4, 1974. Travelers paid

Greene $2,500 in settlement of his claim.

Greene provided his attorney with documentation in

support of this claim, including a work-loss letter from

Amoco Oil. The attorney then mailed the documentation

to Travelers. The work-loss letter was dated September

6, 1974, and stated that Greene had lost 108 hours of

work as a result of the July 4, 1974, automobile accident.

It was signed by “T. Noble.” The fraudulent nature of

the letter was established at trial through the testimony

of two Amoco employees and through Amoco personnel

records. Thomas Noble testified that he worked at Amoco

at a desk next to Greene during the time period in question.

He disclaimed any knowledge of the letter and stated

that the signature on the letter was not his. He further

stated that he would not have been authorized to sign

such a letter in any case. The Amoco personnel records

revealed that Greene was only absent from work for 13.5

hours during the relevant time period and that he received

compensation for 4.5 of those hours. It was established

that Travelers relied upon the work-loss letter in paying

Greene $2,500 in settlement of his claim.

Greene contends that the government failed to estab-

lish the necessary intent to defraud because it did not

establish by direct evidence that he either knew the letter

was false or that he had prepared it himself.* He also

contends that it was not established that a mailing in

furtherance of the scheme was “caused” by Greene.

Greene’s contentions are without merit. Direct evidence

7. Greene also contends that there was no evidence to show

that Amoco’s personnel records were necessarily accurate. How-

ever, he offered no evidence at trial that the records were in-

accurate. In reaching its verdict, the jury concluded that the rec-

ords were accurate. We do not disturb that finding here.

Al2

of intent is not required, and a fraudulent intent on the

part of Greene can clearly be inferred from his action

in submitting the false work-ioss letter. See United States

v. Arnold, supra; United States v. Nance, supra. While

Greene did not actually mail the false documentation, he

did cause it to be mailed under the standard set forth

by the Supreme Court in Pereira v. United States, supra.

The mailing of the false documentation to Travelers

by the attorney was clearly foreseeable and would be

expected to follow in the ordinary course of business.

2. Count III.

Greene and Fuel were charged with causing their

attorney to mail a demand letter accompanied by fraudu-

lent medical reports concerning an alleged accident on

October 22, 1974, to Farmers Insurance Group. The attor-

ney represented both Greene and Fuel. He did not recall

ever meeting Fuel. Fuel did sign the contract retaining

the attorney and a medical authorization form for the

attorney. She was not identified as having indorsed either

the check or the release in connection with the settlement

of her claim.

Claims arising out of the accident were submitted

on behalf of six individuals, including Greene, his wife,

his niece and Fuel. It was established that Farmers relied

upon the fraudulent medical records provided in settling

the claims for $1,000 each.

The medical records were purportedly prepared by

Dr. L. Virgil Miller. In 1973, Dr. Miller had been declared

incompetent and placed under guardianship. He con-

tinued, however, in practice. Greene testified that Miller

had treated him for injuries arising out of the October

22 accident. Employees from Dr. Miller’s office recalled

Al3

seeing Greene, but not Fuel, at the office. An employee

in Dr. Miller’s office testified that the medical records

submitted were not prepared in the office format or medi-

cal report style. A United States Postal Service document

analyst testified that the reports had not been typed on

the typewriters in Dr. Miller’s office. He gave his expert

opinion that Dr. Miller did not sign the reports, and that

the reports had been signed by someon else in simulation

of his handwriting. The document analyst could not elimi-

nate the possibility that the signature on Fuel’s medical

report was not an “unnatural” signature of Dr. Miller

caused by arthritis, old age or hardening of the arteries,

conditions which Dr. Miller suffered from. He was posi-

tive, however, that the signature on Greene’s medical re-

port was not that of Dr. Miller. He was unable to identify

the simulated signatures of Dr. Miller with anyone. The

document analyst was, however, able to link Greene’s writ-

ing to one of the reports. He testified that, with the

exception of the word “released,” all the writing on the

patient card of Greene’s niece had been done by Greene.

Both Greene and Fuel contend that the government

failed to establish the necessary intent to defraud. After

carefully examining the record, we are convinced that

the government did present sufficient evidence from which

the requisite fraudulent intent on the part of Greene could

be inferred because of the identification of his writing

with that on one of the medical reports submitted. The

government did not present sufficient evidence, however,

from which the requisite fraudulent intent could be in-

ferred on the part of Fuel as it failed to establish she

had any knowledge of the fraudulent nature of the medical

reports.

Al4

3. Count IV.

Greene and Fuel were charged with causing their

attorney to mail false medical reports, and an altered auto-

mobile repair estimate and bill, to Hertz Rental Company

in connection with an alleged accident on February 10,

1975. The attorney had previously been retained in con-

nection with the accident out of which Count III arose.

The attorney did not recall meeting Fuel, but it was stipu-

lated by the parties that she had retained the attorney.

Eight individuals submitted claims arising out of the acci-

dent and Hertz paid $2,843 in claims. Fuel received $368

for medical expenses, and Greene received $221 for medical

expenses and $209 for property damage. Fuel could not

be identified as signing the settlement draft and release

of her claim for $368.

Some of the medical reports were again purportedly

signed by Dr. Miller. An employee from Dr. Miller’s

office testified that these reports were not of the format

of reports prepared by that office. The United States

Postal Service document analyst testified that the typewrit-

ing on the reports did not match the typewriting of the

machines in Dr. Miller’s office. He further testified that

one of the medical reports submitted on behalf of Fuel

did, however, contain an authentic signature of Dr. Miller.

The automobile repair estimate submitted was from

Major Cadillac for repairs on Greene’s 1972 Cadillac. It

was stamped paid in the amount of $1,364.53. The docu-

ment analyst stated that the repair estimate was an altera-

tion of a repair estimate of $1,364.53 from Major Cadillac

submitted to American Family Insurance in connection

with an accident occurring on December 1], 1974.8 He

8. None of the appellants were charged with respect to

claims submitted in connection with the December 11, 1974, ac-

cident. Greene received $2,450, Julia Greene received $1, 400 and

Fuel received $1,450 from American Family.

Ald

further testified that another alteration of the same esti-

mate was submitted by Greene to Cumis Insurance Com-

pany in another claim in connection with the February

10, 1975, accident. See discussion of Count V, infra.

There is ample evidence from which to infer the requi-

site fraudulent intent on the part of Greene through his

contact with the attorney, the submission of the false medi-

cal reports and the submission of the altered repair esti-

mate for his 1972 Cadillac. There is insufficient evidence

to infer the requisite intent on the part of Fuel. She

retained the attorney, but did not actively pursue the

claim. She could not be identified as signing the settlement

draft and the release of her claim. Moreover, the medical

report submitted on her behalf does at least bear an authen-

tic signature of Dr. Miller.

4. Count V.

Greene was charged with submitting an altered auto-

mobile repair estimate and bill to Cumis Insurance Com-

pany in connection with a claim arising out of the same

accident in which the claims in Count IV allegedly arose.

The claim was submitted by Greene, Julia Greene and

Fuel to Cumis after receiving a settlement from Hertz.

Cumis was Greene’s insurance company.

As we have previously mentioned, the document ana-

lyst testified that the automobile repair estimate and bill

for $1,364.53 that was submitted was an alteration of a

document that had previously been submitted in connection

with other claims. Greene testified that he paid for the

repairs with his Diners Club credit card. However, the

records of the Diners Club only reveal a charge of $1,364.53

on his December, 1974, billing. That billing would corre-

spond only to payment in connection with the December

Al6

11, 1974, accident and not with respect to the February

10, 1975, accident—out of which the claims forming the

basis for Counts IV and V arise.

Again, there is sufficient evidence from which to infer

the requisite intent on the part of Greene.

5. Count VI.

Greene was charged with mailing a certified letter

to Farmers Insurance Company enclosing various receipts

in support of his claim with respect to an alleged burglary

at his residence on December 2, 1973.° Farmers paid

out $2,500 with respect to the claim. Greene had pre-

viously submitted claims to Allstate Insurance Company

with respect to a burglary at the same residence on Jan-

uary 1, 1973. Allstate paid Greene $4,780 in settlement

of that claim. The document analyst testified that thirty-

nine of the exhibits submitted by Greene in support of

his claim with respect to the December 2, 1973, burglary

were copies from the same original documents from which

copies had previously been submitted by Greene to Allstate

as documentation for his claim with respect to the January

1, 1973, burglary.

The requisite fraudulent intent can be inferred from

the submission of documentation that was shown to be

duplicated from that used in support of a prior burglary

claim. The mailing by Greene of a certified letter satisfied

the requirement of causing the use of the mails.

6. Count VII.

Fuel was charged with causing the General Adjust-

ment Bureau to mail to Cumis Insurance Company a report

9. Greene’s landlord testified that a door window had

been broken and that there was some evidence that a burglary

might have occurred.

Al7

with respect to her claim arising out of an alleged bur-

glary of her residence on February 6, 1975. The investiga-

tor from the General Adjustment Bureau testified that

there was some evidence of the burglary. |

Fuel gave the adjuster documentation in support of

the claim, including a jewelry appraisal from Jaccard’s

Jewelry Store for a ring in the amount of $950 and a

receipt from Woolf Brothers for $57.56. Both receipts

were again used by Julia Greene in support of a subse-

quent claim against Allstate Insurance Company arising

out of a burglary of her residence on April 23, 1975. An

employee of Jaccard’s testified that the appraisal form

had been supplied to Julia Greene when she purchased

a ring. The company records did not list a purchase

by Fuel. In the claim submitted by Fuel, she stated that

the burglary occurred at 3894 Chelsea. However, the

Cumis policy she claimed against covered thefts from 3707

Prospect. The claim was withdrawn.

Fuel contends that the requisite fraudulent intent was

not established and that the mailing of the report by

the General Adjustment Bureau was not in furtherance

of a scheme to defraud. We do not agree. The requisite

intent can be readily inferred from the submission by

Fuel of a claim for a ring that was not owned by her

and for an address that was not covered by her insurance

policy. Any inference that Fuel had received the ring

from Julia Greene by gift or purchase was negated by

the fact that Julia Greene subsequently submitted a claim

for the same ring. Fuel admittedly did not place any

matter in the mail herself. She did, however, “cause”

the mailing of the report by the General Adjustment Bu-

reau as such a report would be expected to result from

her claim in the ordinary course of business. See Pereira

v. United States, supra at 8-9; United States v. Calvert,

supra at 903; United States v. Brickey, supra at 684.

Als

7. Count VIII.

Greene was charged with causing Turpin Associates

to mail a letter to Cumis Insurance Company relating

to an automobile larceny aliegedly occurring on September

9,1975. The claim was made against a homeowner’s policy

on 3108 East 63rd Street. Greene had stated that he

had owned the property since 1970 when he obtained the

policy. The policy was obtained by phone. Testimony

established, however, that Greene only rented the property

and that the owner had not authorized him to procure

insurance. The claim was withdrawn. Greene contends

that there was no foundation laid to establish that he

was the person who called and obtained the policy and,

thus, that the government failed to satisfy its burden of

proof of a fraudulent scheme. This contention has little

merit since Greene, in effect, acknowledged his application

for the policy when he susbmitted the claim on the policy.

8. Count X.

Greene and Julia Greene were charged with causing

an attorney representing Allstate to write a letter to Julia

Greene demanding that she provide substantiation for her

claim with respect to burglary of her residence occurring

on April 23, 1975. Documentation provided to Allstate

in support of the claim included receipts from Jaccard’s

Jewelry and Woolf Brothers which were copied from the

same original and previously submitted by Fuel in support

of her burglary claim, and a receipt from Stix, Baer &

Fuller for the purchase of a television. Greene supplied

Julia Greene with the Woolf Brothers receipt. The Stix,

Baer & Fuller receipt was written out to Julia Greene.

An employee of Stix, Baer & Fuller testified that the

receipt was not in the correct form since it contained

a false salesman’s number and because it was not the

OOOO ero

Alg

form of receipt used by the television department. The

United States Postal Service document analyst testified

that the Stix, Baer & Fuller receipt to Julia Greene was

handwritten by Merle Greene.

The existence of fraudulent intent on the part of both

Merle and Julia Greene can clearly be inferred from the

use of duplicated and falsified receipts. There is also

sufficient evidence to support an inference that the de-

fendants “caused” matter to be mailed in furtherance of

the scheme. The use of the mails was clearly foreseeable

either by the insurance company, its agents or adjusters,

or by an attorney employed by the company to handle

the claim. See Pereira v. United States, supra at 8-9;

United States v. Minkin, 504 F.2d 350, 353-354 (8th Cir.

1974), cert. denied, 420 U.S. 926 (1975); Fisher v. United

States, 324 F.2d 775, 780 (8th Cir. 1963), cert. denied,

377 U.S. 999 (1964).

9. Conclusion.

In summary, there is sufficient evidence to support

Fuel’s conviction on Count VII, Julia Greene’s conviction

on Count X and Greene’s convictions on Counts II, III,

IV, V, VI, VIII and X.

III. Severance.

Each of the appellants contends on appeal that they

were so prejudiced by the joint trial as to require sever-

ance under Fed.R.Crim.P. 14..° A motion to sever is ad-

10. The appellants do not contest their initial joinder under

Fed.R.Crim.P. 8. This Court has held that,

[i]t is permissible and also customary to join a conspiracy

count with separate substantive counts, Pegram v. United

States, 361 F.2d 820, 821 (8th Cir. 1966); 1 C. Wright, Fed-

eral Practice and Procedure §144, at 330 (1969), even though

(Continued on following page)

A20

dressed to the sound discretion of the trial court, United

States v. Anthony, supra at 538; United States v. Jackson,

supra at 523, and a denial of severance will only be grounds

for reversal if “the appellants can show such clear preju-

dice that it indicates an abuse of the trial court’s discre-

tion.” United States v. Anthony, supra at 538. We find

no abuse of discretion here.

In considering a motion to sever, the trial court must

balance the inconvenience and expense of separate trials

against the prejudice to the codefendants in a joint trial.

See United States v. Wofford, supra at 585. Individuals

charged in a conspiracy are usually tried together, particu-

larly where the proof of the charges is based upon the

same evidence and acts. See, e.g., United States v. Jack-

son, supra at 523; United States v. Graham, supra at 1310;

United States v. Kirk, 534 F.2d 1262, 1269 (8th Cir. 1976),

cert. denied, 433 U.S. 907 (1977); United States v. Hutch-

inson, supra at 492. As we have stated, “[t]his rule

reflects a strong desire to avoid multiple litigation and

conserve judicial resources since proof of guilt is often

based on the same evidence. Thus, the appellants have

a heavy burden in showing that the trial court abused

its discretion.” United States v. Anthony, supra at 538

(footnote omitted).

The appellants contend they were prejudiced by the

joint trial because it was impossible for the jury to com-

partmentalize the evidence and because the evidence

Footnote continued—

some of the alleged co-conspirators are not charged in the

substantive counts. United States v. Leach, 429 F.2d 956, 960

(8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29

L.Ed.2d 151 (1971); Wangrow v. United States, 399 F.2d 106,

109-10 (8th Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 292, 21

L.Ed.2d 270 (1968).

United States v. Graham, 548 F.2d 1362, 1310 (8th Cir. 1977).

A21

against Greene was stronger than the evidence against

Fuel or Julia Greene. We recognize that there is an in-

herent danger in a joint trial that the jury will convict on

the basis of the cumulative evidence produced at trial,

rather than on the basis of the quantum of evidence relat-

ing to each defendant. United States v. Anthony, supra

at 538; United States v. Graham, supra at 1310. However,

a defendant is not automatically entitled to severance be-

cause the evidence against a codefendant is more damaging

than the evidence against him. United States v. Anthony,

supra at 538; United States v. Jackson, supra at 525.

Here, the trial court carefully instructed the jury that

it should weigh the evidence against each defendant indi-

vidually, and that

it is your duty to give separate, personal consideration

to the case of each individual defendant. When you

do so, you should analyze what the evidence in the

case shows with respect to that individual, leaving

out of consideration entirely any evidence admitted

solely against some other defendant or defendants.

Each defendant is entitled to have his or her case

determined from the evidence as to his own acts and

statements and conduct, and any other evidence in

the case which may be applicable to him.

While the evidence presented at trial was complex and

confusing, the trial court could reasonably have believed

that the jury was capable of compartmentalizing the evi-

dence. The fact that it failed to do so with respect to

some of the grounds is insufficient justification for us

to now hold that the trial court abused its discretion in

denying severance. There is, moreover, clear and convinc-

ing probative evidence implicating each of the appellants

on certain of the substantive counts. We are unable to

A22

agree with the appellants that they were convicted on

the evidence accumulated against all of them. See United

States v. Graham, supra at 1311.

IV. Evidentiary Rulings.

A. Evidence of Other Insurance Claims.

Each of the appellants objects to the admission of

evidence relating to insurance claims which were not al-

leged in any of the substantive counts or any of the overt

acts of the conspiracy count. The appellants particularly

object to the use of the chart reproduced and attached

hereto (Government’s Exhibit No. 163). See Part II, A,

supra. The trial court has broad discretion in determining

the relevance of proposed pieces of evidence, United States

v. Williams, 545 F.2d 47, 50 (8th Cir. 1976); United States

v. Johnson, 516 F.2d 209, 214 (8th Cir.), cert. denied, 423

U.S. 859 (1975), and the admission of such evidence will

only be grounds for reversal if the trial court abused

its discretion. United States v. Kills Crow, 527 F.2d 158,

160 (8th Cir. 1975). We find no abuse of discretion on

this record.

Evidence was admitted with respect to claims as to

eight automobile accidents, four burglaries and one automo-

bile larceny. Substantive counts were based upon claims

filed with respect to three of the accidents, three of the

burglaries and the one automobile larceny. Evidence as

to the remaining claims was admissible under Fed.R.Evid.

404(b) to establish knowledge and fraudulent intent. See

2 J. Weinstein and M. Berger, WEINSTEIN’S EVIDENCE

7404[09] (1977). Evidence with respect to Greene’s Janu-

ary 1, 1973, burglary claim was relevant to show that

thirty-nine receipts submitted with respect to that claim

were later submitted with respect to Greene’s claim arising

A23

out of the December 2, 1973, burglary. Evidence as to

the December 11, 1974, automobile accident was needed

to establish that an automobile repair estimate submitted

with respect to that accident was also later used in support

of claims arising out of the February 10, 1975, automobile

accident. The remaining automobile accident claims were

used to establish that Greene had obtained insurance by

misrepresentation and to help establish a recurrent pattern

of claims.

B. Admission of Exhibits Nos. 62, 177, 182 and 184.

Fuel objects to the admission of Exhibits Nos. 62,

177, 182 and 184. Each of the exhibits were copies of

receipts provided by Fuel to an insurance adjuster in con-

nection with her February 6, 1975, burglary claim. The

trial court initially refused to admit the exhibits because

red markings had been placed on the exhibits in connection

with the submission of the exhibits to a document analyst.

“Whiteout” was placed over the red markings and the

government reoffered the exhibits. Since the background

paper was also white, the prominence of the markings

was reduced. The trial court carefully instructed the jury

to disregard the markings. We have examined these ex-

hibits and cannot say that the trial court abused its discre-

tion in admitting these exhibits.

C. Production of Expert’s Notes.

The Greenes contend that they were entitled to the

production of the documents and rough notes of the govern-

ment’s expert witness, a United States Postal Service docu-

ment analyst, under the Jencks Act. 18 U.S.C. §3500

and Brady v. Maryland, 373 U.S. 83 (1963). This conten-

tion is without merit. The government provided defense

counsel with the expert’s reports prior to trial. The trial

ee ee ee

A24

court denied the motion for additional discovery after being

informed that the expert does not use notes and, instead,

dictates his findings directly.

V. Jury Instructions.

A. Fuel’s Requested Instruction No. 46.

Fuel contends that the trial court erred in refusing

to give her requested Instruction No. 46. A defendant

is entitled to an instruction on his theory of the case,

but only if it is properly requested and there is evidence

to support the theory. United States v. Brown, supra

at 380; United States v. Nance, supra at 619. Moreover,

even if the instruction is proper, the trial court retains

discretion in framing the instructions and there is no error

if the trial court’s instruction adequately covers the sub-

stance of the requested instruction. United States v.

Brown, supra.

The requested instruction stated that Fuel suffered

legitimate injuries from the automobile accidents and a

legitimate property loss as a result of the burglary of

her residence. It further stated that she submitted legiti-

mate insurance claims with respect to those losses. Fuel

did not testify and there is no testimony beyond her plea

of not guilty to support these contentions. Accordingly,

the trial court did not abuse its discretion in refusing

to give that portion of the requested instruction.

The trial court did instruct the jury that every defen-

dant has a right to have his theory of the case considered

and that a plea of not guilty requires the government

to prove all essential elements of its case beyond a reason-

able doubt. It also instructed the jury that it should

“consider with care the theories of defense as stated by

defense counsel in closing argument.” These instructions

A25

adequately cover the substance of the remaining portions

of Fuel’s requested instruction.

B. Instruction on Circumstantial Evidence.

The Greenes argue that it was plain error for the

trial court to have failed to instruct the jury that to support

a conviction on circumstantial evidence, the evidence must

be inconsistent with every reasonable hypothesis of inno-

cence. We cannot agree. Circumstantial evidence is in-

trinsically as probative as direct evidence. United States

v. Holland, supra at 139-140; United States v. Scholle,

553 F.2d 1109, 1118 (8th Cir. 1977), cert. denied, ........

WR aces (1978). Since the Supreme Court’s opinion in

Holland, this Circuit has held that “instructions that cir-

cumstantial evidence alone affords a basis for conviction

only if the evidence is completely inconsistent with inno-

cence are now considered confusing and incorrect and the

better rule is merely to instruct on the standards of reason-

able doubt.” United States v. Fryer, 419 F.2d 1346, 1350

(8th Cir.), cert. denied, 397 U.S. 1055 (1970).

C. Instruction on Coconspirator’s Statements.

The Greenes contend that it was plain error for the

trial court to give a cautionary instruction to the jury

which permitted the jury to weigh the admissibility of

the coconspirators’ statements. This Circuit has recently

held that Fed.R.Evid. 104(a) requires that questions of

the admissibility of coconspirators’ hearsay statements be

determined by the trial court and, thus, that the jury

no longer has a role in weighing the admissibility of such

statements. United States v. Macklin, 573 F.2d 1046, 1048

(8th Cir. 1978); United States v. Bell, 573 F.2d 1040, 1043

(8th Cir. 1978). However, this case was tried before our

decisions in Macklin and Bell which are to be applied only

A26

prospectively. In the absence of an appellate decision

on point, we cannot say that the cautionary instruction

constituted plain error. See United States v. Leonard

Smith, et al, Nos. 77-1510, 77-1514, 77-1515 and 177-1524

slip op. at 13 (8th Cir., filed May 17, 1978).

D. Instructions as to Discussion of the Case.

The Greenes finally contend that the trial court failed

to fully instruct the jury at each recess that they should

not read or talk about the case. This contention is without

merit. The trial court did sufficiently admonish the jury

not to read about or discuss the case. See United States

v. Miles, 483 F.2d 1372, 1374 n.2 (8th Cir. 1973), vacated

on other grounds, 415 U.S. 970 (1974).

VI. Conclusion.

We reverse the conviction of Merle Greene on Count

I and affirm his convictions on Counts II, III, IV, V,

VI, VIII and X. We reverse the convictions of Julia Greene

on Count I and affirm her conviction on Count X. We

reverse the convictions of Carolyn Porter Fuel on Counts

I, III and IV and affirm her conviction on Count VII.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

ot me.

A27

GOVERNMENT'S EXHIBIT NO. 163

Accident Claimant Claim Claim Police Vehicle Accident Vehicle Ins. Co,

Date Name Paid (S$) DE? AND Report Type Location Repair Claim No.

April 24, William Gardenhire 100.00 100.00 1965 73rd & Amer. States

1973 Sheri Victor - - NONE Olds. Wornall A~-292529

werle Gye... JP. 353.83 353.83 353.83

Aprii' li, “erie Srecne, oP. 1,315.00 1,315.90 At 1973 62nd & a Farmers Ins.

1974 Winston Dil] lard - - Scene Chev. Sw. Pkwy. 1429668389

NePee ale cM, IP. 2,500.00 3,250.00 Walk 1965 63rd & 710.00 Travelers

Juiy 4, oft Oi ts 1,759.90 2,750.00 in Olds Pasco Ins. Co.

1974 Sandra Gr ene 2,500.90 2,750.00 Report 077ABA~

Melvin Greene 1,150.00 1,650.00 633033

William Cuardenhire - -

Nerd. er. ae, IPs 1,000.C9 1,750.00 Farmers

October Caracen Foster (Fuel) 1,000.00 1,850.00 Walk 1973 63rd & Ins. Grp.

22, Sandi. Greere 1,990.09 1,750.00 in Chev. Troost pre 1429668389

1974 Frances Crevcne 1,006.0 1,750.00 Report

Delores Santiagq 1,000.09 1,850.00

Demonica Santiago 1,000.00 1,850.00

Zenette © -arson . -

inee Gre ne, Jr. 2,450.00 3,500.00 Walk 1972 24th & American

December fuliz Sreons 1,400.00 2,300.00 in Cadd. Holmes Pamily

ll, Car *lan Fad 1,454.00 2,300.00 Report if 1,364.53 M-88761

1974 Sandra Greene 2,450.u0u 3,250.00

Delscrcs Santiago 2,400.00 2,300.00

Frances Griene 1,600.00 3,000.00

William Gurdenhire = =

eres Gate, di. 430.u0 3,610.00 Walk 1972 1-435 Hertz

February ches 2 GPCR 325.00 1,759.00 in Cadd. & Rental

1G, ser lem Fas! 368.50 1,909.00 Report 63rd St. 1,364.53 »

1975 Sandra Gr zene 430.00 2,250.00 Cumis

Frances Greene 325.00 1,750.00 Ins.

Delores santiago 325.00 1,760.00

Merie Greone III 324.u0 1,750.00

Wanca Minor 315.00 1,700.00

James Roundtree - (AKAN - Jaimie Nikon) 4-31603

weet 2 sees (Fuel) Walk 1972 22nd & American

June Delores Santiago in Cadd. Holmes 1,494.37 Family

5S, Vanda Minor Report «

1975 Ewany Minor - 0- - 0- State

Gerala Porter Farm

Der.onica Santiago =

Rata (Lereslle) Nixon ™89459

ot i ae Swope State

June Sendra Grecne At 1972 Pkwy. Farm ~

6, Merle Greorwne iI] Scene Cadd. a - 25-4177-075

1975 Shailey Lumelle - 0- -0- Meyer

Rita Latclle (Nixon)

Robin Fuel

Devid Huc IOS -

PUEG AOS, CALCTNY CLAD: +

-

1/°/73 WERLE GENTE, Jr. 4,780.00 7,180.00 3urg. 3108 EB, 63rd ALLSTATE

rey 10E%0456

12/2/73 MERLE GREENE, Jr. 2,500.00 {28,800.00 Burg. 3108 EB, 63rd FARMERS

20866 389

2/6/75 CARCLYA FUEL (withdrawn) | 11,400.00 Burg. 3894 Chelse CUMIS

-0- / HO952458

4/23/75 JULIA GREENE (withdrawn) 6,500.00 Burg. 3110 E. 63rd ALLSTATE

-0- 10G609 36

9/9/75 ME2LE GReenwk, Jr. (withdrawn) 7,700.00 Larc. L.A. Calif. cumis

= § = HG69990

A29

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

September Term, 1978

No. 77-1896

United States of America,

Appellee,

Vs.

Merle O. Greene, Jr., et al.,

Appellants.

Appeal From the Unitea States District Court for the

Western District of Missouri

The Court having considered petition for rehearing

en banc filed by counsel for appellants and, being fully

advised in the premises, it is ordered that the petition

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

September 28, 1978