# Petition — Greene v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1970%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 439 U.S. 1127 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1970%3A1. Public record. Not legal advice.