# Appendix — Reicin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 996

## Text

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In the
United States Court of Appeals
For the Seventh Circuit

September Term, 1973 September Session, 1973
No. 73-1057
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD E. REICIN,
Pefendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 71 CR 82
Thomas R. MeMillen, Judge.

Argued September 12, 1973—Decided May 28, 1974

Before Cast_e, Senior Circuit Judge, and Famcuivp and
Petu, Circuit Judges.

Pett, Circuit Judge. An eleven-count indictment charged
appellant Edward Reicin, an attorney, with mail fraud,
18 U.S.C. $1341." Defendant and Dr. William Becker al-

1 The statute provided:
“81341. Frauds and swindles.

Whoever, having devised or intending to devise any scneme or
artifice to defraud, or for obtaining moncy or property by means of
false or fraudulent pretenses, representations, or promises, . . . for
the purpose of executing such scheme or artifice or attempting so
to do, places in any post office or authorized depository for mail

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App. 2

legedly had devised and carried out a scheme to defraud
insurance and other companies? in personal injury cases
by preparing and submitting false and exaggerated medi-
eal reports and bills to the companies and by causing
claimants ‘‘to absent themselves from employment to in-
crease their alleged damages.’’ Each count pertained to
a different personal injury case handled by the defendant
or lawyers in his office, and each count alleged a specific
mailing with regard to the claim involved in that count.’

A jury convicted Reicin on Count 9, which concerned
the mailing of a fraudulent document to the Royal Globe
Insurance Company, and acquitted him of the ten other
counts. On this appeal, defendant seeks (1) the reversal
of his conviction on the ground of insufficiency of the evi-
dence, or (2) a remand for a new trial on Count 9 because

(footnote continued)

matter, any matter or thing whatever to be sent or delivered by the
Post Office Department, or takes or receives therefrom, any such
matter or thing, or knowingly causes to be delivered by mail ac-
cording to the direction thereon, or at the place at which it is di-
rected to be delivered by the person to whom it is addressed, any
such matter or thing, shall be fined not more than $1,000 or im-
prisoned not more than five years, or both.”

* Each count involved a different mailing; however, one scheme
and artifice to defraud various companies was charged, “including
but not limited to: Aetna Insurance Company, Allstate Insurance
Company, Chicago Transit Authority, The Hanover Insurance
Group, Horace Mann Insurance Group, Inter-Insurance Exchange
of the Chicago Motor Club, National Emblem Insurance Company,
Northwestern Security Insurance Company, Royal Globe Insurance
Company and Unigard Insurance Company. . . .”

% The use of the mails aspect of the case has not been challenged
on this appeal.

App. 3

of supposed procedural irregularities at trial. Reicin also
requests a remand for a hearing on his motion to quash
the indictment.

Factual Background

Count 9 concerned the claim of Philip Eauslin, a trav-
eling commission salesman, whose automobile was struck
from the rear by a truck on July 5, 1967. A few days after
the accident, Eauslin and his family drove the repaired
automobile to Florida for a previously planned vacation.
While in Florida, Eauslin felt pain in the small of his
back. He had experienced such pain sporadically for some
vears prior to the July Sth accident. As he had origi-
rally intended, Eauslin remained in Florida for two weeks,
during which time he did not seek the services of a doctor.

After returning from vacation, Eauslin mentioned the
accident to his supervisor at his place of employment.
That individual recommended that Eauslin consult the
defendant, whose firm had done some work for the com-
pany. Eauslin did so. In his conversation with Reicin, he
told him about the accident and said that, although he
had some discomfort, he probably had had the same
symptoms before the accident. He also mentioned that
he had just returned from a vacation trip to Florida.
Reicin suggested that he see a doctor: when Eauslin re-
plied that he had no family physician, defendant arranged
for him to see Dr. Becker.*

4 At the time of Reicin’s trial, Dr. Becker, the Government's pri-
mary witness, had been convicted of mail fraud. He had prepared
false medical bills and reports and had sent them to divers attor-
neys so that they could obtain inflated settlements from insurance
companies. Becker was given two years’ probation with the under-
standing that he tell the truth in any further proceedings regarding
the mail fraud cases in which he had participated.

App. 4

Eauslin testified that he visited Dr. Becker’s office only
one time and that the doctor briefly examined Eauslin’s
back but gave him no treatment or medication. He also
sent him to an X-ray clinic.

According to Dr. Becker, after Easulin had come to
his office, defendaut telephoned the doctor and requested
the card on which Becker had listed the number of visits
supposedly made by Eauslin. Reicin had stated that he
wanted the card because there was a subpoena for Beck-
er’s records and defendant wanted to make certain that
the cards ‘‘looked all right.’’ Dr. Becker’s bill for treat-
ment of Eauslin amounted to $185 and falsely indicated
that Eauslin had seen the doctor eleven times. Becker
refunded 25 percent of the bill to the defendant in cash.

Count 9, like Counts 2-8 and 10 and 11, realleged by
reference all the allegations of the first count, which de-
scribed one scheme or artifice to defraud.2 The evidence
adduced at trial established the following course of con-
duct. Dr. Becker had known the defendant since 1961,
and between 1965 and 1969, he handled approximately 83
to 90 cases with Reicin. He testified that he looked to the
defendant for payment of some of the medical bills in-
volved in the indictment. Prior to sending each of the
bills to Reicin, Dr. Becker would receive a letter from
the defendant asking for the bills. After Reicin would
pay the bills, the doctor would kick back 25 percent of
each payment to the defendant. Dr. Becker testified that
each of the bills and medical reports he had prepared
was false and exaggerated and that he had had conversa-
tions with the defendant about their inaccuracy. Reicin
had expressed concern that the fraud might be exposed:

* Prior to trial, the court struck from the indictment allegations
that defendant Reicin had submitted false automobile repair bills to
the various companies and that he had defrauded his clients.

App. 5

‘‘[T here was a lot of heat in the streets’’ and ‘‘[there
were] investigations going on about personal injury
cases.’’

Although Reicin voiced concern about the discrepancy
between the number of visits mentioned on the bills and
the actual number of visits that claimants paid Dr. Becker,
he neither warned the various companies about the mis-
information nor ceased sending clients to Dr. Becker for
examination for insurance claim purposes. Indeed, Becker
testified that in 1965, after Reicin had told the doctor that
he was worried that the medical bills smacked of fraud,
Reicin simply suggested that the manner of his payment
be changed. Previously, Reicin would send Becker 40 to 60
percent of the amount of the bill. Reicin proposed that
he would send the doctor the full amount of the bill by his,
Reicin’s, check and thereafter Becker would refund 25
percent of the amount in cash to Reicin. Apparently be-
cause of the increase of the percentage to the doctor, he
was to pay the resultant income tax based on the full
amount of the bills. Further, Dr. Becker also testified
that the defendant had demanded that certain claimants-
patients be hospitalized.

Former clients of Reicin, claimants, corroborated much
of Becker’s testimony about Reicin’s pattern of behavior
and his knowledge that the reports submitted to the vari-
ous companies contained misrepresentations. For exam-
ple, client Carolyn Lovell stated that she had told Reicin
that if she went to the hospital she might lose her job.
Reicin replied that she was ‘‘working for peanuts any-
how’’ and that she should go to the hospital. He tele-
phoned a Dr. Villate and told him to ‘‘throw Mrs. Lovell
in the hospital.’’ After Reicin gave Mrs. Lovell her settle-
ment, he warned: ‘‘[N]jot a word of this to anyone. If
anything happens, come to me.’’ When claimant Carrara,

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App. 6

after signing the settlement agreement, questioned the
amount of the doctor’s fees, defendant replied that it was
normal for ten or twelve visits. Carrara stated that he
had visited Becker only once or twice. Reicin then re-
sponded that, nevertheless, ‘‘that is what we used in the
settlement.’’

At the close of the Government’s case, the trial court
struck paragraph 10, concerning ‘‘lost time,’’ from Counts
3, 4, 5, 6, and 10. However, the court denied the defen-
dant’s motion for judgment of acquittal on Count 9 or, in
the alternative, that paragraph 10 be stricken in relation
to Count 9.

Sufficiency of the Evidence

Claimed Total Failure of Proof

Reicin first contends that the Government produced no
evidence, direct or indirect, that he was aware that Dr.
Becker’s report and bill on claimant Eauslin were fraudu-
lent. He further maintains, contrary to the district court’s
position in its post-trial memorandum opinicn, that the
evidence pertaining to the counts on which he was acquit-
ted may not be the basis for inferences against him on
Count 9.

Second, Reicin asserts that the Government failed to
prove another clement of the scheme as described in the
indictment, namely, that Becker and the defendant caused
clients, including Eauslin, to absent themselves from em-
ployment to increase their alleged damages. The prosecu-
tor, Reicin declares, recognized the weakness of his case
in this respect and therefore in his closing argument in-
jected the ‘‘new and different [lost time] theory’’ that,
without Eauslin’s knowledge, the defendant and Eauslin’s
employer, Mr. Brill, submitted a letter to the Royal Globe

—-

App. 7

Insurance Company indicating that the claimant had taken
off more time than he in fact had. This supposedly ma-
terial alteration of the indictment assertedly was improper
and its substance unproved.

This assault by defendant on his conviction stems pri-
marily from his aarrow view of a mail fraud charge, a
view which we do not share.

‘*The defendants’ arguments [in this mail fraud
case} as to sufficiency of the evidence on the sub-
stantive counts attack the credibility of witnesses, dis-
regard the fact that guilt can be proven by cireum-
stantial evidence, ... and generally ignore the func-
tion of the jury in criminal trials. Defendants do
not, in their briefs, look at the evidence as a whole,
or in the light most favorable to the Government, but
rather isolate various bits of testimony and argue
that each was insufficient to support the verdicts.
However, the evidence presented concerning the vari-
ous accidents overlaps and cannot be viewed in a
vacuum.’’ United States v. Hutul, 416 F.2d 607, 617
(7th Cir. 1969), cert. denied, 396 U.S. 1012 (1970).

The jury’s acquittal of defendant of ten of the eleven
counts charged does not justify the conclusion, as Reicin
implies, that the jury perceived no overall scheme but
nevertheless irrationally convicted defendant on Count 9.
In finding Reicin guilty on that count, the jury, we are
persuaded, did look at all the evidence, the approach the
Government had adopted at trial. In his closing argu-
ment in particular, the prosecutor had developed the
theme that Reicin and Dr. Becker had devised a successful
formula for defrauding companies in accident cases by
inflating the ‘‘specials’’ and that they had employed this
preconceived plan repeatedly, only varying it slightly
once or twice as the circumstances required. In his analy-
sis of the verdict, the defendant fails to take into account

;

App. 8

the possibility that the jury might have been exercising
‘tits historic power of lenity,’’ United States v. Carbone,
378 F.2d 420, 423 (2d Cir. 1967), cert. denied, 389 U.S.
914. In United States v. Fox, 433 F.2d 1235, 1238 n. 22
(D.C. Cir. 1970), the court pointed out ‘‘the judicially rec-
ognized fact that juries frequently convict on some counts
but aequit on others, not because they are unconvinced
of guilt, but simply because of compassion or compro-
mise.’* ®

Count 1, which each subsequent count of the indictment
realleged, described one scheme or artifice to defraud.
Its separate paragraphs were enumerations of certain il-
lustrative elements or characteristic patterns of the
scheme. (Count 1 and Count 9 are set out in the Appendix
to our opinion.) Count 9 specified one instance of the
perpetration of the continuing plan. Dr. Becker’s testi-
mony, which Reicin does not credit but which the jury

® While we decline to speculate as to the reason the jury selected
the indictment count involving the Eauslin incident for its sole con-
viction, we do note certain significance given to this count in the
final argument of counsel for Reicin:
“Mr. Hoffman, who is a very fine lawyer and does a good job
for the government, he points out to you that the Hernandez
incident put Reicin on notice, that there is something wrong
with Becker’s bills. But he still continued to send clients to
Becker.

“Do you know how many of these cases went to Dr. Becker
after the Hernandez incident, ladies and gentlemen? One.
O-n-e, one, the Eauslin case, where Eauslin came in and he
practically fought with him about whether he had a family
doctor and Reicin said. ‘Go see your family doctor.’ And
eventually Reicin sent Eauslin to Becker. One case involved
here in which Reicin sent a client to Becker after the Her-
nandez incident. as you will see when you examine these pieces

of paper. ”

App. 9

apparently did find persuasive, indicated that the defen-
dant knew that the doctor was regularly falsifying the
bills of Reicin’s accident clients, including those for Eaus-
lin. His protestations notwithstanding, Reicin continued
to refer persons to Becker and to share the monies re-
sulting from that consultation. Reicin’s primary concern
was that the misrepresentations would be discovered.
Becker’s testimony and that of the various clients pro-
vided an adequate basis for the conclusion that Reicin
knew of the misrepresentations, that he and Becker had
developed a unitary scheme and had participated in that
scheme, and that the two had handled the Eauslin claim
in accordance with the established scheme. 5

Although we find no merit to the claim that there was
no continuing, overarching scheme or that Reicin did not
participate knowiagly in it, we do agree that the Govern-
ment’s inability to establish that the defendant and Becker
caused Eauslin to take unnecessary time off from his job
weakened the Government’s case. The issue is whether
the lack of such proof, despite the presence of the other
elements of the scheme as alleged in the indictment,
vitiates the conviction on Count 9.

We hold that it does not. ‘‘[I]n most mail fraud prose-
cutions, there are numerous instances of allegedly illicit
conduct, all of which need not be proved to sustain a con-
viction.’’ Anderson v. United States, 369 F.2d 11, 15 (8th
Cir. 1966). Cf. Martin y. United States, 404 F.2d 640, 643
(10th Cir. 1968). As the district court stated in its post-
trial opinion, ‘‘{a]s in a conspiracy case, it is necessary
to prove at least one but not necessarily each of the specific
acts to sustain each count.’’ This is not a case of a crucial,
substantial, prejudicial variation between indictment and
proof; defendant and Becker handled the Eauslin claim

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App. 10

substantially as they had the other claims, although per-
haps their pecuniary goal was a trifle more modest this
time.

In regard to Reicin’s related contention, that the prose-
cutor in his closing argument substituted a ‘‘different
lost time theory,’’ we place a different construction on
the prosecutor’s remarks. Eauslin did not have an ex-
haustive recollection of his conversations with the defen-
dant or of his work schedule following the accident, but
his testimony was sufficiently definite to permit the prose-
cutor to argue that certain inferences could be drawn
from the seeming discrepancy hetween that testimony and
the Eauslin lost-time exhibits. The Government was not
limited to proving only those details of the scheme al-
leged in the paragraphs of Count 1 but could also draw
additional inferences from the evidence relevant to the
defendant’s criminal intent. The jury heard the somewhat
equivocal evidence on this point and was free to disregard
the prosecutor’s assessment of it. We note that Reicin
did not object to the argument at the time and that the
trial judge instructed the jury that counsel’s comments
were not evidence.

Claimed Partial Failure of Proof

Reicin interprets the charge against him as consisting
of two ‘‘branches’’: (1) the knowing submission to the
Royal Globe Insurance Company of a false medical report
and a false bill for the Eauslin claim, and (2) causing
Eauslin to be absent from his job in order to inflate his
damages. Under this construction of the case, the defen-
dant asserts, in an alternative argument, that if the evi-
dence was sufficient to prove only one ‘‘branch,’’ then
he is at the very least entitled to a new trial. More spe-
cifically, Reicin’s argument is as follows: (a) Count 9

App. 11

was submitted to the jury on alternative grounds (1) and
(2), and the jury was instructed that it could convict
defendant under either ‘‘branch’’;* (b) the Government
failed to adduce suflicient evidence against the defendant,
the inadequacy particularly apparent as to the lost-time
ground; therefore, (c) the general verdict of guilty cannot
stand because the jury may have based its verdict on the
‘‘obviously’’ unproven ground.

While what we have already said on the nature of a
mail fraud case is probably sufficient to dispose of this
secondary argument, we will consider the authorities to
which our attention has been directed by Reicin.

He claims to find support in Stromberg v. California,
283 U.S. 359 (1931), and Luited States v. Baranski, 484
F.2d 556 (7th Cir. 1973). However, those cases involved
a special statutory problem not present here. In each ease,
there was a basis for helief that the convictions could
have rested on statutory sections or clauses which the
respective reviewing courts held to be constitutionally in-

7 The instruction to which Reicin refers (No. 39) provided:

“A scheme to defraud under the Mail Fraud statute means
some plan to procure money or property by means of false
pretenses or representations calculated to deceive persons of
ordinary prudence. It is not necessary, however, that any in-
surance company was actually defrauded by the scheme. Nor
is it necessary that the Government prove every one of the
pretenses, representations and acts charged in the indictment.
The Government must prove that defendant knowingly partic-
ipated in such plan, and that such representations were made by
him, or his agents, knowing they were false, and with intent to
defraud.”

Defendant finds the next-to-last sentence of this instruction im-
proper. He had unsuccessfully opposed the giving of the instruc-
tion at trial.

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App. 12

valid. Because the trial courts had instructed the juries
that they could convict on the basis of any one of the
several statutory bases involved and the juries had re-
turned general verdicts, the grounds for the convictions
were unclear; the juries might have convicted under the
parts of the statutes which infringed First Amendment
rights. In the case at bar, there is no danger that the
defendant might have been found guilty for having en-
gaged in conduct that the Government cannot constitution-
ally prohibit. Further, the challenged portion of this in-
dictment was merely an illustrative aspect of an overall
scheme and did not constitute per se a separate offense
or separate legal theory.

The defendant also relies on United States v. Groves,
122 F.2d 87 (2d Cir. 1941), cert denied, 341 U.S. 670,
which he characterizes as the ‘‘closest [case] on the facts.’’
In Groves, supra at 89, the court stated that ‘‘[e]ach
count of the indictment set forth three separate frauds,
alleged to have been practiced on G.I.C. pursuant to the
scheme.’’ The court affirmed the conviction of one of the
two appellants, but reversed and remanded the case against
the second appellant. It ruled that there had been no
evidence of that defendant’s participation in the second
and third frauds. Furthermore, the court disapproved
of the use against the defendant of certain ‘‘extremely
prejudicial’? hearsay testimony, upon which, the court
noted, the jury might have based its finding of guilt.

We do not find Groves persuasive here. If it stands for
the broad proposition that each act constituting a part
or detail of the scheme charged in a mail fraud indict-
ment, but not essential to the existence of the scheme,
must be proved or the entire prosecution fails, then we
reject that viewpoint. Whatever the factual situation in

App. 13

Groves, the present case consists not of a series of dis-
connected swindles or of frauds that may have had merely
a common actor or stage but of a continuing, unitary
scheme wherein each participant generally adhered to a
certain course of conduct in regard to the various victims.
Cf. United States v. Sheehan, 428 F.2d 67 (8th Cir. 1970),
cert. denied, 400 U.S. 853; Bliss v. United States, 354 F.2d
456 (8th Cir. 1966), cert. denied, 384 U.S. 963. In sum, we
do not share Reicin’s interpretation of the prosecution’s
case. The Government argued to the jury that Reicin and
Becker had concocted one basic scheme; what Reicin labels
as ‘‘alternative theories’’ are specifications of the par-
ticipants’ fundamental modus operandi, which they modi-
fied somewhat as circumstances warranted.

Notwithstanding defendant’s argument to which we have
adverted, Reicin agrees in his brief ‘‘that it was not nec-
essary for the Government to prove each of the various
fraudulent acts alleged in the indictment.’’

Our conclusion is not changed by the fact that the trial
judge declined to strike Paragraph 10 from Count 9,
which paragraph was incorporated by reference from
Count 1 and which dealt with that part of the general
scheme whereby the allegedly injured person absented
himeslf from his place of employment. The trial judge
did strike this reference-incorporated paragraph from five
other counts. Because it was not necessary for the Gov-

ernment to prove each of the fraudulent acts constitut- .

ing the scheme to defraud, the striking of the paragraph
from some of the counts was an unnecessary action, be-
ing nothing more than a judicial comment on factual proof
and has no other significance in this particular case. We
will not assume that the jury based a verdict on non-
existent proof, if, as defendant contends, there was no

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App. 14

proof; rather, we conclude that the jury did decide that
there was sufficient evidentiary proof that the defendant
and Dr. Becker had engaged in a scheme to defraud. We
cannot say that the jury was incorrect in its decision.

Alleged Trial Errors '
The Doctors’ Testimony

Reicin maintains that the trial judge committed preju-
dicial error (1) by refusing to strike Dr. Becker’s ‘‘fabri-
cated direct testimony about ¢éonversations with defen-
dant,’’ and (2) by refusing to allow Dr. Gerald Atlas, whom
defendant wished to call as an expert witness, to testify.

As to each of the counts in which the client involved was
hospitalized, Dr. Becker testified to conversations he had
had with defendant Reicin wherein Reicin advised him ‘to
hospitalize the client. The defendant contends that cross-
examination of Dr. Becker revealed that, in each instance,
either the doctor had no present recollection of the par-

ticular conversation and his files contained no notes con-

cerning such conversation or that, where Becker did have
pertinent notes, he simply relied ca what was stated in
those notes without having any present recollection at all.
In both kinds of situations, Dr. Becker assertedly fabricat-
ed or, at least, embellished a substantial part of the sup-
posed conversations he had had with Reicin.

The notes on which Dr. Becker relied at trial had been

' admitted into evidence as business records and as past

recollection recorded. Reicin claims that ‘‘[a]lthough the
notes remained admissible . . ., the oral testimony should
have been stricken. . . . [T]here was no evidentiary basis

for (Dr. Becker’s] testimony.’’

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App. 15

The defendant relies heavily on Dr. Becker’s responses
to questions on cross-examination about his recollection
of particular conversations with Reicin. The exchanges
between defense counsel and Dr. Becker are ambiguous.
It is not clear that the witness understood counsel’s ques-

tions about his ‘‘actual recollection’’ ‘‘as you sit there ,

now.’’ He rather clearly did not have recollection of many
of the incidents independently of his recorded memoranda,
but, after looking at these memoranda, he did testify as
to the incidents. Because of the combination of ‘‘past
recollection’’ and ‘‘recollection refreshed,’’ the trial judge
would not have been justified in striking Dr. Becker’s
testimony. See generally C. McCormick, Evivence, ch. 30
(2d ed. 1972). It was appropriate for the jury to determine
Dr. Becker’s credibility and the weight to be given to his
testimony, which pertained to a few of several thousand
patients he had seen several years before. Although it
seems unlikely that Dr. Becker would have had an inde-
pendent recollection, doctors customarily depend upon
notes made during patient contacts for the purpose of
refreshing their recollections concerning the patient. From
hearing and observing the witness, the jury could decide
whether he was fabricating or whether he was testifying
with recollection refreshed.

Dr. Becker’s testimony on direct examination that in
his medical opinion none of the patients had required
hospitalization and that he would not have hospitalized
them absent Reicin’s requests undoubtedly helped the
Government’s case. The defendant wished to counteract
this deleterious evidence through the expert testimony of
Dr. Gerald Atlas, to whom the defendant had shown the
hospital records of each hospitalized claimant. In an offer
of proof, counsel indicated that Dr. Atlas would have

App. 16

stated, if he had been allowed to testify, that, based upon
a reasonable degree of medical certainty, he would have
hospitalized those persons if they had been his patients.
This counter testimony, Reicin argues, would have (1)
impeached Dr. Becker’s credibility, (2) undermined the
basis for an inference of fraud upon the companies in-
volved, and (3) circumstantially shown Reicin’s good faith.

The trial court had refused to permit Dr. Atlas to testi-
fy on the ground that the proposed testimony was irrele-
vant. We, too, conclude that this supposed ‘‘rebuttal’’
testimony went to collateral matters. The district court
exercised its discretion properly.

his case is not a personal injury action. The primary
question at trial was whether Reicin had knowingly par-
ticipated in a scheme to misrepresent information to and
defraud insurance and other companies through use of
the mail. Consequently, the schemers’ intent at the time
they acted was crucial. Dr. Becker testified that but for
Reicin’s insistence he would not have hospitalized certain
of the clients. The record does not show that Reicin, a
lawyer, was competent to contradict Dr. Becker’s judg-
ment on medical grounds. Nor was there evidence that
the defendant consulted other doctors on the question of
hospitalization. Yet Reicin insisted on hospitalization. His
intent to defraud does not turn on whether some of the
clients ‘‘actually’’ needed such treatment; it is enough that
the defendant thought at the time that they did not or
that he made the decision to hospitalize for the purpose
of making a better case without regard to whether there
was need therefor. ‘‘One who acts with reckless indif-
ference as to whether a representation is true or false is
chargeable as if he had knowledge of its falsity.’’ Irwin
v. United States, 338 F.2d 770, 774 (9th Cir. 1964), cert.
denied, 381 U.S. 911 (1965).

App. 17

Further, the success of a scheme to defraud, that is,
whether the victim lost money because of it, is not a pre-
requisite to a conviction for mail fraud. United States v.
George, 477 F.2d 508 (7th Cir. 1973), cert. denied, 414
U.S. 827; Blachly v. United States, 380 F.2d 665, 672-73
(5th Cir. 1967).

In sum, Dr. Atlas’s proposed testimony would not serve
to negate the existence of this part of the scheme. The
existence of the scheme is the relevant proof requirement.
Cf. United States v. Joyce, ........ | eee , Nos. 73-1014,
73-1015, 73-1016 (7th Cir., May 9, 1974), slip op. at 18.

The Prosecutor’s Closing Argument

The defendant next asserts that he was denied a fair
trial because the prosecutor during closing argument sup-
posedly (1) commented, albeit indirectly, on Reicin’s fail-
ure to take the stand, (2) accused a witness of perjury
and Reicin of suborning that perjury, and (3) inflamed
the jury against the defendant.

We have examined the prosecutor’s closing argument,
paying particular attention to those passages to which
the defendant has cited us. Final arguments in this case,
occupying in excess of 150 pages of the transcript, can
scarcely be labeled as laconic. The particular phrases
which the defendant now attacks as being comments on
the defendant’s failure to take the witness stand were
typified by: ‘‘Reicin says, through other witnesses, . . .’’
and ‘‘for some reason that only Reicin knows. ...’’ While
the first of these was used on several occasions and per-
haps is an inartful locution for a prosecutor who should
not only refrain from commenting on the failure of a
defendant to take the witness stand but should guard
against the appearance of doing so, nevertheless, in the

Rae ED

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App. 18

context of the extensive argument in this case we do not
read in these introductory remarks the illative meaning
that the defendant finds.

The first phrase was used in reference to that to which
the defendant’s witnesses testified, and the second phrase
taken in context referred to defendant’s intent in effecting
a change of modus operandi. We cannot say from the
record that the ‘‘language used was manifestly intended
to be or was of such a character that the jury would
naturally and necessarily take it to be comment on the
defendant’s failure to testify.’’ United States v. Lyon, 397
F.2d 505, 509 (7th Cir. 1968), cert. denied, 393 U.S. 846.

Further, not only did the trial court instruct the jury
on the matter, but Reicin’s counsel in his final argument
said, ‘‘You will also be told that you must not and you
may not discuss or consider the fact that the defendant
did not testify in this case.’’ The fact that he did not
testify was no secret. Impropriety would only arise from
the suggestion that the failure somehow should be con-
strued against the defendant.

Finally, as in Lyon, there was no objection to the use
of these statements. We are not unmindful of the dis-
advantages of interrupting opposing counsel’s argument,
but we are of the opinion that if the claimed transgression
was so egregious as to constitute plain error it well should
have, and probably would have, triggered an interruptive
objection.

The prosecutor’s remarks about perjury related to the
testimony of defense witness Philip Wertz, an attorney
employed by the defendant’s firm from 1966 to 1968.
Wertz’s account of certain aspects of the Hernandez trans-

a

App. 19

action differed from that of Government witness Thomas
Fahey, an insurance adjuster. In summarizing Wertz’s
testimony, the prosecutor stated:

‘Now I haven’t the slighest idea, but I have got
a good imagination and maybe I] can conjure some-
thing up in my mind to that effect—but nonetheless,
I don’t really know what inducements Reicin could
have used to prevail upon Wertz to engage in that
incredible state of perjury.’’

The prosecutor continued :

‘‘But today, for fear that maybe some future em-
ployer might not believe him, he has got to go back
and do for you in front of you today Mr. Reicin’s
bidding, and that bidding, unfortunately, includes and
encompasses what I consider to be some pretty severe
perjury.

‘‘Let’s take another example about Mr. Wertz, a
man who I really feel sorry for because I am sure
until he had to appear in this courtroom he was a
relatively clean individual.’’

While it may be playing with words and while, despite
the native intelligence of jurors, they might have difficulty
in distinguishing between a forthright statement in argu-
ment that a witness has committed perjury and an as-
sertion such as the one made by Reicin’s counsel, ‘‘ Now
I am not saying these people are guilty of deliberate
perjury,’’ nevertheless, the courts have viewed the direct
accusation of the crime of perjury with considerable dis-
favor. See, e.g., Weathers v. United States, 117 F.2d 585
(5th Cir. 1941).

Again, however, we do-not look at the statement in a
vacuum but in the context of the particular trial. We
have already adverted to the extensive nature of the
final argument. We do not mean to suggest that a three-

App. 20

week trial would have called for a shortened summation,
but we do find some significance in the relationship of the
size of the craft to the body of the water it occupies.
Secondly, on the first reference to perjury there was no
objection but the prosecutor continued reviewing the ques-
tioned testimony. Three pages later in the transcript
we find the second use of the word ‘‘perjury.’’ Again
there was no objection, and it was not until the end of
the last paragraph quoted above that there was an objec-
tion. Even then the primary thrust of the objection was
that the prosecutor had misstated the testimony. The
trial judge responded that the jury would have to decide
what the facts were. Again, counsel referred to the mis-
statement and finally said, ‘‘He is also accusing Mr. Wertz
of perjury just because he doesn’t agree with Mr. Fahey.”’’
After further reference by the court to the jury determin-
ing the facts, defense counsel stated, ‘‘I do object to the
prosecutor misstating the testimony.’’ There was neither
a motion to admonish nor a motion for a mistrial. Further,
there was no objection to the intimation that defendant
had suborned perjury. In its instructions, the court did
advise the jury that ‘‘arguments of counsel are not evi-
dence.’’

From the record it is clear that Reicin’s counsel com-
petently, effectively, and vigorously represented him. Yet
he now seeks to have us reverse the judgment of conviction
on a basis that he barely recognized during the course of
the trial.

We have little difficulty in discerning the probable cause
of the minimal nature of the objection. The closing argu-
ments had few anacreontic attributes. In less formal terms,
the arguments of both counsel were free-swinging and
hard-hitting. In the final argument of defense counsel,

o-

App. 21

we note the following references to the verity of Govern-
ment witnesses:

‘*We agree that Dr. Becker was engaged in a scheme,
a fraud. We agree that Dr. Becker is a liar, a cheat,
a charlatan. . . . Because Dr. Becker hasn’t got the
slightest—not the slightest concern for the truth... .
Dr. Becker himself, the great witness, the govern-
ment’s puppet... . Now Dr. Becker, he is paying
his debt to the government. ... Now I am not saying
these people [witnesses other than Dr. Becker] are
guilty of deliberate perjury. ... That man came into
this court and took that stand with one purpose in
mind, to hurt Ed Reicin. . . . I will tell you I don’t
believe Becker. Becker deliberately pretended actual
recollection of an event that never happened, never
happened, to hurt Ed Reicin, for the government.

. Another deliberate lie—this is a little thing, but
it goes to show you the nature of the man you are
dealing with. ... Now Fahey says he didn’t tell about
that. And I find that hard to believe. ...’’

In addition, while not directly accusing the Government
of suborning perjury, defense counsel made several refer-
ences to the method in which the investigating agents
called in Reicin’s clients and to false statements clients
had signed by the time they had left the governmental of-
fices.

We decline under the circumstances here involved to
find that the two references to perjury are sufficient to
mandate a reversal.

Finally, the defendant complains that by the following
comments during rebuttal the prosecutor overstepped the
permissible bounds of advocacy:

“Once we are talking about the fraud and who
pays for it, don’t go back into the jury room and
feel that the victims are the insurance companies,
because I assure you, whatever the insurance com-

App. 22

panies pay out, they get right back again through
premiums from you, from me and from anybody else
who has to pay for automobile insurance and for the
risks that you take under that particular premium.
And one of the risks that I don’t want to have to take
and that any driver who has to pay automobile premi-
ums wouldn’t want to take, are the risks of fraud that
people like Mr. Reicin perpetrate against the insurance
companies that you and I have to pay for. That is
one point,

‘‘The type of law that Mr. Reicin was practicing
during 1965, during 1966, ’67 and 68, you have got
a chance to stop today. Because if anybody else is
doing it, if you tell they can’t do it as loudly ard
as thoroughly as you can eleven times over, ladies
and gentlemen, somehow it is going to stop.’’
After this last comment, counsel objected ‘‘to this line of
argument.’’ The court sustained the objection and de-
clared that it would ‘‘instruct [the jury] to follow the
law ... and decide the case solely upon the evidence that
they have heard here in open court.’’ As we have men-
tioned hereinbefore, the court did so instruct the jury.

The courts generally and properly disapprove of ap-
peals to jurors’ pecuniary interests. United States v. Tru
tenko, 490 F.2d 678 (7th Cir. 1973). However, such re-
marks, although improper, do not necessarily constitute
reversible error. They must be considered in the context
of the entire trial. Cf. Epperson v. United States, 490 F.2d
98 (7th Cir. 1973); United States v. Mendansky, 486 F.2d
807, 815 (7th Cir. 1973) ; cert. denied, ........ SS estieass (1974).
Similarly, prosecutorial comment about the salutary ef-
fect on society of a particular conviction must be evalu-
ated in light of the entire closing argument and of the
trial as a whole. What we have said heretofore about the
nature of the argument, of course, is applicable here.

ed EME LOE DEED

App. 23

Also, the court sustained the defendant’s objection and
included a cautionary instruction in its charge. More sig-
nificantly, ‘‘inflamed passions’’ and the abandonment of
reasoned scrutiny rather obviously do not explain the
jury’s verdict. Indeed, Reicin in another portion of his
brief implicitly concedes this: ‘‘. . . the meager evidence
introduced by the government, . . . evidenced by the fact
that the jury acquitted on 10 of 11 counts... .’?

We hold therefore that the prosecutor’s argument does
not require reversal.

The Refusal to Quash the Indictment

Prior to irial, Reicin moved to quash the indictment on
the grounds that (1) the Government had ‘‘systematically
abused the grand jury process,’’ and (2) the indictment
was hased almost entirely on hearsay evidence. The court
denied this motion and subsequent motions based on these
grounds. Reicin claims that the district court abused its
discretion in so ruling and that it, at least, should have
granted him a hearing on the motions.

Although arguably the procedure utilized might harbor
a potential for abuse, we find no inherent prejudice to a
defendant where Government agents interview witnesses
who have been subpoenaed by the grand jury. And, after
examining the pertient portions of the record in the
present case, we conclude that the district judge acted
properly and within the scope of his discretion in refusing
to quash the indictment or to arrest judgment, drastic
remedies. Further, the materials submited with the vari-
ous motions were not sufficient to require the judge to hold
a hearing.

|

RS Se EN bes

Se ep way.

~ CRIED. Mtn + 20.4

App. 24

We do not understand that merely because persons have
been subpoenaed by the grand jury the Government should
be barred from continuing with its investigation and from
conducting interviews with those prospective witnesses. In
the present case, all but two of the witnesses so interviewed
did testify at the trial. Their credibility was subject to
examination by the trial jury. Any claimed governmental
coercion was also subject to being brought out before the
trial jury.

As to the related hearsay contention, United States v.
Holmes, 452 F.2d 249, 274 (7th Cir. 1971), cert. denied,
405 U.S. 1016 (1972), and United States v. Daddano, 432
F.2d 1119, 1125 (7th Cir. 1970), cert. denied, 402 U.S. 905
(1971), establish the governing rule in the Seventh Cir-
cuit. We decline Reicin’s suggestion that we overrule
these precedents,

Other points raised by the defendant upon this appeal
are ancillary to those discussed herein. Finding no basis
for reversal, we affirm the judgment of conviction.

AFFIRMED.

Appenpix To Tue Covurt’s Opinion
The JUNE 1970 GRAND JURY charges:

1. That beginning in or about January 1965, and con-
tinuing to on or about date of the filing of this indictment,
at Chicago, in the Northern District of Illinois, Eastern
Division, and in divers other places to the Grand Jury
unknown,

EDWARD E. REICIN

defendant herein, and WILLIAM BECKER, not a defen-
dant herein, devised and intended to devise a scheme and
artifice to defraud and to obtain money and property by
means of false and fraudulent pretenses, representations

© AL MAPOS OO LEE SAI

App. 25

and promises from insurance firms, companies, associa-
tions and corporations, including but not limited to: Aetna
Insurance Cempany, Allstate Insurance Company, Chi-
cago Transit Authority, The Hanover Insurance Group,
Horace Mann Insurance Group, Inter-Insurance Exchange
of the Chicago Motor Club, National Emblem Insurance
Company, Northwestern Security Insurance Company,
Royal Globe Insurance Company and Unigard Insurance
Company and various persons who were clients of said
defendant EDWARD E. REICIN, an attorney, well know-
ing at the time that the pretenses, representations, and
promises would be and were false when made; and which
said scheme and artifice to defraud so devised and intended
to be devised by the said defendant was in substance as
follows:

2. It was part of the said scheme and artifice to de-
fraud that WILLIAM BECKER, a duly licensed physi-
cian authorized to practice medicine in the State of Illi-
nois, would and did examine persons involved in automo-
bile accidents within the State of Illinois.

3. It was a further part of the said scheme and artifice
to defraud that the defendant, EDWARD E. REICIN,
duly licensed attorney authorized to practice law in the
State of Illinois would and did represent persons involved
in automobile accidents within the State of Illinois.

4. It was a further part of the said scheme and artifice
to defraud that the defendant would and did prepare and
cause to be prepared medical bills and accident reports,
which bills and reports contained false and fraudulent
pretenses and representations,

5. It was a further part of the said scheme and artifice
to defraud that the defendant, EDWARD E. REICIN,

App. 26

would and did cause his clients to be sent to WILLIAM
BECKER, after the clients had been involved in accidents.

6. It was a further part of the said scheme and artifice
to defraud that WILLIAM BECKER would and did
cause to be furnished to defendant EDWARD E. REICIN,
medica] bills and reports for the said clients of the defen-
dant, EDWARD E. REICIN, and said medical bills and
reports contained false and fraudulent pretenses and rep-
resentations, in that said bills were rendered in amounts
far in excess of the amounts actually due and owing, said
reports were rendered reflecting nonexistent injuries and
damages.

7. It was a further part of the said scheme and artifice
to defraud that the defendant EDWARD E. REICIN
would and did send and cause to be sent to the said in-
surance firms, companies, associations and corporations
the said medical bills of WILLIAM BECKER and acci-
dent reports, knowing that the said medical bills and acci-
dent reports contained false and fraudulent pretenses and
representations.

8. It was a further part of the said scheme and artifice
to defraud that the defendant EDWARD E. REICIN
would and did deduct the full amounts of the excessive
and fraudulently inflated medical bills from the settlements
to his various clients.

9. It was a further part of the said scheme and artifice
to defraud that the defendant EDWARD E. REICIN
would and did divide between himself and WILLIAM
BECKER the amounts of the excessive and fraudulently
inflated medical bills deducted from the settlements due
his various clients.

App. 27

10. It was a further part of the said scheme and artifice
to defraud that the defendant EDWARD E. REICIN
and WILLIAM BECKER would and did cause clients of
EDWARD E. REICIN to absent themselves from employ-
ment to increase their alleged damages.

11: It was a further part of the said scheme and artifice
to defraud that the defendant EDWARD E. REICIN
would and did engage various individuals, whose names
are unknown to the Grand Jury, to refer accident victims
to him.

12. It was a further part of the said scheme and artifice
to defraud that the deféndant, EDWARD E. REICIN
would and did cause clients to obtain automobile repair
estimates which estimates were excessively and fraudu-
lently inflated.

13. It wasa further part of the said scheme and artifice
to defraud that the defendant, EDWARD E. REICIN:

would and did send and cause to be sent to the said in-
surance firms, companies, associations and corporations
the said excessively and fraudulently inflated automobile
repair estimates knowing that the said automobile re-
pair estimates contained false and fraudulent pretenses
and representations.

14.
COUNT Ix

1. The June 1970 GRAND JURY realleges all of the
allegations of the First Count of this indictment except
those contained in paragraph 14 thereof.

Tee iia

Be APR SAO RNA as. age ea aN gS AS

= = —
| cc — ee Ree ee
*
7
%

App. 28

2. The June 1970 GRAND JURY further charges that
vn or about September 25, 1967, at Chicago, in the North-
ern District of Illinois, Eastern ‘Division, the defendant
EDWARD E. REICIN, for the purpose of‘ executing the
aforesaid scheme and artifice to defraud and attempting
to do so, did knowingly cause to be delivered by the Post
Office Department of the United States, according to the
directions thereon, a letter addressed to:

Royal Globe Insurance

175 West Jackson Boulevard

Chicago, Illinois

Attention: Mr. Raymond J. Muselon

in violation of Title 18, United States Code, Section 1341.

A true Copy:

Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit.

App. 29

GOVERNMENT CLOSING ARGUMENT REGARDING
COUNT 9

Phillip Eauslin, He is the restaurant supply salesman.
fife is the man who went to FYorida a hait' a week atter the
accident and took a dunk in the pool. He enjoyed himself
for two weeks. He drove to Florida in the same car that
had been in the accident and he drove back with his wife
and kids from Florida in the same car that had been in
the accident. While he was in Florida for two weeks he
doesn’t go to a doctor. He didn’t have to go to a doctor
because the pain he had went away. He said he had pain
but it went away. And when he comes back he talks to his
boss, a Mr. David Brill. And Brill says, ‘Go see Mr.
Reicin.’’ And he goes to see Reicin and Reicin says, ‘‘Go
see Dr. Becker.’’ Now in that one visit there is no conver-
sation with Mr. Reicin about taking time off from work
except for the two weeks he had already been in Florida,
and there are no conversations with Mr. Eauslin and Mr.
Reicin that he is going to take off additional time. So
what does Reicin do? He writes a letter and requests from
Mr. Brill, Eauslin’s employer, a time-lost statement, and
he gets one for four weeks. And Eauslin testified that he
didn’t take off four weeks. He took off two wecks and a
couple of days sometime during the next two weeks, but
he didn’t take off no four weeks.

And this Mr. Brill is the person who recommended Mr.
Eauslin to Mr. Reicin in the first place, and was the same
person who had been a lawyer for Mr. Brill hefore. Reicin
and Brill’s relationship goes back, way back, before Eaus-
lin and Reicin’s relationship,

Mr. Eauslin’s testimony o> the subject matter of the
time-lost statement, Governr ent’s Exhibit 1-4. (Read-

ing :)

App. 30

‘*Q. Now, sir, I am going to hand you what has
been marked as Government Exhibit I-4.’’ I said that
to him.

‘‘Have you ever seen that document before other
than here today in this courtroom or in my office?

A. No.

Q. To whom is that document addressed?

A. Mr. Reicin.

Q. Do you recognize the signature at the bottom
of that letter?

A. Yes,

Q. Have you ever seen that signature before?

A. I am sure I have.

Q. Whose signature do you recognize that to be,
assuming you recognize it to be anybody’s?

A. David Brill’s.

Q. Now, did you ever tell Mr. Brill about a docu-
ment such as I-4?

A. Did I ever tell him?

Q. Yes. Did you tell him to prepare it?

A. No.

Q. Did you ever discuss it with Mr. Brill at any
time?

A. No.

Q. Did you obtain it from him?

A. No.

Q. Did you request it?

A. No.”

So what does he do this time? He changes the operation
a little bit and goes right to Mr. Brill—I’m talking about
Reicin now—and gets from Mr. Brill himself a phony
time-lost statement on behalf of Mr. Eauslin. And, again,
he accomplishes the overall purpose. Again he blows the
special damages out of the legal legitimate proportion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0536%3A2. Public record. Not legal advice.