IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50143
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE T. BOYD,
WALLACE B. BRUCKER
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(M0-95-CR-28)
_________________________________________________________________
March 27, 1997
Before REAVLEY, KING, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Joe T. Boyd and Wallace B. Brucker challenge their
convictions and sentences for mail fraud and conspiracy to commit
mail fraud under 18 U.S.C. §§ 371, 1341. Finding no reversible
error, we affirm.
I. BACKGROUND
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Boyd and Brucker were both involved with the operations of
Med-America Diagnostics, Inc. (“Med-America”), in Midland, Texas.
Boyd owned Med-America. Both Boyd and Brucker performed medical
activities, such as examining, making diagnoses, and requesting
tests on patients, at Med-America. Neither was a licensed
physician.
Boyd and Brucker participated in a scheme at Med-America to
solicit patients for physician services, require numerous
unnecessary and costly tests, and bill the patients’ insurance
provider for the costs. In order to induce payment from Medicare
and private insurance providers, Boyd and Brucker caused the
claim forms to reflect that the medical tests and procedures had
been conducted by or ordered by, or in some instances referred
for testing by, a licensed medical doctor. The names of licensed
doctors were used without the permission or knowledge of those
doctors.
Boyd and Brucker were indicted for their activities in
connection with Med-America on May 10, 1995. Boyd was charged
with one count of conspiracy to use the mails for the purpose of
effecting a fraud under 18 U.S.C. §§ 371 and 1341 and nine counts
of fraud accomplished through use of the mails under 18 U.S.C. §§
1341 and 1342. Brucker was likewise charged with one count of
conspiracy to use the mails to effect a fraud, but was only
charged with two counts of actual fraud through use of the mails.
2
On November 7, 1995, a jury found Boyd and Brucker guilty on
all of the indicted charges. The district court sentenced Boyd
to concurrent sixty-month terms of imprisonment. Additionally,
the court ordered a three-year term of supervised release to
follow his imprisonment, as well as monetary restitution.
Brucker was sentenced to a five-month prison term and a two-year
period of supervised release, with five-months of this period to
be served under electronic monitoring/home confinement
conditions. The court also ordered Brucker to make monetary
restitution.
Thereafter, Boyd and Brucker appealed to this court.
Although Boyd and Brucker advance separate, individualized
arguments on appeal, they essentially raise the same four
issues1: (1) whether the evidence was sufficient for their
convictions; (2) whether the district court erred in admitting
the deposition of a deceased witness, Dr. E.T. Driscoll, over
objections that defendants were being denied their constitutional
right to confront the witness; (3) whether the district court
erred in denying Boyd’s motion for severance of a co-defendant,
thereby violating defendants’ right to confront the co-defendant;
1
Brucker does not per se make all four arguments in his
brief before the court, but instead concludes his brief with the
following, “Appellant Brucker hereby incorporates, by reference,
and adopts all of the propositions and law contained in appellant
Boyd’s brief previously filed herein.”
3
and (4) whether the district court properly calculated
defendants’ sentences.
II. DISCUSSION
A. Sufficiency of the Evidence
This court reviews challenges to the sufficiency of the
evidence in a criminal case to determine whether a reasonable
trier of fact could have found that the evidence established
guilt beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Pedroza, 78 F.3d 179, 182
(5th Cir. 1996). We consider all the evidence and all reasonable
inferences drawn from it in the light most favorable to the
jury’s verdict. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Johnson, 87 F.3d 133, 136 (5th Cir.
1996).
To prove a conspiracy under 18 U.S.C. § 371 the government
must prove, beyond a reasonable doubt, (1) that two or more
people agreed to pursue an unlawful objective together, (2) that
the defendants voluntarily agreed to join the conspiracy, and (3)
that one conspirator performed an overt act to further the
conspiracy’s objective. See United States v. Parekh, 926 F.2d
402, 406 (5th Cir. 1991). A conviction under 18 U.S.C. § 1341
for mail fraud requires the government to “show that the
defendant[s] (1) used a scheme to defraud, (2) which involved a
use of the mails, (3) and that the mails were used for the
4
purpose of executing the scheme.” See United States v. Nguyen,
28 F.3d 477, 481 (5th Cir. 1994).
1. Boyd’s Convictions
Even if the court assumes, for the sake of argument, that
Dr. Driscoll’s deposition was erroneously admitted, the remaining
trial record still shows that Boyd participated in the conspiracy
to commit mail fraud. Trial testimony overwhelmingly showed that
Boyd joined with other participants from Med-America to effect
the prearranged scheme and that he took action in many instances
to execute the scheme. See United States v. Parekh, 964 F.2d
437, 449 (5th Cir. 1992) (noting that the government may prove
the existence of a conspiracy through circumstantial evidence).
Boyd does not argue that his participation in the scheme was
involuntary or that the scheme did not invoke the use of the
mails.
The nine mail fraud counts against Boyd alleged that he took
part in the mailing of billing records that fraudulently
represented to coverage providers2 that Dr. Driscoll or another
doctor, Dr. Larry Sands, was the referring physician for medical
procedures. To prove a violation of 18 U.S.C. §§ 1341 and 1342,
the government was required to show that Boyd had specific intent
2
The indictments specifically alleged that Sentry Life
Insurance Company, Medicare Part B, and Blue Cross and Blue
Shield of Texas, Inc., were the recipients of the fraudulent
documents.
5
to defraud in his activities connected to the billings and
demonstrate that Boyd intended for harm to result from his
deceit. See United States v. Jimenez, 77 F.3d 95, 97 (5th Cir.
1996).
The trial testimony of Med-America employees and patients
was sufficient to establish Boyd’s participation in the
fraudulent billings.3 In addition, Dr. Sands’s own testimony
showed that he did not refer the patients on whose record his
name appeared, and in fact he noted that he had never seen the
patients whose experiences were the basis for the five counts
that specifically alleged the fraudulent representations using
his name. Furthermore, assuming arguendo that Dr. Driscoll’s
deposition statement was inadmissible, sufficient evidence from
Med-America’s employees and Driscoll’s purported patients at Med-
America, nevertheless, supported the conviction for the
fraudulent representation of Driscoll’s name on the remaining
four counts. The testimony also reflected the fact that Boyd
specifically intended for pecuniary harm to result from his
3
The testimony sufficiently established that Boyd gave the
permission to his billing clerks for the use of Dr. Driscoll and
Dr. Sands’s names on the billings. The Executive Director of
Med-American testified, in particular, that Boyd was active in
the billing process. The Executive Director further noted that
Boyd had represented to him that Dr. Driscoll was Med-America’s
Chief of Staff and that the decision to use Dr. Sands’s name was
made by Boyd.
6
deceit. Thus, all of the counts against Boyd had sufficient
evidentiary support.
2. Brucker’s Convictions
Evidence of Brucker’s practice of ordering testing on the
insured patients he examined, without consultation with Dr.
Driscoll or Dr. Sands, is sufficient to support his participation
in the conspiracy. See United States v. Leahy, 82 F.3d 624, 633
(5th Cir. 1996) (“Once the government has established an illegal
conspiracy, it need only introduce ‘slight evidence’ to connect
an individual defendant to the common scheme”).
Brucker was charged with only two counts of mail fraud. The
record contains sufficient evidence to support the jury’s
determination on both counts.
B. Admission of Driscoll’s Deposition
Boyd and Brucker argue that it was harmful error on the part
of the district court to admit the deposition of Dr. Driscoll.
Boyd and Brucker claim that the district court violated their
Sixth Amendment right to confront an adverse witness when it
admitted the deposition.
Dr. Driscoll’s deposition had been taken by an attorney with
the Texas Attorney General’s office in 1990 in connection with a
civil suit the state was pursuing against Med-America at that
time. Dr. Driscoll died in the period between the time of the
giving of the deposition and the trial of the case below.
7
We review the district court’s decision to admit testimony
of this kind for abuse of discretion. See United States v.
Tannehill, 49 F.3d 1049, 1057 (5th Cir. 1995). Our review
includes harmless-error analysis. See Delaware v. Van Arsdall,
475 U.S. 673, 680-682 (1986); United States v. Stewart, 93 F.3d
189, 194 (5th Cir. 1996).
Assuming, arguendo, that it was error for the district court
to admit Dr. Driscoll’s deposition, we, nevertheless, find that
such error was harmless as to both Boyd and Brucker. Other
evidence overwhelmingly showed that Boyd had committed mail fraud
and was involved in a conspiracy. The district court’s
instruction to the jury not to consider the deposition as
evidence against Brucker,4 in addition to other trial evidence
that sufficiently exhibited his participation in the activities
that were the basis for the counts against him, was sufficient to
prevent harmful error to Brucker with the admission of the
deposition. Thus, the deposition, within the purview of all the
evidence, did not have “a ‘substantial impact’ on the jury’s
verdict” in either Boyd or Brucker’s case. See United States v.
Evans, 950 F.2d 187, 191 (5th Cir. 1991) (holding that
inadmissible evidence is only harmful if it has a ‘substantial
impact’ on the jury’s verdict).
4
Brucker, although initially named in the prior civil suit,
was never served and was not part of the judgment in the case.
8
C. Severance of Co-defendant’s Case
Boyd argues5 that the district court erred in denying his
“Motion to Quash, Motion to Suppress and Motion to Severance”
with regard to his co-defendant, Richard W. Bratcher. Boyd
claims that the failure to sever Bratcher’s case, in conjunction
with Bratcher’s unavailability to testify, denied his Sixth
Amendment right to compulsory process and confrontation.
The district court is under the obligation to grant a
severance “only if there is serious risk that joint trial would
compromise a specific trial right of a properly joined defendant
or prevent the jury from making a reliable judgment about guilt
or innocence.” See Zafiro v. United States, 506 U.S. 534, 539
(1993). “[W]here joinder is proper in the first instance, we
will review only for abuse of discretion.” See United States v.
Krenning, 93 F.3d 1257, 1266 (5th Cir. 1996). “In conspiracy
cases, the general rule is that persons indicted together should
be tried together.” See United States v. Fields, 72 F.3d 1200,
1215 (5th Cir. 1996). We hold that it was not abuse of
discretion for the district court to deny Boyd’s motion for
severance. See, e.g., United States v. Krenning, 93 F.3d at
1266-67 (holding that it was not abuse of discretion for the
district court to deny severance where the indictment did not
5
Brucker adopts Boyd’s argument by reference.
9
allege multiple conspiracies, but rather a single scheme with
multiple purposes).
Furthermore, any error as to Boyd and Brucker was not
harmful. Bratcher was effectively severed from Boyd’s case,6 and
did not present evidence against Boyd since he did not testify at
trial. Boyd’s real complaint is that he did not have Bratcher’s
testimony to counter the injurious statements given by Bratcher’s
patients. Even if Bratcher had been available, however, Boyd
could not have forced him to testify in violation of Bratcher’s
Fifth Amendment right against self-incrimination. See Holsen v.
United States, 392 F.2d 292, 293 (5th Cir. 1968). The patients’
testimony was properly admissible over any hearsay objections as
statements made by co-conspirator Bratcher in furtherance of the
conspiracy. See FED. R. EVID. 801(d)(2)(E); Bourjaily v. United
States, 483 U.S. 171, 182 (1987).
D. Calculation of Sentences7
6
The government pronounced Bratcher incompetent to stand
trial, and noted he would not be a witness, prior to the
commencement of the trial below.
7
The upward departure issue has been abandoned. Boyd’s
brief has only one sentence about it, and Brucker has simply
adopted Boyd’s brief. We address that issue only in the
alternative.
10
Boyd argues8 that the district court erred in using a
monetary amount that reflected all of Med-America’s billings and
insurance receivables in calculating his sentence and in finding
that Med-America’s activities targeted vulnerable or aged people.
A sentencing decision requires information with “sufficient
indicia of reliability to support its probable accuracy.” See
United States v. Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). The
information can be any relevant evidence, without regard to
admissibility under the rules of evidence, including the
government’s presentence report. See id. at 966. Despite Boyd
and Brucker’s objections, the district court judge was within his
province to rely on the government proffered evidence to
establish the monetary amount and the targeting of vulnerable and
aged people in an upward departure because the evidence possessed
the requisite “indicia of reliability.” See United States v.
Ismoila, 100 F.3d 380, 394-96 (5th Cir. 1996) (reviewing
sentencing court’s factual determinations for clear error, and
holding that monetary loss determinations in a wire fraud scheme
can be based on intended loss).
III. CONCLUSION
8
Brucker appears to adopt Boyd’s argument by reference,
although Brucker successfully objected to the monetary amount
used to calculate his sentence, and the court subsequently held
Brucker accountable for only the amounts associated with patients
he had seen. Brucker did not further object to the amounts
attributed to him after he had received this adjustment.
11
Boyd’s appeal is ORDERED submitted on the briefs.
We AFFIRM Boyd’s and Brucker’s convictions and sentences.
12