United States v. Boyce

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 9, 1996
• Docket: 95-60517
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60517

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES O. BOYCE and MARGARET BOYCE,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Mississippi (1:94-CR-23) October 7, 1996

Before SMITH and PARKER, Circuit Judges, and JUSTICE*, District Judge.

PER CURIAM:**

Appellants James Boyce and Margaret Boyce challenge their

convictions for wire fraud and conspiracy to commit wire fraud. We

* District Judge of the Eastern District of Texas, sitting by designation. ** Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 affirm.

FACTS AND PROCEEDINGS

James Boyce and his wife Margaret Boyce owned and operated a

clinic where people seriously ill with diseases such as cancer,

AIDS and multiple sclerosis were given treatments that were not

approved by the Food and Drug Administration (FDA) for those

illnesses. The patients paid for their treatments by wire

transferring money into the Boyces’ bank accounts prior to

receiving treatments. The Government characterizes the treatments

as bizarre and dangerous. The defendants term the treatments

experimental, alternative and “unapproved.”

The Boyces were indicted for conspiracy to commit wire fraud

and for 24 counts of wire fraud. The district court granted a

motion for judgment of acquittal on 16 of the wire fraud counts at

the close of the government case. James Boyce was convicted of the

conspiracy count and eight wire fraud counts. He was sentenced to

60 months in prison and ordered to pay $112,243.85 in restitution.

Margaret Boyce was convicted of the conspiracy count and one wire

fraud count. The jury deadlocked on the remaining wire fraud

counts as to Margaret Boyce, and the district court ordered a

mistrial on those counts. The district court departed downward and

sentenced Margaret Boyce to two years probation and $8,800 in

restitution.

DISCUSSION

2 Both Appellants claim that the evidence is insufficient to

support their convictions. A review of the record reveals evidence

sufficient to allow the jury to infer that Margaret Boyce knew

enough about the clinic to satisfy the mens rea requirement of the

conspiracy charge and that the use of interstate wire communication

was foreseeable to her. See Pereira v. United States, 347 U.S. 1,

8-9, 74 S. Ct. 358, 98 L. Ed. 435 (1954). Likewise, the evidence

was sufficient for the jury to infer that James Boyce knew that his

claimed cures were false and fraudulent. United States v. Keller,

14 F.3d 1051, 1056 (5th Cir. 1994).

Margaret Boyce complains that the district court abused its

discretion in denying her mid-trial motion for severance.

Requests for severance under Rule 14 must be raised prior to trial.

FED. R. CRIM. P. 12(b)(5). “Failure by a party to . . . make

requests which must be made prior to trial . . . shall constitute

waiver thereof, but the court for cause shown may grant relief from

the waiver.” FED. R. CRIM. P. 12(f). Margaret Boyce did not

establish in the district court or on appeal that her failure to

timely move for severance should be excused. See United States v.

Tolliver, 61 F.3d 1189, 1198-99 (5th Cir. 1995), cert. denied, 116

S. Ct. 1445 (1996).

James Boyce contends that the district court erred in denying

his motion for a video deposition or a continuance due to the

illness of his expert, Dr. Carpendale. Because the jury heard

3 testimony covering essentially the same ground about which Dr.

Carpendale was expected to testify -- the alleged benefits and

scientific bases of ozone treatment -- from credentialed witnesses,

he was not materially prejudiced by the district court’s denial of

his requests. Therefore, the district court did not abuse its

discretion in denying James Boyce’s motion for deposition or

continuance. See United States v. Scott, 48 F.3d 1389, 1394 (5th

Cir.), cert. denied, 116 S. Ct. 264, 133 L. Ed. 2d 187 (1995).

Finally, we find no abuse of discretion in the district

court’s denial of James Boyce’s motion for mistrial due to the

media coverage of the trial. The district court questioned and

admonished the jury on both occasions when James Boyce brought the

media coverage to his attention. The district court’s collective

inquiry to the jury, to which no juror responded, followed by no

further requests for remedy by James Boyce, was within the range of

responses which the district court had the discretion to employ.

See United States v. Aragon, 962 F.2d 439, 443 (5th Cir. 1992).

For the foregoing reasons, we affirm the convictions of James

Boyce and Margaret Boyce.

AFFIRMED.