United States v. Pincus

450 F. Supp. 66, 1978 U.S. Dist. LEXIS 19066
CourtDistrict Court, W.D. Pennsylvania
DecidedMarch 14, 1978
DocketCrim. No. 77-201
StatusPublished
Cited by4 cases

This text of 450 F. Supp. 66 (United States v. Pincus) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pincus, 450 F. Supp. 66, 1978 U.S. Dist. LEXIS 19066 (W.D. Pa. 1978).

Opinion

OPINION

MARSH, District Judge.

The defendant, Jack H. Pincus, M.D., has been named in an indictment charging him with one count of conspiracy in violation of [67]*6718 U.S.C. § 371 and with seventeen counts of mail fraud in violation of 18 U.S.C. § 1341. Dr. Pincus has moved to suppress certain evidence seized by federal agents during a search of his office at the Professional Complex, 3940 Northern Pike, Monroeville, on November 12, 1976, pursuant to a search warrant. Defendant asserts that the warrant was issued without sufficient probable cause, that the affidavit supporting the warrant contained material misrepresentations of fact, and that the affidavit contained no indicium of the reliability or credibility of the statements therein. It is also asserted that the agents unlawfully seized records and documents which were not within the scope of the warrant.

The search warrant, which issued upon an affidavit by Postal Inspector Barry E. Trainor, sought medical records maintained by Dr. Pincus in connection with his treatment of certain named individuals during designated time periods.1 Inspector Trainor’s affidavit states that he had been investigating the preparation of false medical reports and invoices by Dr. Pincus as part of schemes to defraud various insurance companies. Trainor had also investigated the involvement of Louis C. Boscia in securing false medical reports from various physicians in connection with the submission of false personal injury claims to various insurance companies. Boscia was convicted in this court at Criminal Nos. 75-04 and 76-124 on charges of conspiracy to defraud and of using the mails in furtherance of schemes to defraud insurance companies through the presentation of false medical reports and bills.2 Paragraph 5 of Inspector Trainor’s affidavit states: •

“Evidence introduced at the trials of Louis C. Boscia at Criminal Nos. 75-04 and 76-124 and testimony at said trials established that since 1972 Louis C. Boscia has been well-known to Jack H. Pincus, M.D. Evidence further established that Boscia was the central figure in schemes devised and executed to defraud insurance companies through the presentation of false medical reports and bills and that Jack H. Pincus, M.D., provided medical reports and bills for treatment alleged to have been performed for claimants who, it was established, had sustained no injuries in any automobile accidents.”

Defendant claims that Paragraph 5 contains affirmative misrepresentations of material facts which require the court to invalidate the search warrant. The records of Criminal Nos. 75-04 and 76-124, however, support the accuracy of the statements in the affidavit. Specifically, in Criminal No. 76-124, the evidence included a medical bill prepared by Dr. Pincus purporting to reflect his treatment of Robert Plusquellec. This bill had been submitted by Plusquellec to an insurance company as part of his claim for injuries sustained in an automobile accident on November 25, 1973 (No. 76-124; Government Ex. 9-B). At trial, it was proved by substantial evidence that neither Plusquellec nor any of the other claimants had suffered injuries as a result of that accident which in fact had been staged under the direction of Louis C. Boscia. Another claimant, Paul Scolieri, who had participated in the same staged accident, submitted to the insurance company a bill from Dr. Pincus for treatment in connection with the November 25, 1973 accident and a medical report from Dr. Pincus which diagnosed Scolieri’s injuries as mouth and teeth damage, cervical sprain and lower [68]*68lumbar strain, and which estimated Scolieri’s total disability time as more than three months (No. 76-124; Government Exs. 8-A and 8-B).

Criminal No. 75-04 also focused on false insurance claims submitted following a staged automobile accident. In that trial, Herbert L. Lurie, Esquire, testified that Dr. Pincus had submitted medical bills purporting to show his treatment of three participants in an automobile accident staged in 1972. The testimony revealed that Dr. Pincus’s bills had been delivered to the attorney’s office by Louis Boscia and that the checks for Dr. Pincus had been given to Boscia for delivery to the doctor. Thus, the court finds no misstatement of any material facts in the affidavit, and defendant’s misrepresentation argument must be denied.

Defendant argues that the magistrate had no means to judge the reliability or credibility of the hearsay evidence contained in the affidavit by Inspector Trainor. In particular, Paragraph 1 states that bills prepared by Dr. Pincus on November 21, 1974, in connection with insurance claims for an automobile accident on August 1, 1973, listed 22 office visits for Robert Bahl and 43 office visits for Linda Bahl, but that Robert Bahl had stated that he had seen the doctor only five times and that Linda Bahl had provided information that she had seen the doctor only four times. In Paragraph 9, the affidavit states that Dr. Pincus submitted bills in support of personal injury claims showing $420 due for 29 office visits by David Tolbert, $260 due for 23 office visits by his wife, Carol Tolbert, and $70 due for four visits by his son, David Tolbert, Jr. Paragraph 9 also states that, according to information provided by David Tolbert, Dr. Pincus actually saw the Tolberts on only one occasion at which time he provided no professional services.

The fact that Inspector Trainor has named his sources for this information in itself is not sufficient ground on which to presume credibility, but it is one factor which may be weighed in determining the sufficiency of the affidavit. United States v. Spach, 518 F.2d 866, 870 (7th Cir. 1975). Another factor which weighs significantly is that these informants were patients of Dr. Pincus and were the very people who supposedly received the medical treatment which was the basis for the bills submitted to various insurance companies in support of personal injury claims. Furthermore, in stating that false bills were submitted to insurance companies on their behalf, these named informants appear to be admitting their own participation in criminal activity. As Chief Justice Burger recognized in United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971), “[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.”

Against this background, the specific facts alleged in the affidavit concerning Anthony Capizzi, Colette DiGiosio, Linda Alberti, Ross Orgera and Eugene Altieri support a finding of probable cause that the defendant’s records would constitute evidence of the crime of mail fraud.

In the two instances where informants are not actually named, they are sufficiently identified (i. e., employees of Dr. Pincus; attorney for Ernest A. Stevens, IV) in a manner which revealed that the relationship between the informants and the information they provided was a relationship from which Inspector Trainor could make a determination of credibility and reliability.

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450 F. Supp. 66, 1978 U.S. Dist. LEXIS 19066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pincus-pawd-1978.