United States v. Rhea Lucky Nichols and Michael Ford, A/K/A L.D. Haufer

695 F.2d 86, 1982 U.S. App. LEXIS 23078, 12 Fed. R. Serv. 367
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 23, 1982
Docket81-1423
StatusPublished
Cited by31 cases

This text of 695 F.2d 86 (United States v. Rhea Lucky Nichols and Michael Ford, A/K/A L.D. Haufer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rhea Lucky Nichols and Michael Ford, A/K/A L.D. Haufer, 695 F.2d 86, 1982 U.S. App. LEXIS 23078, 12 Fed. R. Serv. 367 (5th Cir. 1982).

Opinions

GOLDBERG, Circuit Judge:

This is an appeal by two coeonspirators from their convictions for fourteen counts of mail fraud, 18 U.S.C. § 1341 (1976), and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371 (1976). We now affirm these convictions.

I. INTRODUCTION

A. The Facts of the Fraudulent Falling Fan

In April and May of 1978, the defendants conspired to stage a fake accident at Banana’s Cafe in Dallas. Appellant Michael Ford, working under the assumed name of L.D. Haufer, and codefendant Mike Merritt orchestrated the scheme. Codefendant Carl Keenan, a bartender at the cafe, was the inside man; codefendant Tom Davis was to be an injured customer. Appellant Rhea Lucky Nichols, a medical doctor, was to handle the medical aspects and codefendant John Fisher, an attorney, was to handle the legal aspects.

The genesis of the scheme was in April 1978, when Ford noticed that the ceiling fans at the cafe wobbled when turned on. Over the next few weeks Ford, Merritt, Keenan, and Davis discussed the possibility of staging an accident involving a ceiling fan. Early on the morning of May 23,1978, Keenan unlocked the cafe and Ford, Merritt, and Davis entered. They removed one of the fans and stashed it away unobtrusively. The four then left the cafe. A few minutes before the cafe opened for business, Keenan again admitted Ford, Merritt, and Davis. They sat at a table underneath the mounting fixture of the now-detached ceiling fan, and Keenan served them drinks. At an opportune moment, when that room of the cafe was deserted, Ford retrieved the detached fan and slammed it down on the table where they were sitting. Davis and Merritt lay on the floor, as if in pain. To add authenticity, Ford hit Davis in the back to make a bruise and cut his coat with a pocket knife. Keenan called a waitress, who called an ambulance. Davis was taken to a hospital emergency room and Merritt followed in his car. Both were treated and released.

The next morning Merritt, Davis, Ford, and Fisher met at Merritt’s auto garage (Davis was Merritt’s employee). Ford called Dr. Nichols, arranged an appointment, and verified the symptoms Davis was to allege. Davis saw Dr. Nichols and was given a series of X-rays and heat or sonic treatment. Davis returned to Dr. Nichols two or three more times.

The clinic records for Davis’ visits were unusual. They were in Nichols’ handwriting and showed thirty-five visits, contrary to Davis’ testimony that he went to the clinic at most four times. The patient chart Nichols made also showed several prescriptions for Darvon, though the clinic’s “Darvon Book,” which was a record of all Darvon prescriptions dispensed, showed only one. Finally, the records and billing were all segregated from the clinic’s usual billing procedures.

Following his medical treatment, Davis, with the aid of Ford, Fisher, and Merritt, filed a claim against the cafe’s insurance carrier. When the carrier contested the claim, Davis filed suit. It was in the prosecution of this claim that Davis’ insurance carrier and its attorneys mailed the fraudulent documents that were the basis of the mail fraud charges. Apparently, during the pendency of this suit, Keenan and Davis were caught in an unrelated fraud scheme. They cooperated with the government, led the postal inspectors to this scheme, and the inspectors moved in.

B. Proceedings Below

Merritt escaped and was at large at the time of trial. Keenan and Davis pleaded guilty and testified for the government. Fisher’s case was severed so he could undergo an examination to determine his competency to stand trial; he later pleaded guilty [89]*89to conspiracy. Appellants Ford and Nichols were tried before a jury and convicted. Nichols was sentenced to concurrent terms of three years on all fifteen counts. Ford was sentenced to consecutive terms of five years on the first eight mail fraud counts and concurrent terms of five years on the remaining seven counts, for a total sentence of forty years. Nichols and Ford now appeal.

C. Arguments on Appeal

Nichols was convicted in large measure due to the hearsay testimony of his coconspirators. Such testimony is admissible under Fed.R.Evid. 801(d)(2)(E), following the procedures set out in United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Nichols argues that the trial court’s James proceedings were defective and that the coconspirators’ statements should not have been admitted. Without these statements, Nichols claims, there was not sufficient evidence to support a conviction. Nichols further complains that his motion for a separate trial was improperly denied. Finally, Nichols argues the trial court should have declared a mistrial when a witness improperly referred to an earlier indictment of Nichols.

Ford argues that his forty-year sentence constitutes cruel and unusual punishment, that the trial court’s James proceedings were defective, and that there was not sufficient evidence to support his conviction.

II. NICHOLS’ CLAIMS

A. James Error

A conspiracy charge is a favorite weapon in the prosecutor’s arsenal. Among its other attributes, it allows the introduction of otherwise inadmissible testimony. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). In the truthseeking process the courts have generally eschewed hearsay testimony, Fed.R.Evid. 802, however, a statement is not considered to be hearsay if it “is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Thus, in a trial against A for mail fraud, the testimony of B that “C told me A would commit mail fraud” is normally inadmissible. In a trial for conspiracy to commit mail fraud by A and C, however, the statement would be admissible.

The crime of conspiracy being a potent weapon, the caliber of its ammunition must be carefully gauged, and courts have devised procedures to prevent misfires in the admission of coconspirator’s statements. Before the statement can be admitted, it must somehow be established that: (1) there is a conspiracy; (2) the statement was made during the course and in furtherance of the conspiracy; and (3) the defendant and declarant were members of the conspiracy. United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S.

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Bluebook (online)
695 F.2d 86, 1982 U.S. App. LEXIS 23078, 12 Fed. R. Serv. 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rhea-lucky-nichols-and-michael-ford-aka-ld-haufer-ca5-1982.