United States v. Samuel Duncan, Jr., Grace Duncan, Gay Nell Duncan, Marshall Sutton, Angela F. Turner, Arthur D. Wilson, and Oscar L. Wilson

919 F.2d 981
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 16, 1991
Docket89-4849
StatusPublished
Cited by165 cases

This text of 919 F.2d 981 (United States v. Samuel Duncan, Jr., Grace Duncan, Gay Nell Duncan, Marshall Sutton, Angela F. Turner, Arthur D. Wilson, and Oscar L. Wilson) 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. Samuel Duncan, Jr., Grace Duncan, Gay Nell Duncan, Marshall Sutton, Angela F. Turner, Arthur D. Wilson, and Oscar L. Wilson, 919 F.2d 981 (5th Cir. 1991).

Opinion

DUHÉ, Circuit Judge.

The defendants raise a litany of issues to challenge their convictions for mail fraud and conspiracy. They contend that the district court improperly denied their motion for change of venue and erred in fourteen different evidentiary rulings. They also argue that the court erred by denying their motion for mistrial based on a comment by the judge and by refusing their proposed jury instructions. Finally, they assert that the evidence adduced at trial was insufficient to sustain their convictions and that the court imposed excessive sentences. We find no error and affirm the judgment of the district court.

FACTS

The defendants participated in a scheme to defraud insurance companies. Over a period of several years, each, defendant purchased numerous hospitalization policies. Each policy provided that the insured would receive a predetermined sum of money for each day spent in the hospital, regardless of other coverage.

The indictment charged that on many occasions, the defendants sought admission *985 to hospitals after reporting accidents that never occurred or after staging accidents. According to several witnesses, the defendants participated in planned collisions in which a driver, carrying a carload of conspirators, intentionally swerved out of his lane and careened into another car.

The evidence indicated that Samuel Duncan and Grace Duncan, husband and wife, were the ringleaders of the conspiracy. Each was hospitalized over twenty times and collected over $300,000 in insurance proceeds. Mr. Duncan’s sister Gay Nell, another defendant, entered the hospital three times within a seven-month period and collected over $50,000. The insurance companies mailed the Duncans checks for these amounts.

The other four defendants were close friends and relatives of the Duncans. Each of the four was hospitalized between ten and nineteen times during a five-year period and each collected over $75,000. These defendants also received payments by mail.

The government indicted the seven defendants for mail fraud and conspiracy. After a two-week trial, the jury found all seven defendants guilty.

DISCUSSION

Denial of Intradistrict Transfer

The defendants first argue that the district court erred in denying their motion for change of venue from Monroe to Alexandria. They assert that this intradistrict change of venue was required because of their residence and because of unfavorable pretrial publicity in Monroe. Specifically, they claim that a fair trial was impossible because of a barrage of publicity generated by the earlier trial of different defendants for the same offenses. We disagree.

The sixth amendment requires that a criminal trial be held in the district in which the alleged crime occurred. In re Chesson, 897 F.2d 156, 158 (5th Cir.1990). These defendants, therefore, had a constitutional right to trial in the Western District of Louisiana; however, they had “no constitutional right to trial in a particular division within that district.” Id. (citing United States v. Dickie, 775 F.2d 607, 610 (5th Cir.1985); Franklin v. United States, 384 F.2d 377, 378 (5th Cir.1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968)).

An intradistrict transfer is not required absent a strong showing of prejudice. United States v. Dickie, 775 F.2d 607, 609 (5th Cir.1985); United States v. Malmay, 671 F.2d 869, 876 (5th Cir.1982). The defendants provide no evidence of extensive pretrial publicity other than unsubstantiated assertions in their brief. Furthermore, they have failed to show that any publicity was inflammatory and that it resulted in pervasive community prejudice. Absent such a showing, we have no reason to believe that the district judge abused his discretion in denying the defendants’ request for an intradistrict transfer. See United States v. Parker, 877 F.2d 327, 330 (5th Cir.), cert. denied, —U.S.-, 110 S.Ct. 199, 107 L.Ed.2d 153 (1989).

Evidentiary Rulings

The defendants contend that the district court erred in fourteen different evidentia-ry rulings. Common to all these challenges is the abuse-of-discretion standard with which we review rulings on the admission of evidence. See United States v. Hutson, 821 F.2d 1015, 1019 (5th Cir.1987); United States v. Acosta, 763 F.2d 671, 693 (5th Cir.), cert. denied sub nom. Weempe v. United States, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985). The defendants’ complaints on evidentiary rulings can be grouped into four general categories.

1. Admission of Records

The defendants first claim that the court erred in admitting into evidence the records of insurance companies. They challenge the admissibility of these records on a variety of grounds, arguing that (1) they were not sufficiently authenticated under rule 901; 1 (2) they are not proper *986 business records under rule 803(6); 2 and (3) they were made by a person without personal knowledge in violation of rule 602. 3

Representatives of insurance companies came to court and authenticated the records. The prosecutor clearly established the prerequisites for admitting the records under the business records exception. 4 But the defendants argue that the insurance company records contained other unauthenticated medical records and statements by doctors. They contend that these medical records and statements are hearsay not falling within the business records exception of rule 803(6).

We reject this argument. The insurance companies compiled their records from the business records of hospitals. Because the medical records from which the insurance company records were made were, themselves business records, there was no accumulation of inadmissible hearsay. See Hutson, 821 F.2d at 1019.

There is no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to its accuracy. United States v. Iredia, 866 F.2d 114, 119-20 (5th Cir.), cert. denied,-U.S.-, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989); Theriot v. Bay Drilling Corp., 783 F.2d 527, 533 (5th Cir.1986). Furthermore, there is no requirement that the records be created by the business having custody of them. Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319 (5th Cir. Unit A 1981); United States v. Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir.1979), ce rt. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980).

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Bluebook (online)
919 F.2d 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-samuel-duncan-jr-grace-duncan-gay-nell-duncan-ca5-1991.