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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III

Clerk
No. 04-30086

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID DOTSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
David Dotson (Dotson) appeals his convictions for mail fraud
and obstruction of justice stemming from claims he made for
disability benefits. We affirm the convictions.
Facts and Proceedings Below

On April 5, 2001, Dotson reported a back injury to his
employer, the New Orleans Police Department. He told a
representative of the City's worker's compensation administrator
that he incurred the injury as a result of falling from a fence
while chasing a suspect in the course of his job as a police
officer. Based on a doctor's certification that he was unable to
return to work in any capacity, he was classified as "temporarily
totally disabled" and began receiving the maximum worker's
compensation benefits allowed by state law, as well as the balance
of his salary from the police department. On April 23, 2001,
Dotson reported additional injuries to his shoulder and chest,
incurred two days earlier as he chased suspects attempting to steal
a car from in front of his house. In addition to being eligible
for worker's compensation benefits through the police department,
Dotson had purchased a supplemental disability policy in 1997 from
the Police and Firemen's Insurance Association (PFIA). He filed
claims with PFIA for the above injuries in July of 2001, and began
receiving monthly benefit checks from PFIA in addition to the
worker's compensation benefits.
During the time Dotson received disability benefits, he also
worked part-time as a night security guard at a local grocery
store. He did not inform either the worker's compensation
administrator or PFIA of this work. According to the
contemporaneous notes and later testimony of the administrator's
representative, she specifically asked Dotson during a conversation
2

in October of 2001 whether he had been able to do any other work,
and he replied that he had not. When Dotson filed his claims with
the PFIA, he signed blank forms which were later filled in by the
local agent using information obtained from the agent's interview
of Dotson. The claim forms Dotson signed include a notation that
"[t]otal disability implies absolute physical incapacity to perform
duties or work of any kind, resulting from sickness or injuries."
One of the questions on the claim form asks whether the claimant is
"still disabled and unable to work at any job."
In late October of 2001, Dotson's job at the grocery store was
terminated after the store's owner was contacted by FBI agents
investigating Dotson for possible fraud of the worker's
compensation system. In mid-November of 2001, FBI agents informed
the store's owner that a check for over $5,000 from Dotson to the
owner had been deposited in one of the owner's accounts earlier
that month.1 Dotson and his attorney met with an FBI agent and an
Assistant United States Attorney (AUSA) in late November of 2001.
At that time, Dotson presented the AUSA with a copy of a letter
from Dotson dated May 1, 2001 and addressed to the commander of the
police department's Administrative Duty Division (ADD). In the
letter Dotson informs the commander that he would be working at the
grocery store while out injured. Copies of the letter were
1The check included the notation "Loan Repayment + Phone." The owner
subsequently returned the money to Dotson, after subtracting for an unpaid mobile
phone bill.
3

subsequently found in Dotson's file at the ADD and in his personnel
file kept by his precinct.
In December of 2002 a federal grand jury issued a 20-count
indictment against Dotson. Counts 1 through 15 of the indictment
were for mail fraud, under 18 U.S.C. 1341, of the City of New
Orleans, Counts 16 through 18 were for mail fraud of PFIA, and
Counts 19 and 20 were for obstruction of justice. One obstruction
count alleged that Dotson had planted the letter he presented to
the AUSA into the police department's files, and that he had not
given the letter to the police commander. The other obstruction
count alleged that Dotson's check to the grocery store owner in
November 2001 was an attempt to influence a witness.
The case was tried before a jury in September of 2003. In
addition to testimony from personnel of PFIA and the worker's
compensation administrator that the insurers had not been told of
Dotson's other employment, the government offered testimony from
police department personnel that the letter from Dotson found in
his files was not properly logged and hole-punched. The goverment
further offered testimony from an ex-girlfriend of Dotson's who
said Dotson told her he planted the letter in one of the files, and
from the grocery store owner, who said he did not have any loans
outstanding to Dotson at the time the store received a check from
Dotson in early November. There was also evidence that Dotson had
increased the benefit level of his PFIA policy in February of 2001,
and that he had asked the grocery store in early April of 2001 to
4

remove him from the payroll and instead pay him in cash.2 Dotson
presented testimony from a fellow officer that he had run into
Dotson at the precinct station in May of 2001 and that Dotson had
shown him the letter that was later found in Dotson's personnel and
ADD files. Dotson's counsel also elicited testimony indicating
that the police department's document logging and filing procedures
were not always precisely followed by department personnel. With
respect to the PFIA benefits, Dotson submitted evidence that the
PFIA policy issued to him defined disability in terms of "your
job," in apparent contradiction to the language on the claim form.
At the close of the government's evidence and again at the
close of all the evidence the defendant moved for a judgment of
acquittal on the PFIA mail fraud counts. The defendant argued that
disability insurance policies are required under Louisiana law to
consider a claimant "totally disabled" as long as he cannot perform
his former job, whether or not he can perform some other job.
Therefore, according to the defendant, he was entitled to
disability benefits despite working at the grocery store, and
cannot have defrauded PFIA by not disclosing that job. The
district court denied the motion without prejudice to its being
renewed after trial depending on the verdict. The jury found
Dotson guilty on all counts, but the defendant submitted no further
motions or briefing on the PFIA counts. On January 21, 2004 the
2Dotson had originally been paid by the store in cash, but had been put on
the payroll in early 2001 at his request.
5

district court sentenced Dotson to 21 months' imprisonment for each
count, to be served concurrently, a special assessment of $2,000,
and restitution of the $11,252 he had received from the City of New
Orleans and the $5,280 he had received from PFIA.
Discussion
On the same theory raised in his motions for acquittal, Dotson
argues that the evidence presented at trial was insufficient to
convict him on Counts 1618 involving defrauding PFIA. In the
event that his conviction on Counts 1618 is vacated, Dotson
further argues that he should receive a new trial on the remaining
counts because of prejudicial "spillover" to these counts of
evidence and accusations involving the vacated counts. In addition
to disputing these arguments on their merits, the government argues
that Dotson has waived his assertion of error on Counts 1618.
I.
Standard of Review
Because Dotson properly renewed his motion for judgment of
acquittal at the close of all the evidence, we apply the usual
standard of review to Dotson's challenge to the sufficiency of the
evidence on Counts 1618. See United States v. Robles-Pantoja, 887
F.2d 1250, 1254 (5th Cir. 1989). In other words, we view the
evidence and inferences therefrom in the light most favorable to
the jury's verdict, and hold the evidence is sufficient if a
rational jury could have found the defendant guilty beyond a
6

reasonable doubt. Id.; United States v. Moser, 123 F.3d 813, 819
(5th Cir. 1997).
II.
Waiver
The government argues that Dotson waived his challenge to his
conviction on Counts 1618 by failing to (1) brief the issue before
trial as provided in the court's pretrial order, and (2) renew the
motion and provide additional briefing after the jury's verdict.
The only case the government cites in support of waiver by failing
to brief an issue before trial involves failure to move for
suppression of evidence before trial. United States v. Chavez-
Valencia, 116 F.3d 127, 12933 (5th Cir. 1997). Motions to
suppress evidence must be made pretrial, however, according to Rule
12(b)(3) of the Federal Rules of Criminal Procedure, and untimely
12(b)(3) motions are waived unless the court grants relief from the
waiver. FED. R. CRIM. PROC. 12(b)(3)(C), 12(e).3 No argument has
been made that a challenge such as Dotson's is in a category
requiring it to be raised pretrial. Furthermore, even if raising
the issue pretrial were required, and even if failure to raise the
3Relevant portions of Rule 12 provide:
"(b) Pretrial Motions.
. . . .
(3) Motions That Must Be Made Before Trial. The following must be
raised before trial:
. . . .
(C) a motion to suppress evidence;
. . . .
(e) Waiver of a Defense, Objection, or Request. A party waives any Rule
12(b)(3) defense, objection, or request not raised by the deadline the
court sets under Rule 12(c) or by any extension the court provides. For
good cause, the court may grant relief from the waiver."
FED. R. CRIM. PROC. 12.
7

issue resulted in waiver as it does for 12(b)(3) motions,4 the
court can grant relief from such a waiver. The district court's
denial of the motion without prejudice and statements that it would
entertain post-trial briefing on the issue indicate that the court
did not consider the issue waived.
With regard to Dotson's failure to renew the motion or provide
briefing after the trial, the government cites no authority finding
a forfeiture or waiver on these grounds. On the other hand, the
Ninth Circuit has held that declining to provide additional
briefing requested by the trial court did not constitute a waiver
when the issue had been argued before the court. Bothell v. Phase
Metrics, Inc., 299 F.3d 1120, 1130 (9th Cir. 2002). By moving for
judgment of acquittal after the government's evidence and again
after all of the evidence, Dotson not only met the requirements of
this circuit for preserving his argument of insufficiency of the
evidence, see Robles-Pantoja, 887 F.2d at 1254, but also made the
district court aware of his argument. Dotson has therefore
adequately preserved his challenge to the sufficiency of evidence
on Counts 1618.
III. Sufficiency of Evidence on Counts 1618
In his motion for judgment of acquittal, Dotson cited Gonzales
v. Prudential Insurance Co. of America, 901 F.2d 446, 450 (5th Cir.
4As noted in Chavez-Valencia, failure to claim a right at trial ordinarily
results in forfeiture rather than waiver, where forfeited issues can be raised
on appeal under a plain error standard. Chavez-Valencia, 116 F.3d at 130.
8

1990), which discusses the "well-settled rule[] of Louisiana
insurance law" that "[r]egardless how the policy itself may define
`total disability,' . . . the term means the inability of the
insured to do substantially all of the material acts necessary to
the prosecution of his business or occupation in his usual and
customary manner." As described in Gonzales, an insurer therefore
may not withhold disability benefits solely on the basis of a
claimant's working at a different occupation. Id. Later in the
year that Gonzales was decided, the Louisiana legislature enacted
La. Rev. Stat. 22:230 concerning the definition of "total
disability" in disability policies issued in the state. This
section codifies a rule similar to that described in Gonzales,
except that under the statute a claimant could be denied benefits
for working at a job with "substantially the same earning capacity"
as his former job, while under the previous rule he would have to
be working at the same job. LA. REV. STAT. 22:230(C).5
Dotson argues that whether the rule described in Gonzales or
that of section 230 is applied, Louisiana law made Dotson eligible
for the PFIA benefits despite his work at the grocery store.
Specifically, he argues that because the government did not
5Section 230(C) provides:
"A general definition of total disability in such a policy shall not be
more restrictive than one requiring the individual to be totally disabled
from engaging in any employment or occupation for which he is, or becomes,
qualified by reason of education, training, or experience and which
provides him with substantially the same earning capacity as his former
earning capacity prior to the start of the disability."
LA. REV. STAT. 22:230(C).
9

establish that Dotson was able to work either at his original job
or at a job having substantially the same earning capacity, his
work at the grocery store did not disqualify him for benefits.
Because he was entitled to the benefits, Dotson claims that he
could not have defrauded PFIA, even if he had intended to, because
his scheme carried out as intended would not have resulted in
fraud.6 In other words, Dotson argues that it was a "pure legal
impossibility" for him to have defrauded the PFIA by receiving
benefits while working at the grocery store, because the legal
impossibility was one which occurs "when the actions which the
defendant performs or sets in motion, even if fully carried out as
he desires, would not constitute a crime." United States v.
Farner, 251 F.3d 510, 513 (5th Cir. 2001).
To prove mail fraud under 18 U.S.C. 13417 in this circuit,
the government must show "(1) a scheme to defraud; (2) use of the
mails to execute that scheme; and (3) the specific intent to
6 Dotson does not challenge the sufficiency of the evidence on counts 16-
18 on any other basis.
7Section 1341 provides in pertinent part:
"Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises, . . . for the purpose
of executing such scheme or artifice or attempting so to do, places in any
post office or authorized depository for mail matter, any matter or thing
whatever to be sent or delivered by the Postal Service, or deposits or
causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or takes or
receives therefrom, any such matter or thing, or knowingly causes to be
delivered by mail or such carrier according to the direction thereon, or
at the place at which it is directed to be delivered by the person to whom
it is addressed, any such matter or thing, shall be fined under this title
or imprisoned not more than 20 years, or both."
18 U.S.C. 1341.
10

defraud." United States v. Strong, 371 F.3d 225, 227 (5th Cir.
2004). For the crimes of larceny and robbery, there have been
cases holding that taking of money from another in the good-faith
belief that the money was owed to the defendant does not constitute
larceny or robbery, in that the defendant did not intend to deprive
the victim of the victim's property. See, e.g., Barton v. State,
227 S.W. 317, 31819 (Tex. Crim. App. 1921), overruled by Crawford
v. State, 509 S.W.2d 582 (Tex. Crim. App. 1974); People v.
Gallegos, 274 P.2d 608, 609 (Colo. 1954) (en banc), overruled by
People v. Moseley, 566 P.2d 331, 335 (Colo. 1977) (en banc). This
rule, to the extent it ever held sway, appears to have been widely
abandoned. See, e.g., State v. Ortiz, 305 A.2d 800, 80102 (N.J.
Super. Ct. App. Div. 1973); Commonwealth v. Dombrauskas, 418 A.2d
493, 49697 (Pa. Super. Ct. 1980); State v. Russell, 536 P.2d 1392,
139394 (Kan. 1975). In some cases, courts have rejected the rule
by reasoning that money owed to a creditor is not the same as money
owned by the creditor. See Edwards v. State, 181 N.W.2d 383,
38788 (Wis. 1970); State v. Bull, 611 A.2d 672, 67374 (N.J.
Super. Ct. Law Div. 1992), overruled on other grounds, State v.
Mejia, 662 A.2d 308, 320 (N.J. 1995); Russell, 536 P.2d at
139394; Fanin v. State, 100 S.W. 916, 91718 (Tex. Crim. App.
1907) (all noting distinction between money and specific property
in this context). In other cases, courts have invoked public
policy arguments against self-help. See Dombrauskas, 418 A.2d at
11

497; Ortiz, 305 A.2d at 802; Henderson v. State, 192 S.W.2d 446,
447 (Tex. Crim. App. 1946).
Dotson's argument of legal impossibility goes even farther
than a claim that he lacked the intent to defraud. After all, to
invoke the defense to larceny discussed above, the defendant had to
prove he had a good-faith belief in his right to the property.
Openness of the taking and reasonableness of the belief have been
considered indicative of such a good-faith belief. 3 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAW 19.5(a) (2d ed. 2003). Although
Dotson testified that he believed he was entitled to the PFIA
benefits, there was sufficient evidence for a rational jury to find
otherwise. Rather than being open about his claim to the PFIA
benefits despite his work at the store, Dotson declined to inform
PFIA about the work. Furthermore, he did not bring up the apparent
discrepancy between the policy's use of "your job" and the claim
form's use of "work of any kind" in defining total disability, but
repeatedly signed the claim forms during the period he was working.
Dotson does not argue that the evidence fails to establish the
intent to defraud. Instead, he argues that even if he had such an
intent, his actions could not have resulted in fraud because he was
entitled to the benefits. Continuing the above analogy to larceny
or robbery, an example of Dotson's legal impossibility argument in
that context might involve a defendant who intended to steal a
victim's property and did so, only to later discover that the
12

property actually belonged to the defendant. In such a scenario,
the argument goes, the defendant could not be guilty of theft or
robbery because he would not have taken the property of another.
Dotson's situation does not present a case of legal
impossibility, however. The money used by PFIA to pay Dotson's
claims was unmistakably PFIA's property, and it was certainly
possible for Dotson to defraud PFIA of it. Not only were the
benefits not property of Dotson, it was not contemplated that
Dotson would receive them unless and until a proper determination
was made by PFIA or by a court that Dotson was entitled to the
benefits. Mail fraud includes using the mail in a scheme "for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises," 18 U.S.C. 1341, and
there was sufficient evidence for the jury to reasonably determine
that Dotson did just that. A rational jury could find that
Dotson's failure to inform PFIA of his other employment and his
signing of claim forms asking whether he was able to work at any
job constituted a misrepresentation to PFIA. The misrepresentation
must be material, Neder v. United States, 119 S.Ct. 1827, 1841
(1999), but there was sufficient evidence for the jury to find that
Dotson's misrepresentation was. Both a vice president of PFIA and
Dotson's local agent testified that Dotson would not have received
PFIA benefits if PFIA had known about his other work. Even if PFIA
had interpreted the policy to allow a claimant to do some other
13

work, the jury could reasonably infer that the fact that Dotson was
working at all would have been material to a determination of
whether he could in fact perform his police job.
Even assuming that Dotson would have prevailed in a court
action to obtain benefits from PFIA under Louisiana law,8 he is not
entitled to speed up the process by obtaining the benefits through
misrepresentation. The Supreme Court has repeatedly noted that
misrepresentation cannot be justified by incorrectness of the
position of the party to whom the misrepresentation is made. See
United States v. Mandujano, 96 S.Ct. 1768, 177677 (1976)
(sanctions for false statements or perjury allowed even when
inquiry was unconstitutional); Dennis v. United States, 86 S.Ct.
1840, 184647 (1966) ("It is no defense to a charge based upon
[conspiracy to circumvent a law through deceit] that the statutory
8The government argues that Louisiana law regulating disability insurance
policies does not apply to PFIA because it is a fraternal benefit society,
allowed to provide benefits, including disability benefits, "in any form." See
LA. REV. STAT. 22:556. Dotson argues that the government did not establish that
PFIA qualifies as a fraternal benefit society under Louisiana law. Even assuming
that PFIA qualifies as a fraternal benefit society, it would not necessarily
enjoy the amount of freedom from Louisiana insurance law that the government
urges. Section 559 of the Louisiana Insurance Code requires a fraternal benefit
society to issue a certificate to each owner of a benefit contract, and further
requires that "[e]very life, accident, health, or disability insurance
certificate . . . shall meet the standard contract provision requirements not
inconsistent with [this] Part for like policies issued by life insurers in this
state. . . ." LA. REV. STAT. 22:559(F). Fraternal benefit societies are likely
therefore bound by Louisiana insurance law with respect to their benefit
contracts, except for provisions of the law inconsistent with Part 13 of the
Louisiana Insurance Code governing fraternal benefit societies. The government
has not argued that the restrictions in Louisiana law on the definition of "total
disability" are inconsistent with Part 13. There is also case law to the effect
that benefit certificates from benefit societies are subject to the law governing
insurance policies. See, e.g., Succession of McNamara, 5 Teiss. 13, 1907 WL 1525
(La. App. Orleans 1907). We need not ultimately resolve this issue however,
because, for the reasons stated in the text, even if it were resolved in Dotson's
favor his instant appeal would still be without merit.
14

scheme sought to be evaded is somehow defective."); United States
v. Lawton, 366 F.3d 550 (7th Cir. 2004) (citing cases).
Because there is sufficient evidence for a rational jury to
find that Dotson devised a scheme to obtain money from PFIA through
misrepresentation, we affirm Dotson's conviction on Counts 1618.
Accordingly, we need not reach Dotson's claim that his convictions
on the remaining counts were tainted by "spillover."
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
15

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