United States v. Tadros, Nazih ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4242
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NAZIH TADROS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 349—James F. Holderman, Judge.
____________
ARGUED SEPTEMBER 26, 2002—DECIDED NOVEMBER 15, 2002
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. A jury found Nazih Tadros guilty
of mail fraud and wire fraud for engaging in a scheme to
defraud several insurance companies by submitting false
information to them about a purported disability and his
ability to work. The defendant claims that the government
failed to disclose information in violation of Brady v. Mary-
land, 373 U.S. 83 (1963), that the government failed to
prove the elements of the fraud beyond a reasonable doubt,
and that the indictment was returned after the relevant
statute of limitations had expired. We affirm.
2 No. 01-4242
I.
Over the course of several years, Tadros submitted appli-
cations for insurance policies with four different insurance
companies and applied for benefits under the terms of those
policies. The government indicted Tadros alleging that he
used mail and wire services to knowingly supply false infor-
mation both in the applications for insurance coverage and
for benefits under those policies in violation of 18 U.S.C.
§§ 1341 and 1343, and 26 U.S.C. § 7206(1).
The fraudulent scheme was fueled by an April 5, 1993 car
accident in which Tadros was rear-ended by another ve-
hicle. The reporting police officer did not note any physical
injuries to either party and recorded the physical condition
of both parties as normal. Tadros sought treatment for neck
and back pain the following day at a local emergency room.
An x-ray of his neck and back revealed some arthritis and
an old compression fracture, but nothing more. After an un-
eventful visit, Tadros was released with a prescription for
a pain reliever and a muscle relaxant.
The crux of the government’s allegation is as follows: in
an effort to collect money from various insurance agencies
which insured the defendant, Tadros fraudulently repre-
sented that the injuries he sustained in the August 1993
car accident were greater than they actually were, that
these and other health problems prohibited him from work-
ing, and that his occupation required physical labor that he
could not perform. The government contended that Tadros
transmitted this fraudulent information by mail and wire
in violation of 18 U.S.C. §§ 1341, 1343. Because the defen-
dant claims that the jury’s verdict was not supported by the
evidence, below we review the relevant evidence elicited at
the trial.
The evidence produced at trial indicated that Tadros was
the owner and president of “Super Jet,” a small Chicago
grocery store. The fraud scheme had a recurring pattern:
No. 01-4242 3
when Tadros applied for insurance coverage he claimed he
was the owner or manager of a grocery store who performed
no manual labor. When applying for benefits under the pol-
icies, Tadros claimed he was a laborer in a grocery store—
stocking shelves, unloading trucks, maintaining machinery,
and working behind the meat counter. Tadros’ employees
testified that Tadros was the owner and boss who did the
paper work in the store and did not perform manual labor.
In addition, none of the testifying employees recalled that
Tadros had missed work for any extended period of time
other than for an occasional vacation.
The scheme to defraud involved four insurance compa-
nies: Mutual Trust Life Insurance Company (“Mutual
Trust”), Fireman’s Fund Insurance Company (Fireman’s),
New York Life Insurance Company (“New York Life”), and
Prudential Insurance and Financial Services (“Prudential”).
In November 1990, Tadros completed an application with
Mutual Trust for a disability insurance policy describing his
work duties as “office, traveling . . . no labor.” (Tr. 383).
Shortly thereafter, Mutual issued him a disability policy.
On August 6, 1993, Tadros filed a claim with Mutual for
total disability benefits, stating that he had sustained neck
and back injuries and a concussion in a car accident. On the
disability form he described his job title as that of a clerk or
store maintenance worker. He alleged both on the claim
form and in an interview with a Mutual employee that his
duties included manual labor such as unloading merchan-
dise, building displays, and stocking shelves, and that he
had not been able to return to work since the accident.
Although it refused to accept liability, in December 1993,
Mutual Trust made a partial payment to Tadros while it
continued to investigate his claim. After negotiating with
his attorney, Mutual Trust subsequently settled the re-
mainder of his claim in May, 1994, for $94,050.
4 No. 01-4242
Around the same time that Tadros submitted his disabil-
ity claim to Mutual, he also filed a Worker’s Compensation
claim against Super Jet with the Illinois Industrial Com-
mission. Fireman’s insured Super Jet against work-related
injury claims and Tadros claimed that he had been injured
while on a work-related errand.1 Fireman’s required that
Tadros see three different independent medical examiners
regarding his claim of total disability. Each of the doctors
came to varying conclusions about the condition of Tadros’
back, neck, and shoulders, but all agreed on one thing—the
defendant was not totally disabled and could perform the
types of office work required of a grocery store owner or
manager.
During his visits to the various medical examiners,
Tadros continued to present fraudulent information about
the nature and extent of his injuries and the nature of his
job duties. Tadros told the first doctor, Dr. Gireesan that he
had worked as a clerk at a grocery store, but that he was
not currently working. During his initial exam of Tadros on
December 1, 1993, Dr. Gireesan found that the defendant
had an injury to the disk area between the vertebrae in his
back and a grinding sensation in his shoulder, but he
advised Tadros that he could continue with light work such
as office work. Dr. Gireesan recommended that Tadros see
another doctor, Dr. Monaco, regarding his shoulder pain.
Dr. Monaco recommended left shoulder surgery which the
defendant never sought. During a second visit to Dr. Gir-
eesan, on January 6, 1994, the doctor diagnosed Tadros as
having impingement syndrome of the left shoulder. He
1
While Tadros’ claims were pending with Fireman’s, he filed a
claim with his health insurance provider, BlueCross Blueshield of
Illinois, seeking reimbursement for medical expenses which he
incurred as a result of the car accident. He indicated on the claim
form that the injuries were not work-related and that he had no
other insurance.
No. 01-4242 5
advised Tadros to refrain from work until the pain was
under control. During his final visit with Tadros, on May
17, 1994, Dr. Gireesan advised him that he could return
to light duty work.
Next, Tadros saw Dr. Brackett. Dr. Brackett examined
Tadros and some of his medical records and doubted the
credibility of Tadros’ reports of pain. He administered a few
tests which indicated to Dr. Brackett that the defendant
was malingering and exaggerating the extent of his pain.
Dr. Brackett recommended that Tadros return to work
without restriction.
The third independent medical examiner, Dr. Haskell,
concluded, based on reviews of MRIs performed by other
doctors, that although Tadros had some injury to his spine
and shoulder, he was not totally and permanently disabled
and could perform sedentary and light work, such as that
of a store manager or clerk.
In 1993, Fireman’s hired a company to conduct surveil-
lance of Tadros in order to investigate his claim of disabil-
ity. Over the course of several surveillance sessions, the
private company observed Tadros leaving his house, driv-
ing, pumping gas, doing various errands, going to Super Jet
for several hours at a time, and talking on the telephone at
Super Jet.
Tadros’ claim against Fireman’s remained pending before
the Illinois Industrial Commission until he voluntarily dis-
missed it in March, 2000.
Having successfully received $94,050 from Mutual on May
9, 1994, the very next day, Tadros signed a completed
application for disability insurance with New York Life.
The application consisted of several parts. On the first
portion of the application, Tadros indicated that he was the
manager of a grocery store. On the medical portion of the
application, he indicated that the only prior medical treat-
6 No. 01-4242
ment he had received in the ten previous years was for high
blood pressure. He claimed he had not received “advice
about any treatment, surgery or diagnostic testing which
was not completed.” (Tr. 566). On a third portion of the
application he indicated that he had been treated for “back,
spine, or bone disorders” resulting from an accident on
April 5, 1993, but that the condition had lasted for only “a
few weeks.” (Tr. at 564-65). New York Life issued Tadros a
disability insurance policy in October 1994.
On February 10, 1997, Tadros made a claim against the
New York Life disability policy alleging total disability. He
claimed that he had been disabled since June 1996 from a
combination of diabetes, high blood pressure, fatigue, and
dizziness. Dr. George Georgelos, a chiropractor, certified his
disability for this claim. Tadros did not ask his regular car-
diologist, who he saw every few months, to certify his disa-
bility. Tadros also submitted a “Description of Occupation”
form in May 1997 indicating that from 1994 until 1995 his
primary job duties involved office work and bookkeeping
and that from November 1995 through May 1996 his job
duties changed to include maintenance, working as a meat
man, some office work, stocking and loading.
After some investigation, New York Life refused to pay
Tadros’ claim, and instead rescinded his policy and re-
turned his premiums.
The government also alleged that as part of the fraud
scheme the defendant applied for and received a whole life
insurance policy through Prudential Insurance and Finan-
cial Services (“Prudential”). The whole life policy allowed
insureds to take loans against the accumulated cash value
of the policy. It also included a provision which allowed the
insured person to waive the insurance premiums if that
person could demonstrate a disability. During any such
waiver period, the policy continued to accrue cash value.
No. 01-4242 7
In the application for the whole life policy, Tadros de-
scribed his occupation as “supermarket owner” with “gen-
eral administrative and management” duties. (Tr. 498,
499). On October 29, 1993, Tadros applied for a waiver of
his insurance premiums from Prudential, claiming that he
was disabled due to neck and back pain. As was the case
with the Mutual claim, when applying for the benefit,
Tadros changed his job description to indicate that he
worked as a clerk in a grocery store doing manual labor
such as unloading trucks, mopping floors, stocking shelves,
and fixing air compressors. He then claimed that after the
accident he had no job responsibilities at Super Jet.
During an investigation of Tadros’ claim, in an unan-
nounced visit to Super Jet, the Prudential investigator
found Tadros in his office. The defendant told the investiga-
tor that he had no specific reason for being at the store, that
he had been a cashier but could not perform those job
functions any longer due to his back pain, and that he was
at work five days a week for three to four hours a day, even
though he had no specific responsibilities. Despite this odd
response to the investigation, on January 17, 1994, Pruden-
tial granted the waiver of premiums on Tadros’ policy.
After Prudential granted the waiver, it required Tadros
to submit periodic documentation of his continuing disabil-
ity. He submitted one such form in June 1995, indicating
that his health condition remained the same, that he was
house-confined, and that he worked part-time doing pa-
perwork. A doctor R.F. Senno certified the disability in an
attending physician’s statement. On the second continuing
disability form, submitted in February 1997, the defendant
claimed that he continued to be house-confined, that he did
not work at all, and that his daily activities consisted of
eating, sleeping, and lying in bed. Dr. Georgelos, the same
doctor who certified the defendant’s disability on the New
York Life disability form, certified his continuing disability
on the 1997 Prudential form. In January 1998, Tadros sub-
8 No. 01-4242
mitted a third disability statement to Prudential to con-
tinue his premium waiver, again claiming to be house-
confined. In November 1998, he sent yet another disability
statement and claimed that he was in constant pain in
his shoulders and neck, was confined to his house, and had
not been able to work for pay since the start of his disabil-
ity in 1993.
After Prudential waived the premiums (and essentially
began paying the premiums itself), the policy began to ac-
cumulate a cash value. Tadros took several loans against
the cash value of his policy—in August 1997, December
1998, June 1999, and September 1999. By applying for
these loans, Tadros caused Prudential to send him checks
through the U.S. mail and by private express carrier.
Tadros never repaid any of these loans.
During the time that Tadros claimed to be house-con-
fined, in September 1996, surveillance experts observed the
defendant leaving his house, driving to a bank, driving to
Super Jet, and remaining inside Super Jet for extended per-
iods of time. Surveillance videotape from June 1997,
showed the defendant kneeling in front of his house and
carrying brake rotors for a car. Surveillance from May
1998, showed the defendant driving to a hardware store,
purchasing two forty-pound bags of cement, unloading the
bags of cement from his car at his residence, laying a ce-
ment sidewalk, and smoothing the cement with a broom.
Despite Tadros’ claim of total disability, the doctors upon
whom Tadros relied for regular care during the time of his
alleged home confinement had no record of such debilitat-
ing injury. For example, Dr. Jafar Al-Sadir, Tadros’ cardiol-
ogist since 1995, testified that he treated Tadros for high
blood pressure and high cholesterol and saw him approxi-
mately every three to four months during the relevant time
period. During his initial visit in 1995, Dr. Al-Sadir gave
Tadros a complete medical exam and found no abnormali-
ties other than high blood pressure and obesity. Tadros
No. 01-4242 9
never told the doctor that he was house-confined and from
1995 to 2000 never asked him to certify that he was dis-
abled. Sometime around April or May, 2001,2 Tadros asked
Dr. Al-Sadir to certify that he was disabled. Dr. Al-Sadir
declined to do so, as he believed that from a cardiac stand-
point Tadros was doing well.
On August 19, 1993, Tadros had an appointment with Dr.
Cohen, a cardiologist at the University of Chicago hospital.
During that visit the doctor performed a physical examina-
tion of Tadros and found nothing remarkable other than the
fact that Tadros had high blood pressure and had gained
weight. Tadros never complained of neck or back pain des-
pite the fact that it had been less than five months since the
car accident which had allegedly left him completely
disabled.
In October 1997, during the time that Tadros claimed to
be house-confined and completely disabled, the defendant
went to see Dr. James Curran, an expert in rheumatology
at the University of Chicago. Based on a physical examina-
tion, the doctor concluded that, other than some arthritis in
a big toe, some degenerative arthritis in the lumbar spine,
and bursitis, Tadros’ exam was unremarkable. Tadros had
a normal range of motion in all of his joints. The defendant
did not ask Dr. Curran for a certificate of disability and did
not return for a routine follow-up appointment.
Finally, the jury heard evidence that during the time the
defendant claimed to be disabled he conducted personal
business at various businesses in the Chicago area on hun-
dreds of dates.
On July 23, 2001, the jury returned a guilty verdict
against the defendant on ten of the eleven counts sent to
the jury. Tadros appeals.
2
A grand jury indicted the defendant on April 12, 2001.
10 No. 01-4242
II.
Tadros’ first claim of error is that the government, in
violation of Brady, failed to turn over audiotapes that
Prudential made during telephone conversations with him.
The government, however, did not have possession of the
tapes at any point prior to the trial. Under Brady, the
government must disclose evidence favorable to the defense
where the evidence is material to either the guilt or pun-
ishment of the defendant. Brady, 373 U.S. at 87. A violation
of the Brady rule occurs only when the government with-
holds evidence which, had it been disclosed, creates a
reasonable probability that the result of the trial would
have been different. Strickler v. Greene, 527 U.S. 263, 289
(1999). In order to establish a Brady violation, Tadros must
show (1) that the government suppressed evidence, (2) that
the evidence was favorable to his defense, and (3) that the
evidence was material to an issue at trial. United States v.
Grintjes, 237 F.3d 876, 880 (7th Cir. 2001).
The Brady rule does not apply to evidence not in the pos-
session of the government that a defendant would have
been able to discover himself through reasonable diligence.
See, e.g., id., Grintjes, 237 F.3d at 880; Crivens v. Roth, 172
F.3d 991, 996 (7th Cir. 1999); United States v. Dimas, 3
F.3d 1015, 1018-19 (7th Cir. 1993). This court has held
many times that Brady does not require the government to
gather information or conduct an investigation on the de-
fendant’s behalf. See, e.g., United States v. Senn, 129 F.3d
886, 893 (7th Cir. 1997). The government did not suppress
evidence in this case, and in fact, during pre-trial discovery
tendered to Tadros a letter from a Prudential employee to
the Federal Bureau of Investigation which disclosed, among
other things, that Prudential had begun recording conversa-
tions with its insureds in late 1995. The government
did not obtain any of these recordings for itself and did not
have the duty to gather the tapes and tender them to the
No. 01-4242 11
defendant. Brady prohibits suppression of evidence, it does
not require the government to act as a private investigator
and valet for the defendant, gathering evidence and deliv-
ering it to opposing counsel. Senn, 129 F.3d at 893. Tadros
has offered no explanation for failing to procure the tapes
himself and has never argued that he was somehow unable
to obtain those recordings on his own.
Although the government’s tender of the Prudential letter
and the fact that the evidence was available to the defen-
dant should resolve any issue regarding a potential Brady
violation, we note that Tadros failed to meet any other of
the requirements for a successful Brady claim. He has
offered no evidence whatsoever to establish that the tapes
would have been favorable to his defense. In fact, during
oral argument, defense counsel conceded that the record
was devoid of any evidence that would indicate that the
tapes would be helpful to Tadros.3 Nor did the defendant
offer any evidence that the information on the tapes would
be material to an issue at trial. The district court did not
abuse its discretion in finding that the government had not
withheld audiotapes in violation of Brady.
Next, Tadros asserts that the government failed to prove
the elements of fraud beyond a reasonable doubt. On this
claim, the defendant has a heavy burden to bear. In review-
ing a claim for sufficiency of the evidence, this court must
view the evidence in the light most favorable to the prosecu-
tion. United States v. Fleischli, 305 F.3d 643, 657 (7th Cir.
2002). We may reverse a conviction only when no rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id. The record must be
3
At oral argument, counsel for the defendant insinuated that it
was possible that an imposter had made the phone calls to Pru-
dential. The record is completely devoid of any evidence of this
claim.
12 No. 01-4242
devoid of any evidence, regardless of how it is weighed, from
which a reasonable jury could find guilt beyond a reason-
able doubt. Id.
In order to establish a violation of the mail or wire fraud
statutes, the government must prove (1) that the defendant
participated in a scheme to defraud; (2) the defendant in-
tended to defraud; and (3) the defendant used the mail (for
18 U.S.C. § 1341) or wires (18 U.S.C. § 1343) in furtherance
of the fraudulent scheme. United States v. Davuluri, 239
F.3d 902, 906 (7th Cir. 2001). The government presented
ample evidence that the defendant participated in an inten-
tional scheme to defraud insurance companies by applying
for disability benefits, exaggerating the extent, if any, of his
injury, and then making false representations about the
nature of his job duties and his ability to work. Tadros
altered the nature of his job duties when applying for dis-
ability benefits to claim that he performed manual labor
when, in fact, he performed only office work. Similarly, he
misled investigators who found him in his office at Super
Jet, claiming that he had no official duties at the store.
Tadros exaggerated the nature of his injuries, claiming, for
example, to be house-confined when he was, in fact, out of
the house running errands, visiting area businesses, per-
forming physically taxing household duties, and running
his own business. The information Tadros presented to the
doctors certifying his disability differed from the informa-
tion he supplied to the doctors who treated him on a regular
basis. The government more than adequately established
that the defendant used, or knowingly caused others to
use the mail or wires in furtherance of the scheme. See
Schmuck v. United States, 489 U.S. 705, 710-11 (1989). In
short, the record contains an abundance of evidence from
which a reasonable jury could find guilt beyond a reason-
able doubt and we cannot, therefore, disturb the conclusions
of the jury.
No. 01-4242 13
Finally, Tadros argued that any alleged scheme to de-
fraud was complete when he received the final payments
from Mutual Trust in May 1994, and consequently, the
April 12, 2001 indictment came after the five-year statute
of limitations for such crimes expired. See 18 U.S.C. § 3282.
Tadros, however, continued to use the mail and wires to
send fraudulent information to the victimized insurance
companies long after May, 1994. The fact that the defen-
dant failed to elicit more money from the insurance agen-
cies is irrelevant; the government need not prove that the
scheme to defraud was successful to prove a violation of the
mail or wire fraud statutes. United States v. Bach, 172 F.3d
520, 522 (7th Cir. 1999); United States v. Briscoe, 65 F.3d
576, 583 (7th Cir. 1995).
For purposes of mail fraud and wire fraud, the five-year
statute of limitations begins to run from the date of mailing
of the fraudulent information. United States v. Barger, 178
F.3d 844, 847 (7th Cir. 1999). Each mailing constitutes a
separate offense. Id. at 847. The mailings in each of the
counts on which Tadros was indicted occurred well within
the five years prior to April 12, 2001. For example, the first
count of the indictment alleges that Tadros sent a fraudu-
lent statement of continuing disability to Prudential in
February 1997. Tadros also sent fraudulent claims of con-
tinuing disability to Prudential in January 1998, and No-
vember 1998, and misrepresented his occupation on a form
sent to Prudential in May, 1999. In response to the infor-
mation sent by Tadros, Prudential sent him checks through
the mail on August 22, 1997, December 30, 1998, June 8,
1999, and September 1, 1999.4 Furthermore, the govern-
4
Tadros need not have mailed the items himself to fall within the
scope of the mail fraud statute. The statute also applies to any
person who “knowingly causes” the fraudulent material “to be
(continued...)
14 No. 01-4242
ment presented sufficient evidence that Tadros faxed a
Description of Occupation letter with fraudulent informa-
tion to New York Life on May 20 1999, and on July 9, 1997,
sent further fraudulent information by mail to New York
Life. These ten mailings form the bases of the ten counts on
which Tadros was convicted. Each of the ten fell within the
five-year statute of limitations.5
III.
For the reasons stated above, we affirm the judgment of
the district court.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
4
(...continued)
delivered by mail” or private carrier. 18 U.S.C. § 1341. The gov-
ernment need only show that the defendant acted with knowledge
that the use of the wires or mail could be reasonably foreseen or
would follow in the ordinary course of business. American Auto.
Accessories, Inc. v. Fishman, 175 F.3d 534, 542 (7th Cir. 1999).
5
For clarity, we note that the evidence of fraudulent activity oc-
curring prior to April 12, 1996, though not within the relevant
statute of limitations, is relevant to the government’s proof that
the defendant participated in a scheme to defraud and that he
intended to defraud by using the mail and wires.
USCA-02-C-0072—11-15-02