*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50143

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOE T. BOYD,

WALLACE B. BRUCKER

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(M0-95-CR-28)

_________________________________________________________________

March 27, 1997

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Joe T. Boyd and Wallace B. Brucker challenge their

convictions and sentences for mail fraud and conspiracy to commit

mail fraud under 18 U.S.C. §§ 371, 1341. Finding no reversible

error, we affirm.

I. BACKGROUND
2

Boyd and Brucker were both involved with the operations of

Med-America Diagnostics, Inc. (“Med-America”), in Midland, Texas. 

Boyd owned Med-America. Both Boyd and Brucker performed medical

activities, such as examining, making diagnoses, and requesting

tests on patients, at Med-America. Neither was a licensed

physician.

Boyd and Brucker participated in a scheme at Med-America to

solicit patients for physician services, require numerous

unnecessary and costly tests, and bill the patients’ insurance

provider for the costs. In order to induce payment from Medicare

and private insurance providers, Boyd and Brucker caused the

claim forms to reflect that the medical tests and procedures had

been conducted by or ordered by, or in some instances referred

for testing by, a licensed medical doctor. The names of licensed

doctors were used without the permission or knowledge of those

doctors.

Boyd and Brucker were indicted for their activities in

connection with Med-America on May 10, 1995. Boyd was charged

with one count of conspiracy to use the mails for the purpose of

effecting a fraud under 18 U.S.C. §§ 371 and 1341 and nine counts

of fraud accomplished through use of the mails under 18 U.S.C. §§

1341 and 1342. Brucker was likewise charged with one count of

conspiracy to use the mails to effect a fraud, but was only

charged with two counts of actual fraud through use of the mails.
 

1Brucker does not per se make all four arguments in his

brief before the court, but instead concludes his brief with the

following, “Appellant Brucker hereby incorporates, by reference,

and adopts all of the propositions and law contained in appellant

Boyd’s brief previously filed herein.”

3

On November 7, 1995, a jury found Boyd and Brucker guilty on

all of the indicted charges. The district court sentenced Boyd

to concurrent sixty-month terms of imprisonment. Additionally,

the court ordered a three-year term of supervised release to

follow his imprisonment, as well as monetary restitution. 

Brucker was sentenced to a five-month prison term and a two-year

period of supervised release, with five-months of this period to

be served under electronic monitoring/home confinement

conditions. The court also ordered Brucker to make monetary

restitution. 

Thereafter, Boyd and Brucker appealed to this court. 

Although Boyd and Brucker advance separate, individualized

arguments on appeal, they essentially raise the same four

issues1: (1) whether the evidence was sufficient for their

convictions; (2) whether the district court erred in admitting

the deposition of a deceased witness, Dr. E.T. Driscoll, over

objections that defendants were being denied their constitutional

right to confront the witness; (3) whether the district court

erred in denying Boyd’s motion for severance of a co-defendant,

thereby violating defendants’ right to confront the co-defendant;
4

and (4) whether the district court properly calculated

defendants’ sentences.

II. DISCUSSION

A. Sufficiency of the Evidence

This court reviews challenges to the sufficiency of the

evidence in a criminal case to determine whether a reasonable

trier of fact could have found that the evidence established

guilt beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 319 (1979); United States v. Pedroza, 78 F.3d 179, 182

(5th Cir. 1996). We consider all the evidence and all reasonable

inferences drawn from it in the light most favorable to the

jury’s verdict. See Glasser v. United States, 315 U.S. 60, 80

(1942); United States v. Johnson, 87 F.3d 133, 136 (5th Cir.

1996).

To prove a conspiracy under 18 U.S.C. § 371 the government

must prove, beyond a reasonable doubt, (1) that two or more

people agreed to pursue an unlawful objective together, (2) that

the defendants voluntarily agreed to join the conspiracy, and (3)

that one conspirator performed an overt act to further the

conspiracy’s objective. See United States v. Parekh, 926 F.2d

402, 406 (5th Cir. 1991). A conviction under 18 U.S.C. § 1341

for mail fraud requires the government to “show that the

defendant[s] (1) used a scheme to defraud, (2) which involved a

use of the mails, (3) and that the mails were used for the
 

2The indictments specifically alleged that Sentry Life

Insurance Company, Medicare Part B, and Blue Cross and Blue

Shield of Texas, Inc., were the recipients of the fraudulent

documents.

5

purpose of executing the scheme.” See United States v. Nguyen,

28 F.3d 477, 481 (5th Cir. 1994).

1. Boyd’s Convictions

Even if the court assumes, for the sake of argument, that

Dr. Driscoll’s deposition was erroneously admitted, the remaining

trial record still shows that Boyd participated in the conspiracy

to commit mail fraud. Trial testimony overwhelmingly showed that

Boyd joined with other participants from Med-America to effect

the prearranged scheme and that he took action in many instances

to execute the scheme. See United States v. Parekh, 964 F.2d

437, 449 (5th Cir. 1992) (noting that the government may prove

the existence of a conspiracy through circumstantial evidence). 

Boyd does not argue that his participation in the scheme was

involuntary or that the scheme did not invoke the use of the

mails.

The nine mail fraud counts against Boyd alleged that he took

part in the mailing of billing records that fraudulently

represented to coverage providers2 that Dr. Driscoll or another

doctor, Dr. Larry Sands, was the referring physician for medical

procedures. To prove a violation of 18 U.S.C. §§ 1341 and 1342,

the government was required to show that Boyd had specific intent
 

3The testimony sufficiently established that Boyd gave the

permission to his billing clerks for the use of Dr. Driscoll and

Dr. Sands’s names on the billings. The Executive Director of

Med-American testified, in particular, that Boyd was active in

the billing process. The Executive Director further noted that

Boyd had represented to him that Dr. Driscoll was Med-America’s

Chief of Staff and that the decision to use Dr. Sands’s name was

made by Boyd. 

6

to defraud in his activities connected to the billings and

demonstrate that Boyd intended for harm to result from his

deceit. See United States v. Jimenez, 77 F.3d 95, 97 (5th Cir.

1996).

The trial testimony of Med-America employees and patients

was sufficient to establish Boyd’s participation in the

fraudulent billings.3 In addition, Dr. Sands’s own testimony

showed that he did not refer the patients on whose record his

name appeared, and in fact he noted that he had never seen the

patients whose experiences were the basis for the five counts

that specifically alleged the fraudulent representations using

his name. Furthermore, assuming arguendo that Dr. Driscoll’s

deposition statement was inadmissible, sufficient evidence from

Med-America’s employees and Driscoll’s purported patients at MedAmerica, nevertheless, supported the conviction for the

fraudulent representation of Driscoll’s name on the remaining

four counts. The testimony also reflected the fact that Boyd

specifically intended for pecuniary harm to result from his
7

deceit. Thus, all of the counts against Boyd had sufficient

evidentiary support. 

2. Brucker’s Convictions

Evidence of Brucker’s practice of ordering testing on the

insured patients he examined, without consultation with Dr.

Driscoll or Dr. Sands, is sufficient to support his participation

in the conspiracy. See United States v. Leahy, 82 F.3d 624, 633

(5th Cir. 1996) (“Once the government has established an illegal

conspiracy, it need only introduce ‘slight evidence’ to connect

an individual defendant to the common scheme”).

Brucker was charged with only two counts of mail fraud. The

record contains sufficient evidence to support the jury’s

determination on both counts.

B. Admission of Driscoll’s Deposition

Boyd and Brucker argue that it was harmful error on the part

of the district court to admit the deposition of Dr. Driscoll. 

Boyd and Brucker claim that the district court violated their

Sixth Amendment right to confront an adverse witness when it

admitted the deposition.

Dr. Driscoll’s deposition had been taken by an attorney with

the Texas Attorney General’s office in 1990 in connection with a

civil suit the state was pursuing against Med-America at that

time. Dr. Driscoll died in the period between the time of the

giving of the deposition and the trial of the case below. 
 

4Brucker, although initially named in the prior civil suit,

was never served and was not part of the judgment in the case.

8

We review the district court’s decision to admit testimony

of this kind for abuse of discretion. See United States v.

Tannehill, 49 F.3d 1049, 1057 (5th Cir. 1995). Our review

includes harmless-error analysis. See Delaware v. Van Arsdall,

475 U.S. 673, 680-682 (1986); United States v. Stewart, 93 F.3d

189, 194 (5th Cir. 1996).

Assuming, arguendo, that it was error for the district court

to admit Dr. Driscoll’s deposition, we, nevertheless, find that

such error was harmless as to both Boyd and Brucker. Other

evidence overwhelmingly showed that Boyd had committed mail fraud

and was involved in a conspiracy. The district court’s

instruction to the jury not to consider the deposition as

evidence against Brucker,4 in addition to other trial evidence

that sufficiently exhibited his participation in the activities

that were the basis for the counts against him, was sufficient to

prevent harmful error to Brucker with the admission of the

deposition. Thus, the deposition, within the purview of all the

evidence, did not have “a ‘substantial impact’ on the jury’s

verdict” in either Boyd or Brucker’s case. See United States v.

Evans, 950 F.2d 187, 191 (5th Cir. 1991) (holding that

inadmissible evidence is only harmful if it has a ‘substantial

impact’ on the jury’s verdict).
 

5Brucker adopts Boyd’s argument by reference.

9

C. Severance of Co-defendant’s Case

Boyd argues5 that the district court erred in denying his

“Motion to Quash, Motion to Suppress and Motion to Severance”

with regard to his co-defendant, Richard W. Bratcher. Boyd

claims that the failure to sever Bratcher’s case, in conjunction

with Bratcher’s unavailability to testify, denied his Sixth

Amendment right to compulsory process and confrontation.

The district court is under the obligation to grant a

severance “only if there is serious risk that joint trial would

compromise a specific trial right of a properly joined defendant

or prevent the jury from making a reliable judgment about guilt

or innocence.” See Zafiro v. United States, 506 U.S. 534, 539

(1993). “[W]here joinder is proper in the first instance, we

will review only for abuse of discretion.” See United States v.

Krenning, 93 F.3d 1257, 1266 (5th Cir. 1996). “In conspiracy

cases, the general rule is that persons indicted together should

be tried together.” See United States v. Fields, 72 F.3d 1200,

1215 (5th Cir. 1996). We hold that it was not abuse of

discretion for the district court to deny Boyd’s motion for

severance. See, e.g., United States v. Krenning, 93 F.3d at

1266-67 (holding that it was not abuse of discretion for the

district court to deny severance where the indictment did not
 

6The government pronounced Bratcher incompetent to stand

trial, and noted he would not be a witness, prior to the

commencement of the trial below.

 

7The upward departure issue has been abandoned. Boyd’s

brief has only one sentence about it, and Brucker has simply

adopted Boyd’s brief. We address that issue only in the

alternative.

10

allege multiple conspiracies, but rather a single scheme with

multiple purposes).

Furthermore, any error as to Boyd and Brucker was not

harmful. Bratcher was effectively severed from Boyd’s case,6 and

did not present evidence against Boyd since he did not testify at

trial. Boyd’s real complaint is that he did not have Bratcher’s

testimony to counter the injurious statements given by Bratcher’s

patients. Even if Bratcher had been available, however, Boyd

could not have forced him to testify in violation of Bratcher’s

Fifth Amendment right against self-incrimination. See Holsen v.

United States, 392 F.2d 292, 293 (5th Cir. 1968). The patients’

testimony was properly admissible over any hearsay objections as

statements made by co-conspirator Bratcher in furtherance of the

conspiracy. See FED. R. EVID. 801(d)(2)(E); Bourjaily v. United

States, 483 U.S. 171, 182 (1987).

D. Calculation of Sentences7
 

8Brucker appears to adopt Boyd’s argument by reference,

although Brucker successfully objected to the monetary amount

used to calculate his sentence, and the court subsequently held

Brucker accountable for only the amounts associated with patients

he had seen. Brucker did not further object to the amounts

attributed to him after he had received this adjustment.

11

Boyd argues8 that the district court erred in using a

monetary amount that reflected all of Med-America’s billings and

insurance receivables in calculating his sentence and in finding

that Med-America’s activities targeted vulnerable or aged people.

A sentencing decision requires information with “sufficient

indicia of reliability to support its probable accuracy.” See

United States v. Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). The

information can be any relevant evidence, without regard to

admissibility under the rules of evidence, including the

government’s presentence report. See id. at 966. Despite Boyd

and Brucker’s objections, the district court judge was within his

province to rely on the government proffered evidence to

establish the monetary amount and the targeting of vulnerable and

aged people in an upward departure because the evidence possessed

the requisite “indicia of reliability.” See United States v.

Ismoila, 100 F.3d 380, 394-96 (5th Cir. 1996) (reviewing

sentencing court’s factual determinations for clear error, and

holding that monetary loss determinations in a wire fraud scheme

can be based on intended loss).

III. CONCLUSION
12

Boyd’s appeal is ORDERED submitted on the briefs. 

We AFFIRM Boyd’s and Brucker’s convictions and sentences.