Insurance Fraud by Killing Children & Attempted Killing of Wife Affirmed
Barry Zalma

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In United States Of America v. Ali F. Elmezayen, AKA Ali F. Elmeza Yen, AKA Ali Fathelelah Elmezayen, AKA Ali Fathellah Elmezayen, AKA Ali Sayed, AKA Ali Fathelehah Sayed, No. 21-50057, United States Court of Appeals, Ninth Circuit (January 19, 2023) Ali Elmezayen appealed the district court’s judgment entered upon a jury verdict that found him guilty of four counts of mail fraud under 18 U.S.C. § 1341, four counts of wire fraud under 18 U.S.C. § 1343, aggravated identity theft under 18 U.S.C. § 1028A(a)(1), and four counts of money laundering under 18 U.S.C. § 1957.

FACTUAL BACKGROUND

After conviction by a jury, the district court sentenced Elmezayen to 212 years in prison. Elmezayen raised five issues on appeal that the court erred:

1 when it failed to conduct an adequate voir dire regarding prospective jurors’ experiences with autism and domestic violence,

2 when it permitted Detective Cortez to provide impermissible opinion testimony concerning witness credibility,

3 when it excluded hearsay testimony Elmezayen intended to elicit from Dr. Bruno,

4 when it admitted testimony from Sarah Wickes, and

5 when it denied a motion to continue the trial so that Elmezayen could obtain the testimony of his proffered Egyptian witnesses who had been denied visas.

Some of his arguments established error by the trial court but the errors were irrelevant in the face of overwhelming other evidence of his guilt.

VOIR DIRE

The Ninth Circuit will review a district court’s voir dire for an abuse of discretion. To date, the Ninth Circuit has expressly recognized the “strong feelings” exception only in matters involving child sexual abuse, narcotics, and the insanity defense. The district court here first informed the venire (the potential jurors) of the accusations that Elmezayen had intentionally killed his sons and had attempted to kill his wife, Ms. Diab, and then expressly questioned the venirepersons about their experiences with both autism and domestic violence.

Because the district court asked broader questions to the venirepersons which elicited the information sought by the defense, there was nothing in the record indicating that the judge’s failure to honor Elmezayen’s requests amounted to an abuse of discretion.

OPINION TESTIMONY OF DETECTIVE

Elmezayen argued that the district court should have excluded as improper opinion testimony by Detective Cortez whose statements that he was “looking for truth” and that he assessed whether a suspect was lying by assessing whether the suspect was being “evasive[],” “slouch[ing],” or “rambl[ing].”

The Ninth Circuit concluded that the district court clearly erred in overruling Elmezayen’s objection – whether the Ninth Circuit analyzed Detective Cortez’s testimony through the lens of expert opinion testimony or improper lay witness testimony concerning credibility, the failure to exclude opinion testimony was reviewed for an abuse of discretion as is a district court’s admission of lay testimony. Detective Cortez’s recitation of his observations of Elmezayen’s demeanor that Detective Cortez then implied evinced Elmezayen’s lack of credibility impermissibly allowed Detective Cortez to substitute his opinion for that of the factfinder’s. Viewed either way, Detective Cortez’s testimony was clearly inadmissible. The Ninth Circuit concluded that the district court erred in overruling a timely and proper objection.

However, the Ninth Circuit concluded that the error was harmless because properly admitted evidence elsewhere in the record constituted overwhelming evidence of defendant’s guilt. In particular, a police report from the accident stated that Elmezayen failed to tell the police the true number of insurance policies he held, and the admitted evidence included eight accidental death policies, including their coverage amounts, which policies covered his children.

There is also substantial evidence in the record contradicting Elmezayen’s description of the accident to the Detective because the properly admitted evidence was highly persuasive and overwhelmingly pointed to guilt, any error in admitting Detective Cortez’s testimony was harmless.

DENIAL OF CONTINUANCE

Elmezayen challenges the district court’s denial of his oral motion to continue the trial so that he could obtain the testimony of four proffered Egyptian witnesses. The Ninth Circuit concluded that the denial of a continuance was not an abuse of the court’s discretion. Elmezayen was certainly not diligent: the witnesses were Elmezayen’s family members, defense counsel was made aware of them nearly a year earlier when he began representing Elmezayen, Elmezayen had over three months to obtain visas from the date the trial was set, and Elmezayen requested the continuance a week after he knew that the visas were denied-in the middle of trial.

The delay would have inconvenienced the court and the jury given the request was made after the government had rested and because the continuance requested was indefinite, it was reasonable to conclude that Elmezayen would be unable to obtain the testimony in a timely fashion.

Although the analysis above shows that the trial was not free of error, the record contains overwhelming, untainted evidence of Elmezayen’s guilt, and thus provides more than “fair assurance that the jury was not substantially swayed by the errors” in reaching its verdict.

ZALMA OPINION

An evil man who killed his children for insurance money to defraud the insurers was able to cast some doubt on his conviction only to have the Ninth Circuit conclude that even with errors made by the trial judge the evidence of guilt was overwhelming and affirmed the conviction and sentence. He will serve as much of the 212 year sentence that will probably not expire before he does. He also proved that insurance fraud is a violent crime.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]

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