U.S. v. Catena, 74-1054

• Decision Date: 22 July 1974
• Docket Number: No. 74-1054,74-1054
• Citation: 500 F.2d 1319
• Parties: UNITED STATES of America v. William P. CATENA, M.D., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1319

500 F.2d 1319

UNITED STATES of America v. William P. CATENA, M.D., Appellant.

No. 74-1054.

United States Court of Appeals, Third Circuit.

Argued May 29, 1974.

Decided July 22, 1974.

Stanley W. Greenfield, Greenfield & Minsky, Pittsburgh, Pa., for appellant.

David M. Curry, Asst. U.S. Atty., Richard L. Thornburgh, U.S. Atty., Pittsburgh, Pa., for appellee.

Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The defendant, a physician, was tried to a jury and convicted of ten counts of an indictment for fraudulently submitting false Medicare claims for payment. We affirm.

Each count of the indictment upon which the defendant was convicted was in the following form:

On or about (date), at Carnegie, in the County of Allegheny, in the Western District of Pennsylvania, defendant William P. Catena, M.D., presented and caused to be presented to an agency of the United States under the Health Insurance for the Aged Act, a claim against the United States for medical services supplied and rendered to (name and address of patient) for (number) house calls, on (dates of treatment), pursuant to the provisions of the Health Insurance for the Aged Act, knowing the said claim to be false, fictitious, and fraudulent in that no medical services were supplied and rendered by William P. Catena, M.D., to the said (name of patient) on said dates.

In violation of Section 287 of Title 18, United States Code.

We first consider the question of whether the evidence most favorable to the Government shows acts which constitute violations of the statute under which the defendant was indicted and convicted. ¹

18 U.S.C. 287 makes illegal the fraudulent presentation of claims 'to any person or officer in the civil . . . service of the United States, or to any department or agency thereof . . ..' ² The evidence at trial indicated, however, that the defendant had submitted the allegedly fraudulent claims to Pennsylvania Blue Shield (Blue Shield) and to the Travelers Insurance Company (Travelers), rather than directly to any federal official or federal agency.

The Government tried the case on the theory that Blue Shield and Travelers were agencies of the United States within the meaning of 287. The Government contended that the defendant, by submitting false claims to these private insurance carriers, had submitted false claims to agencies of the United States in violation of 287. In support of this theory, the Government introduced at trial the contracts between federal agencies and each of the insurance carriers. ³ These contracts provided that the carriers would process and pay Medicare claims, in return for federal reimbursement for claims paid and for administration costs. The district court, in its opinion denying the defendant's post-trial motions, accepted the Government's theory that these reimbursement provisions made the insurance carriers agencies of the United States.

We have considerable doubt that Blue Shield and Travelers may be considered 'agencies' of the United States for purposes of the criminal prohibition of 287, regardless of their contractual arrangements with the United States. 18 U.S.C. 6 states that for purposes of Title 18,

the term 'agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.

The final phrase of this definition indicates that the prior terms were intended as the outer limits of the definition of agency, and, given the criminal nature of the statute, it would be difficult to contend that private organizations with reimbursement contracts with the United States fell within any of the definitional terms. ⁴

We need not decide this question, however, because we believe that the indictment and proof were sufficient to sustain the conviction on the theory that the defendant 'caused' the private insurance carriers themselves to submit his false claims to the Department of Health, Education and Welfare (HEW) and to the Railroad Retirement Board, which are clearly federal agencies.

In United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1942), the Supreme Court was called upon to construe R.S. 5438, the forerunner of 287, which at the time began with the language:

Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil . . . service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent . . ..

In Hess, the Court held that when private contractors engaged in collusive bidding practices on contracts made with local governmental units, and when a large portion of the money paid the successful contractors by the state was of federal origin, then the contractors were 'causing to be presented' a 'claim upon or against the Government.' 317 U.S. at 544, 63 S.Ct. at 384. Were the old version of the statute which was at issue in Hess presently in force, the defendant in the instant case could have been convicted of 'causing' the innocent insurance carriers to present his fraudulent claims to the United States.

It may be contended, however, that the revised version of the statute, which refers to presenting false claims to an agency of the United States but not to causing false claims to be presented, precludes conviction of the defendant on the theory of Hess. We do not believe that this conclusion would be correct. The 'cause' language of the former version of 287 has clearly been replaced by 18 U.S.C. 2(b), ⁵ which states that

whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

Just as under the former version of 287 at issue in Hess, under the combination of the present version of 287 and the present 2(b) a person may be guilty of causing a false claim to be presented to the United States even though he uses an innocent intermediary (in this case the insurance carriers) to actually pass on the claims to the United States. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954). ⁶

We further note that the indictment in this case was sufficient to sustain the conviction under this theory. The text of each count accused the defendant of 'present(ing) and caus(ing) to be presented' a false claim to an agency of the United States. While the indictment did not by its terms refer specifically to 2(b), but rather referred only to 287, this omission is not fatal. United States v. Koptik, 300 F.2d 19, 22 (7th Cir.), cert. denied,370 U.S. 957, 82 S.Ct. 1609, 8 L.Ed.2d 823 (1962); Londos v. United States,240 F.2d 1, 7 (5th Cir.), cert. denied, 353 U.S. 949, 77 S.Ct. 860, 1 L.Ed.2d 858 (1957). In terms of giving notice to the defendant of the crime for which he is charged, the bare citation of 2(b) adds little to the specific language of the indictment charging him with 'causing' a false claim to be submitted. ⁷

Even though we have found that the evidence most favorable to the Government was sufficient to sustain the defendant's conviction under 287, this does not dispose of the defendant's contention concerning the court's charge to the jury on this 'agency' issue. An improper charge by the trial court might have permitted the jury to convict the defendant on evidence which would be sufficient to constitute a violation of the statute.

The court charged the jury that

there are two essential elements to this offense, and the Government must prove each of these elements beyond a reasonable doubt . . .. The elements-- that is what constitutes this or the definition of the offense requires that there is an act or acts of making and using or causing to be made a false writing or document, a claim to a matter within the jurisdiction of the United States. One, is the claim false, and knowing that the claim is false and doing it knowingly and wilfully. ⁸

The defendant, who did not object to the italicized portion of the charge at trial, now contends that it was error because it is broader than the literal requirement of 287 that the claim be made to an agency of the United States. In view of 18 U.S.C. 2(b), we need only compare the court's instructions on this point with the requirement that the defendant cause a false claim to be submitted to an agency of the United States.

We do not believe that the charge constitutes plain error requiring a reversal of the conviction.

We first note that

in determining the effect of (the) instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.

Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). When so viewed, we do not believe the jury was misled by the superfluous reference to 'a claim to a matter within the jurisdiction of the United States.' The objectionable phrase was preceded at length by the trial court's description of the offense as charged in the indictment. This was followed by the trial court's reading of the statute upon which the indictment was predicated, 287, and an explanation of the essential elements of the offense, including the act of 'making . . . or causing to be made a false writing or document, a claim to a matter within the jurisdiction of the United States.' The objectionable but superfluous language italicized above was qualified by the following instruction:

It is fraudulent if it is . . . made or caused to be made with the...