535 F.2d 556 (10th Cir. 1976), 74-1484, United States v. Radetsky

Docket Nº:74-1484.
Citation:535 F.2d 556
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Louis Martin RADETSKY, a/k/a L. M. Radetsky, Defendant-Appellant.
Case Date:March 29, 1976
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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535 F.2d 556 (10th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Louis Martin RADETSKY, a/k/a L. M. Radetsky, Defendant-Appellant.

No. 74-1484.

United States Court of Appeals, Tenth Circuit

March 29, 1976

Argued March 27, 1975.

As Amended May 26, 1976.

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Richard J. Spelts, First Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Bruce D. Pringle, Denver, Colo. (James A. Clark, Clark, Martin & Pringle, Denver, Colo., on the brief), for defendant-appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-Appellant Radetsky, a Colorado osteopathic physician, was indicted on 41 substantive counts under 18 U.S.C.A. §§ 1001 and 2, and a conspiracy count under 18 U.S.C.A. § 371, in connection with the submission of allegedly false medicare claims. Three of the substantive counts were dismissed by the Government prior to trial. The trial court dismissed the conspiracy count at the close of the evidence. The defendant was found not guilty by the jury on six substantive counts, and convicted on guilty verdicts on 32 of the remaining substantive counts. The court imposed a

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$1,500 fine on each of these 32 counts, or a total fine of $48,000, and defendant appeals.

Defendant argues numerous propositions for reversal. We find it necessary to discuss several of the principal appellate contentions at some length concerning: (1) whether the indictment was defective, among other things failing to meet required standards of specificity and failing to allege particular statements charged to have been false so that the grand jury's charges were not known, with trial and convictions occurring on charges specified only in the bill of particulars in violation of defendant's Fifth Amendment right that he not be held to answer "unless on a presentment or indictment of a Grand Jury;" (2) whether it was error for the bill of particulars, together with the indictment, to be sent with the jury for its deliberations; (3) whether prosecution was proper under 18 U.S.C.A. § 1001, a general felony statute, instead of under 42 U.S.C.A. § 408, a more recent and specific misdemeanor statute, covering false statements made for use in determining medicare payments, among other things; (4) whether there was error in admitting over defendant's Fifth Amendment objection, and in not ordering the return of, records found to have been subpoenaed from a professional corporation where defendant practiced, but said to have been his personal papers and records; (5) whether the trial court erred in denying inspection of grand jury testimony of Government witnesses; (6) whether there was error in denying challenges to jurors who had read pretrial publicity material concerning defendant; (7) whether the trial court erred in the exclusion and admission of evidence; and (8) whether certain counts contained allegations of false statements which the court should have held immaterial as a matter of law, and whether the trial court, in any event, erred in submitting the issue of materiality to the jury without a proper instruction.

We will treat the facts in discussing the appellate issues before us.


The Fifth Amendment guaranty concerning indictment by grand

jury and the sufficiency of the indictment

The Fifth Amendment provides in part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . . 1

The related provision of the Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right .. . to be informed of the nature and cause of the accusation . . .

The importance of the historic guaranty of the provision for indictment by a grand jury has long been recognized. In Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849, 852, the opinion recited this portion of a grand jury charge by Justice Field:

. . . Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.

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See Russell v. United States, 369 U.S. 749, 771, 82 S.Ct. 1038, 1051, 8 L.Ed.2d 240, 255; Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257; see also Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569, 580.

It is this fundamental guaranty to be tried only on charges made by a grand jury that mainly concerns us. The substantial safeguard of the guaranty to those charged with serious crimes cannot be eradicated under the claim that variations are mere technical departures from the rules. Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041, 1047. And in honoring the guaranty we must be mindful of its corollary that a federal indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Russell, supra, 369 U.S. at 770-71, 82 S.Ct. at 1050-1051, 8 L.Ed.2d at 254-255. "Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney. . . . " Ex parte Bain, supra, 121 U.S. at 13, 7 S.Ct. at 787, 30 L.Ed. at 853. 2

The purposes and requirements for the sufficiency of indictments have been variously stated, but the essentials are clear. First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. Russell, supra, 369 U.S. at 763-64, 82 S.Ct. at 1046-1047, 8 L.Ed.2d at 250-251; United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516, 518. And a purpose corollary to the first is that the indictment inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. Russell, supra, 369 U.S. at 768, 82 S.Ct. at 1049, 8 L.Ed.2d at 253; United States v. Hess, supra, 124 U.S. at 487, 8 S.Ct. at 573, 31 L.Ed. at 518. Furthermore, and of paramount importance, a sufficient indictment is required to implement the Fifth Amendment guaranty and make clear the charges so as to limit a defendant's jeopardy to offenses charged by a group of his fellow citizens, and to avoid his conviction on facts not found, or perhaps not even presented to, the grand jury that indicted him. Russell, supra, 369 U.S. at 770-71, 82 S.Ct. at 1050-1051, 8 L.Ed.2d at 254-255; see Stirone v. United States, 361 U.S. 212, 217-18, 80 S.Ct. 270, 273-274, 4 L.Ed.2d 252, 256-257; Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1066-67.

Defendant argues that the present indictment is void and fails to perform any of the four functions discussed above, stressing most heavily that the impermissible vagueness of the indictment infringed on his Fifth Amendment guaranty that he be tried only on charges made by the grand jury and not on charges later determined by the prosecutor to be used as grounds for trial and conviction. (Opening Brief of Defendant-Appellant, 22-27). More specifically the indictment is challenged for lack of specificity in failing to identify specific false statements as to the "services" or "charges" referred to in the requests of medicare payments, 3 and claimed to have been the subject of knowing and wilful material concealment and covering up by trick, scheme and device.

We are not persuaded that the defendant has raised a serious problem here pertaining to any of the first three functions of the indictment those relating to notice, double jeopardy, and sufficiency in law of the facts alleged to support a conviction. A detailed bill of particulars was

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furnished to the defendant four months prior to trial, giving adequate specifics as to the particulars of the Government's proof. While a bill of particulars cannot save an invalid indictment, Russell, supra, 369 U.S. at 770, 82 S.Ct. at 1050, 8 L.Ed.2d at 254, it can serve to give adequate notice for trial preparation in these circumstances. See Gaither v. United States, supra, 413 F.2d at 1067. Likewise the bill of particulars, together with the record evidence of exhibits and testimony, affords protection against double jeopardy since the whole record is available to avoid being placed twice in jeopardy for the same offense. Tritt v. United States, 421 F.2d 928, 930 (10th Cir.). And we are satisfied that the indictment, set out in part in the appendix to this opinion, adequately alleged the facts in order to determine that an offense was stated sufficiently to support a conviction if one should be had. Russell, supra, 369 U.S. at 768, 82 S.Ct. at 1049, 8 L.Ed.2d at 253.

The argument based on the Fifth Amendment guaranty of trial...

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