U.S. v. Fekri
Decision Date | 20 August 1981 |
Docket Number | No. 80-1411,80-1411 |
Citation | 650 F.2d 1044 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Hadi FEKRI, National Laboratory Enterprises, Inc., Defendants- Appellants. |
Court | U.S. Court of Appeals — Ninth Circuit |
Douglas G. Simon, Los Angeles, Cal., for defendants-appellants.
Andrea Sheridan, Ordin, U. S. Atty., Los Angeles, Cal., on brief; Robert A. Pallemon, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN and SCHROEDER, Circuit Judges, and EAST *, District Judge.
Appellants were convicted, after a trial to the court, of offering a ten percent cash rebate on Medicare and Medi-Cal collections and a discount on private patients' billings to a person to induce that person to refer his laboratory work to National Laboratory Enterprises, Inc., doing business as California Medic Enterprises, in violation of 42 U.S.C. § 1395nn(b)(2)(A) and 42 U.S.C. § 1396h(b)(2)(A).
The principal question before us is whether the evidence established entrapment as a matter of law. Upon review of that evidence, which included recorded conversations, we conclude that entrapment was not established as a matter of law. In United States v. Rangel, 534 F.2d 147 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976), we held that "(e) ntrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent." Id. at 149. Accord, United States v. Prairie, 572 F.2d 1316 (9th Cir. 1978).
Appellants also argue that the conduct of the government in this case amounted to a violation of due process. The Supreme Court has noted that "(W)e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction " United States v. Russell, 411 U.S. 423, 432-33, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). The possibility that a conviction may be reversed on due process grounds was left open in United States v. Hampton, 425 U.S. 484, 492-96, 96 S.Ct. 1646, 1651-53, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); id. 425 U.S. at 496, 498-500, 96 S.Ct. at 1654-55 (Brennan, J., dissenting). This Court has consistently recognized that a criminal defendant may have a due process defense when the government's conduct has been sufficiently outrageous. However, we find that the government's involvement in this case amounted to no more than setting up an atmosphere in which the defendant would feel comfortable in discussing an illegal act and did not violate due process. See United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980), cert. denied sub nom., Perluss v. United States, -- U.S. --, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981) ( ); United States v. McQuinn, 612 F.2d 1193 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980) ( ).
In United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, (9th Cir., 1981) we held that an indictment charging a defendant with offering remuneration as an inducement for referral of 'individuals' would...
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