695 F.2d 1151 (9th Cir. 1983), 81-1592, United States v. Universal Trade and Industries, Inc.

Docket Nº:81-1592, 81-1653.
Citation:695 F.2d 1151
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. UNIVERSAL TRADE AND INDUSTRIES, INC., doing business as Universal Medical Laboratories, and Fereydoun Karimi, Defendants-Appellants.
Case Date:January 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1151

695 F.2d 1151 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

UNIVERSAL TRADE AND INDUSTRIES, INC., doing business as

Universal Medical Laboratories, and Fereydoun

Karimi, Defendants-Appellants.

Nos. 81-1592, 81-1653.

United States Court of Appeals, Ninth Circuit

January 4, 1983

Argued and Submitted Nov. 3, 1982.

John J. Resich, Jr., San Pedro, Cal., for Universal Trade and industries, inc.

Page 1152

Michael D. Abzug, Los Angeles, Cal., for Karimi.

Robert Pallemon, Asst. U.S. Atty., Los Angeles, Cal., for the U.S.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NELSON, Circuit Judges, and EAST [*] District Judge.

NELSON, Circuit Judge:

Defendants appeal from their convictions of Medi-Cal abuse, contending there was a fatal variance between the indictment and the proof adduced at trial in that the evidence showed the remuneration was offered in return for the referral of individuals (42 U.S.C. Sec. 1396h(b)(2)(A)), not for the ordering of services (42 U.S.C. Sec. 1396h(b)(2)(B)) as charged in the indictment. Defendants also argue that the evidence was not sufficient to support the conviction because they lacked specific intent to violate the law. We find there was no variance between the indictment and proof, and the proof was sufficient to support the conviction. Accordingly, the judgment is affirmed.

FACTS

Appellant Universal Trade and Industries, Inc., doing business as Universal Medical Laboratories, ("Universal" ), is a large medical laboratory that performs many services paid for by Medi-Cal. In 1979, Appellant Karimi was the administrative director of Universal.

In August 1979, Universal was contacted about a possible new account by Dr. Dorr, the administrator of a medical clinic in Glendale. Unbeknownst to Universal, Dorr was acting in concert with the F.B.I. Dorr secretly tape-recorded all of his conversations with Karimi and others regarding Universal.

Dorr told Universal that he was looking for a new laboratory to do his clinic's laboratory tests. He was interested in obtaining good service from a laboratory, as well as generating revenue for his clinic from the laboratory work.

Karimi negotiated for Dorr's business on behalf of Universal. Karimi told Dorr that Universal could not give him cash kickbacks from fees collected for any laboratory work done at Universal. Dorr suggested that the lab tests might be done on-site at his clinic in order to generate revenue.

After preliminary investigation and planning, Karimi told Dorr that Universal, and Karimi acting on his own behalf, would set up a laboratory in a small room at the clinic at no cost to the clinic. Karimi would handle all the...

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