Com. v. Leavitt

• Decision Date: 03 May 1984
• Citation: 17 Mass.App.Ct. 585,460 N.E.2d 1060
• Parties: COMMONWEALTH v. Regina LEAVITT.
• Court: Appeals Court of Massachusetts

Page 1060

460 N.E.2d 1060

17 Mass.App.Ct. 585

COMMONWEALTH v. Regina LEAVITT.

Appeals Court of Massachusetts Suffolk.

Argued Nov. 10, 1983.

Decided March 7, 1984.

Further Appellate Review Denied May 3, 1984.

Alan M. Dershowitz, Cambridge, for defendant.

Paul R. Cirel, Asst. Atty. Gen., for the Commonwealth.

Before BROWN, PERRETTA and KASS, JJ.

KASS, Justice.

In the course of an investigation in 1980 of Medicaid ¹ fraud, a special grand jury probed the billing practices of Hospital Equipment Services, Inc. (HES), a provider of hospital beds, wheel chairs, respiratory aids, walkers, and other durable medical equipment. Responding to a subpoena (after an unsuccessful motion to quash), Regina Leavitt, the president of HES, appeared before the grand jury on August 13, 1980, and December 1, 1980. ² Those appearances led to the two indictments on which the defendant was convicted by a jury, convictions from which she brought this appeal. The first indictment charges that she did "intentionally, wilfully and knowingly impede, hinder, interfere and obstruct the grand jury" and, therefore, was in contempt of court; the second, that she committed perjury (G.L. c. 268, § 1). ³

As alleged by the Commonwealth in a bill of particulars, and as developed at trial, Leavitt's contempt consisted of (1) not delivering, and, indeed, destroying records of patients whose accounts were no longer active, the so-called "closed ledger cards"; (2) tearing inculpatory adding machine tapes from closed patient files before turning the files over to the grand jury; and (3) the nonproduction of certain current or "open ledger cards." During the presentation of the defense case, evidence also emerged of delayed--and, hence, arguably obstructive--production of a sales adjustment journal and a cash receipts journal.

Perjury, as alleged by the Commonwealth, occurred when Leavitt, while testifying before the grand jury on two different occasions, denied the existence of all but isolated closed ledger cards at the time she was served with the grand jury's subpoena. More particularly, she said of the closed ledger cards: "We dumped them." Evidence was adduced by the Commonwealth at trial from which the jury could have found that Leavitt directed destruction of inculpatory closed ledger cards after she had received the subpoena from the grand jury.

The focus of the grand jury's investigation was the receipt and retention by HES of excess payments for equipment sold or leased. To that inquiry the closed ledger cards were highly relevant. As to each patient account, HES set up a ledger card on which charges and receipts were entered. If, as happened, a duplicate or excess payment was received for the account of a patient (generally from a third-party payor, such as Medicaid), the overpayment would show on the patient's ledger card as a credit balance. Former bookkeepers at HES testified that they had been, with some frequency, directed by Leavitt to write off credit balances on accounts which had become inactive; i.e., HES would pocket the overpayments. It was the practice to indicate the closing of an individual account by drawing a double line and "zeroing out" the balance by writing off a debit or credit as the case might be. Thus, the closed ledger cards would display more prominently than any other record the writing off of a credit balance created by an excess payment.

We turn to the several issues on appeal. One requires reversal of the judgment of contempt. We affirm the judgment of perjury.

1. The sufficiency of the indictment for contempt. Leavitt argues that the indictment for contempt stated the crime charged in too broad, too generic a fashion; it failed to descend to particulars. See Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Contempt of a judicial proceeding by means of interference and obstruction is not an unknown offense. Hurley v. Commonwealth, 188 Mass. 443, 446-448, 74 N.E. 677 (1905). Commonwealth v. McNary, 246 Mass. 46, 50-51, 140 N.E. 255 (1923). Opinion of the Justices, 301 Mass. 615, 618, 17 N.E.2d 906 (1938). Smith, Criminal Practice & Procedure § 768 (2d ed. 1983). ⁴ As amplified by the particulars, the indictment adequately informed the defendant of the charges against her and gave her a reasonable opportunity to meet them. Dolan v. Commonwealth, 304 Mass. 325, 337-338, 23 N.E.2d 904 (1939) ("the complaint together with these particulars fully advised the defendant of the nature of the offense charged against him, and advised him of the facts relied on as constituting such offense in sufficient detail to give him reasonable knowledge of the grounds of the charge and reasonable opportunity to meet such charge"). Miaskiewicz v. Commonwealth, 380 Mass. 153, 156, 402 N.E.2d 1036 (1980). See Commonwealth v. Hobbs, 385 Mass. 863, 869, 434 N.E.2d 633 (1982). It cannot be a coincidence that the trial which ensued focused precisely on the destruction or withholding of the records to which the particulars had adverted. Technical nicety has not been demanded in the pleading of contempt. Miaskiewicz v. Commonwealth, supra at 156, 402 N.E.2d 1036.

In a variation on the vagueness theme, the defendant suggests that a difficulty with a contempt indictment phrased in a general manner is that the special grand jury which handed up the indictment might have had one set of contumacious acts in mind while the Attorney General contemplated a quite different set when framing the bill of particulars. We have been referred to no grand jury minutes suggesting that such a variance in fact occurred and are not prepared to speculate that it did.

2. Whether the indicting grand jury was properly constituted. (a) More than one special grand jury investigated Medicaid fraud during the 1980-1981 period in which Leavitt's case developed. ⁵ A special grand jury convened November 15, 1979, in accordance with G.L. c. 277, § 2A, as amended by St.1979, c. 344, § 29, was extended, upon application of the Attorney General, pursuant to G.L. c. 277, § 1A, inserted by St.1952, c. 494. Before that extended grand jury concluded its business, another special grand jury was convened to investigate Medicaid fraud. It was the latter grand jury before which Leavitt appeared. Pointing to the command in § 1A that an extended grand jury shall serve until the investigation "has been completed and shall take up no new matter," Leavitt asserts that a special grand jury may not lawfully be constituted to investigate Medicaid fraud, albeit quite different suspected instances of it, for as long as another grand jury is working on Medicaid fraud, i.e., the same generic subject. She buttresses her contention with the second paragraph of § 1A, which provides that a grand jury may be impanelled "whose duty shall include all business not then before the grand jury continued under authorization of this section."

The argument tortures a statutory provision designed to keep a special grand jury from sitting indefinitely into a requirement which accomplishes the opposite result. We think it plain that the prohibition in § 1A against taking an extended grand jury into new matter does not preclude convening a new grand jury into new matter does not preclude convening a new grand jury to consider a similar subject. Medicaid is a vast program involving a large number of providers of care, services, and, as in this case, durable equipment. Such is the scope of activity that the Attorney General has established a separate Medicaid Fraud Control Unit. For some sense of the scale on which Medicaid providers are monitored, see Stornanti v. Commonwealth, 389 Mass. 518, 522-524, 451 N.E.2d 707 (1983). It is hardly plausible that any single special grand jury must sit to exhaust the subject of Medicaid fraud or that investigation must be suspended until a grand jury looking into that general topic has been discharged. The new matter which an extended grand jury is to be spared is that which would lead to the presentment of an indictment based on a set of particular facts different from that considered by the grand jury prior to its extension. Cf. Commonwealth v. England, 350 Mass. 83, 84, 213 N.E.2d 222 (1966). Reciprocally, a successor grand jury is free to look into any matter not the subject of proceedings leading to a particular presentment before the prior grand jury. There was no showing that Leavitt's appearances were anything other than before the same special grand jury. If it were otherwise, it is a circumstance as to which she has peculiar competence to provide the information.

(b) Perjury, as a statutory matter, occurs in the context of "a judicial proceeding or in a proceeding in a course of justice." G.L. c. 268, § 1. Grand jury proceedings are, of course, judicial proceedings. See Commonwealth v. McNary, 246 Mass. at 50; Matter of Pappas, 358 Mass. 604, 613, 266 N.E.2d 297 (1971). The parties stipulated (among other things) that a special grand jury was created June 9, 1980; it issued a subpoena to Leavitt, requiring her to bring certain books and records. ⁶ It was nowhere proved, the defendant argues, that the grand jurors took their statutory oath (G.L. c. 277, § 5). Therefore, the argument continues, it was not established that the special grand jury was lawfully convened and that false statements were made under oath in a judicial proceeding. To this strictissimi juris argument it is sufficient to answer that: on the face of the indictment for perjury the special grand jury presented it "on their oath"; the stipulation as to the creation of the special grand jury implies it was lawfully done; and there is a presumption that the acts of public bodies are regular and lawful. Robie v. Massachusetts Turnpike Authy., 347 Mass. 715, 725, 199 N.E.2d 914 (1964), and cases there collected. Cf. Patry v. Liberty Mobilhome Sales, Inc., 15 Mass.App.Ct. 701, 703, 448 N.E.2d 405 (1983).

3. Evidence of double payments. Largely...