U.S. v. Alexander

• Decision Date: 11 December 1984
• Docket Number: No. 83-5283,83-5283
• Citation: 748 F.2d 185
• Parties: UNITED STATES of America, Appellee, v. Peter V. ALEXANDER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 185

748 F.2d 185

UNITED STATES of America, Appellee, v. Peter V. ALEXANDER, Appellant.

No. 83-5283.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1984.

Decided Oct. 22, 1984.

As Amended on Denial of Rehearing Dec. 11, 1984.

Judith A. Miller, Washington, D.C. (Brendan V. Sullivan, Jr., Harold Ungar and Williams & Connolly, Washington, D.C., on brief), for appellant.

Janis Kockritz, Atty., Dept. of Justice, Washington, D.C. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Tommy E. Miller, Asst. U.S. Atty., Norfolk, Va., on brief), for appellee.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

Dr. Peter V. Alexander appeals from multiple convictions for mail fraud, 18 U.S.C. Sec. 1341, submission of a false claim, 18 U.S.C. Sec. 287, and making a materially false statement, 42 U.S.C. Sec. 1396k in connection with the submission of medical insurance claims. We remand the case for reconsideration of the defendant's motion for new trial on the grounds of failure by the Government to produce Brady materials, and for such further proceedings as may then be warranted. Subject to that reconsideration, we affirm the convictions.

I

At relevant times, Dr. Alexander operated a medical practice in Virginia Beach, Virginia, specializing in gynecology and obstetrics. The charges against Dr. Alexander arose out of his dealings with three major health insurers: (1) the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); (2) Medicaid; and (3) Blue Cross/Blue Shield. In essence, the indictment alleges that, between May 15, 1978, and December 7, 1982, Alexander perpetrated a fraudulent scheme on these insurers which involved the following eight different "parts": (a) submitting duplicate claims for the same services to more than one insurer; (b) using the Current Procedural Terminology (CPT) codes to submit false claims to all three; (c) falsely claiming that certain services had been performed when in fact they had not been; (d) claiming to have performed pregnancy tests on women he knew to have been sterilized; (e) falsely claiming to have diagnosed illnesses in connection with routine office visits not compensable by CHAMPUS or Medicaid without such a diagnosis; (f) claiming higher fees from insured patients than from cash-paying patients; (g) falsely claiming to have rendered higher-compensation "comprehensive" service when he had actually rendered "brief" or "intermediate" service; and (h) claiming payment for post-operative office visits by surgery patients even though such visits were to be subsumed in the claim for the surgery itself.

Alexander was charged with thirty-one counts of perpetrating this fraudulent scheme by use of the mails, Counts 1-31; eight counts of submitting a false claim to an agency of the United States, Counts 32-39; and one count of making a materially false statement in an application for Medicaid assistance benefits, Count 40. At the close of the Government's case-in-chief, the district court dismissed Count 27, a mail fraud count, on the Government's request. The jury then returned verdicts of guilty on the remaining thirty mail fraud counts, Counts 1-26 and 28-31, five false claim counts, Counts 32-34, 36 and 39, and the single false statement count, that is, Count 40. Alexander moved for a new trial, raising many of the objections now advanced on appeal. Accompanying the new trial motion was a motion for additional discovery, about which more will later be said. The court denied both motions and sentenced Alexander to concurrent thirty-month prison terms and cumulative $500.00 fines on counts 1 and 40, suspended imposition of sentence on the remaining counts, and ordered that the defendant be placed on probation for five years at the expiration of his period of incarceration. This appeal followed.

II

Alexander first argues that the evidence was insufficient to support the jury's verdict of guilty on mail fraud counts 1-4 and false statement counts 32-34 respectively. Because of the dispositive consequences of this contention were it to be upheld, we address it first and, in the end, reject it as to all these counts.

A

Counts 1-4 charged Alexander with use of the mails to defraud CHAMPUS by perpetrating, in violation of 18 U.S.C. Sec. 1341, ¹ the eight-part scheme previously outlined. The Government's prosecution of these counts proceeded on two alternative factual theories of guilt: (1) Alexander had fraudulently submitted to CHAMPUS insurance forms which claimed reimbursement for laboratory tests which were not in fact performed and (2) he had submitted claims which falsely indicated that the patient had no other medical insurance. ²

The record amply supports findings of guilt based on the first, "non-performed tests," theory. Gloria V. Galanda, a CHAMPUS auditor who was one of the Government's principal witnesses, testified that although the CHAMPUS insurance forms submitted by Alexander claimed reimbursement for a number of tests performed for each of the patients involved, ³ his office records failed to indicate any results derived from these tests. ⁴ Furthermore, the Government's evidence suggested that Alexander's failure to perform tests for which benefits were claimed was a consistent and pervasive pattern in his practice. ⁵

A number of Alexander's medical secretaries testified that although they routinely collected and labelled urine specimens, Alexander never tested the samples but directed that they be discarded at the day's end. They also indicated that Alexander rarely reordered supplies. They claimed never to have seen Alexander performing microscopic analysis although he was seen with a slide in his hand on a number of occasions. The only pregnancy test materials seen in Alexander's office by a number of these secretaries were samples from pharmaceutical companies.

Alexander's business records indicated that he routinely tested all of his patients with the same battery of tests. Mrs. Galanda testified to random samples from Alexander's patient records which indicated that in the majority of cases Alexander routinely billed in all cases for urinalysis, wet and dry mount, and smear primary source stain. A substantial number of these billings also claimed reimbursement for pregnancy tests. According to a Blue Cross/Blue Shield "peer-group" analysis prepared and presented in evidence by witness Crumpler, Alexander ranked first among Tidewater-area gynecologists in performing urinalysis, pregnancy and "dry mount" smear tests and second highest for performing "wet mount" tests. Charles Halloran, a Medicaid investigator, compiled and presented in evidence similar peer group data obtaining comparable results. ⁶

The combined effect of this evidence, construed in the light most favorable to the Government, sufficed to allow a rational factfinder to find Alexander guilty beyond a reasonable doubt on the "non-performed tests" theory of guilt, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and we so hold.

B

Whether the evidence also sufficed to support a conviction on the second, "no other insurance," theory is more problematic. For while the evidence undoubtedly supports a finding that in respect of each of the counts under challenge, Alexander submitted insurance forms, falsely disclaiming the existence of "other insurance," it does not as clearly support a finding of the requisite intent to defraud or to obtain "money or property " by means of false statements.

An example illustrates this difficulty. Count 1 alleged that Alexander had submitted to CHAMPUS, on behalf of Margaret Adamson, a claim for $64.00 for services performed on August 1, 1980. This total included claims for an office visit, $50.00, and three tests, billed at $5.00, $5.00 and $4.00 respectively. The claim form indicated that Adamson had no other insurance. In consequence, CHAMPUS paid $48.00 of the claim. Adamson was, in fact, also insured by Blue Cross/Blue Shield, which was "primary" to CHAMPUS in the sense that CHAMPUS required beneficiaries insured by both insurers to exhaust available Blue Cross resources before receiving payments from CHAMPUS. Blue Cross business records indicated, in fact, that Alexander had filed a claim for Adamson's August 1, 1980, visit, but had charged $25.00, $15.00 and $10.00 respectively for the same tests. Blue Cross had allowed $20.00, $10.00 and $6.00 for these tests, leaving unpaid balances of $5.00, $5.00 and $4.00, which were the exact amounts later billed to CHAMPUS. ⁷ Blue Cross was not billed for the $50.00 office visit fee, but such amounts were not insured under its policy. Whatever the misstatement concerning other insurance then, CHAMPUS was asked only for amounts for which it was primarily liable. Since billing in this manner could not have had the effect of "defrauding" CHAMPUS or of obtaining from it "money" by false representations but would have deprived it only of information, the evidence, it is argued, fails to establish the requisite intent.

We need not, and do not, decide whether that argument has merit. Assuming the evidence is insufficient to support conviction on the second alternative factual theory of guilt, the verdict is nonetheless supportable because of the sufficiency of the evidence on the first. Though under some circumstances a general verdict may so obscure the basis upon which a jury considering alternative theories found guilt that due process will not permit upholding a verdict possibly based upon the unsupported theory, see, e.g., Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); United States v. Head, 641 F.2d 174, 178-79 (4th Cir.1981), the verdict here may be upheld on the saving principle that by careful record scrutiny it is possible to ascertain with a high degree of probability that the jury here did not rely upon the arguably unsupported theory. See,...