U.S. v. Giannattasio, s. 91-2814

• Decision Date: 02 November 1992
• Docket Number: Nos. 91-2814,91-2926,s. 91-2814
• Citation: U.S. v. Giannattasio, 979 F.2d 98 (7th Cir. 1992)
• Parties: Medicare & Medicaid Guide P 40,892 UNITED STATES of America, Plaintiff-Appellant, v. Vincent A. GIANNATTASIO, M.D. and Vincent A. Giannattasio, M.D., S.C., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 98

979 F.2d 98

Medicare & Medicaid Guide P 40,892

UNITED STATES of America, Plaintiff-Appellant, v. Vincent A. GIANNATTASIO, M.D. and Vincent A. Giannattasio M.D., S.C., Defendants-Appellees.

Nos. 91-2814, 91-2926.

United States Court of Appeals Seventh Circuit.

Argued Feb. 21, 1992.

Decided Nov. 2, 1992.

James L. Santelle, Asst. U.S. Atty. (argued), John E. Fryatt, U.S. Atty., Chris R. Larsen, Asst. U.S. Atty., Charles Guadagnino, Office of U.S. Atty., Milwaukee, Wis., for plaintiff-appellant.

Gerald P. Boyle, Scott E. Hansen (argued), Milwaukee, Wis., for defendants-appellees.

Before POSNER and MANION, Circuit Judges, and VAN SICKLE, Senior District Judge. ^*

POSNER, Circuit Judge.

Dr. Giannattasio (and his professional corporation, which we'll ignore) were indicted on fifteen counts of Medicare fraud, all involving allegedly fraudulent claims submitted in 1987 for payment for psychiatric services rendered to schizophrenic residents of nursing homes. At a pretrial conference the prosecutor indicated that he would be filing a motion under Fed.R.Evid. 404(b) for permission to present evidence of fifteen to twenty prior, unindicted, bad acts of Dr. Giannattasio, in order to demonstrate that the false claims that were the subject of the indictment had been deliberately and not merely mistakenly false. In response, the judge said that he had only a week in which to hear the case and suggested that the prosecutor, far from presenting evidence of other bad acts, should confine the presentation of evidence to six of the fifteen counts. The prosecutor nevertheless filed his motion under Rule 404(b). The judge not only denied the motion but directed the prosecutor to select five (not six, as before) counts for prosecution and move to dismiss the rest without prejudice. The judge explained that the government would get the same benefit from five convictions as from fifteen; anyway the other ten counts could always be prosecuted later if they were dismissed without prejudice.

When the case was called for trial, the prosecutor refused to proceed on the basis of five counts. So the judge dismissed the entire indictment with prejudice, precipitating this appeal by the government under 18 U.S.C. § 3731. Since it was to be a bench trial, and no witnesses were called before the case was dismissed, the appeal does not place the defendant in double jeopardy. Serfass v. United States, 420 U.S. 377, 388-89, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975); Camden v. Circuit Court, 892 F.2d 610, 611 n. 1 (7th Cir.1989).

Although a district judge is empowered to dismiss a federal criminal prosecution for failure to prosecute, Fed.R.Crim.P. 48(b); United States v. Hattrup, 763 F.2d 376 (9th Cir.1985), such a dismissal is, of course, improper if the failure was caused by an improper ruling by the judge himself. As it was here. Every count in a properly drafted indictment is a different crime. A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985); United States v. Schwartz, 787 F.2d 257, 266-67 (7th Cir.1986); United States v. Podolsky, 798 F.2d 177, 181 (7th Cir.1986). This principle is most often invoked when the issue is whom to prosecute, as in Wayte v. United States, supra; Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), and United States Labor Party v. Oremus, 619 F.2d 683, 690-91 (7th Cir.1980), but it has equal force when the issue is which crimes of a given criminal to prosecute. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982); United States v. Smith, 953 F.2d 1060, 1064 (7th Cir.1992). If Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary. Of course there are judicially enforceable checks on discretion to indict. But they are protections for defendants, not for...