U.S. v. Mayers, 88-3473

• Decision Date: 05 April 1990
• Docket Number: No. 88-3473,88-3473
• Parties: , Medicare&Medicaid Gu 38,500 UNITED STATES of America, Plaintiff-Appellee, v. William J. MAYERS and Patricia Mayers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1126

897 F.2d 1126

29 Soc.Sec.Rep.Ser. 121, Medicare&Medicaid Gu 38,500

UNITED STATES of America, Plaintiff-Appellee, v. William J. MAYERS and Patricia Mayers, Defendants-Appellants.

No. 88-3473.

United States Court of Appeals Eleventh Circuit.

April 5, 1990.

John S. Crompton, Tampa, Fla., for Wm. Mayers.

David A. Dee, Stull & Dee, P.A., Tampa, Fla., for P. Mayers.

Andrew Grosso, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before CLARK, Circuit Judge, RONEY ^*, Senior Circuit Judge, and ATKINS ^**, Senior District Judge.

PER CURIAM:

This case raises the question of whether civil penalties assessed against defendants would make some or all of the criminal convictions here appealed a violation of the Double Jeopardy Clause of the Constitution under the recent case of United States v. Halper, 490 U.S. ----, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).

Defendants Dr. William J. Mayers and Patricia Mayers, a chiropractor and his wife, who operated a number of health care clinics, appeal their convictions on multiple charges arising from their having defrauded the Medicare program, the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), private insurance carriers, the Internal Revenue Service, and the State of Florida. The convictions consisted of counts for conspiracy (18 U.S.C.A. Sec. 371), mail fraud (18 U.S.C.A. Secs. 2, 1341 and 3147(1)), filing false claims (18 U.S.C.A. Secs. 2 and 287), tax evasion (18 U.S.C.A. Sec. 2 and 26 U.S.C.A. Sec. 7202), and racketeering (18 U.S.C.A. Secs. 2, 1961, 1962 and 3147(1)). In addition to the double jeopardy claim, the defendants raise several issues on appeal: sufficiency of the evidence, deprivation of right to counsel through pretrial seizure of assets, improper joinder, improper prosecutorial comment, failure to sever certain counts, refusal to order bill of particulars and denial of request for continuance.

As to all issues, except the double jeopardy claim, we affirm under Eleventh Circuit Rule 36-1. As to the double jeopardy claim, we remand to the district court for its consideration.

The double jeopardy claim based on Halper, which was handed down after the final judgment in this case, was raised for the first time on appeal in a supplement to defendants' reply brief. In Halper, the Supreme Court held that the Fifth Amendment's Double Jeopardy Clause would be violated if a defendant who had been convicted in a criminal proceeding of filing false claims against the Government was later assessed civil penalties for the same act, the amount of which bore no rational relation to the Government's loss. Although in this case the civil penalty preceded, rather than followed the criminal indictment, the Halper principle that civil penalties can sometimes constitute criminal punishment for double jeopardy purposes would seem to apply whether the civil penalties come before or after the criminal indictment.

Defendants were assessed civil penalties for their having filed 307 medicare claims entailing some 2,700 false items. The penalties consisted, in part, of $1,791,100 in fines. Mayers v. U.S. Dept. of Health & Human Services, 806 F.2d 995 (11th Cir.1986), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 44 (1987). This criminal indictment followed.

Under...