U.S. v. Mekjian

Decision Date06 January 1975
Docket NumberNo. 73-3841,73-3841
Citation505 F.2d 1320
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jack MEKJIAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Theodore Klein, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Robert C. Byrne, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BELL, SIMPSON and INGRAHAM, Circuit Judges.

SIMPSON, Circuit Judge:

After a jury trial, appellant, an osteopath practicing in Fort Lauderdale, Florida, was convicted upon sixteen counts of a sixty-count indictment for violations of Title 18, U.S.C., Sec. 1001. 1 Eighteen counts, Counts 1, 7, 14, 18, 21, 27, 34, 36, 37, 38, 39, 43, 48, 50, 52, 54, 56 and 60, were submitted to the jury, Mekjian being acquitted as to Counts 1 and 48. Each count involved the submission of false claims to Blue Shield as agent of the Social Security Administration under the Medicare program. He received concurrent sentences under the split sentence provisions of Title 18, U.S.C., Sec. 3651 to 18 months imprisonment, of which 15 days were to jail confinement with the remainder suspended under two years probation. A single $5,000 fine was also imposed. Dr. Mekjian asserts four errors in the trial court: (1) the failure of each count of the indictment to charge that the offense was done 'willfully'; (2) the admission into evidence of history files of the Bureau of Health Insurance without proper authentication; (3) the admission into evidence of copies of patient records photocopied by a former employee without permission; and (4) the denial of a motion for a judgment of acquittal on counts as to which no live witness testimony was offered by the prosecution. We reverse for failure of the indictment to allege the essential element of 'willfulness.' We agree that the history files were improperly authenticated. The remaining two contentions we regard as insubstantial, but we discuss them for the benefit of court and counsel in the event of re-indictment and retrial.

Medicare is a program administered by the Social Security Administration (SSA), an agency of the United States Department of Health, Education and Welfare (HEW). Title 42, U.S.C., Sec. 1395 et seq. (1970). Florida Blue Shield (BS), a private insurance carrier, was under contract with the SSA to process and pay Medicare claims. See Title 42, U.S.C., Sec. 1395u. A physician rendering services to Medicare patients may either bill the patient, who in turn submits a claim to BS, or, if an assignment is executed by the patient and physician, may bill BS directly. During the period covered by the indictment, appellant obtained the necessary assignments and submitted numerous 'Requests for Medicare Payment' forms (SSA Form 1490), with representations therein that the indictment alleged were knowingly false. Specifically, he was charged with submitting bills for care never performed, with billing for Durabolin injections when in fact he had given B-12, and with submitting bills for laboratory work done in his office when in fact he had sent the work out to an independent laboratory. The significance of the latter two allegations was that re-imbursement was not permitted for a B-12 injection except in designated categories of cases, Medicare Part B Intermediary Manual Sec. 6103.1, and (a change in) prescribed billing procedures required that work done by an independent laboratory be so indicated on the 1490's. Intermediary Manual, Sec. 6235.2.

Each count of the indictment contained similar wording except for differences in dates, patients' names, and in the underlying activities alleged. The statutory language 'willfully' was not employed in any count. 2 Defense counsel moved prior to trial to dismiss the indictment for failure to allege the essential element of 'willfulness'. The trial court denied the motion at that time and again when it was renewed at the close of the evidence. The judge did, however, give instructions to the jury that proof of willfulness was required to sustain conviction.

A large part of the government's evidence was based upon copies of records made and given to the government by a nurse, Mrs. Jones, a former employee in the doctor's office. Disturbed by what she considered to be fraudulent conduct, she talked to a Mr. McDonnell, an employee of Florida Blue Shield and BS's manager of Medicare Part B for the State of Florida, over the telephone on October 21, 1971 and thereafter forwarded copies of records she had xer-oxed with a cover note. On October 26, she sent a letter further substantiating her allegations. She was not in contact with either the government or BS from that time until late December, when she forwarded a copy of another patient chart to Blue Shield. On January 13, 1972, two FBI agents went to her home and told her not to copy any more patient charts. At that time, she turned over several more that she then had in her possession. In spite of the FBI's instructions she sent copies of more records in August 1972. The trial court, after a hearing, denied a motion to suppress, finding that no fourth amendment violation had occurred because the search had seizures were conducted solely by a private individual.

At trial, the government sought to prove that a change in coverage and billing procedures had taken place, that appellant was aware of such changes, and that he had altered his billing procedures accordingly. To this end, a letter sent out by BS to participating physicians notifying them of such changes was introduced into evidence. The government also sought to introduce a Medicare manual on coverage issued by the SSA to carriers, including BS. Because there was no testimony as to the currency of the manual at the time in issue, the document was ruled inadmissible. But the government was successful in introducing relevant portions of the manual contained in the history files of the Bureau of Health Insurance through the testimony of Mr. Harold Fishman, Chief of the Instructions Coordination Branch in the Bureau of Health Insurance of the SSA. The Instructions Coordination Branch does precisely what its name indicates; it coordinates and issues instructions of the Bureau of Health Insurance to carriers, including BS, who process claims. These instructions are sent out in the Medicare manual, noted above. In the event interim changes are made, intermediary letters are issued. Mr. Fishman testified that his office maintains history files on all revision transmittals issued (i.e. all changes in the manual), which are kept in the ordinary course of business and under his care, custody and control. The standards contained in his files were admitted into evidence over appellant's objection.

Appellant asserts that the failure of the indictment to allege that the charged offense was committed 'willfully' requires reversal of his conviction. We agree, and hold that 'willfulness' is an essential element of a Sec. 1001 offense which must be alleged in haec verba or by words of similar import.

This court has recognized that an indictment must set forth all essential elements of an offense in order to apprise a defendant of the charge he must meet and to protect against double jeopardy. United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34, 39, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478. If this requirement were to be undermined, a defendant would have no assurance that a grand jury would have returned an indictment against him. United States v. Denmon, 8 Cir. 1973, 483 F.2d 1093, 1095.

The initial question for consideration, then, is whether 'willfully' is an essential element of a Sec. 1001 offense. We answer this question in the affirmative. The statute uses both 'willfully' and 'knowingly' in defining the offense. Each encompasses a different element of the requisite mens rea, requiring differing proof. 'Knowingly' under Sec. 1001 requires proof that a defendant acted 'with knowledge.' See McBride v. United States, 5 Cir. 1955, 225 F.2d 249. 'Willfully' under Sec. 1001 requires proof that a defendant acted 'deliberately,' or 'deliberately and with knowledge.' Id. at 253-255; see United States v. Parten, 5 Cir. 1972, 462 F.2d 430, 432-433. Each must be proved beyond a reasonable doubt, as the district court recognized by so instructing the jury. See 225 F.2d at 253; Walker v. United States, 10 Cir. 1951, 192 F.2d 47, 49. It follows that, if a defendant is to be assured that he is being called to answer only to a grand jury indictment, is to be protected against double jeopardy, and is to be apprised of the charge he must meet in order to challenge effectively the government's proof, an allegation that the act alleged was done willfully must appear in the indictment.

' Willfulness' not being specifically alleged, the next question is whether the counts submitted to the jury contained words of similar import. We determine that they did not.

The government contends that from the allegations of 'fraudulent statement,' 'as he then knew he had not performed such services,' 'knowingly,' and the facts as set forth in the several counts, a charge that the acts were done 'willfully' may be implied. We reject this contention because, as noted above, to act 'willfull' means to act 'deliberately.' None of the allegations relied upon by the government import more than that the defendant acted 'with knowledge,' a separate and distinct element of a Sec. 1001 offense.

The similar import doctrine advances the policy, reflected in F.R.Cr.P. 7(c), against fine-combing indictments for technical errors. But the words of similar import must be clear enough to insure that the indictment meets the purposes it is intended to serve. Such assurance is not present here.

Our decision in United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 controls this question....

To continue reading

Request your trial
79 cases
  • U. S. v. Ismoila
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Noviembre 1996
    ...element of wire fraud by using the word "knowingly" instead of "willfully." We disagree. Ismoila relies on United States v. Mekjian, 505 F.2d 1320, 1324 (5th Cir. 1975), a case in which this Court reversed a conviction on the ground that the word "willfully" was omitted from the indictment ......
  • U.S. v. Beasley
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 5 Septiembre 1975
    ...in jeopardy for same offense. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Mekjian, 505 F.2d 1320, 1324 (5th Cir. 1974). The same principles are used to judge the sufficiency of a conspiracy count. Grene v. United States, 360 F.2d 585, 586 ......
  • U.S. v. Leisure
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 Abril 1988
    ...'Willfully' ... requires proof that a defendant acted 'deliberately,' or 'deliberately with knowledge.' " United States v. Mekjian, 505 F.2d 1320, 1324 (5th Cir.1975) (citations omitted). See also United States v. Sirhan, 504 F.2d 818, 820 n. 3 (9th Cir.1974) ("It appears that a 'willful' v......
  • U.S. v. Seidlitz
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Diciembre 1978
    ...2022, 29 L.Ed.2d 564 (1971). See also Burdeau v. McDowell, 256 U.S. 465, 475-476, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Mekjian, 505 F.2d 1320 (5 Cir. 1975); United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (1974), Cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.......
  • Request a trial to view additional results
5 books & journal articles
  • Survey of Washington Search and Seizure Law
    • United States
    • Seattle University School of Law Seattle University Law Review No. 9-01, September 1985
    • Invalid date
    ...knowledge that the seizure would occur, the taint of the illegal action is transferred to the government. See United States v. McKjian, 505 F.2d 1320, 1327-28 (5th Cir. 1975) (copies of fraudulent claims allowed into evidence because defendant failed to prove that federal investigators knew......
  • Survey of Washington Search and Seizure Law: 1988 Update
    • United States
    • Seattle University School of Law Seattle University Law Review No. 11-03, March 1988
    • Invalid date
    ...L. Ed. 2d 242, 94 S. Ct. 988 (1974) § 5.14(d) United States v. Maxwell, 484 F.2d 1350 (5th Cir. 1973) § 7.6(b) United States v. McKjian, 505 F.2d 1320 (5th Cir. 1975) § 7.6(d) United States v. McLaughlin, 525 F.2d 517 (9th Cir. 1975), cert. denied, 427 U.S. 904 (1976) § 1.3(g) United States......
  • Survey of Washington Search and Seizure Law: 1998 Update
    • United States
    • Seattle University School of Law Seattle University Law Review No. 22-01, September 1998
    • Invalid date
    ...knowledge that the seizure would occur, the taint of the illegal action is transferred to the government. See United States v. Mekjian, 505 F.2d 1320, 1327-28 (5th Cir. 1975) (copies of fraudulent claims allowed into evidence because defendant failed to prove that federal investigators knew......
  • Survey of Washington Search and Seizure Law: 2005 Update
    • United States
    • Seattle University School of Law Seattle University Law Review No. 28-03, March 2005
    • Invalid date
    ...knowledge that the seizure would occur, the taint of the illegal action is transferred to the government. See United States v. Mekjian, 505 F.2d 1320, 1327-28 (5th Cir. 1975) (copies of fraudulent claims allowed into evidence because defendant failed to prove that federal investigators knew......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT