U.S. v. Tapert, s. 79-5222-79-5224
| Decision Date | 16 June 1980 |
| Docket Number | 79-5269 and 79-5270,Nos. 79-5222-79-5224,s. 79-5222-79-5224 |
| Citation | 625 F.2d 111 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard TAPERT, Harvey Golden, Gerald Weingarden, Donald Freedlander and RobertGash, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael H. Golob, Detroit, Mich., for defendant-appellant in No. 79-5222.
Robert S. Harrison, Warren J. Perlove, Southfield, Mich., for defendant-appellant in No. 79-5223.
Albert J. Krieger, Miami, Fla., for defendant-appellant in No. 79-5224.
Neil H. Fink, Cynthia Goldfarb, Detroit, Mich., for defendant-appellant in No. 79-5269.
Terence Page, Birmingham, Mich., for defendant-appellant in No. 79-5270.
James K. Robinson, U. S. Atty., Francis L. Zebot, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before WEICK and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
These are consolidated appeals by five Detroit osteopathic physicians who were convicted of receiving kickbacks for sending urine and blood samples of their patients to Titan Laboratories (Titan) for analysis. All five of the physicians were enrolled in the Medicare and Medicaid programs and the charges for the laboratory analysis were paid to Titan out of Medicare and Medicaid funds. The district court held that the payments violated the original version of 42 U.S.C. § 1396h(b), 1 which was in effect during the years involved in this case. In 1977 Congress amended the statute so as to remove any possible doubt that conduct such as that involved in the present case violates the Act. 2
The principal issues on this appeal are whether the information under which appellants were convicted charges a violation of the pre-1977 version of 42 U.S.C. § 1396h(b)(1) (note one), and whether the statute is unconstitutional for vagueness. Then Chief District Judge Cornelia Kennedy, now a judge of this court, ruled that the payments to the doctors were kickbacks, that the information charges a violation of the statute and that the statute is not invalid for vagueness. We affirm.
Apparently Titan initiated the arrangement for the kickbacks, by having its representative contact one of the physicians. 3 In return for payments from Titan or one of its affiliates, the physician agreed to send his patients' specimens to Titan and to encourage his colleagues to do the same. Other physicians entered into similar agreements, which Titan described as "consulting" arrangements. This pattern of activity began in April 1974 and continued until January 1978.
Beginning in 1976, the physicians began depositing their Titan checks in an escrow fund for the purpose of acquiring an interest in Titan. The fund was administered by J.K.F. Inc., a corporation set up by the physicians to hold the Titan stock they proposed to buy. When the escrow fund reached $60,000, the physicians contributed an additional $15,000 and J.K.F. Inc. acquired a 40 per cent interest in Titan.
On September 21, 1978, a federal grand jury returned a 37 count indictment against appellants, five other individuals and three Michigan corporations. On February 2, 1979, the Government filed a 42 count follow-up information charging appellants with soliciting and receiving Medicare and Medicaid kickbacks from Titan and associated entities. The information thereafter was amended. The version under which appellants were convicted is referred to in the record as the Amended Follow-Up Information.
Judge Kennedy denied the motions of appellants to dismiss the indictments. Thereafter, in a published opinion, she denied their motions for a rehearing. United States v. Weingarden, 468 F.Supp. 410 (E.D.Mich.1979). In this opinion Judge Kennedy held that the pre-1977 version 42 U.S.C. § 1396h(b)(1) prohibited the conduct charged in the information, and that the challenged statute was sufficiently clear to give to appellants adequate notice that their alleged conduct was illegal.
Thereafter, under a plea bargaining agreement, each of the appellants entered a plea of guilty to certain counts of the information applicable to him. The Government approved dismissal of the indictment.
Prior to their guilty pleas, the appellants gave notice that they intended to appeal the ruling of the district court on the applicability of § 1396h(b)(1). To preserve the issue for appeal, they moved for arrest of judgment under Fed.R.Crim.P. 34 on the ground that the statute did not apply to their conduct and the district court, therefore, had no jurisdiction to accept their guilty pleas. This is the procedure approved by this court in United States v. Heller, 579 F.2d 990, 992-93, and n. 1 (6th Cir. 1978). See also North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970); United States v. Cox, 464 F.2d 927, 941 (6th Cir. 1972). The Government concedes that the alleged defects raised by appellants are jurisdictional and not waived by their guilty pleas. Consequently the legal issue is properly before this court.
Dr. Gerald Weingarden entered a plea of guilty to Counts three through seven of the Amended Follow-Up Information, which are as follows:
On or about the dates listed below, in the Eastern District of Michigan, Gerald Weingarden, D.O., having obtained services from Titan Laboratories, Inc., for which payment was to be made in part out of federal funds under a state plan approved under Title XIX of the Social Security Act, did knowingly and wilfully solicit and receive kickback payments from Titan Laboratories, Inc., Spartan Laboratories, Inc., and M. A. Delaney, Inc., as detailed below in connection with the furnishing of the aforesaid services, each payment being a separate count of this indictment.
To wit, the Government contends Gerald Weingarden, received monetary payments labelled "consulting fees" from an entity related to Titan Laboratories, Inc., namely Spartan Laboratories, Inc., principally to induce the defendant to send his laboratory work to Titan. In addition, it was agreed that the defendant would perform the following services: (1) to form and assist in the formation of J.K.F., Inc., as described in Indictment Number 78-80689, and (2) to encourage other doctors to send their laboratory work to Titan, as described in Indictment Number 78-80689.
Gerald Weingarden visited Titan Laboratories, Inc., from time to time, in connection with the performance of the above-described services.
The claims filed by Titan Laboratories, Inc., were in accordance with the Medicaid statutes and regulations, and the monies received by Titan Laboratories, Inc., were those to which Titan Laboratories, Inc., was entitled. That is, when Titan Laboratories, Inc., was asking for payment for specific blood work, that blood work had been done, and that the billing for that blood work was in accordance with Medicaid statutes and regulations.
Approximate Date Amount of Source of
Count of Payment Money Payment
3 October 27, 1976 $1,000 Spartan Laboratories, Inc
4 November 22, 1976 $1,000 Spartan Laboratories, Inc
5 December 28, 1976 $1,000 Spartan Laboratories, Inc
6 March 1, 1977 $1,000 Spartan Laboratories, Inc.
7 March 1, 1977 $1,000 Spartan Laboratories, Inc.
All in violation of Title 42, U.S.C., Section 1396h(b)(1).
At his Rule 11 sentencing hearing, Dr. Weingarden admitted that he had committed the acts charged in the information.
Dr. Harvey Golden entered a plea of guilty to Counts 11 through 15 of the Information, which charged as follows:
On or about the dates listed below, in the Eastern District of Michigan, Harvey Golden, D.O., having obtained services from Titan Laboratories, Inc., for which payment was to be made in part out of federal funds under a state plan approved under Title XIX of the Social Security Act, did knowingly and wilfully solicit and receive kickback payments from Titan Laboratories, Inc., and Media Technology, Inc., as detailed below in connection with the furnishing of the aforesaid services, each payment being a separate count of this indictment.
To wit, Harvey O. Golden, D.O., received monetary payments from Titan Laboratories, Inc., in exchange for referring his laboratory work to Titan Laboratories, Inc. The claims filed by Titan Laboratories, Inc., were in accordance with the Medicaid statutes and regulations, and the monies received by Titan Laboratories, Inc., were those to which Titan Laboratories, Inc., were entitled. That is, when Titan Laboratories, Inc., was asking for payment for specific blood work, that blood work had been done, and that the billing for that blood work was in accordance with Medicaid statutes and regulations.
Approximate Date Amount of Source of
Count of Payment Money Payment
11 May 27, 1974 $850 Titan Laboratories, Inc.
12 August 8, 1974 $900 Media Technology, Inc.
13 September 3, 1974 $1,500 Titan Laboratories, Inc.
14 October 24, 1974 $1,000 Titan Laboratories, Inc.
15 December 6, 1974 $1,500 Titan Laboratories, Inc.
All in violation of Title 42, U.S.C., Section 1396h(b)(1).
At his Rule 11 sentencing hearing, Dr. Golden testified as follows:
To continue reading
Request your trial
-
Phillips Petroleum Co. v. U.S. E.P.A.
... ... Therefore, the 1986 amendments give us jurisdiction. The question is whether the newly conferred jurisdiction applies to previously filed ... United States v. Tapert, 625 F.2d 111, 121 (6th Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980), ... ...
-
Dept. Toxic Substance v. Interstate Non-Ferrous
...See Meyerhoff v. United States Environmental Protection Agency, 958 F.2d 1498, 1502 (9th Cir.1992) (quoting United States v. Tapert, 625 F.2d 111, 121 (6th Cir.1980): "An amendment to an existing statute is not an acknowledgment by Congress that the original statute is invalid. It is a comm......
-
U.S. v. Monroe
...§ 1956(a)(2) applied to wire transfers. Contrary to Monroe's contention, there was no ex post facto violation. See United States v. Tapert, 625 F.2d 111, 120-21 (6th Cir.) (applying subsequent amendment to affirm felony conviction), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 ......
-
Gary v. United States
...1459, 8 L.Ed.2d 671 (1961); May Dept. Stores Co. v. Smith, 572 F.2d 1275, 1277, 1278 (8th Cir. 1978). Cf. also United States v. Tapert, 625 F.2d 111, 120-21 (6th Cir. 1980) (An amendment to existing law does not support an inference that prior meaning of the statute was inconsistent with th......