U.S. v. Varoz, 83-1660

• Decision Date: 20 July 1984
• Docket Number: No. 83-1660,83-1660
• Citation: 740 F.2d 772
• Parties: Medicare&Medicaid Gu 34,055, 16 Fed. R. Evid. Serv. 141 UNITED STATES of America, Plaintiff-Appellee, v. Theodore Lawrence VAROZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 772

740 F.2d 772

Medicare&Medicaid Gu 34,055, 16 Fed. R. Evid. Serv. 141

UNITED STATES of America, Plaintiff-Appellee, v. Theodore Lawrence VAROZ, Defendant-Appellant.

No. 83-1660.

United States Court of Appeals,

Tenth Circuit.

July 20, 1984.

Winston Roberts-Hohl, Santa Fe, N.M. (James L. Brandenburg, Albuquerque, N.M., with him on briefs), for defendant-appellant.

David N. Williams, Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., Alburquerque, N.M., on brief), for plaintiff-appellee.

Before McWILLIAMS, McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Theodore Lawrence Varoz, a podiatrist, appeals from his conviction on eight counts of submitting false Medicare claims in violation of 42 U.S.C. Sec. 1395nn(a)(1)(i). On appeal defendant challenges the sufficiency of the evidence to support each conviction. He also asserts that the trial court abused its discretion in permitting defendant to be cross-examined in two areas. Although we affirm three of the convictions, we review all the others despite the concurrent sentence doctrine because of the possible consequences of the convictions on parole eligibility and on civil litigation regarding defendant's right to practice his profession.

I

The indictment against defendant contained twenty-five counts, all of which were identical except for the date of treatment, the name of the patient, and the amount of the claim. For example, Count II charged:

"On or about the 17th of April, 1980, in the State and District of New Mexico, the defendant THEODORE LAWRENCE VAROZ did knowingly and willfully make and cause to be made false statements and representations of material fact in application for payment under the terms of the Medicare Program, Subchapter XVIII of the Social Security Act, 42 U.S.C. 1395 et seq., in that the defendant THEODORE LAWRENCE VAROZ submitted and caused to be submitted a Claim Form purporting to reflect charges in the amount of $783.15 for podiatric services and treatment rendered to patient Maria P. Hernandez, whereas in truth and fact, as the defendant then and there knew, said Claim Form was false in that the services and treatment were not rendered as described.

In violation of 42 U.S.C. 1395nn(a)(1)(i)."

The jury found defendant not guilty on thirteen counts and convicted him on eight counts: II, IX, X, XIV, XV, XIX, XXI, and XXII. The trial court declared a mistrial on the four counts on which the jury could not reach a verdict.

We agree with defendant that the indictment and instructions to the jury required the government to prove that defendant did not perform the services for which he billed the government. Whether services actually rendered were medically necessary was not an issue.

The eight counts on which defendant was convicted involved six patients. None of those patients testified at trial. The government's evidence on the issue of whether defendant had actually performed the procedures for which he submitted claims was the expert testimony of another podiatrist, Dr. Morris Haas. Dr. Haas testified based upon his examination of x-rays, claim forms, and records introduced into evidence; he did not talk to or examine any of the patients. The government also introduced evidence showing that defendant was careless in keeping records and that patients often signed blank consent forms.

Due process requires that every conviction be supported by sufficient evidence. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Evidence is sufficient to support a criminal conviction if, taken in the light most favorable to the government, the factfinder may find the defendant guilty beyond a reasonable doubt. Id. at 316, 319, 99 S.Ct. at 2787, 2789. The evidence must be substantial; it must do more than raise a mere suspicion of guilt. If the evidence is consistent with both innocence and guilt it cannot support a conviction. United States v. Ortiz, 445 F.2d 1100, 1103 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971).

An expert may give an opinion as to an ultimate issue. Fed.R.Evid. 704. The weight and credibility of expert testimony are matters for the jury. United States v. Coleman, 501 F.2d 342, 346 (10th Cir.1974). However, to sustain a conviction based on an expert's opinion as to an ultimate issue we must be able to find that rational minds could have found beyond a reasonable doubt that such opinion was correct. See Nagell v. United States, 392 F.2d 934, 937 (5th Cir.1968). The expert's testimony must be such that it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The rules contemplate that the expert will give his opinion and "his reasons therefor." Id. 705. Because the jury must weigh the expert's testimony, the testimony must be accompanied by presentation of the facts and premises underlying the expert's opinions and conclusions. United States v. Brawner, 471 F.2d 969, 994 (D.C.Cir.1972); see also United States v. Julian, 440 F.2d 779, 780 (9th Cir.1971) (jury may disregard psychiatrist's testimony after weighing the facts upon which he based his diagnosis); Holm v. United States, 325 F.2d 44, 46-47 (9th Cir.1963). With that in mind we review the evidence presented through the government's expert.

Count II

Count II charged that defendant submitted a claim for services not actually rendered to Maria Hernandez. The government introduced a claim for an osteotomy performed on April 17, 1980, for angular correction shortening on the third and fourth metatarsal bases of Ms. Hernandez' right foot. R. II, 97-98. The prosecution introduced another claim for the same procedures performed on January 31, 1980, and an entry from Ms. Hernandez' chart for that date stating "very successful surgery" and referring to an "op report." R. II, 98-99. Dr. Haas said that he had not been able to find an operative report for the January procedure. R. II, 99. The following exchange then took place between the prosecutor and Dr. Haas:

"Q. [prosecutor] You told us in the medical chart of 'very successful surgery.' In your professional medical opinion, do you know of any reason why the procedure would have been repeated on the 17th of April, 1980?

A. [Dr. Haas] I do not.

Q. Could it have been repeated on the 17th of April if it was done as indicated on the 31st of January?

A. The word 'could,' sir, brings to mind what could, could not--Yes, it could. But I couldn't understand it. But I suppose you could go back in and cut a person the second time, but I don't know why, if it was successful."

R. II, 100.

In essence, Dr. Haas testified that there was no medical reason to perform the procedure a second time if the procedure was successful the first time. Even ignoring Dr. Haas' failure to explain his conclusion and assuming that the prosecution proved that the first procedure was successful, Dr. Haas' testimony is insufficient to support a determination that defendant did not perform the second surgery. The indictment required the prosecution to prove that the services for which the Medicare claim was made "were not rendered as described." A defendant may not be convicted on a theory not charged in the indictment. Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). Dr. Haas' testimony is as consistent with useless surgery as with absence of surgery. Thus, the prosecution produced no evidence to support a conviction on Count II. Count IX

Count IX charged that defendant submitted a claim for services not actually rendered to Harold Frysinger on January 10, 1980. In regard to that count the following exchange took place between the prosecution and Dr. Haas:

"Q. [prosecutor] Doctor, I'm going to hand you three more exhibits. They will be Exhibits 9, 39 and 40 and I'll ask you, first, to look at Exhibit 9 and tell us the name of the patient for whom the surgery in that claim form was assertedly performed?

A. [Dr. Haas] Harold Frysinger.

Q. And what sort of services were allegedly performed for Mr. Frysinger?

A. 'Partial phalangectomy resection, proximal phalanx, second toe,' meaning that the portion--the bone, the bone, the one that--closest to the foot itself in the second toe, that it was partially--that the bone in the toe was partially removed.

Q. All right, sir. Now, you have before you two other exhibits, I believe. I think you have Exhibit 39, which is a claim form, is it not?

A. Yes.

Q. And what's the date of that claim form?

A. 12-6-79. December the 6th, 1979, which was the month before.

Q. Exhibit 9?

A. Right.

Q. All right. And what, if anything, is shown in Exhibit 39 as having been done for Mr. Frysinger?

A. 'Head resection of the proximal phalanx for correction of hammertoe deformity in the second toe of left foot.'

Q. Now, Doctor, if you would look, please, at the medical chart for Mr. Frysinger, which is Exhibit 40, and look at the two dates, the dates for the claim form, Exhibit 9, which is 10 January, '80, and the chart for December 6th, 1979, the month before,--

A. Yes?

Q. --first of all, for the deCember entry, the 6 deCember '79 entry, what is shown there, sir?

A. Nothing, but it says, 'See op report; surgery today.'

Q. Do you find an op report there, sir?

A. No, I do not.

Q. What significance, if any, can you attach to that, sir?

A. That the chart tells us nothing.

Q. There's no documentation of procedure having been performed?

A. No documentation of what procedure. It just says, 'See the op report,' which is not in the chart. [This reference is to the December 6 procedure, not the procedure underlying Count IX.]

Q. So the chart contains, as I think you said, no documentation of anything having been done that day?

A. Correct.

Q. Now, for the 10th of January, 1980, what does the chart indicate?

A. 'Surgery today. Diagnosis: painful, painful fracture and dislocation, causing contracted hammertoe deformity, second metatarsal...