U.S. v. Winkle

• Decision Date: 11 January 1979
• Docket Number: 77-5195,Nos. 76-4145,s. 76-4145
• Citation: 587 F.2d 705
• Parties: 4 Fed. R. Evid. Serv. 175 UNITED STATES of America, Plaintiff-Appellee, v. Ernest A. WINKLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 705

587 F.2d 705

4 Fed. R. Evid. Serv. 175

UNITED STATES of America, Plaintiff-Appellee, v. Ernest A. WINKLE, Defendant-Appellant.

Nos. 76-4145, 77-5195.

United States Court of Appeals, Fifth Circuit.

Jan. 11, 1979.

Arnold D. Levine, Tampa, Fla., for defendant-appellant in both cases.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Eleanore J. Hill, Asst. U. S. Atty., Tampa, Fla., Loretta B. Anderson, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee in both cases.

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

Before RONEY, RUBIN and VANCE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

An intricate and clever scheme to defraud the Government of money asserted to be due for Medicare services resulted in a lengthy and complicated indictment, a protracted trial, and a verdict of guilty. The defendant seeks to overturn that verdict by charging a bevy of errors in the indictment and trial. Because we find his arguments without merit, or the errors asserted harmless beyond a reasonable doubt, we affirm.

Ernest Winkle and three co-defendants were charged with conspiring to defraud the United States by securing unlawful Medicare payments. ¹ In the same indictment, Winkle and two of the three co-defendants were named in 19 additional counts charging the submission to the Government of Medicare payment requests that contained fraudulent statements. ² Alan Colmar, a nursing home administrator who was charged only with conspiracy, pleaded guilty to a reduced charge after the jury selection process in this case had begun. After the trial of a second co-defendant was severed, ³ and the substantive charges against the remaining co-defendant were dismissed, Winkle and Joseph DiStefano were tried together on the conspiracy count and on the substantive charges against Winkle alone. During the three-week trial the parties called nearly 60 witnesses. The jury was unable to reach a verdict on the conspiracy count, but convicted Winkle on all substantive counts. ⁴ On the Government's motion, the conspiracy count against Winkle was dismissed. ⁵ We set forth below the complex facts of this case only in detail sufficient to make comprehensible our analysis of the relatively straightforward principles of law that result in the denial of the relief he seeks.

I. Factual Background

The conspiracy charged by the Government had three aspects: first, the defendants initiated a sales scheme for a Tampa, Florida, medical laboratory under which physicians ordered lab tests, at no charge to their patients; the lab then charged Medicare and unlawfully remitted "interpretation" or "consultation" fees to the referring physicians. Second, the defendants solicited and charged Medicare for the laboratory business of several chiropractors when they knew that those services for chiropractic physicians could not lawfully be charged to Medicare. Third, the defendants conducted a program of respiratory testing and inhalation therapy for nursing home patients, and billed Medicare for such tests and therapy, although no physician had determined that either the tests or therapy were medically necessary as required by the applicable statutes and regulations. ⁶

The 19 substantive counts grew out of the defendants' inhalation therapy program. Evidence showed that the defendant Winkle had submitted 19 Medicare out-patient billing forms, prepared by him or at his direction, for medically unnecessary therapy. The Government introduced the forms, each of which indicated a diagnosis of "upper respiratory infection" or "emphysema" that the treating physician, Dr. Alvarez, as a Government witness, denied making. Dr. Alvarez further testified that he had neither ordered nor given permission for either the tests or the therapy treatments in question.

II. Sufficiency of the Indictment

The defendant urges that the court below erred in not dismissing the indictment because of a variety of alleged deficiencies.

Winkle argues, first, that the conspiracy count is impermissibly vague and, in violation of F.R.Cr.P., Rule 7(c)(1), does not afford "a plain, concise and definite written statement of the essential facts constituting the offense charged." He further asserts that the indictment, in violation of Rule 7(c) (1), omits "the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated." ⁷

These contentions are frivolous. Count One specifically alleges a violation of Title 18, Section 371 of the United States Code, which proscribes any conspiracy to defraud the United States. ⁸ There is no requirement that the fraud comprise conduct that could be held unlawful under some other statute or rule:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.

Haas v. Henkel, 1910, 216 U.S. 462, 479, 30 S.Ct. 249, 254, 54 L.Ed. 569, 577; Accord, United States v. Johnson, 1966, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681, 684. It is essential only that an indictment under 18 U.S.C. § 371 "properly (charge) a conspiracy, and with the required specificity (allege) the culpable role" of each of the alleged conspirators. Dennis v. United States, 1966, 384 U.S. 855, 860, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973, 978.

The indictment before us clearly passes this test. It alleges that the object of the conspiracy to defraud was:

causing the payment of Medicare benefits under the provisions of Title XVIII of the Social Security Act, as amended (42 U.S.C. §§ 1801-1879 (1395-1395pp)), to be made in amounts greater than the amounts which were properly payable and which excess payments were not authorized under Title XVIII of the Social Security Act.

It further elaborates that the defendants arranged reimbursement for "medically unnecessary lab tests" by Medicare,

when in fact that program authorizes payment and reimbursement as provided in Title XVIII of the Social Security Act, Sections 1861 and 1862(a)(1), for only those tests which are medically necessary.

Thus, even if reference to other statutes or rules, the contravention of which would constitute fraud, were necessary to complete a charge under 18 U.S.C. § 371, sufficient notice of the relevant statutes is afforded by this indictment. The thrust of the Government's case was, in the instance of lab tests, that physicians ordered tests not properly related to their patients' diagnosis or treatment, ⁹ and, in the case of inhalation therapy, that Winkle charged for tests and treatments that physicians did not order at all. With respect to the latter, in particular, the defendant testified:

Well, we can't do any testing and submit for payment to Medicare unless we did have a doctor's order and that is also true of any treatments that would be instituted.

This is precisely the interpretation for which the Government argues. We cannot discern any undue vagueness in the indictment.

We must also reject Winkle's argument that he would be prejudiced by a prosecution under any count of the indictment because the language of the indictment might be deemed to track either 18 U.S.C. § 1001 or 42 U.S.C. § 1395nn. ¹⁰ The indictment specifically names the former statute as the rule of law on which the substantive counts rely. To the extent that the same conduct could be punished under either statute, the choice lies within the discretion of the prosecutor. United States v. Chakamakis, 5 Cir. 1971, 449 F.2d 315. Were the Government to attempt a second prosecution, under a different statute, for the same conduct at issue in this case, the defendant could properly raise a double jeopardy claim at that time. Absent a second prosecution, the defense is, of course, premature. The indictment is clear, concrete and specific; that is enough to meet the defendant's challenge.

III. Conduct of the Trial

The defendant urges that his convictions should be reversed because the trial judge erroneously excluded evidence favorable to the defendant, the trial judge erred in admitting evidence of similar wrongful acts, the judge erred in his rulings regarding the conduct of rebuttal and surrebuttal, and the judge erred in his instructions to the jury.

The defendant urges that the trial court erred in excluding as hearsay his renditions of conversations with his salesmen, Matthew Rackstein and Gerald Talty, with Drs. Nessan McCann, Frank Norton and Robert Moorehead, and with his wife, Leonarda Winkle; he would have contradicted their testimony regarding the same conversations, and, therefore, this was proper impeachment and should not have been excluded as hearsay. See F.R.Evid. Rule 801(c). See United States v. Palacios, 5 Cir. 1977, 556 F.2d 1359, 1362-63; United States v. Sisto, 5 Cir. 1976, 534 F.2d 616, 622-23 (dicta). (No argument is made that Winkle's testimony was admissible for substantive purposes.) The legal proposition on which the assertion is based is correct; impeachment to demonstrate the untruth of a witness' testimony is not excludable as hearsay because it is not offered primarily to prove the truth of the matter asserted, but to contradict the prior testimony. J. Weinstein & M. Berger, Weinstein's Evidence, P 607(06) (1977). However, a crucial prerequisite to concluding that the ruling was erroneous is missing.

Rule 103(a)(2) of the Federal Rules of Evidence provides that error may not be based on a ruling excluding evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." While some circuits have apparently taken a more lenient approach, E. g., Charter v. Chleborad, 8 Cir. 1977, 551 F.2d 246, 248-9, Cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 128, this circuit will not even consider the propriety of the decision to exclude the evidence at issue, if no offer of proof...