United States v. Chakmakis

Decision Date23 November 1971
Docket NumberNo. 71-1300 Summary Calendar.,71-1300 Summary Calendar.
Citation449 F.2d 315
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Apostolos G. CHAKMAKIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Richard R. Booth, Aronovitz, Silver & Booth, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Richard A. Hauser, by Bruce Wagner, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Before WISDOM**, COLEMAN, and SIMPSON, Circuit Judges.

PER CURIAM:

Dr. Apostolos G. Chakmakis was convicted on four counts of violating 18 U.S. C., § 1001,1 to-wit, the filing of false and fraudulent applications for payment for professional services rendered Medicare patients under the Social Security Act. He was sentenced to serve thirty days in the penitentiary consecutively on each of the counts. Maximum sentence could have been twenty years and a fine of $40,000. We affirm.

The appellant says that he should have been indicted and prosecuted under another Section of the Code, i. e., 42 U.S.C., § 408(c), which was enacted subsequently to 18 U.S.C., § 1001 and which denominates the conduct charged as a misdemeanor only. Leaving aside the fact that the defendant was sentenced as for a misdemeanor, it is quite clear that the enactment of the later section did not repeal the former and that the facts of the alleged offense fell within the terms of either statute. Hence, the prosecution could have been brought under either, at the discretion of the prosecutor. Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920, 926; Hopkins v. United States, 9 Cir., 1969, 414 F.2d 464; Ehrlich v. United States, 5 Cir., 1956, 238 F.2d 481, 485; United States v. Cox, 5 Cir., 1965, 342 F.2d 167, 171, cert. den., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700.

The evidence for the Government was based on written applications on file at the proper office bearing the purported signature of Dr. Chakmakis. These documents were introduced in the absence of objection. Thereafter, they were examined on the witness stand by various patients who identified themselves as the individuals named and who testified that they had been treated by the defendant, but not on the dates named nor in some instances for the maladies stated. It is now complained, on appeal, that the signatures of the Doctor were not specifically shown to have been true and genuine. Obviously, the defendant could have demanded that proof had he seen fit to do so. He chose not to question authenticity. In the absence of objection below, the point cannot be raised here unless it is plain error, resulting in injustice or a denial of substantial rights, see e. g., Bendelow v. United States, 5 Cir., 1969, 418 F.2d 42, Rule 52, Federal Rules of Criminal Procedure.

Other points raised by appellants are similarly lacking in merit.

The judgment of the District Court is

Affirmed.

* Rule 18, 5th...

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15 cases
  • U.S. v. Batchelder
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 25, 1978
    ...Black's opinion in Berra, 351 U.S. at 138-139, 76 S.Ct. 685. In Fournier, for example, the court relied on United States v. Chakmakis, 449 F.2d 315, 316 (5th Cir. 1971). In Chakmakis, however, one of the two statutes involved required proof of a specific mental state (18 U.S.C. § 1001) whil......
  • U.S. v. Anderez, 80-5720
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 16, 1981
    ...Cir. 1976) (heavier penalties of section 1001 may be imposed for conduct also punishable under 15 U.S.C. § 645(a)); United States v. Chakmakis, 449 F.2d 315 (5th Cir. 1971) (section 1001 may be imposed instead of misdemeanor provisions of 42 U.S.C. § 408(c)). 9 Second, it is quite logical f......
  • U.S. v. Tomeny
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 24, 1998
    ...(31 U.S.C. §§ 1058, 1101); United States v. Carter, 526 F.2d 1276, 1277-78 (5th Cir.1976) (15 U.S.C. § 645(a)); United States v. Chakmakis, 449 F.2d 315, 316 (5th Cir.1971) (42 U.S.C. § 408(c)). 6 Contrary to appellants' assertion, United States v. Beer, 518 F.2d 168 (5th Cir.1975), is cons......
  • U.S. v. Radetsky
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 26, 1976
    ...banc), cert. denied, 414 U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974). We are persuaded to follow the holdings in United States v. Chakmakis, 449 F.2d 315, 316 (5th Cir.), and United States v. Matanky, 346 F.Supp. 116 (C.D.Cal.), aff'd, 482 F.2d 1319 (9th Cir.), cert. denied, 414 U.S. 103......
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