United States v. Kraude, 72-1584.

• Decision Date: 18 December 1972
• Docket Number: No. 72-1584.,72-1584.
• Citation: 467 F.2d 37
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wesley KRAUDE, M. D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.2d 37 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Wesley KRAUDE, M. D., Defendant-Appellant.

No. 72-1584.

United States Court of Appeals, Ninth Circuit.

August 21, 1972.

Rehearing Denied September 13, 1972.

Certiorari Denied December 18, 1972.

Morton Minikes (argued), of Gould, Magaram, Riskin, Wayne & Minikes, Los Angeles, Cal., Richard R. Rogan, of Rogan & Radding, Burbank, Cal., William L. Streitfeld, Inglewood, Cal., for appellant.

William R. Hawes, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Eric A. Nobles, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL and KILKENNY, Circuit Judges and TAYLOR, District Judge^*.

TAYLOR, District Judge:

The appellant, Wesley Kraude, a psychiatrist, has appealed from his conviction on 11 counts of a 29 count indictment for violating 18 U.S.C. § 1001.¹ Appellant was found not guilty on seven counts and 11 counts were dismissed by the Government, nine before trial, one before the case was submitted to the jury and one after trial when the jury failed to agree on that count.

A motion for a Judgment of Acquittal was made at the close of the government's case and denied. Following denial of appellant's motion for a new trial, he was sentenced to three years' imprisonment on each of the 11 counts to run concurrently. The court suspended the sentences and placed the appellant on probation for a period of five years and as one condition of probation that he must serve six months in a jail-type institution. In addition, appellant was fined in the amount of $15,000.00.

Each count of the indictment alleged appellant submitted false requests for medicare payments to Occidental Life Insurance Company, which company was acting as the paying agent for the Social Security Administration.

Appellant's initial contention is that the term "jurisdiction", as used in 18 U.S.C. § 1001, means that the writing will be transmitted to the agency by the defendant, and that the agency will act on the information contained in the writing. It is argued that since the medicare forms were transmitted by appellant to a private carrier (Occidental Life Insurance Co.) and not directly to the Department of Health, Education and Welfare, the jurisdictional requirements of § 1001 were not met. The record reveals that the Department of Health, Education and Welfare, through the Social Security Administration, entered into a written contract with Occidental to handle the medicare forms and determine payment to doctors. In effect, Occidental was an agent of the Department of Health, Education and Welfare for this specific purpose. Furthermore, in Ebeling v. United States, 248 F.2d 429, 434 (8th Cir. 1957), in a similar situation, the court held that the transmittal did not have to be directly to the agency or department to be within the jurisdictional requirement of § 1001, so long as it had a material effect on the department or agency function. See also Kuenstler v. Occidental Life Insurance Co., 292 F. Supp. 532 (D.C.C.D.Cal. 1968). We are of the opinion that the term "jurisdiction" as used in 18 U.S.C. § 1001 covers a situation such as the one here.

Appellant's second contention is that the court committed reversible error in failing to instruct the jury as to the meaning of the term "jurisdiction". The record shows that counsel for the defendant was given an opportunity to object to the instructions prior to and after they were given to the jury and no objection was made in regard to the failure of the court to instruct the jury as to the meaning of the term "jurisdiction". Since no objection was made at the trial level, appellant is foreclosed from raising this issue for the first time on appeal. Rule 30, F.R.Cr.P.; White v. United States, 394 F.2d 49 (9th Cir.1968).

The third contention argued by appellant is that as a matter of law the evidence was not sufficient to support the defendant's conviction. After carefully reviewing all the evidence produced at the trial, considered in a light most favorable to the government, together with the reasonable inferences which may be drawn therefrom, we are convinced that the evidence is amply sufficient to support the conviction. See Kaplan v. United States, 329 F.2d 561 (9th Cir. 1964).

Appellant further contends that the government's cross-examination of the defendant's character witness, Rachel Page, had the cumulative effect of depriving the defendant of a fair trial.² Appellant argues that the interrogation by the prosecution, in regard to reports or rumors of wrongful acts or misconduct engaged in by the defendant, was not done in good faith since the prosecution did not have possession of such matters when the witness was interrogated about them. The rule for determining whether a trial court has erred in its consideration of cross-examination of a character witness in a criminal case is enunciated in Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 618 (1948), wherein it states:

"Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject."

The present record also reveals that the only objection made by defense counsel to the cross-examination of the witness was that a question asked had to do with an event occurring after the alleged commission of the offenses. Defense counsel made no objection to any of the questions on the ground that they denied the defendant a fair trial and were therefore prejudicial. In United States v. Machado, 457 F.2d 1372 (9th Cir. 1972), this court had occasion to review a similar contention to the one presented here. In Machado the defense counsel objected to a certain question asked by the prosecution of a defense character witness on the ground that it exceeded the scope of the direct examination. The objection was overruled and the witness answered. On appeal, the appellant raised the question of prejudice in regard to the cross-examination of the character witness, the same as appellant has done in this case. The court at page 1375 stated:

"On appeal, Machado contends for the first time that the questions propounded by the government\'s counsel were designed `to adduce hearsay evidence on the issue of his guilt or innocence.\' In his view, these `questions could have no effect other than prejudicing the jury,\' because a character witness was asked `whether he had heard that appellant had committed one of the offenses for which he was standing trial.\'

As indicated, the ground upon which Machado objects to this cross-examination was not asserted at trial. Such a belated assertion falls within the settled rule that absent the presence of plain error, a basis for objection not raised at the trial level, cannot be urged for the first time in the Court of Appeals."

The trial court in this case, sua sponte, instructed the jury concerning the limited purpose of the...