United States v. Louis Martin Radetsky, A/K/A L. M. Radetsky

assigned to Calendars A and dum and Appeals full record on appeal were sub- argument orally argued. No oral is B are to mitted each panel member of a judges assigned to appeals Calendars permitted court in turn and, of this for review based argument with oral Dispensing and D. review, C we upon this affirmed Marines’ clearly process rights. not violate due does judgment and conviction. We have now WJR, Com’n v. Federal Communications given full consideration to petition Marines’ Sta., 265, Will The Good S.Ct. rehearing and for each of the arguments 1097, (1949); v. 93 L.Ed. United States therein. contained Under the circumstanc- (10th Smith, 1973), F.2d 8 Cir. cert. case, we es of this find no basis for conclud- 1566, denied ing assignment appeal Marines’ also, George Bry 874. See W. B. L.Ed.2d D Calendar constituted a denial of due Co., Co., Lilly Inc., son & Ltd. v. Norton & process. (5th 1974); F.2d 1045 Cir. N.L.R.B. v. petition The for rehearing is denied. 42, Int. Ass’n of Heat & F. I. & A. Local No. Filed with the Wkrs, petition (3rd 1973); for rehearing Cir. United suggestion Johnson, was a for rehearing v. 466 F.2d 537 en States Cir. banc. 1972), petition rehearing having cert. denied 409 U.S. been de Thus, panel nied to whom 34 L.Ed.2d 693. denial of oral the appeal was submitted, appeal and no member argument panel in Marines’ constituted no of the process rights. judge regular Marines’ due active violation of service on the court having requested that the polled court be noteworthy consequence The most of as- banc, rehearing en suggestion signment of a case Calendar D relates to rehearing en banc is denied. Rule F.R. briefing permitted briefing. Full in cases A.P. A, assigned to Calendars B and C. Memo- randa, briefs, than rather are submitted in The motion for stay of mandate is appeals assigned to Calendar D. The mem- granted and issuance of the mandate is parties each of the orandum of must be stayed including to and the thirtieth day days receipt filed fifteen after of notice after the date of this order. assigned case has been that the to Calendar no limit

D. There is established with re-

gard length to either the or content of this primary consequence

memorandum. The assignment

then of of a case to D Calendar length

is curtailment time within which the memoranda must be filed. America, UNITED STATES of appeal assigned When Marines’ was Plaintiff-Appellee, D, counsel submitted a seven page Calendar opposing summary memorandum action. RADETSKY, Louis Martin a/k/a L. M. appears That memorandum contains what Radetsky, Defendant-Appellant. argument points full on the raised on appeal. suggestion No is made either in the No. 74-1484. or in the petition memorandum instant Court Appeals, rehearing that counsel was prop- unable to Tenth Circuit. erly present appeal the issues raised on due the fact that a memorandum was sub- Argued March 1975. mitted in lieu of a brief. He also makes no March Decided suggestion that the fifteen day time limit May As Amended imposed for submission of the memorandum was insufficient.

Upon submission of his memoran affirmance, opposing

dum memoran- Spelts,

Richard J. First Asst. Atty., U. S. Denver, (James Treece, L. Colo. Atty., U. S. Colo., Denver, brief), on the for plaintiff-ap- pellee. Pringle, Denver,

Bruce D. (James Colo. A. Clark, Clark, Martin Pringle, Denver, & Colo., brief), for on the defendant-appellant. LEWIS, Before Judge, and Chief HOL- BARRETT, Judges. LOWAY Circuit HOLLOWAY, Judge. Circuit Defendant-Appellant Radetsky, a Colora- osteopathic physician, do was indicted on 41 under substantive counts 18 U.S.C.A. conspiracy and a 1001 and count under §§ 371, in connection U.S.C.A. with the § allegedly of false submission medicare Three of the claims. substantive counts by the prior were dismissed Government The trial court trial. dismissed the conspir- acy count at the close of the evidence. The was found not guilty by jury defendant counts, on six substantive and convicted on guilty verdicts on 32 of the remaining sub- imposed stantive counts. The court a counts, We these 32 or a will treat $1,500 on each of the facts in discussing fine $48,000, appeals. and defendant appellate fine of issues before total us. argues propositions numerous Defendant I necessary find it to dis- We

for reversal. principal appellate con- several of cuss The Fifth Amendment guaranty concern- length concerning: (1) some at tentions grand indictment ing jury and the defective, the indictment was whether sufficiency of the indictment things failing required to meet among other The Fifth provides Amendment part: specificity failing allege standards person No shall be held to answer for a charged statements to have been particular otherwise capital, crime, infamous un grand jury’s charges false so that were presentment less on a or indictment of a known, with trial and convictions occur- Jury. . . Grand charges specified ring only in the bill of provision related the Sixth particulars violation defendant’s Fifth states: Amendment he right Amendment not be held to prosecutions, In all criminal presentment “unless on a or indict- accused answer enjoy right shall . . . to be (2) Jury;” ment of a Grand whether it was informed of the nature and cause of the particulars, together the bill of error for . accusation indictment, to be sent with the with the deliberations; (3) jury pros- for its whether The importance guaranty historic proper was under 18 U.S.C.A. ecution provision grand indictment a statute, 1001, general felony instead of § In Ex parte long recognized. has been 408, a more recent and under 42 U.S.C.A. § Bain, 1, 11, statute, covering misdemeanor false specific 849, 852, opinion L.Ed. recited por- this determining made for use in statements grand jury tion of a charge by Justice among things; other payments, medicare Field: admitting was error in (4) whether there . Yet the adopted institution was objec- Fifth Amendment defendant’s over country, in this and is continued from ordering of, tion, in not the return and similar considerations to give those which subpoenaed to have been records found to it its chief value in England, and is corporation where professional from a de- means, designed as a not only of bringing said to practiced, but have been his fendant persons public to trial accused of offenses records; (5) papers and whether personal just grounds, upon but also as a means of denying inspection erred in the trial court protecting against the citizen unfounded grand jury testimony of of Government accusation, whether it comes from witnesses; (6) there was error in whether government, prompted by or be partisan denying challenges jurors to had read who passion private enmity. person No pretrial publicity concerning material de- required, according be to the funda- shall fendant; (7) whether the court trial erred country, except mental law of the in the evidence; in the exclusion and admission of mentioned, any to answer for of the cases (8) whether certain counts contained higher body, consisting crimes unless this allegations of false statements which the of not less than sixteen nor more than court should have held immaterial aas mat- men, twenty-three good and lawful se- law, court, ter of and whether the trial body district, of the lected from the shall event, any submitting erred in declare, deliberation, issue of upon careful under materiality oath, jury without a proper solemnity of an there is instruction. accusation good reason for his and trial. presentment by presentment. States, 1. If ever were an alternative to tion Gaither v. United indictment, 1061, 1065, this has not been 154, the case since U.S.App.D.C. 134 413 F.2d n. adoption of Federal Rules of Criminal Pro- cedure, provision prosecu- no which make 562 States, 749, Russell, 369 Russell v. United U.S. should be supra, had. See 369 U.S. at 240, 255; 1038, 1051, 8 L.Ed.2d

771, 768, 1049, 253; 82 S.Ct. 82 S.Ct. at 8 L.Ed.2d at States, 212, 218, 361 v. United U.S. Hess, Stirone supra, United States v. 124 at U.S. 257; 273, 252, 270, L.Ed.2d see 4 487, 573, 8 at 31 L.Ed. S.Ct. at 518. Fur 375, 390, Georgia, v. 370 U.S. also Wood thermore, paramount and of importance, a 1373, 569, L.Ed.2d S.Ct. sufficient indictment is required imple ment the Fifth Amendment guaranty and guaranty It is this fundamental charges clear the make so as to limit a charges only grand tried on made a jeopardy to charged by defendant’s offenses concerns us. The jury mainly substan citizens, group a of his fellow and to avoid safeguard guaranty of the tial those found, conviction on not his facts charged with serious crimes cannot be erad or perhaps to, presented grand the claim that even icated under variations are jury that departures Russell, supra, mere technical from the him. rules. indicted at U.S. States, 1, 9, 770-71, v. United 1050-1051, U.S. at Smith S.Ct. 8 L.Ed.2d at 991, 996, 1041, 1047. 254-255; 3 L.Ed.2d S.Ct. And in States, see Stirone guaranty we honoring the must be 217-18, mindful 270, 273-274, corollary its that a federal of indictment 256-257; L.Ed.2d Gaither v. United may except not be amended by resubmis U.S.App.D.C. grand jury, change sion unless the is 1066-67. merely Russell, a matter of form. supra, Defendant argues present that the indict 770-71, 1050-1051, at S.Ct. at perform any ment is void and fails to of the “Any L.Ed.2d at 254-255. other doctrine above, four discussed stressing functions place rights citizen, would heavily impermissible most that the vague were intended to be protected by the consti infringed ness of the indictment on his provision, tutional at the mercy or control guaranty Fifth Amendment that he be the court or prosecuting attorney. only charges made the grand tried ” Bain, parte . Ex supra, 121 U.S. charges not on later determined at 7 S.Ct. at 30 L.Ed. at 853.2 prosecutor grounds to be used as purposes requirements (Opening trial and conviction. Brief of De sufficiency of indictments have been fendant-Appellant, 22-27). specifical More stated, variously but the essentials are ly challenged the indictment for lack of First, clear. the indictment must contain specificity failing to identify specific elements the offense sufficiently statements as to the false “services” or apprise the defendant of what he must be referred to in “charges” requests meet; prepared second, it must be such payments,3 medicare and claimed to have as to show to what extent may plead he subject knowing and wilful been former acquittal or conviction as a bar to covering up by concealment and material prosecution further for the same cause. trick, and device. .scheme Russell, supra, 763-64, at U.S. 82 S.Ct. persuaded 1046-1047, We are not the 250-251; at 8 L.Ed.2d at United raised a Hess, problem defendant has serious 483, 487, v. here U.S. 8 S.Ct. 571, 573, any of the 516, first pertaining L.Ed. 518. three func purpose And a corollary to the indictment —those first is that tions of the relating the indictment notice, the court jeopardy, inform of the double and alleged, sufficiency facts so in may that it decide whether they alleged support are suffi facts a law of the convic support conviction, in law to cient if one bill of particulars tion. A detailed was significance protection SSA-1490, “Request 2. While the of the 3. Form Pay- For Medicare process emphasized, indictment has been physicians it has ment” is the form submitted and applicable not been held to the States as a payments. due individuals as claims for medicare process principle. Washington, requests See Beck pertaining Portions of such to counts 541, 545, 955, 957, reproduced Appendix 82 S.Ct. 8 L.Ed.2d are in and 36 the part opinion, this c. facts, all pri- to the defendant four months for the purpose furnished causing pay- trial, giving adequate specifics as to ments to be made or to provisions under the the particulars proof. Act, Government’s Title XVIII of said the in that RADET- cannot save and particulars a bill of an SKY While STANDEFER did submit and Russell, indictment, supra, 369 cause to be submitted invalid to Colorado Medi- Service, Inc., cal at at it aka L.Ed.2d at Colorado Blue Shield, documents adequate designated notice for trial give serve to can as Form SSA-1490, otherwise in these circumstances. See known Request as preparation Payment for Medicare States, supra, 413 v. United F.2d at Gaither Insur- —Medical ance Benefits —Social particulars, Security (here- the bill of to Act Likewise inafter in this indictment referred to the record evidence of exhibits as gether with for Request Payment), to secure payment testimony, protection against affords Part B of Title under XVIII Act, of said jeopardy since whole record is double for medical services allegedly rendered in being placed avoid twice in available to patients Colorado to the and for the peri- the same offense. Tritt v. jeopardy for time stated hereinbelow, ods of (10th Cir.). Requests Payment for purport to show indictment, And we are satisfied service, each the date of fully describe appendix in the part set out to this the medical services rendered for each alleged opinion, adequately the facts in or charges, given, date and the amount that an to determine offense was stated der patients against paid by the such charges, support a conviction sufficiently if one WHEREAS, fact, in truth and in as RA- Russell, supra, be had. 369 U.S. at should DETSKY STANDEFER then knew, at L.Ed.2d at 253. (1) patients actually received medical argument based on the Fifth Amend- frequently services less than stated on only trial on an guaranty ment indict- Payment for Requests (dates pa- grand jury ques- raises serious ment of a hereinbelow renthesis indicate those carefully They must be considered tions. patient when the did not receive any focusing on the indictment in the con- service), (2) Requests medical for circumstances surround- text of factual fully, not Payment truly did and accu- requests payment for and the al- ing the rately procedures describe the medical representa- false statements legedly given and services for each date as re- Government, keeping relied on tions quired (indicated hereinbelow by the important function of the con- in mind “services”). (3) word the Requests protec- and its historic guaranty stitutional Payment did disclose that tions. charges amounts shown as for services partic We turn to the indictment and the higher were at a rate and more than the of two counts —count 34 and count ulars customary charges of South Denver Clin- problem concerning illustrate the 36—which ic, to either Inc. medicare or nonmedicare part In indictment. indictment this patients (indicated same service the defendants4 charges that by the hereinbelow word “charges”, and unlawfully, knowingly and (4) . did shown the amounts on the Requests trick, up by cover wilfully already conceal and as Payment paid by pa- facts, scheme, material against charges and device such tients were inflated false (indicated cause to be made state- hereinbelow by make and the words representations of material paid”): ments and “amounts defendant, Standefer, fully The indictment was indicted is more set forth in 4. Another appendix opinion, along from that of her trial was severed this with related also but Radetsky. parts particulars of the bill of and some defendant rele- vant exhibits. COUNT ^{[*] [*]} CLAIM DATE OF ^{[*] [*]} COVERED CLAIM ^[*] TIME BY ^[*] PATIENT NAME ~* OF ^[*] *" "* MATERIAL ^[*] FACTS ^[*] 8-19-70 8-7-70 5-1-70 BREYMAIER ^[*] Services, charges, amount paid. ^{[*] [*] [*] [*]} 6-3-70 5-25-70 1-19-70 GLENN * * * ^[*] Charges. ^{[*] [*] [*]} # ALL OF THE some requests FOREGOING COUNTS 1 for payment were challenged 41 in THROUGH violation of Sections in instances, several in many instances not (Em- and Title United States Code. were all the items challenged as falsifica added) phasis example, tions. For on Exhibit 36-A only 10 out of 40 items were challenged false, as stated, As challenges defendant the fail- on Exhibit whereas 34-A all 28 items were allege particulars ure of the indictment to challenged.5 And since the indictment’s al in connection with the “services” and in legations general are somewhat terms “charges” claimed to been misstated, have concerning falsification of “services” and underlined items and 3 in the body of the can be “charges,” argued it that of quoted portion the indictment. Defend- was free Government under this indictment says ant that because of the multiplicity of proof on any to choose to introduce of nu “charges” by “services” and covered each Lowenburg merous items. See v. United form, claim there is absolutely no way to States, Cir.); 156 F.2d Van charges tell whether the and services the States, Liew v. prosecutor may list particulars in the of bill (5th Cir.). by are those on grand jury relied as the charges. basis for its Thus, he argues, the agree question We must that this is Fifth Amendment guaranty violated, is re- close, difficult in view the require alia, lying, inter Russell and Lowenburg Fifth ments of the Amendment guaranty, v. United (10th Cir.). F.2d 22 Stirone, applied as in in Russell and in that requests are, It is true for There payment cases. however, similar these alleged in the indictment cover “services” laid out in this specifics indictment: it iden including items, “charges” numerous the basic tifies each of documents—the re spanning toup some instances 5Vimonths quests payment for are relied on as —that charges containing and 58 different for items of false statements. Their Moreover, the single service. Government’s bill of patients dates and the individual in out, particulars shows that while all together items on volved are set with period spiracy (count In with counts 34 and 42) connection alleged count that the by covered extent of the numerous items statements, etc., and false concealment were payments by requests may seen examin- interspersed legitimate services rendered ing portions Pertinent those documents. (a acquittal judgment of was entered on this reproduced part Ap- c of the them are also evidence, count court at the close pendix. moot). making count Appendix portions part related In b itself, part Since the indictment see a of the reproduced. By particulars are also the bill of alleged Appendix, misstatements characterized particulars comparison of the bill of with the merely “charges,” as “services” the de- payment, apparent request related it argues impermissible fendant there was an challenging the Government was on count 36 vagueness permitting prosecutor to chal- “charges” only items within the covered some lenge having designat- their items without been (Exhibit payment 36-A). request grand ed itself. by paragraph F also of the con- This is shown

565 422, (10th Cir.). by request each 423 And pay- covered it is clear of time that an types four of concealment and indictment valid on ment. The its face —as we hold charged are specified subject this to be—is not challenge falsifications —medi- rendered, date; by ground grand not medical the that the jury cal services acted on the fully, inadequate not basis of truly incompetent and services and or procedures evi (“services”); charges States, dence. Costello v. accurately described United 350 U.S. 359, 363, 406, 408, 397, being higher at a rate and more than cus- 100 L.Ed. 402; Calandra, see also United same States v. tomary (charges); for the service and 414 344-45, 338, 613, 618-619, 94 U.S. S.Ct. paid, allegedly inflated above the amounts 561; L.Ed.2d United Addington, States v. already paid by patients. the amounts 560, (10th Cir.); 471 F.2d United States circumstances before us feel In the we 422, Kysar, (10th v. 459 F.2d Cir.).6 adequately laid out the indictment the charges general and the factu jury’s grand II underlying them. See al circumstances particulars The bill of Haskins, 74-1691, v. No. 9th States United 23, 1974, unpublished); (October Cir. argues Defendant that prejudi- there was 672-LFM, Kones, 74No. Cr. S.D. v. in cial error submission of the partic- bill of 1974, 14, unpublished). The (August N.Y. ulars, along with the indictment, to the trial the facts and set forth essential indictment jury for use in its deliberations at the re- charged, of the offenses the nature the quest of Government and over the de- category in the of evi details fall further objections. fendant’s The argument fol- rest, case on which the would which dence lows from that made concerning the Fifth obliged is not to state. See the indictment guaranty, already Amendment discussed, States, 944, Mims v. United F.2d 946 being specified in three points: that since Publications, Cir.); Eagle Flying Inc. only the defendant could be held to answer States, (1st 273 F.2d v. United jury’s grand indictment, the submission of Cir.). this is not a case where And we feel particulars bill of to the jury along trial jury may concept have had a grand the indictment infringed rights on his essentially different the scheme from that under the guaranty; constitutional that the the Government before the by relied on particulars could only bill confuse the Curtis, in v. jury, trial as United States purpose its jury, since use jurors (10th Cir.). See also F.2d Stirone explained by were instructions and 212, 217-18, States, 361 v. United particulars the bill of itself did not contain 273-274, 4 L.Ed.2d 256-257. Ct.S. offenses; explain the elements of the question is serious and not free While give and that it was unfair to the jury a doubt, persuaded that the in we are from summary prosecution’s written case, the essential demands of the met dictment the defendant could not do in his guaranty as staked out constitutional behalf. Supreme Court. We must agree that submission of Defendant further asserts that particulars the bill of to a jury trial grand jury evidence before was insuffi undesirable. authority relied on indictment; support cient to Government, Shayne v. United indict; grand jury declined to first (9th Cir.), denied, F.2d 739 cert. illegally held were hearsay evidence L.Ed.2d is not per grand jury, relying the second used before appeal suasive. On defendants there Leibowitz, v. 420 F.2d 39 on United States it was argued that error to send the indict (2d Cir.), argument and similar cases. The jury without a ment bill of particu grand concerning lars, resulting the first is irrele this eliminating others as Kysar, conspirators except appellants. vant. Cf. United States two improp- and 2 §§ 6. A further attack on indictment as instead of under 42 U.S.C.A. erly III, charging an offense under 18 U.S.C.A. lack 408 is held to merit Part § infra. merely mentioned, The court said it was a matter of As we persuaded are not to particulars discretion whether the bill of approve reading the or sending in of a bill in, should be sent and that the decision not particulars to a jury, of trial over a defense Id. at to do so was not error. 743. The objection, as was clearly made here. It problem more difficult here in- potential was not the does involve of confusion with jury’s volved. grand charges the in the indictment and thus touches the sensitive area of the the agree On other hand we do not guaranty. constitutional point This sup is by primarily cases relied the defendant degree some ported by a statement of here dictate a reversal. In United attorney prosecuting that if the bill of Borelli, (2d Cir.), the court in, particulars was not sent the jury might reversing for other fundamental error was on items in requests well convict and noted points, including some further a not even payments challenged by the argument particu- that the bill of defense Government.7 trial court’s statement not have sent jury. lars should been to the ruling its to send in the of bill of particulars The court said it should not have sent been support further lends some to the defend jurors request to the in the absence of a Moreover, ant’s contention.8 the submis them; from that the indictment makes the particulars sion of a bill of to the jury trial accusation; and that the submission of the give advantage some does to the Govern particulars likely bill of was to be confus- ment as a written summary re-emphasizing ing, even with the instruction that it was prosecution’s ease.9 States, Pipkin not evidence. v. United (5th Cir.) merely F.2d held that the feel, however, We that reversible refusing trial court did not err in to read a is not by error demonstrated the defendant. particulars jurors of to the bill when com- There were careful instructions the trial plying request with their to have the indict- concerning both the court indictment and read to them. The ment court said that it particulars, of bill and we read the would have been error to read the bill of as a instructions whole as distinguishing particulars, jury as the would have adequately between the indictment as a known what to do with it. We feel the charges of the statement and the bill of not deal cases did with a situation close to particulars specifying as particu more they do not ours convince us that re- larity the basis of the charges.10 The in versible error occurred here. structions were clear that the indictment argument sending summary 7. In his in the bill of blackboards, view exhibits such as particulars prosecuting attorney evidence, stated in in not themselves which listed items XVII, (Tr. 1174-75): part Vol. proof g., of Downen, in evidence. E. United States v. My concern is that if we (10th Cir.), don’t send in the denied, F.2d 314 cert. Particulars, jury going they Bill of is not — L.Ed.2d 142 may well convict on one of the items listed (1974). persuaded We are not to hold that request Payment on the which hasn’t support reading submitting such cases or challenged even been the United prosecution’s particulars bill jury. of to a trial nullity I think it would all be kind process. opening portions In the charge stated, The trial court id. at 1175: court referred three times to the indictment as making charges (Tr. XVII, Well, 1271-72). given Vol. THE the Court has COURT: part (Id. 1275): thought Later the court instructed in the Bill at some of Particulars since yesterday afternoon. I have come to the you jury You will have with in the room a multicharges that in view of the conclusion copy copy of the indictment and a of the bill Counts, only within the various that it’s the particulars government filed do, it, thing and the will sensible Court do specifies particularity with more than the in- appears because it that a Bill Court dictment, charges the basis in the type Particulars of this nature and in this of a indictment. necessity jury going case is almost a if the Now, these documents are not evidence of intelligent to return an verdict. any accused, against they kind do holding prej- any presumption permit 9. We are mindful of any cases that no not create by permitting guilt. They udicial error occurred a trial nothing inference of are more penalties were not evi- conflict as and a particulars 408 viola- § bill of and the expressly do not believe that the tion is termed a Moreover we misdemeanor dence. prejudi- amounted a that the only; and more lenient particulars statute of bill advantage prosecution. apply for the for all should these unfair reasons under cially in of grouped numbers rules construction. exhibits were settled trial The of the numbered counts correlating to the disagree. We must It is that true exhibits, to- the numbered and indictment construing penal statutes, in it is the rule testimony, present- with the related gether repeal that later enactments former ones proof Government’s in essence of the ed the covering practically the same acts fix but And, as we have organized pattern. an ing penalty. Yugi a lesser United States v. indictment itself had ade- said, we feel the 450, novich, 463, 551, 553, 41 256 U.S. S.Ct. essential facts and quately set forth the 1043, 65 L.Ed. 1047. And there are acts charged. of the offenses nature here —false directly involved written state we that the rule should be While conclude payment medicare ments for come —that giving particulars the bill of to a against statutes, penal although under both § objection, over a defense we can- jury trial and deals with one is broader who conceals error agree prejudicial that occurred not by trick, scheme, up or covers or device a here. as is alleged material fact also in the indict ment. Cohen v. United See Ill 386, (9th Cir.). F.2d part Section 408 is statute of a misdemeanor penalties with objection prosecution under The consequences significantly less harsh instead of under 42 U.S.C.A. § under than those the older felony statute § U.S.C.A. general provisions. with its more the indictment on the Defendant attacks ground proceeds it under feel that We nevertheless further the stat instead of under 42 utory provisions reveal no § U.S.C.A. intent that 18 argument is that 408 is 408.11 The was barred from applica § C.A. U.S.C.A. § § statute; later, it specific more deals tion here enactment of 42 a U.S.C.A. directly with false statements in connection 408. There is no indication of an § intent claims; that the statutes are later with medicare to make the act a any substitute for 11. The tion of § conceals devise 1286): 18 U.S.C.A. Whoever, fendant of the bill me ing merely fendant the ticulars, room. charges. than the formal method Later 1001. Statements Now (c), again indictment and charges. him of any department relevant a material particulars are exhibits are knowingly the court or covers the written together will be furnished to remind in § exhibits, any provide statutory charges against with certain up by any you that the indictment and fact, matter within instructed and 42 U.S.C.A. there for or entries particularities charges against together or not evidence. copy in turn: agency provisions appear of willfully makes of the bill of trick, scheme, your accusing in you specifics generally him and advis- part use, in any a They § jurisdic- falsifies, copy the de- the de- and let (Id. 408(b) about those false, par- are or in at year, ment or terial any false, in $1,000 statement or disability conviction thereof shall try, tations, June imprisoned document § fictitious or fraudulent statements or Whoever— (c) (b) 408. Penalties any application false statement shall be 25, at makes or both. fact for under fictitious ****** ^{[******] [******]} or or makes or uses any guilty 1948, determination under this imprisoned knowing not more than five this time makes or or representation fined not more than use in c. or of a misdemeanor causes to subchapter; 645, shall be fined not fraudulent or the same to contain determining representation 62 Stat. any any be causes to payment of a statement or en- made false more years, rights material subchapter; $10,000 writing more than any represen- than one of a ma- or for a be or both. made upon false pay- fact any or or An original and a renewed motion to United States statute. the earlier part of heard and denied suppress were trial 86, 96, 61 S.Ct. Gilliland, 312 U.S. contains argument record court. Our 605; Posadas v. Na see 523, 85 L.Ed. motion, raising in essence on the renewed 497, 503, 56 Bank, 296 U.S. City tional above outlined and brief state- points There is no L.Ed. the motion for return of the ments on the difference in controlling significance I, 10-21). It (Tr. Vol. also contains records repugnancy subject and no penalties (Id. rulings denying the motions at 20- Gilliland, su two statutes. matter 21). we have no evidentiary While record at 85 L.Ed. at pra, such, concerning the motions as the facts straightforward is no or And there at dispositive feel are by which we shown the prior the statute. of See rejection direct record. trial Armstrong, v. 485 Earth the Friends of organized The Denver in South Clinic was Cir., banc), denied, en cert. 1, (10th 9 F.2d professional corporation 1969 as a under 933, 1171, 39 L.Ed.2d 120 94 S.Ct. U.S. 414 C.R.S.1973, law. See Colorado 12-36-134. (1974). testified at trial that he was The defendant holdings the to follow persuaded areWe that he president and and his wife were the Chakmakis, 449 F.2d in only stockholders 1970 and 1971. There Cir.), and United States v. (5th 315, doctors, 316 the were two defendant and Dr. aff’d, (C.D.Cal.), F.Supp. 116 Griffin, 346 Matanky, regular and three employees. clinic denied, Cir.), patients cert. said the were con- The defendant F.2d doctors; those of the 539, sidered individual 1039, 38 L.Ed.2d 329 94 S.Ct. U.S. however, when asked about money received under prosecution that conclude (1973), and in, brought Dr. Griffin patients from or improper. was not § 18 U.S.C.A. payments behalf, on their medicare defend- (Tr. it went to the clinic XIII, ant said Vol. IV 928-32). The statements patients the showing forms “South were on Denver self-incrimination Amendment Fifth The Clinic,” also the names of the and two doc- exhibits from admission of objection to evidence, few checks in Of the tors. some clinic defendant’s payable to defendant and were some to the Clinic, that error occurred deposited contends all were Defendant but the credit suppress records the Clinic. of the motion of denial grand jury first from by the subpoenaed question The record exhibits in consist of defendant Clinic where Denver the South charts; patients’ yellow slips the blue show- personal were his says they He practiced. rendered, or service ing the test the and that the patients; of treatment of it; records punched business charge machine corporation, of professional the showing existence accounting by cards dates of visits doctor, sole president service, was patients, charges he the the credits; day alleged pa- of the sheets on all at the time shareholder12 clinic, patronizing showing tients their offenses, inapplicable the rule that makes charges names and to them. by protected are corporate records privilege against self-in Fifth Amendment records, said that The defendant “the ” crimination; the court erred in not and that . yellow charts and so on . . were the records to defendant return of ordering corporation, of the property but were Denver Clinic. custody and control.13 South under his The de findings, listing defendant testified that he and 12. At trial the visits and medications for only of the cor- stockholders were the patients his wife poration covered the 41 substantive XIII, (Tr. president its and that he was They were attached as exhibits with counts. 928). requests payments and other exhibits in patient correlating groups to each covered patients’ “yellow charts” are counts. the substantive treatment, diagnosis, showing dates records yellow inspect sheets as a grand fendant described jury testimony of Govern record, not a doctor’s record. nurse’s ment trial; witnesses before Jencks Act as 1970, amended in 18 U.S.C.A. agree any We cannot error 3500, pretrial does not bar § discovery of court by the trial demonstrated. The testimony; such that under the test of bal corporation organized was as professional ancing the interests in protecting grand for the independent entity an institutional testimony, or under the test of a show continuing practice conduct of medical ing need, a particularized he met the clinic. Bellis v. United requirements for being aids; furnished such 95-97, 2179, 2186-2187, and that his need was increased because of 678, 687-690. The L.Ed.2d records were improper an admonition of secrecy to wit being held by not treated as the doctors nesses Government counsel at the grand individually representa but were held in a jury proceeding in violation of 6(e), Rule clinic. capacity tive for the Id. at F.R.Crim.P.15 689; at at 40 L.Ed.2d Matter S.Ct. (10th Cir.), Berry, 521 F.2d cert. agree We must the admonition to the denied, contrary witness is to the provisions of Rule (1975). They L.Ed.2d U.S.L.W. 3264 6(e) obligation that of secrecy may be “[n]o possessed private were as property not imposed upon any person except in accord protects. which the Fifth Amendment provision ance with this rule.” No in the Berry, supra Moreover, at Matter of 183.14 applied support rule to the admonition.16 argument as to return of the documents Langswager, See In re 392 783, F.Supp. 788 making copies is untenable since available (N.D.Ill.). However, we agree with the accepted was of the documents as suffi prejudice that no Government was shown in cient, originals properly and the were sub connection with the admonition or the trial trial, ject to retention for which was the of the transcripts. court’s denial Application intent of the court’s order. See argues Defendant that key Government Corp., 953, Aviation F.Supp. of Bendix 58 flatly witnesses refused to discuss any as- (S.D.N.Y.) (Tr. XIX, 57). Vol. pect grand jury of their testimony with attorney. defendant’s We are referred to V Dr. testimony of Griffin in which he admit- pretrial The denial of access grand refusing to ted talk to a representative jury transcripts from counsel’s he, defense office and that Griffin, Defendant contends there was er was not willing to talk about the by denying XII, ror the trial court in (Tr. 769-70). motions to case Vol. Dr. Griffin was confidentiality arising 14. The by out of the doctor- dential court order. That the fact that patient relationship by is relied on the defend- you here, questions have been which provision profes- ant. He refers to the in the asked, were and the answers which were corporation statute that sional it shall not be given anyone, are not to be discussed with modify physician-patient privi- deemed to you so, you and if feel need to do should C.R.S.1973, 12-36-134(5). However, lege. See permission of first seek the U. S. District points the Government out that the medicare your Judge through attorney, Mr. Creamer. request patients pay- a waiver on made that, I THE WITNESS: understand sir. ment forms. This is a broad waiver [GOVERNMENT COUNSEL] The matters Security Social Administration or its intermedi- confidential, remain and I would ask at this furnishing aries or carriers for the of informa- time, Foreman, that Mr. the witness be in- patient. Under State tion about law the subpoena his structed that continues in ef- patient privilege. Kelley could waive this v. fect, report back he to the Grand Holmes, 79, 590, Colo.App. 470 P.2d Jury in March at the date notified admonition Government counsel 15. The Attorney. United States Griffin, witness, principal Dr. a Government 16. The Government advises us its brief that Ill, 89): (Supp. was as follows Vol. practice giving of such admonitions to wit- At this [GOVERNMENT COUNSEL] has since been nesses discontinued in the Dis- time, Griffin, my duty you Dr. it is to advise (Brief Appellee, 53). trict of Colorado Jury proceedings that the Grand are confi- There was considerable unfavor give and did witness key Government defendant, and publicity concerning able testimony against defendant. damaging articles. jurors had read some of the several have been desira- it would assume And we Nevertheless, jurors pre exposure know that defendant advantageous ble disqual compel their does not publicity trial in advance. was to come what the details 369 U.S. Washington, Beck v. ification. grand of his Nevertheless, transcript 111; 98, 955, 964, 541, 557, 8 L.Ed.2d 82 S.Ct. to de- made available was testimony 287, 292 F.2d v. United Welch commenced Dr. Griffin before counsel fense denied, 957, Cir.), cert. 385 U.S. (10th dur- available testimony. It was his direct 395, 17 L.Ed.2d 303. In United States recess testimony and a noon ing direct Cir.), Smaldone, 1333, 1346(10th v. cross-examination. before intervened denied, 94 S.Ct. cert. prej any specific is made No reference (1974), step taken remedial L.Ed.2d having the from to defendant udice jurors knowledge all who had to excuse was Regardless of whether transcripts earlier. remedy but is not publicity, particular or the provisions Act the Jencks judge carefully Here the trial mandatory. see United applies, standard ized need jurors concerning potential all questioned (10th Quintana, 457 F.2d v. He of mind. asked additional state their denied, 409 U.S. Cir.), acknowledged they cert. of those who questions 130; Tager, United States pretrial publicity, or heard the L.Ed.2d had read denied, 415 Cir.), they cert. whether could serve as fair ascertained F.2d the mate impartial jurors, having read 39 L.Ed.2d 914, 94 S.Ct. 9-10, Ill, 27). Tr. Vol. (E. g., any error was rial we are satisfied (1974), Defendant’s prejudicial.17 and not harmless procedure met the We are satisfied general claim in effect a remains trial. position for a fair See Beck v. standards the tran deny him 557, error to supra, it was 369 U.S. at Washington, that S.Ct. 111; for the Dowd, were needed they at Irvin v. scripts because 8 L.Ed.2d at 717, 723, 1639, 1642, enough. United 6 L.Ed.2d defense, is not S.Ct. and this 756; (10th supra v. United at Welch Addington, v. States say pretrial public cannot And we Cir.). or that was so intensive examination of ity panel prejudice revealed such the entire VI jurors’ could not believe the a court that compelled be would to find and answers of publicity and denial pretrial The opinions as a matter of preformed bias or jurors challenges Washington, v. supra, Beck law. ground on the urges Defendant reversal at L.Ed.2d at 111. at chal- the denial of publicity and pretrial of that jurors. says He for cause lenges VII articles several unfavorable were there in the exclusion and of error Claims papers, preju- and in the Denver him about of evidence admission misleading coverage; that television dicial by caused state- media were in the stories First, defendant claims error in re counsel; that five ments of Government proof pa from several of offers jection read one replied they had jurors potential would have testified that de who tients defendant, concerning occasions did bill on numerous more articles fendant or erroneously The charge were them for his services. offer challenges for cause that pay able to and others patients covered denied. (D.D.C.), F.Supp. particularized it but we need not need standard Under inspired question that Government feel there has been indicated since we was no decide the showing might premise for a of need prejudice silence to defendant. Mitchell, transcript, States v. see United argued pay. impropriety It was to the trial of the proof, offer of such unable such evidence was relevant and which should judge pretrial that have been made as a motion, lack to show a of motive rather during than admissible trial of offenses; F.R.Crim.P.; to commit the that it general 12(b), issue. Rule defendant proof Oaks, that see Government defend- United States v. was to meet 508 F.2d 1403 (9th Cir.). by pressure he were caused ant’s actions salaries, respect to overhead and felt Third, says defendant there was er get money pay he had to and that ror in admissions bulletins, of medicare (Tr. expenses XIV, Vol. 986- overhead 45A, Plaintiff’s Exhibits 45B and 45C. We 88). find no error or abuse of discretion in their generalized of- The court considered in view admission of the testimony by Dr. rejected it on the proof ground concerning fer of Griffin handling defendants’ that irrelevant and there would bulletins generally that it was medicare at the clinic XIV, 687-89). (Tr. that be no limit evidence could Vol. testimony if such were admitted. produced, VIII an say there was abuse of dis- We cannot ruling relevance rea- on cretion materiality The issue proof. See United sonable limits appeal At trial and on one of the defend- Cir.). Twilligear, F.2d arguments ant’s main is that the issue of proof as offer went of de- Insofar materiality alleged misrepresenta- character, note we that five char- fendant’s requests on the for payment tions should court, were allowed acter witnesses not have been submitted to jury; that on this and no abuse score shown. counts, some part as to or all of the Second, defendant claims error of alleged misrepresentation items were re- proof suggest which would exclusion drugs to several proof lated which the the defendant was a victim of discriminato clearly showed to be noncompensable under his ry prosecution because of earlier associa guidelines established used the medicare Congressional tion with the Dita Beard in agency (Colorado in Denver payment Blue vestigation proof controversy. offered Shield); Cross-Blue since state- testimony by was defendant relating his only non-compensable related to such ments the Congressional role in investigation, incapable they inducing were drugs, pay- where offered professional he his opinion ments, and were not material as a matter of that Mrs. Beard able appear was not to Thus, argued, it the convictions on law. committee, before any days and that within stand. counts cannot these public after opinion, announcement of his governing principles The are prosecution. his was case referred for De the Materiality alleged of misstate clear. fendant to prove further offered the that element is an essential of offenses ments thing happened same other doctors treat by 18 Gonzales v. § defined U.S.C.A. ing expressed Beard Mrs. who same the States, (10th Cir.), 286 F.2d United opinion her inability testify (Tr. of Vol. denied, cert. XIII, 890-93). (1961). The L.Ed.2d indictment here The trial court sustained a Government concealments, alleged defendant’s false objection offer, to the without rea stating the and like were statements of “material ruling. sons for the deciding Without recognized The trial court material facts.” proof might grounds whether such be an essential element of ity as the offenses challenging criminal proceedings, Unit see charged jury. the There must be and so Falk, ed v. 479 F.2d proof 619-622 Government the sufficient under Cir.), (7th ruling we sustain the due the applied in criminal that the standard cases and the remoteness insubstantial nature of was alleged misstatement material. See States, proof against (10th offer of the of v. presumption United F.2d Poulos the prosecution, faith in id. at and good Cir.). agency guidelines payment medicare ex- to a principles these of application The payment drugs for the in cluded involved the from requesting payment

statement counts, the shown. in circumstances the 25 in Bart made clear has been Government authorized, any was not payment And since v. United Grain Company lett not payment could induce misstatement Cir.). prosecution That F.2d 338 as a matter of law. immaterial was making 714m was for § U.S.C.A. under 15 influence action of the statement false with agree the substance of must We Corporation. A state Commodity Credit position. The the facts about defendant’s at a Kansas was unloaded grain simple, not they ment involved are but 25 counts However, under doc was false. purposes. for our Warehouse summarized may be of authority payment governing uments Wells, an Assistant Vice President of Mr. sought, the court determined the allowance Shield, Cross-Blue testified Blue Colorado grain unless was authorized payment no At the time in ques for the Government. store”; not payment was “in delivered was of the Benefit Review he was Director tion bin delivery only was “F.O.B. if authorized put it (BRD) and out information Division was held to proof The Government site.” compensability drugs of under medi the on transaction, type of the latter clearly of be V, 131, (Tr. seq.). et The BRD Vol. care And since exhibits. record according to the pro a manual which prepared followed grain had if unauthorized was payment the medicare regula visions of statute and repre in accordance unloaded been compensability.19 on tions This written statement, the misstate in sentations was process manual which furnished to the inducing pay of incapable was proved ment evidence, was introduced ing division CCC, imma and was therefore by the ment Exhibit 61. Plaintiff’s at 343.17a Id. terial. drugs. The manual lists several hundred “NB” that defendant relies was described Mr. proposition The notation is this It indicating “no benefit.”20 De showed that Wells as proof says He on. drugs necessary which are involved in Bartlett concerned not reasonable and The statute 17a. purpose of diagnosis “for the made statement for the or treatment a false influencing illness or any way 405.310(k). action of [the CCC] injury, § 20 C.F.R. obtaining purposes for himself or or for money anything of value . another reg- Mr. that the statutes and Wells testified applies parallel under test which This is four criteria establish basic determin- ulations ing materiality § U.S.C.A. —that (Tr. 132-135). compensability Vol. V. Basi- tendency natural “. . . has a statement require: (a) drug cally, must the criteria influencing, influence, capable or was drug compendia; of five standard in one listed ”. tribunal . . Gonzales decision (b) drug incapable must be self-adminis- States, supra, at 122. This tration; (c) drug may given not be as an charge court’s in the trial the test stated was immunization; (d) drug must be rea- XVII, 1277). (Tr. Vol. necessary diagnosis for the sonable and patient’s treatment of the illness. compensability for a determination of 18. The simple drug no particular under Medicare is processed Since medicare claims are statutory scheme for doctors, detailed by laymen, matter. Colorado Blue but Cross- Medicare, seq., provides et U.S.C.A. § prepared a Blue Shield manual and a list of drugs compensation if generally for the for drugs injectable processing to aid clerks in the any pharma- drugs of five standard listed in V, are 132-135). (Tr. Vol. This list of division specifically ap- compendia, or are ceutical proved 61, injectable drugs, Plaintiff’s Exhibit reduces hospital a committee for use (b) procedure. (a) to a and checklist criteria furnishing drugs. such U.S. medical staff in this manual are included occasional Also 1395x(t). excludes from The statute C.A. § drug guidelines which are cross references however, drugs coverage which can be self-ad- drug give list and which some attached to the 1395x(s)(2)(a) and § 42 U.S.C.A. ministered. (c) (d) to whether criteria and are indication as promulgated regulations (b). the Federal drugs. of certain in the administration satisfied Security exclude from Administration Social coverage drugs drugs bearing Wells that the immunization, 20. Mr. testified where in used in were not listed the five com- “NB” notation drug or inoculation vaccination is used for the they inju- pendia the statute and said directly referred the treatment of an related to not ry, any 405.310(e), also exclude covered under circumstance. He and were not § 20 C.F.R. count, drugs guilty out several involved on the points the fendant conviction cannot designation— the “no benefit” Dota, See United carried stand. here v. Thiosol, (Spasmol), (10th Cir.), and Ethaverine Liparin, denied, 1005-1006 cert. 583, also. relating Claims we note Guiadin (1973). and 38 L.Ed.2d 477 drugs were involved in 12 counts.21 to these Thus the convictions on these twelve counts a verdict on the motion for directed must be set aside. When made, was Government ar this basis problem relating The Heparin is other existed on that misstatements gued more involved. The “Drug Listing” manu with payments, along for these requests al, Plaintiff’s Exhibit did not exclude it items, other sup and that since items could However, coverage. from placed it strict counts, on the the motion port a conviction on compensability.22 conditions The condi agreed. denied. The trial court should be tions ones that related large part were However, presence of other ma diagnosis involved and the reasonable a concerning misstatements count drug terial ness of the use of the in the circum a conviction in these circum cannot sustain is difficulty stances. The that requests submitting In case non payment stances. for did not show diagnoses coming drug representations were not for compensable within the conditions payment for He jury’s from the consideration. parin. Government proof eliminated The on these on Now, reviewing the convictions those counts extend to did showing any addi 12 counts diagnoses we cannot determine whether the tional statements or furnished by defendant, on the immaterial have relied which would jury may result in the com concerning noncompensable pensability of claims for misstatements Heparin. Without requests more, on the for mere drugs, appear statement of a claim for If it jury. Heparin capable before the in fact was was not payment inducing pay any alleged ment, materiality by Bart required to consider item as for improper Company lett v. Grain item could have misrepresentation, 353 F.2d at 343.23 a general basis for verdict of supra, been the “No, specifically they may only given periods stated: are excluded oids of 2-3 XII, 781) coverage." (Tr. (emphasis from added). Vol. weeks, and there must be one month interval periods. between the Five, injections request TBA are listed on the 12, 13, 14, 21. These twelve counts are counts payment, injec- Plaintiff’s Exhibit 8-A. The 22, 23, 25, 26, 30, 40. 2/9/71, 2/16/71, 2/19/71, tions are dated Thiosol, Liparin, 2/23/71 and 3/1/71. The defendant contends 22. Unlike Ethaverine and Guiadin, agent authority Heparin (cortisone) had no and TBA the Medicare are not injections designated pay TBA of 2/23/71 and “NB” in Plaintiffs Exhibit 61. for the The “Heparin appears 3/1/71, opposite viewing apparently notation Guideline” their dates as be- Heparin Heparin yond period beginning in Plaintiff’s Exhibit 61. The with 2-3 week guideline appears at the back meeting required of Plaintiff’s Ex- injection, 2/9/71 and not hibit reads: (See Appellant’s interval. Brief at one month 51, coverage except 29). reject argument. By from Exclude for: this n. We our phlebitis; calendar, period through from 2/9/71 impending myocardial hospi- with Therefore, infaction than three weeks. 3/1/71 less all day; talization the same compensable injections are under five embolism-cerebral, pulmonary peripheral alleged guidelines, the false statements are ma- hospitalization with Bartlett, and the conviction terial under on diagnoses appear any request None these stand. count 8 can listing Heparin. payment mindful of the fact We are that actual loss argument defendant makes a The similar need not be shown. See Government (cortisone). respect to TBA The notation Godel, United States F.2d appears opposite Guidelines” TBA “Steroid denied, Cir.), cert. (cortisone) in Plaintiff’s Exhibit Ster- (1966). require They L.Ed.2d 72 But Bartlett complex. specify guidelines are more oid materiality diseases, ment on must may given is clear we hold certain that steroids sufficiently go Request appearing it was not met to on here including those pertaining count 8. For the dis- to the counts discussed in this Part as Payment request payment, opinion. ster- VIII of the listed eases analyzed supra, 118, 120, must be to see proof

The 286 F.2d makes it clear that sufficient evidence that there is “. . materiality . an essential ele [is] was alleged g., misstatement material. E. ment of the offenses defined in Section States, Poulos v. United In view of this requirement, 1001.” and the reviewing the Cir.). guilty In verdicts we record, state of the we proof must hold the determine, viewing proof must not sufficient was sustain the criminal Government, light most favorable to the these convictions on additional counts.24 there is sufficient whether substantial Accordingly judgment is affirmed as circumstantial, proof, together direct six counts not involving to the the issue of therefrom, reasonable inferences from materiality;25 as to the remaining 26 jury might which a find the defendant counts, judgment aside,26 is set and the guilty a reasonable beyond doubt. United remanded for case is dismissal of the indict Twilligear, 460 F.2d States v. 81-82 (10th Cir.). States, as to said counts. And Gonzales v. United ment

APPENDIX The Indictment

a. states: the indictment part In COURT STATES DISTRICT IN THE UNITED COLORADO THE DISTRICT OF FOR AMERICA, OF UNITED STATES Plaintiff, CRIMINAL CASE NO. 73-CR-415 Claims, False Medicare 2; 1001 and 18 U.S.C. Conspiracy to Defraud the RADETSKY, 18 U.S.C. 371 MARTIN

LOUIS Radetsky, L. M. aka STANDEFER, MARIE Defendants. 1 THROUGH

COUNTS * * * Jury charges: The Grand set forth in the the dates hereinbelow State and That on or about D. of said jurisdiction Administration, Colo., within the in a matter

District RADETSKY, and MARIE Radetsky aka L. M. STANDE- MARTÍN LOUIS conceal and cover FER,a knowingly wilfully up by trick, unlawfully, did facts, and cause to scneme, material and make be made and device false facts, purpose of material all for the representations statements provisions under the of Title XVIII to be made of said causing payments did submit and cause Act, RADETSKY STANDEFER to be in that Service, Inc., Shield, aka Colorado Colorado Medical Blue submitted 10, 16, challenged only counts are counts defendant These additional 25 counts. 29, 31, 32, 33, 17, 18, 19, 27, 39 and 41. challenge We find no merit in his to count 28. Although specifically the defendant did not 7, 8, 11, 15, challenge containing counts 16 are: 28 and 36. and 17 as 25. These counts im- statements, position material false we find their materiality problem 9, 10, 12, 13, 14, 16, 17, indistinguishable on the as are: 26. These counts “charges” allegations counts, 25, 26, 27, 29, 30, 32, 33, 19, 22, 23, 24, those 34, 35, 38, and we therefore reverse counts 16 and 17. 40 and SSA-1490, designated as Form otherwise Request known as for documents Payment (here- Insurance Benefits —Social Act Security Medicare —Medical this to as for Request Payment), inafter in indictment referred to secure Act, Part B of Title XVIII of said payment under for medical services to allegedly patients rendered in Colorado and for periods of time hereinbelow, Requests for Payment purport stated to show the date service, fully of each describe medical services rendered for each date given, charges, paid and the amount by patients against such WHEREAS, fact, charges, in truth and in as RADETSKY and STANDE- knew, (1) patients actually FER then received medical services less than frequently Requests Payment (dates stated on the for parenthesis hereinbelow indicate those when the patient any did not receive medical service), (2) Requests Payment fully, for did truly not accurately the medical describe procedures services for each date given as required “services”), (indicated by (3) hereinbelow the word Requests Payment did disclose that amounts shown as charges for services higher were at a rate and more than customary charges South Clinic, Inc. to Denver either medicare or non-medicare patients same (indicated by the “charges”), (4) service hereinbelow word the amounts Requests Payment paid shown on the already as patients against (indicated were charges such inflated hereinbelow the words “amount paid”:

a. The indictment Griffin, refers to one Marie Standefer and one Richard E. no charges being against made Radetsky Griffin. The trial of defendant was severed Standefer, pursuant from government. that of to a motion DATE TIME NAME OF

COUNT COVERED BY OF CLAIM CLAIM PATIENT MATERIAL FACTS (10); April House call on 6-29-71 4- 10-71 H. CHARLES charges. BRADY to 6- 22-71 4-28-71 2- 9-71 GLADYS Office call and treatment (9); charges. on to JOHNSON Feb. 3- 1-71 Services, charges. 5-27-70 1- 9-70 PEARL H. FOLTZ 5- 15-70 3- 3-71 9-11-71 PEARL H. Office calls and treatment (18), (2); Sep. on FOLTZ Oct. 12-31-70 services, charges. Services, charges. 7-21-71 1-15-71 PEARL H. FOLTZ 7- 2-71 Services, charges. 5-27-70 1- EVA 9-70 C. FISHER 5-15-70 treatment 3- 3-71 call and 9- 4-70 Office EVAC. services, Sep. (11); FISHER charges. 12-23-70 576 TIME DATE NAME BY OF COVERED OF

COUNT FACTS MATERIAL CLAIM PATIENT CLAIM Services, charges. EVA C. 1- 8-71 14 7-14-71 to FISHER 6-25-71 Services, charges. E. CARL 5-25-70 1- 2-70 15 to DAHLQUIST 1-70 5- Services, charges. CARL E. 1-70 5- 22-70 16 9- to DAHLQUIST 8-21-70 Services, charges. E. CARL 17 1-20-71 8-28-70 to DAHLQUIST 12-18-70 Services, charges. CARL E. 18 7-14-71 1- 8-71 to DAHLQUIST 21-71 6- Services, charges. CARL E. 19 8-71 7- 9-71 12- to DAHLQUIST 11-26-71 Services, charges. HENRY M. 6-29-71 1- 7-71 to BOOK 25-71 6- Services, charges. M. HENRY 1-71 7- 2-71 12- to BOOK 11- 18-71 Services, charges. CHARLES W. 4-15-70 2- 12-70 to CLARK 3- 26-70 Services, charges. CHARLES W. 5-27-70 4- 2-70 to CLARK 5- 15-70 Services, charges. W. CHARLES 8-19-70 5- 22-70 to CLARK 8- 14-70 Services, charges. W. CHARLES 1-27-71 8- 21-70 to CLARK 12- 31-70 Services, charges. W. CHARLES CLARK 7-14-71 1-15-71 6- 25-71 Services, charges. W. CHARLES CLARK 8-71 7- 9-71 12- 11-19-71 Charges, paid. amount ALEDA J. 6-17-70 1- 2-70 SMITH 5- 25-70 Services, charges, ALEDA J. SMITH amounts 9-30-70 6- 18-70 paid. 9- 10-70 Services, charges, ALEDA J. amount 9-71 1-21-71 6- paid. SMITH 6- 3-71 DATE TIME NAME BY COUNT OF COVERED OF CLAIM CLAIM PATIENT MATERIAL FACTS Services, charges, 1- 31 6-17-70 9-70 PHILLIP paid. to SOLOWAY amount 5- 23-70 Services, 10- charges, 7-70 6- 18-70 PHILLIP paid. to SOLOWAY amount 9- 29-70 Services, 1- 5-27-70 2-70 ESTHER D. charges, paid. to BREYMAIER amount 4- 29-70 Services, 8-19-70 5- 1-70 charges, ESTHER D. paid. to BREYMAIER amount 8- 7-70 Services, 1- 5-12-71 7-71 charges. ELEANOR to JOHNSON 4- 15-71 6- 3-70 1-19-70 Charges. DORA to GLENN 5- 25-70 11- 9- Charges. 4-70 4-70 CLARENCE to HEFLIN 10- 30-70 1- 4-28-71 4-71 LILIAN M. Office call and treatment (25); charges. HUBBARD on Jan. 4-12-71 8-27-71 4-26-71 Charges. LILIAN M. HUBBARD 8-13-71 Services, 6-17-70 1- 8-70 GEORGE charges. A. WHEELER 6- 16-70 1- 6-23-71 7-71 Charges. GEORGE A. WHEELER 6-10-71 ALL THE OP FOREGOING COUNTS THROUGH 41 violation of Sections 1001 Title Code.

COUNT 42 Jury

The Grand charges: further A, B, C, A. The paragraphs contents of 1 through Counts supra, hereby incorporated are herein reference.

F. It was part conspiracy further a that in those instances charge Payment where the the Request was at a higher rate than the customary charge patient for the same service the addition would be amounts, service; e.g., per small $1.00 $2.00 the concealment and cover-up of facts as material well as affirmative false statements and facts, representations C, of material as described in paragraph supra, would rendered; interspersed legitimate services all in an attempt avoid detection. . . . particulars

b. bill of particulars The bill of part: stated in IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO AMERICA, UNITED STATES OF

Plaintiff, CRIMINAL CASE NO. 73-CR-415 RADETSKY, MARTIN LOUIS L. M. Radetsky, aka BILL OF PARTICULARS STANDEFER, MARIE Defendants. The United Spelts, Richard J. Assistant United States

Attorney, submits this Bill of Particulars in accordance with the Court order of December supplied Information is parts: two through I—Counts 1 and II —Count 42. L—COUNTS 1 THROUGH 41

Listed below for each count are the material facts which the defend- ants did unlawfully, knowingly wilfully conceal and up by trick, cover scheme, device, and make and cause to be made as false statements representations. Drugs listed were in the form injection of an unless specified. otherwise Clinic, C., South Denver P. is referred to herein as the Clinic.

************* (Brevmaierl

COUNT 34 (A) Services: Request Payment

Date Per Per Clinic Records and/or Patient 1-70 Heparin 5- and Mercuhydrin Heparin and B-12 5- 9-70 U 5-15-70 U u 5- 22-70 u 6- 5-70 a 6-12-70 u 6-19-70 u 26-70 6- 7- 3-70 u 7-10-70 u 7-17-70 u 7-24-70 u 7- 31-70 u 8- 7-70 Charges: (B) Request Payment Per

Per Clinic Records and/or Patient each; calls at Office calls including injection: Office $6 (14 times) Injections 6-19-70, at 6 at each until $2 $6 then each time. 8 at each. $7 (C) Amount Paid: Paid,” “Amount payment, box 10 claims the request for $112, patient paid paid whereas less than this already had

patient amount.

[*] ^{[*] [*********]} (Glenn)

COUNT 36 Charges: (A) Request Payment

Per Per Clinic Records and/or Patient each; 5 office calls at $6 office calls including injection Injections (5 times) at 2-2-70; at each $2 until $6 there- time; each all until after each as claimed on $8 Re- 2-2-70. quest for Payment. requests payment

c. The Concerning (Breymaier). 34-A-l, count 34 Plaintiff’s Exhibit the request payment, part read in as follows: of Account: Itemization Examination 1-70 Office Call &

5- 6.00 Mercuhydrin injections lcc mg Heparin 100 & 2.00 Examination 9-70 Office Call & 6.00 5- mg Heparin Mercuhydrin injections lcc 100 & 2.00 Office Call & Examination 6.00 5-15-70 injections mg Heparin Mercuhydrin lcc

100 & 2.00 Call & Examination 5- 22-70 Office 6.00 Mercuhydrin injections mg Heparin & lcc 2.00 Office Call & Examination 6- 5-70 6.00 mg Heparin Mercuhydrin injections lcc & 2.00 Call & Examination 6-12-70 Office 6.00 injections mg Heparin Mercuhydrin & lcc 2.00 Examination Office Call & 6.00 6-19-70 injections mg Heparin Mercuhydrin lcc & 2.00 Examination 26-70 Office Call & 6- 6.00 injections mg Heparin Mercuhydrin & lcc 2.00 Call & Examination 7- 3-70 Office 6.00 Mercuhydrin injections lcc mg Heparin & 2.00 Examination Office Call & 7-10-70 6.00 mg Heparin Mercuhydrin injections & lcc 2.00 Office Call & Examination 7-17-70 6.00 mg Mercuhydrin injections lcc Heparin & 2.00 Call & Examination Office 6.00 7-24-70 Mercuhydrin injections lcc mg Heparin & 2.00 & Examination Office Call 7- 31-70 6.00 Mercuhydrin injections lcc mg Heparin & 2.00 Examination 7-70 Office Call & 8- 6.00 injections lcc mg Heparin Mercuhydrin & 2.00 charges Total from 4-29-70 thru 8-7-70 112.00 Account Paid on 112.00 Balance due -0- 36-A, Concerning (Glenn), count 36 request Plaintiff’s Exhibit part payment, read as follows: Account:

Itemization of 1-19-70 Office Call & Examination 6.00 injection

Thiomerin 2.00 Call & Examination 1-22-70 Office 6.00 injection Thiomerin 2.00 Office Call & Examination 1-26-70 6.00 injection Thiomerin 2.00 Office Call & 1- 29-70 Examination 6.00 injection Thiomerin 2.00 2- 2-70 Office Call & Examination 6.00 injection Thiomerin 2.00 2- 5-70 Office Call & Examination 6.00 injection Thiomerin 2.00 2- 9-70 Office Call & Examination 6.00 injection Thiomerin 2.00 2- 12-70 Office Call & Examination 6.00 injection

Thiomerin 2.00 2-70 3- Office Call & Examination 6.00 injection Thiomerin 2.00 3- 9-70 Office Call & Examination 6.00 injection Thiomerin 2.00 3-16-70 Office Call & Examination 6.00 injection

Thiomerin 2.00 ^{[*] [*] [*] [*] [*] [*]} Office Call & Examination 3-23-70 6.00 injection Thiomerin 2.00 3- 30-70 Office Call & Examination 6.00 injection Thiomerin 2.00 4- 6-70 Office Call Examination & 6.00 injection Thiomerin 2.00 4-13-70 Office Call & Examination 6.00 injection

Thiomerin 2.00 Examination 4-20-70 Office Call & 6.00 injection Thiomerin 2.00 Examination 4- 27-70 Office Call & 6.00 injection Thiomerin 2.00 Call & Examination 5- 4-70 Office 6.00 injection Thiomerin 2.00 Office Call & Examination 5-11-70 6.00 injection

Thiomerin 2.00 & Examination 5-25-70 Office Call 6.00 injection Thiomerin 2.00 charges Total from 1-1-70 thru 5-25-70 160.00 Paid on Account 27.60

Balance due 132.40 LEWIS, Judge (dissenting). Chief ing document created prosecution which should never be submitted to the jury my I dissent from Part II of Brother formal rule absent a and that in this case Holloway’s opinion relating to the submis- prejudice to defendant glaringly ap- particulars jury sion of the bill parent. grant I would a new trial on each my aspect Brother Barrett’s views on that count. case. BARRETT, Judge Circuit (concurring in This ease is its very nature one of part dissenting in part): complexity preparation but with careful presentation that complexity need not I. complete resulted in have confusion. I am prejudice this case no agree that I that defendant was fearful convicted on Radetsky by reason of submis- resulted proof grounds beyond other than a reasona- particulars, together bill of sion of And, me, ble doubt. we seem to be exhibits, purposes indictment perpetuating that confusion. during its deliberations. I aid to Recognizing that a particulars bill of is a view that with the “the sub- agree do self-serving prosecutorial document and particulars bill of to the trial of a mission part evidence, of the indictment neither nor give advantage some to the does jury states the opinion prosecution main that the summary written re-em- as a Government advantage by gained submitting an the doc- prosecution’s case”. Criminal the phasizing jury but the ument defendant was this are most such as cases difficult fraud proce- such untraditional prejudiced not just try. They as the prepare involve — judge But the trial termed dure. submis- many laborious, here reflects —that record particulars the bill of as sion of “almost a required are in order to un- hours tedious jury to return necessity if the is an intelli- unfold, upon, plan cover, reason and devel- turn, gent prosecutor verdict.” In the indi- presentation of a case involv- proper op the submission cated that without of the bill of records and transactions. ing voluminous jury “may the particulars well convict on possible that it seems that impressed isOne request one of the items listed on the difficult, compli- a who creates a defendant which hasn’t even been payment challenged cated, puzzle may in fact jig-saw factual by the States.” aborting the purposes in basic succeed sum, In I dissent because I system. believe that a justice bill of the criminal particulars is inherently bill of any self-serv- in this case does contain particulars ignores Reliance on the criteria the ex- conclusory language. It is in or prejudicial Wells, testimony of Mr. Vice-President pre pert to summaries so often analogous fact trial, the time at who had 25 of CMS Court of detailed evi the Trial pared experience with Blue Shield. He was complicated years in tax evasion admitted dence with thoroughly familiar Medicare law. States, v. United 370 F.2d 719 cases [Oertle safeguard as carrier to serves contract 1966); CMS Sanseverino v. United Cir. (10th integrity in (10th of Medicare Colorado. 1963)] the fiscal F.2d Cir. examination relative to the detailed by a Under prepared party relating to summaries Radetsky payments relating claims for or records. We have documents voluminous issue, here at explained 26 counts Wells are admissible if the such summaries that held (as various alternatives of disclosed false in the instant the documents supporting the Fox, drugs concealed actual in Boehm v. 473 F.2d versus relation to case) available. are Rental, the manner these 1973); could influence the action Ryder Truck (10th Cir. As the Government so suc- of Medicare. Packing Company, v. National Inc. summarizing out in cinctly points its brief 1967). Similarly, Cir. a master’s testimony: “Two are situations involving an Well’s report accounting report and (1) [drug] If disclosed false is findings may clear. damage be treated as an item covered, drug the concealed actual but entitled to such weight of evidence as the (2) If not, material. the disclosed false it is may accord it. Charles A. Wright, Inc. covered, and the concealed actu- drug is not Co., (1st D. Rich 354 F.2d 710 v. F. Cir. any is not covered under denied, drug al circum- 1966), cert. stances, concealment would not be ma- (1966). 16 L.Ed.2d 673 explained a Wells different situa- terial.” II. drug may the concealed actual If tion. I respectfully dissent from the reversal of covered, influence it would Medicare. Even Radetsky’s conviction on 26 of the counts. drug false were also cover- if the disclosed The criteria adopted by payment CMS for ed, deny would the Request Medicare non-payment and/or of the specific drugs in having concealed the Payment other not, issue does as the majority opinion covered, drug If the disclosed were drug. states, make the issue of materiality a mat- of another covered drug concealment ter of law predicate on the (which I deem ability Medicare’s to have meaning- defeats incorrect from record) that the agency review and measure the ful utilization rela- would not have tendered payments on the (T. 787, diagnoses. 793). Even if tion to respective Requests for Payment filed drug covered, false is not the disclosed Radetsky. is material defeating statement false program party since a Medicare third question I am troubled as to —the denied the benefit of the insur- patient Bartlett, upon rule in relied whether —is drug. the actual covered ance [Brief applies majority opinion, here. On its America, Appen- United States of Appellee, face, appear to control. I it would have A, p. pre- Footnote It was dix A-12]. however, concluded, complexities variety possible of the because cisely in the problems involved Medicare involved that Trial Court deter- falsities permit application area do not payment so, mined, dispute properly There, simple the facts were of Bartlett. Request whether the respect to forms uncomplicated. The misstatement was (an misstatements (a) essential contained express language employed in contrary to offense) (b) and/or element con- authoriz- U.S.C.A. § the statute 714m] [15 representations material intended to tained delivery grain only for of “in ing payment agency (Medicare) Government application payment influence whereas the store” left jury deliberation must action grain that the was delivered “F.O.B. stated as a matter of fact. In simplicity and determination such exists in the No bin site”. setting this judgment, meets the re- my bar. case at of Gonzales v. United quirements (10th denied, Roy 1960), Cir. Circle, M. F.2d 118 cert. CIRCLE and Wanda J. similarly 878, 1028, of 6 L.Ed.2d 190 behalf themselves and others S.Ct. U.S. situated, Plaintiffs-Appellants, in United v. (1961), re-affirmed States (10th 1970) Weiss, F.2d 1402 Cir. autho v. jury of the issue to the

rizing submission HOMES, INC., corpora- JIM WALTER a as a matter of fact determination for its al., tion, Defendants-Appellees. et directing proper jury instructions under Rayfield Evelyn Smiley, SMILEY and C. particular find that a matter it must on behalf themselves and others sim- representation. material a constitutes situated, ilarly Plaintiffs-Appellants, requested jury the three Significantly, v. materiality on the sub- issue instructions HOMES, INC., corpora- a MID-STATE Court, pre- two were those mitted tion, Defendant-Appellee. Radetsky. They counsel for met pared by Gonzales, supra, standards. In my 75-1354, Nos. 75-1355. prejudice no resulted to Radet- judgment Appeals, States Court of United clearly understood the ele- jurors The sky. Tenth Circuit. charged of the offenses and that ments Argued Feb. 1976. they beyond must find a reasonable April Decided returning guilt. before verdicts of doubt Rehearing July Denied Radetsky to make full disclo Failure circumstances did constitute under the sure totality if—in the the statute violation of

a reflected

of the facts and circumstances defraud the record —his intent

this

Government, Medicare, through was estab jury a reasonable doubt. The beyond

lished It matters that no mone

so believed. damage to Government

tary loss or Radetsky’s actions certain

resulted from claims. United submitting the false Godel, (4th 1966), 361 F.2d 21 Cir. v.

States denied,

cert. U.S. (1966). important, critical

L.Ed.2d Radetsky’s peers

point is that a reasonable doubt in each of beyond

found Request he submitted the 26 counts that specific forms with a intent to Payment Intent is ordi the United States.

defraud question jury. fact for the

narily a Acree, 466 F.2d 1114 Cir. denied,

1972), cert. (1973). I would affirm. 35 L.Ed.2d

Case Details

Case Name: United States v. Louis Martin Radetsky, A/K/A L. M. Radetsky

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 26, 1976

Citation: 535 F.2d 556

Docket Number: 74-1484

Court Abbreviation: 10th Cir.