holding that a sufficient indictment "is of paramount importance" and "required . . . to avoid [a] conviction on facts not found, or perhaps not even presented to, the grand jury that indicted [the defendant]"
How later courts described this case
- holding that a sufficient indictment "is of paramount importance" and "required . . . to avoid [a] conviction on facts not found, or perhaps not even presented to, the grand jury that indicted [the defendant]"
- rejecting argument that the defendant should have been prosecuted under specific statute criminalizing the making of false statements in connection with medicare claims rather than § 1001 because there was no evidence of an intent to make the specific statute a substitute for any part of § 1001
- overturning convictions for making false statements when an immaterial alleged misstatement was submitted to jury and could have been basis of general verdict
- upholding convictions under 18 U.S.C. § 1001 for false statement in Medicare claims despite more specific later-enacted prohibitions in 42 U.S.C. § 408
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by United States v. Sammy G. Daily and Frederik A. Figge, 921 F.2d 994 (1991)
Apao, 59 Haw. at 635 & n. 5, 586 P.2d 250, 257 & n. 5 (quoting United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.1976), overruled on other grounds by United States v. Daily, 921 F.2d 994, 1004 & n. 11 (10th Cir.1990)).
The opinion
BARRETT, Circuit Judge
(concurring in part and dissenting in part):
I.
I agree that in this case no prejudice resulted to Radetsky by reason of submission of the bill of particulars, together with the indictment and exhibits, for purposes of aid to the jury during its deliberations. I do not agree with the view that “the submission of a bill of particulars to the trial jury does give some advantage to the Government as a written summary re-emphasizing the prosecution’s case”. Criminal fraud cases such as this are most difficult to prepare and try. They involve — just as the record here reflects — that many laborious, tedious hours are required in order to uncover, unfold, reason upon, plan and develop the proper presentation of a case involving voluminous records and transactions. One is impressed that it seems possible that a defendant who creates a difficult, complicated, jig-saw factual puzzle may in fact succeed in aborting the basic purposes of the criminal justice system. The bill of particulars in this case does not contain any *582 prejudicial or conclusory language. It is in fact analogous to summaries so often prepared by the Trial Court of detailed evidence admitted in complicated tax evasion cases [Oertle v. United States, 370 F.2d 719 (10th Cir. 1966); Sanseverino v. United States, 321 F.2d 714 (10th Cir. 1963)] or summaries prepared by a party relating to voluminous documents or records. We have held that such summaries are admissible if the supporting documents (as in the instant case) are available. Boehm v. Fox, 473 F.2d 445 (10th Cir. 1973); Ryder Truck Rental, Inc. v. National Packing Company, 380 F.2d 328 (10th Cir. 1967). Similarly, a master’s report involving an accounting report and damage findings may be treated as an item of evidence entitled to such weight as the jury may accord it. Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d 710 (1st Cir. 1966), cert. denied, 384 U.S. 960 , 86 S.Ct. 1586 , 16 L.Ed.2d 673 (1966).
II.
I respectfully dissent from the reversal of Radetsky’s conviction on 26 of the counts. The criteria adopted by CMS for payment and/or non-payment of the specific drugs in issue does not, as the majority opinion states, make the issue of materiality a matter of law on the predicate (which I deem incorrect from the record) that the agency would not have tendered payments on the respective Requests for Payment filed by Radetsky.
I am troubled with the question as to whether the rule in Bartlett, relied upon in the majority opinion, applies here. On its face, it would appear to control. I have concluded, however, that the complexities of the problems involved in the Medicare payment area do not permit the application of Bartlett. There, the facts were simple and uncomplicated. The misstatement was contrary to express language employed in the statute [15 U.S.C.A. § 714m] authorizing payment for delivery of grain only “in store” whereas the application for payment stated that the grain was delivered “F.O.B. bin site”. No such simplicity exists in the case at bar.
Reliance on the criteria ignores the expert testimony of Mr. Wells, Vice-President of CMS at the time of trial, who had 25 years experience with Blue Shield. He was thoroughly familiar with Medicare law. CMS serves as contract carrier to safeguard the fiscal integrity of Medicare in Colorado. Under detailed examination relative to the Radetsky claims for payments relating to the 26 counts here at issue, Wells explained the various alternatives of disclosed false versus concealed actual drugs in relation to the manner these could influence the action of Medicare. As the Government so succinctly points out in its brief summarizing Well’s testimony: “Two situations are clear. (1) If the disclosed false [drug] is covered, but the concealed actual drug is not, it is material. (2) If the disclosed false drug is not covered, and the concealed actual drug is not covered under any circumstances, the concealment would not be material.” Wells explained a different situation. If the concealed actual drug may be covered, it would influence Medicare. Even if the disclosed false drug were also covered, Medicare would deny the Request for Payment for having concealed the other drug. If the disclosed drug were covered, the concealment of another covered drug defeats Medicare’s ability to have meaningful utilization review and measure the relation to diagnoses. (T. 787, 793). Even if the disclosed false drug is not covered, the false statement is material in defeating the Medicare program since a third party — the patient — is denied the benefit of the insurance on the actual covered drug. [Brief of Appellee, United States of America, Appendix A, Footnote 46, p. A-12]. It was precisely because of the variety of possible falsities involved that the Trial Court determined, and properly so, that the dispute with respect to whether the Request forms (a) contained misstatements (an essential element of the offense) and/or (b) contained material representations intended to influence Government agency (Medicare) action must be left for jury deliberation and determination as a matter of fact. In my judgment, this setting meets the re *583 quirements of Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878 , 81 S.Ct. 1028 , 6 L.Ed.2d 190 (1961), re-affirmed in United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970) authorizing submission of the issue to the jury for its determination as a matter of fact under proper instructions directing the jury that it must find that a particular matter constitutes a material representation.
Significantly, of the three requested jury instructions on the materiality issue submitted by the Court, two were those prepared by counsel for Radetsky. They met the Gonzales, supra, standards. In my judgment no prejudice resulted to Radetsky. The jurors clearly understood the elements of the offenses charged and that which they must find beyond a reasonable doubt before returning verdicts of guilt.
Failure by Radetsky to make full disclosure under the circumstances did constitute a violation of the statute if — in the totality of the facts and circumstances reflected by this record — his intent to defraud the Government, through Medicare, was established beyond a reasonable doubt. The jury so believed. It matters not that no monetary loss or damage to the Government resulted from certain of Radetsky’s actions in submitting the false claims. United States v. Godel, 361 F.2d 21 (4th Cir. 1966), cert. denied, 385 U.S. 838 , 87 S.Ct. 87 , 17 L.Ed.2d 72 (1966). The important, critical point is that a jury of Radetsky’s peers found beyond a reasonable doubt in each of the 26 counts that he submitted the Request for Payment forms with a specific intent to defraud the United States. Intent is ordinarily a fact question for the jury. United States v. Acree, 466 F.2d 1114 (10th Cir. 1972), cert. denied, 410 U.S. 913 , 93 S.Ct. 962 , 35 L.Ed.2d 278 (1973). I would affirm.