holding that criminal liability under § 287 attached to a physician who submitted false insurance claims to the government through a third-party insurer
How later courts described this case
- holding that criminal liability under § 287 attached to a physician who submitted false insurance claims to the government through a third-party insurer
- court did not abuse its discretion in finding without a hearing that an elderly witness was unavailable to testify when the court had found two weeks earlier that exceptional circumstances justified taking the wit- ness’s deposition; “it was highly unlikely that an elderly invalid would undergo a miraculous rejuvenation during the two-week interval”
- upholding mail fraud conviction of ophthalmologist who billed Medicaid for unnecessary and inappropriate medical treatments as scheme to obtain money from patients and the government
- affirming conviction under false claims act for ophthalmologist charged with billing Medicare for laser treatments which were neither performed nor necessary
Written by the judges who cited it.
The opinion
BOYCE F. MARTIN, Jr., Circuit Judge,
dissenting.
I write separately to voice my disagreement with the majority’s conclusions drawn in section III of its analysis. Specifically, I believe that the trial court erred when it admitted into evidence the testimony of two former patients of the defendant, two patients who were not listed in the indictment as defrauded by the defendant.
*1384 While I agree with the majority’s reliance upon United States v. Vincent, 681 F.2d 462 (6th Cir.1982), where this court established the analysis to be used when reviewing the admissibility of evidence under Rule 404(b), I disagree with the majority’s application of that analysis. Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed.R.Evid. 404(b).
I do not see how the testimony of Mary Newton or Jessie Gammon can be admitted within the requirements of Rule 404(b). Mrs. Newton, who was not listed in the indictment as having been defrauded, testified at trial that the defendant did not perform any laser treatments on her and that the first time she knew she had received a laser treatment was when she received a $900 bill in the mail. She also testified that she complained about the bill and that the defendant then cut the bill in one-half. This testimony has no relevance to the question of whether the defendant possesed the intent necessary to be convicted of defrauding Medicare and the individuals listed in the indictment. It appears clear that the purpose of this testimony was to introduce evidence from which the jury could infer that the defendant was guilty of bad acts.
Mrs. Gammon, a second patient of the defendant not listed in the indictment, testified to the effect that the defendant did not use a “gonio lens” which is necessary to perform laser treatments. She was the only patient to allege that no lens was used. She was also allowed to testify that when she requested her charts from the defendant they could not be found and that she never did receive her medical records from the defendant. She was the only patient to testify that she could not obtain her records. Like the testimony of Mrs. Newton, this testimony has no relevance to the counts charged in the indictment. Because of the importance of the testimony of these two witnesses, owing to its uniqueness and dissimilarity from the other evidence in this case, I would find that the district court abused its discretion in admitting the extrinsic testimony of Gammon and Newton in contravention of Rule 404(b).
The majority indicates that it believes that the evidence is admissible for the purpose of showing “intent.” The trial court indicated, at pages 297 and 298 of the transcript, that it was admitting the testimony of these two witnesses because it helped show “knowledge.” It must be remembered, however, that “intent” and “knowledge” should not be analyzed in a vaccum but with respect to the crimes alleged to have been committed by the defendant in the indictment. The indictment indicates the identity of the defendant’s patients alleged to have been defrauded and how the defendant, as part of that scheme, also defrauded the Department of Health and Human Services. Nowhere in the indictment is Mary Newton or Jessie Gammon identified. Thus, even if the defendant intended to defraud Newton and Gammon, I do not see how this is relevant to the government’s allegations that the doctor intentionally defrauded Medicare and those patients identified in the indictment. The role that Newton’s and Gammon’s testimony played in convicting defendant cannot be minimized. In a colloquy with the trial court, the government’s attorney admitted that Newton’s testimony was critical because she was “the only witness ... that can testify that she personally was defrauded of money because she had to pay the bill herself.” Indeed, Mrs. Newton was not a Medicare patient and was the only patient who testified that no surgical procedure was performed. All the patients listed in the indictment were Medicare patients and none of them testified that no laser procedure was performed. I believe the testimony of Mrs. Newton had nothing to do with the other counts in the indictment, and that it was, undoubtedly, highly prejudicial.
*1385 The wrongs committed by the defendant with respect to these two witnesses do not relate in any way to the charges made against the defendant in the indictment, except perhaps to indicate that a defendant who would perform these acts may be presumed to have intentionally defrauded the defendants in the indictment. The problem with this, of course, is that the introduction of evidence of a person’s character for the purpose of proving “action and conformity therewith” is prohibited. Fed.R.Evid. 404(b). Just as a defendant charged with robbing Bank A may not have admitted against him evidence that he may have attempted to rob Bank B, I believe the defendant in this case should not have had introduced against him evidence that he may have defrauded patients not listed in the indictment.
The extrinsic offense evidence admitted here for the alleged purpose of showing intent is nothing more than an elaborate cloak behind which bad character evidence may be slyly admitted. The evidence admitted here in the name of intent is relevant only to the extent that it creates an inference that the defendant has a propensity for defrauding and mistreating patients. It does not have any independent relevance on the question of the defendant’s intent. The danger that has manifested itself here is one inherent in most bootstrapping efforts. By looking to extrinsic offenses, prosecutors will be able to reinforce otherwise unprovable charged offenses by way of inferences generated from acts themselves not provable.
We must be vigilant in our watch over the values secured by Rule 404(b), which assures criminal defendants that they will be fairly tried on the basis of their actions alleged in the indictment. Due process demands no less.
Accordingly, I must respectfully dissent.