# Petition — Radetsky v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2309%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 820 ## Text Sisveme Court, oa Filgegp APR 28 1976 MICHAEL RODAK JR., CLERK ; 1 i IN THE Supreme Court of the Anited States OCTOBER TERM, 1975 No. €5-1576 Louis MARTIN RADETSKY, a/k/a L. M. RADETSKY, Petitioner Vv. UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT WARREN O. MARTIN 500 Capitol Life Center Denver, Colorado 80203 Counsel for Petitioner <7 BRADFORD PRINTING COMPANY, DENVER INDEX Page eee a ee nk ee ee eee ae ae 2 eee ee eee a ee 2 Constitutional Provision, Statutes, and Court RuleInvolved .........+4+4.-. 2 Statement of the Case SS reer ae arr a ee ee 3 2. The indictment and bill of I aie a ee en a ee a 4 i CS gc tte eee es 7 4. Theadmonitionofsecrecy .......... 9 Reasons forGrantingthe Writ .......... 10 "ee I on kha Sa ae ete Ps ee ie a a Appendix A— Court of Appeals Opinion ..... la Appendix B — Constitutional Provision, Statutes and Court RuleInvolved .......... lb CITATIONS ‘ CASES: Page Bellis v. United States, 417 U.S. 85(1974) ..... 16 i Boyd v. United States, 116 U.S. 616(1886) .. . . 15 Pipkin v. United States, 243 F.2d 491 (Sth Cir. 1957)... ..... 12, 13 Russell v. United States, Saw Um. PepCieeey wt ttt 11,12, 13, 15 State v. Bickham, 239 La. 1094, 121 So. 2d 207 (1960) 13 United States v. Borelli, 336 F.2d 376 (2d Cir. 1964) . 13 United States v. Empey, 406 F.2d 157 en s+ & 6k ee eee es 15 QQ CO aa il Index Continued United States v. Mitchell, 372 F. Supp. 1239 ak os Pr Westry v. Commonwealth, 206 Va. 508. 144 S.E.2d 427(1965) ...... STATUTES: 8 oR Pe ee eee er ee ow St) en ae ee a ae FS ol). ae ase ae y IS fom Dy . | ) a eee ae eS ee ee ee COLO. REV. STAT. ANN. 1973, ee ghee COLO. REV. STAT. ANN. 1973, 8 Rule 6(e), Federal Rules of Criminal Procedure ...... ie 6 ae et ee ee en eo IN THE Count of the United States OCTOBER TERM, 1975 No. LOUIS MARTIN RADETSKY. a/k/a L. M. RADETSKY , Petitioner Vv. UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Petitioner respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Tenth Circuit entered in this case on March 29, 1976. OPINIONS BELOW The opinion of the Court of Appeals, which has not been published, appears in Appendix A hereto. No writ- ten opinions were rendered by the United States District Court for the District of Colorado. 2 JURISDICTION The judgment of the Court of Appeals for the Tenth Circuit was entered on March 29, 1976. This petition for certiorari was filed within 30 days of that date. The juris- diction of this Court is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED |. Whether the indictment failed to meet the standards of specificity required by the fifth amendment to the United States Constitution. 2. Whether the submission of the Government's bill of particulars to the jury violated defendant's fifth amend- ment right to be tried solely on the charges contained in the grand jury’s indictment. 3. Whether the introduction into evidence of medical records, used by defendant solely for the purpose of treat- ing his patients, constituted a violation of the fifth amend- ment’s protection against compulsory self-inc rimination. 4. Whether the prosecutor’s improper admonition of secrecy to witnesses appearing before the grand jury con- stituted a denial of defendant's fifth amendment rights and entitled him to pretrial inspection of grand jury tran- scripts. CONSTITUTIONAL PROVISION, STATUTES, AND COURT RULE INVOLVED The constitutional provision involved is the fifth amendment to the United States Constitution. It is printed in Appendix B infra, at p. Ib. The relevant statutory provisions concerning the nature of a Colorado professional medical service corporation and the nature of physician-patient relationship thereunder are COLO. REV. STAT. ANN. 1973, 12-36-134 [formerly COLO. 3 REV. STAT. ANN. 1963, 91-3-37, as amended (Perm. Cum. Supp. 1969) ] and COLO. REV. STAT. ANN. 1973, 13-90- 107(1)(d) [formerly COLO. REV. STAT. ANN. 1963, 154- 1-7(5)}. They are printed in Appendix B infra, at pp. The relevant court rule is Rule 6(e) of the Federal Rules of Criminal Procedure. It is printed in Appendix B. infra, at p. Ib. STATEMENT OF THE CASE 1. Introduction Louis Martin Radetsky is a doctor of osteopathy, licensed under the laws of Colorado. He is actively engaged in the practice of osteopathic medicine at the South Denver Clinic in Denver, Colorado. He served as chairman of the department of medicine at Rocky Mountain Hospital for the ten years immediately preceeding the trial of this case and was the chief-of-staff at that hospital in 1957 and 1958. On November 9, 1973, Dr. Radetsky was indicted on 41 substantive counts under 18 U.S.C. §§ 1001 and 1002. In essence, these counts alleged that Radetsky had knowingly concealed material facts from, and had made false state- ments to, Colorado Medical Services, Inc., the paying agent for Medicare funds pursuant to a contract with the Social Security Administration. The indictment also con- tained an additional count under 18 U.S.C. § 371, alleging a conspiracy to defraud among Radetsky, Marie Stan- defer, Richard E. Griffin, Gwendolyn Alice Green and Carolyn Largent. Griffin, Green and Largent were not indicted.' ‘Marie Standefer was indicted as a co-defendant on all counts. Pursuant to a motion by the Government, Standefer’s trial was se- vered from that of Radetsky. Subsequently , Standefer plead guilty to a misdemeanor under 42 U.S.C. § 408, and all other charges against her were dismissed. 4 The Government dismissed counts 20, 21 and 37 prior to trial and the trial court entered a judgment of acquittal on the conspiracy count at the close of the evidence. The jury returned a verdict of acquittal on counts 1-6 and convicted Radetsky on counts 7-19, 22-36, and 38-41. At sentencing, the trial court imposed a fine on defendant of $1,500 for each count, or a total fine of $48,000. On June 27, 1974, Radetsky filed a notice of appeal to the United States Court of Appeals for the Tenth Circuit. On March 29, 1976, the United States Court of Appeals for the Tenth Circuit rendered its decision affirming Radetsky’s conviction on counts 7, 8, 11, 15, 28 and 36. The convictions on counts 9-14, 16-19, 22-27, 29-35, 38-39 and 40-41 were reversed on the ground that the false statements alleged therein were immaterial as a matter of law because they involved drugs which were noncompens- able under the guidelines established by the paying agent for Medicare.” 2. The Indictment and Bill of Particulars The 41 substantive counts of the indictment alleged that Radetsky had submitted certain request for payment forms containing false information to the paying agent for Medicare. Each count related to one such request form for “The Court of Appeals’ opinion reveals that the three-judge panel was deeply split with respect to the issues raised on appeal. Judge Holloway. writing the opinion of the court, concluded that the convic- tions on 26 counts should be reversed because the alleged false state- ments relating to those counts were not material. Chief Judge Lewis. dissenting, asserted that submission of the Government's bill of par- ticulars to the jury constituted reversible error as to all counts. Judge Barrett, concurring in part and dissenting in part, would have af- firmed on all counts. en ee ee ee pe 5 one patient.* Each request for payment form listed a mul- tiplicity of patient visits for periods covering from one to six months; specified from 14 to 75 separate services ren- dered to the patient during the period; and itemized from 7-49 separate charges for those services. The indictment did not identify which of the numerous statements con- tained on the request forms were allegedly false: it merely categorized them into one of four groups: (1) The patients actually received medical services less frequently than stated on the Requests for Payment (dates in parentheses hereinbelow indicate those when the patient did not receive any medical service), (2) the Requests for Payment did not fully, truly, and accurately describe the medical procedures and ser- vices for each date given as required (indicated hereinbelow by the word “‘services”’), (3) the Re- quests for Payment did not disclose that the amount shown as charges for services were at a higher rate and more than the customary charges of South Den- ver Clinic, Inc., to either Medicare on non-Medicare patients for the same services (indicated hereinbelow by the word ‘‘charges’’), and (4) the amounts shown on the Requests for Payment as already paid by the patients against such charges were inflated (indicated hereinbelow by the words ‘‘amount paid’’).. . . The indictment then proceeded to list for each count the date of the claim form; the time period covered by the form; the patient’s name; and whether the alleged false Statement related to dates on which services were ren- dered, services, charges and/or amount paid.* *The Court of Appeals included two such request for payment forms at pp. ix-x of the Appendix to its opinion. ‘The Court of Appeals included « copy of portions of the indictment at pp. i-iv of the Appendix to its opinion. 6 On December 3, 1973, defendant filed a written motion to dismiss on the ground that the indictment failed to meet the specificity requirements of the fifth amendment to the United States Constitution.* The trial court denied this motion; however, the court did require the Government to furnish a bill of particulars identifying those statements on each request form which were allegedly false. In response to the trial court’s order, the Government filed a 15-page bill of particulars which merely listed numerous discrepancies between defendant's office rec- ords and the request for payment forms. On some counts, the Government's bill of particulars challenged all items on the request for payment form, while on other counts only a few of the items on the request form were challenged as falsifications.® After the close of the evidence, the United States Attor- ney moved to have the bill of particulars submitted to the jury for use in its deliberations. Both the prosecutor and the trial court acknowledged that the jury could not de- termine from the indictment which statements on the re- quest forms constituted the basis for the grand jury's charges.’ The defendant objected to submitting the bill of particulars to the jury on the grounds that (1) any attempt to cure defects in the indictment by submission of the bill of particulars to the jury would violate defendant’s fifth *The motion to dismiss based on insufficiency of the indictment was renewed and denied immediately prior to trial and again at the close of the evidence. “For example, on count 36 only 10 of the 40 statements relating to services on the request form were claimed to be false. See p. 10 of the Court of Appeals’ opinion. ‘In his argument for sending the bill of particulars to the jury, the prosecuting attorney stated in part: “My concern ts that if we don’t send the Bill of Particulars, the jury ts going — they may well convict on one of the items listed oe Se en ee . 7 amendment rights; (2) the bill of particulars would only serve to confuse the jury; and (3) it was fundamentally unfair to give the jury a 15-page statement which, in essence, merely contained the Government's theory of the case. The trial court granted the Government's request and submitted the bill of particulars to the jury over defendant's objection. ‘Judge Holloway, writing the opinion for the Court of Appeals, recognized that the issues of whether the indict- ment met the fifth amendment requirements of specificity and whether defendant had been convicted on charges other than those contained in the grand jury’s indictment raised substantial constitutional issues which were ‘‘seri- ous and not free from doubt .. .”’ He concluded, how- ever, that the indictment was constitutionally adequate. He further concluded that submission of the bill of particu- lars to the jury, while improper, did not constitute prejud- icial error. Chief Judge Lewis, dissenting, determined that a bill of particulars should never be submitted to the jury and that in the present case prejudice to the defendant was ‘*glaringly apparent.” 3. The Patient Records At the time of the alleged offenses, defendant and his wife were the sole shareholders in, and defendant was on the request for Payment which hasn’t even been challenged by the United States, and | think it would all be kind of a nullity in the process.”’ The trial court stated: Well, the Court has given some thought to the Bill of Particu- lars since yesterday afternoon. I have come to the conclusion that in view of the multicharges within the various Counts, that it’s the only sensible thing to do, and the Court will do it, because it appears to the Court that a Bill of Particulars of this nature and in this type of case is almost a necessity if the jury is going to return an intelligent verdict. 8 president of, the South Denver Clinic, a professional medi- cal corporation organized under the Colorado Medical Practice Act.* On July 6, 1973, a grand jury subpoena duces tecum was issued to the South Denver Clinic. The subpoena required the production of four categories of patient records: 1. Patient charts, which contain the name of the patient; the nature of his or her illness; the dates on which treatment was given; and the specific nature of the treatment given; 2. ‘Blue slips,’” prepared for the patient on each visit which contain the name of the patient; the date of the office call and the charge for services rendered; 3. IBM cards, which indicate the name of the pa- tient; the dates on which the patient had been seen; the attending physician and general nature of the treatment by code number; and the charge; 4. Day sheets, which contain a list of all patients seen on a particular date and the charge for the ser- vices rendered.” The South Denver Clinic and Dr. Radetsky moved to quash the grand jury subpoena. They asserted that the documents in question were Radetsky’s personal records used solely for the purpose of treating his patients, and thus, the fifth amendment to the United States Constitu- tion prohibited their production over his objection. The motion to quash was denied. SCOLO. REV. STAT. ANN. 1973, 12-36-134 [formerly COLO. REV. STAT. ANN. 1963, 91-3-37, as amended (Perm. Cum. Supp. 1969) }. *All of the subpoenaed documents related to treatment given by the defendant to his patients. This is especially true of the patient charts which contained no financial information whatsoever and which were used solely for the purpose of providing proper medical care. 9 After the indictment was returned, Radetsky moved to suppress all of the records subpoenaed by the grand jury on the ground that their introduction into evidence would violate defendant's fifth amendment right to be free from compulsory self-incrimination. The trial court denied this motion on December 21, 1973. The Court of Appeals determined that the records in question belonged to the professional corporation. The court further held that by forming a professional corpora- tion, defendant had relinquished any fifth amendment rights which he might otherwise have been entitled to with respect to these records. 4. The Admonition of Secrecy The prosecuting attorney instructed each witness who appeared before the grand jury that he should not discuss his grand jury testimony with anyone without first obtain- ing permission from a judge of the United States District Court. For example, after Dr. Griffin finished testifying before the grand jury, he was admonished by the pros- ecutor as follows: At this time Dr. Griffin, it is my duty to advise you that the Grand Jury proceedings are confidential by court order. The fact that you have been here, the questions which were asked, and the answers which were given are not to be discussed with anyone, and if you feel the need to do so, you should first seek the permission of U.S. District Judge through your attor- ney, Mr. Creamer. The record reflects that Dr. Griffin, one of the key witnesses who gave damaging testimony against Radetsky on the questions of knowledge and intent, refused to talk with Dr. Radetsky, his attorneys, or his investigator. The record further shows that the only other source of infor- 10 mation concerning Dr. Griffin’s knowledge of the facts was the transcript of his grand jury testimony. On December 3, 1973, Radetsky filed a motion for dis- covery which, inter alia, requested inspection of the tran- scripts of testimony given by witnesses before the grand jury. Radetsky’s motion claimed that an examination of the grand jury testimony was essential to the preparation of his defense, and that he had no alternative method of obtaining the information contained therein.'® The trial court denied the motion except for compliance with the Jencks Act. Radetsky was not permitted to inspect any grand jury transcripts until after the trial had com- menced. The Court of Appeals held that an admonition of secrecy to grand jury witnesses clearly violated Rule 6(e), but found that neither this violation, nor the refusal of pretrial inspection of grand jury transcripts, was prejudicial to the defendant. REASONS FOR GRANTING THE WRIT 1. This case presents important constitutional issues involving the fifth amendment’s guaranty that a defendant The hearing on defendant’s motion for discovery was held on December 21, 1973. At that time, defendant’s counsel knew that Dr. Griffin would not discuss anything relating to Dr. Radetsky with either defense counsel or an investigator hired by the defendant. What counsel did not know was the reason for Dr. Griffin's refusal — i.e., that the United States Attorney had imposed an obligation of secrecy on the grand jury witnesses. It was only after defense counsel began to receive the grand jury transcripts during the trial that he learned of the United States Attorney's violation of Rule 6(e). Thus, the fact that the trial court was not informed of what undoubtedly would have constituted a particularized need for inspection of grand jury tran- scripts was due solely to the prosecuting attorney's failure to reveal that he had imposed such an obligation of secrecy on the witnesses. may be tried only upon charges contained in a grand jury indictment. In attempting to resolve these issues, the Court of Appeals misapplied the decision of this Court in Russell v. United States, 369 U.S. 749 (1962). Russell clearly defines the functions which an indictment must fulfill. A primaiy requirement is that the indictment must be suffi- ciently precise to inform the defendant, prosecutor, trial court, and jury of the basis for the charges contained therein. If the indictment does not meet this test of specif- icity, danger exists that the defendant might well be tried and convicted for acts other than those on which the grand jury intended to indict. Furthermore, it is constitutionally impermissible to bolster a defective indictment by means of a bill of particulars. As this Court stated in Russell, supra: But it is a settled rule that a bill of particulars Cannot save an invalid indictment. . . . To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guarantee of the intervention of a grand jury was designed to sec- ure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. 369 U.S. at 770. Of course, the sufficiency of the indictment under the Russell guidelines must be judged in light of the facts of each case. In the case at bar, it is simply impossible to determine which of the numerous items listed on each request for payment form constituted the basis for the grand jury’s indictment. For example, count 36 of the indictment merely alleges that Radetsky made false state- ments with respect to charges. An examination of the 12 applicable request for payment form reveals that 40 sepa- rate charges are contained thereon. The indictment does not disclose which of these 40 items form the basis for the grand jury's charge in count 36''. A similar problem is presented with respect to counts 7,8, 11, 1S and 28. The opinion of the Court of Appeals not only ignores the fifth amendment protections which this Court sought to preserve in Russell, but also poses a significant threat to the just and proper enforcement of 18 U.S.C. §$ 1001 and 1002. A substantial number of prosecutions under §§ 1001 and 1002, like the one here in question, involve allegedly false statements made on applications and informational forms submitted to Government agencies. Invariably such documents require voluminous data. When these docu- ments are involved in prosecutions under §§ 1001 and 1002, constitutional rights can be preserved only if the indictment describes the allegedly false statements relied upon with enough precision to distinguish them from the vast number of other statements contained on the applica- tion or informational form. Yet, the opinion of the Court of Appeals for the Tenth Circuit in this case lends judicial approval to indictments which fail to meet this require- ment. Furthermore, in holding that these deficiencies can be corrected by a bill of particulars, the Court of Appeals has approved what, in effect, amounts to indictment by the prosecuting attorney in such cases. This practice, of course, violates the specific mandate of Russell, supra. 2. The holding of the Court of Appeals that submission of the Government’s bill of particulars to the jury over a defendant’s objection does not constitute prejudicial error Creates a conflict in principle with the decision of the Court of Appeals for the Fifth Circuit in Pipkin v. United States, ''The request for payment form involved in count 36 is found at p. x of the Appendix to the Court of Appeals’ opinion. 6 ee ett RR Oe re 13 243 F.2d 491 (Sth Cir. 1957). Furthermore, in light of the facts of this case, the harmless error rationale relied upon by the Court of Appeals does violence to the fifth amend- ment guaranty of indictment by grand jury and is inconsis- tent with the principles laid down by this Court in Russell v. United States, 369U.S. 749 (1962). In Pipkin, the defendant requested that the trial court ‘read the Government's bill of particulars to the jury. The trial court refused and the Court of Appeals for the Fifth Circuit affirmed: His [defendant’s] final point that where the court at the jury’s request read the indictment to them, he should have read the bill of particulars also, is equally insubstantial. No case is cited which supports the contention. We think none can be found. The objec- tive and purpose of a bill of particulars is not to supplement or in anywise change or affect the indict- ment as an indictment. It is to better apprise the defendant of what he is expected to meet. The jury did not ask for and would not have known what to do with the bill of particulars. No useful purpose could have been served by reading it to the jury. Indeed it would have been error to read it. 243 F.2d at 494. A similar indication that the submission of a bill of particulars to the jury over defendant's objection consti- tutes prejudicial error is found in the opinion of the United States Court of Appeals for the Second Circuit in United States v. Borelli, 336 F.2d 376 (2d Cir. 1964). See also Westry v. Commonwealth, 206 Va. 508, 144 S.E.2d 427 (1965); State v. Bickham, 239 La. 1094, 121 So. 2d 207 (1960). In the present case the prejudicial effect of the bill of particulars is magnified to constitutional dimensions by the deficiencies in the indictment. The facts reveal that 14 defendant Radetsky may very well have been tried and convicted on charges other than those contained in the grand jury's indictment. The patient treatment charts which were turned over to the grand jury pursuant to subpoena, almost without exception, indicate that Radetsky had given each and every drug which was listed on the request for payment forms. A comparison of the patient treatment charts with the request for payment forms merely suggested that, in addition to the drugs listed on the requests for payment, certain other drugs had also been given but had not been included on the request forms. The only way the grand jury could have concluded that Radetsky had failed to administer drugs listed on the request for payment forms would have been through tes- timony that the patient charts were inaccurate. No such testimony could have been presented to the grand jury. The only grand jury witnesses familiar with the office records were Burke, Largent and Griffin. They could not have discussed inaccuracies in the patient treatment charts, because, at the time of their testimony, those documents had not yet been subpoenaed and were not available to the grand jury. Thus, it is apparent that the grand jury’s indictment as it relates to “‘services”’ is based only on an allegation that Radetsky did not list all drugs administered. Apparently, sometime after the grand jury returned its indictment, the United States Attorney decided that the patient charts had been altered and that certain drugs had been added !n order to make the charts conform with the requests for payment. He, therefore, concluded that Radetsky not only had failed to list all drugs given, but also had not administered certain drugs listed on the requests for payment. As a result, the bill of particulars alleged that Radetsky had both concealed drugs which had been given and had failed to give other drugs which were listed on the A Act OR RAT a er e.g OR eee 15 request forms. Radetsky was tried on both of these theories when, in fact, the indictment was almost assuredly based solely on the former theory. This case provides a graphic example of how the combi- nation of a deficient indictment and a bill of particulars can produce the constitutional problems which this Court described in Russell, supra. Under the facts of this case, the Court of Appeals’ determination that submission of the bill of particulars to the jury was harmless error cannot withstand constitutional scrutiny. 3. Whether the right to be free from compulsory self- incrimination applies to patient treatment records used by a doctor who has formed a professional medical corpora- tion is a question of substantial constitutional importance which has not been previously considered by this Court. The records introduced into evidence over defendant's objection were used by Dr. Radetsky solely for the purpose of providing medical care for his patients. If the defendant had not formed a professional corporation, these patient records would have been personal records held by the defendant in a personal capacity. Under the rationale of Boyd v. United States, 116 U.S. 616 (1886), their intro- duction into evidence over defendant's objection clearly would have violated the fifth amendment. Whether the existence of a professional corporation alters the capacity in which these records were held depends upon the charac- ter of a professional medical corporation as defined by the laws of the state of incorporation. See, e.g., United States v. Empey, 406 F.2d 157 (10th Cir. 1969). Under the Colorado Medical Practice Act,'* the obliga- tion of a doctor to provide treatment for his patient cannot '2COLO. REV. STAT. ANN. 1973, 12-36-134 [formerly COLO. REV. STAT. ANN. 1963, 91-3-37, as amended (Perm. Cum. Supp. 1969)}. 16 be a corporate responsibility. A corporation formed under this Act is not a corporation for all purposes. For financial purposes there is no doubt that a professional medical corporation is quite similar to a corporation formed under the general corporation statute. On the other hand, the relationship between doctor and patient remains a per- sonal one in which the corporation plays no part. Records kept concerning treatment given, which do not contain financial information, must, therefore, be considered per- sonal records held by the doctor in his personal capacity. Professional medical and legal corporations are in wide- spread use throughout the United States. As a result, the constitutional problem presented here will continue to arise until this Court renders a definitive decision on the subject.'* 4. The admonition of secrecy to witnesses before a grand jury in violation of Rule 6(e) of the Federal Rules of Criminal Procedure presents a serious threat to the proper administration of justice in the federal courts and to the concept of fair trial embodied in the due process clause of the fifth amendment. The Government, of course, has no obligation to aid a criminal defendant in the preparation of his case Or to provide the defendant with information other than that required by the rules of discovery. There is, however, a constitutional obligation upon the Government to refrain from interfering with the defendant's ability to 'SBellis v. United States, 417 U.S. 85 (1974) does not resolve the question presented in this case. Bellis held that financial records of a professional corporation do not fall within the fifth amendment privilege. We agree that professional corporations are set up primarily for financial reasons, and, therefore, financial records are corporate documents. The question of whether other types of records prepared in connection with the personal relationship between a doctor and his patient or an attorney and his client fall within the protection of the fifth amendment was not discussed in Bellis. 17 investigate and prepare his case. The record in the present case establishes that Government inspired silence of grand jury witnesses severely hampered Dr. Radetsky’s ability to adequately prepare his defense. The only other avenue by which the defendant could have obtained information withheld by these witnesses was through the grand jury transcripts. These were also denied to him until after the trial had begun.'* The Court of Appeals’ decision that Radetsky was not prejudiced by this Government inspired silence significantly erodes the constitutional guaranty of a fair trial and cannot be tolerated in the administration of the federal criminal justice system. CONCLUSION For the foregoing reasons this Petition for a Writ of Certiorari should be granted. Respectfully submitted, WARREN O. MARTIN CLARK, MARTIN AND PRINGLE 500 Capitol Life Center Denver, Colorado 80203 Attorney for Petitioner '4It has been indicted that Government inspired silence gives rise to a particularized need for discovery of grand jury testimony. See, e.g., United States v. Mitchell, 372 F. Supp. 1239 (S.D.N.Y. 1973). ee Ce erent la FiLtu PUBLISH Hag 23 1875 } 8) ‘ MILLIFS | UNITED STATES COURT OF APPEALS” TENTH CIRCUIT UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ; ) - ) } No. 74-1484 ) LOUIS MARTIN RADETSKY, a/k/a L. M. RADETSKY, ; Defendant-Appellant. ) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR.THE DISTRICT OF COLORADO (District Court No. 73-UR-415) Richard J. Spelts, Assistant United States Attorney, Denver, Colorado (James L. Treece, United States Attorney, Denver, Colorado, on the brief’ for Plaintiff-Appellee Bruce D. Pringle, Attorney, Denver, Colorado (James D. Clark, Clark, Martin and Pringle, Denver, Colorado, on the brief) for Defendant-Appellant Before LEWIS, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges HOLLOWAY, Circuit Judge 2a Defendant-Appellant Radetsky, a Colorado osteopathic physician, was indicted on 41 substantive counts under 18 USCA §§ 1001 and 2, and a conspiracy count under 18 "ISCA § 371, in connection with the submission of allegedly false medicare claims. Three of the substantive counts were dismissed by the Government prior to trial. The trial court dismissed the conspiracy count at the close of the evidence. The defendant was found not guilty by the jurv on six substan! e counts, and convicted on guilty verdicts on 32 of the remaining substantive counts. The court imposed a $1,590 fine on each ot these 32 counts, or a total fine of $48,000, and defentant appeals. Defendant argues numerous propositions for reversal. We find it necessary to discuss :eversl of the principal appellate contentions at some length concerning (1) whether the indict- ment was defective, among other things failing to meet required standards of specificity and failing to allege particular state- ments charged to have been false so that the grand jury's charges were not known, with trial and convictions occurring on charges specified only in the bill of particulars in violation of de- fendant's Fifth Amendment right that he not be held to answer “unless on a presentment or indistment of a Grand Jurv;" (7) whether it was error for the bill of particulars, together with the indictment, to be sent with the jury for its deliberations; 3a (3) whether prosecution was proper under 18 USCA § 1001, a general felony statute, instead of under 42 USCA § 408, a more recent and specific misdemeanor statute, covering false state- ments made for use in determining medicare payments, among other things; (4) whether there was error in admitting over defendant's Fifth Amendment objection, and in not ordering the return of, records found to have been subpoenaed from a profes- sional corporation where defendant practiced, but said to have been his personal papers and records; (5) whether the trial court erred in denying inspection of grand jury testimony of Government witnesses; (6) whether there was error in denying challenges to jurors who had read pretrial publicity material concerning defendant; (7) whether the trial court erred in the exclusion and admission of evidence; and (8) whether certain counts contained allegations of false statements which the court should have held immaterial as a matt=r of law, and whether the trial court, in any event, erred in submitting the issue of materiality to the jury without a proper instruction. We will treat the facts in discussing the appellate issues before us. 4a Sa i I as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion The Fifth Amendment guaranty concerning or private enmity. No person shall be required, indictment by grand jury and the suffi- : according to the fundamenta! law of the country, , chee | except in the cases mentioned, to answer for ciency of the indictment any of the higher crimes unless this bodv, con- sisting of not less than sixteen nor more than ; twenty-three good and l.iwfii men, selected from the body of the district, shall declare, upon The Fifth Amenument provides in part: | ; careful deliberation, under the solemnity of an oath, that there is good reason for his accusa- No person shall be held to answer for a tion and trial. capital, or otherwise infamous crime, un- less on a presentment or indictment of a Grand Jury. . See Russell v. United States, ‘69 U.S. 749, 771; Stirone v : 9 28. F ; . The related provision of the Sixth Amendment states: United States, 361 U.S. 212, 218; see also Wood v. Georgia, 370 U.S. 375, 390 In all criminal prosecutions, the accused i shall enjoy the right . . to be informed | , , } ; al Geb Gheuse and Geee of the aneneeiae It is this fundamental guaranty to te tried only on charges made by a grand jury that mainly cuncerns us. The sub- , , , ¢ uiie : : The importance of the historic guaranty of the provision stantial safeguard of the guaranty to those charged with serious for indictment by a grand jury has long been recognized. In ' crimes cannot be eradicated under the claim that variations are Ex Parte Bain, 121 U.S. 1, 11, the opinion recited this portion mere technical departures from the rules. Smith v. United States, of a grand jury charge by Justice Field: 360 U. S. 1, 9. And in honoring the guaranty we must be mindful Yet the institution was adopted in this of its corollary that a federal indictment may not be amended ex- country, and is continued from considerations similar to those which give to it its chief cept by resubmission to the grand jury, unless the change is value in England, and is designed as a means, not only of bringing to trial persons accused merely a matter of form. Russell, supra at 770-71. “Any other of public offenses upon just grounds, but also doctrine would place the rights of the citizen, which were in- . l tended to be protected by the constitutional provision, at the If presentment ever were an alternative to indictment, P . ‘ this has ak been the case since adoption of the Federal Rules mercy or control of the court or prosecuting attorney. . . ex of Criminal Procedure, which make no provision for prosecution by presentment. Gaither v. United States, 413 F.2d 1061, 1065, n. 1 (D.C.Cir.). parte Bain, supra at 13. 2 While the significance of the protection of the indictment process has been emphasized, it has not been held applicable to the States as a due process principle. See Beck v. Washington, 369 U.S. 541, 545. 6a The purposes and requirements for the sufficiency of in- dictments have been variously stated, but the essentials are clear. First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what ex- tent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. Russell, supra at 763-64; United States v. Hess, 124 U.S. 483,487. And a purpose corollary to the first is that the indictment inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. Russell, supra at 768; United States v. Hess, supra at 487. Furthermore,and of para- mount importance, a sufficient indictment is required to implement the Fifth Amendment guaranty and make clear the charges so as to limit a defendant's jeopardy to offenses charged by a group of his fellow citizens, and to avoid his conviction on facts not found, or perhaps not even presented to, the grand jury that indicted him. Russell, supra at 770-71; see Stirone v. United States, 361 U.S. 212, 217-18; Gaither v. United States, 413 F.2d 1061, 1066-67 (D.C.Cir). Defendant argues that the present indictment is void and fails to perform any of the four functions discussed above, stres- sing most heavily that the impermissible vagueness of the indict- ment infringed on his Fifth Amendment guaranty that he be tried only on charges made by the grand jury and not on charges later 7a determined by the prosecutor to be used as grounds for trial and conviction. (Opening Brief of Defendant-Appellant, 22-27). More specifically the indictment is challenged for lack of specificity in failing to identify specific false statements as to the “serv.ces’’ or "charges" referred to in the requests of medicare patie” and claimed to have been the subject of know- ing and wilful material concealment and covering up by trick, scheme and device. W ure not persuaded that the defendant has raised a us problem here pertaining to any of the first three func- wns