Petition — Evans v. United States

Supreme Court, U. $,

FILED

| NOV 16 1977

MICHAEL ROD? , JR., CLERK

IN THE

Supreme Cowt of the United States

OCTOBER TERM, _ 1977

No. _

BOYD D. EVANS and LOIS A. EVANS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

‘Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

HENRY ROTHBLATT

Attorney for Petitioner

Boyd D. Evans

232 West End Avenue

New York, New York 10023

WILLIAM B. BARNETT

Attorney for Petitioner

Lois A. Evans

P.O. Box 1667

Orlando, Florida 32802

TABLE OF CONTENTS

OP INION BELOW . . . . + . . 7 . . . . . .

JURISDICTION . . . . . . . . . . . . .

QUESTION PRESENTED ....+ sss

STATUTE INVOLVED . .... se ee © «

STATEMENT OF THE CASE . . 1. + © © © © ew © © @

REASONS FOR GRANTING THE WRIT .... .

CONCLUSION... se cececevseeevevevee e

APPENDIX--

Opinion of the Court of Appeals .

Judgment of the Court of Appeals. .

Order Denying Petition for Rehearing . .

TABLE OF AUTHORITIES

Cases:

United States v. Abrams, 427 F.2d 86

(2d Cir.), cert. denied 500 U.S. 832

ee ee ee eee eee te eee

United States v. Bright, 517 F.2d 584

(2d Cir. 1975) . . * . . . . . . . . . * .

Page

ll

la

4a

5a

ii

United States v. Engenberg, 441 F.2d

441 (2d Cir.), cert. denied, 404

U.S. 994 (1971) . 2 ew ww we eo eevee

United States v. Gentile, 530 F.2d 461

(2d Cir.), cert. denied, 426 U.S. 936

Gee «<0 6 @ 6 € 6 6 6.4 6 #6 6%

United States v. Hanlon, 548 F.2d 1096,

¢ f > o rrr ecrtiee

United States v. harantoe, 455 F.2d 877

(ae Gan. &97a) «© 0 © ‘

Statute

18 U.S.C. § 1001 . . . . .

Page

7,8

3,4

IN THE The petitioners, Boyd D. Evans and Lois

SUPREME COURT OF THE UNITED STATES A. Evans, respectfully request that a writ of

OCTOBER TERM, 1977 certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth

Circuit entered in this case on September 14,

1977.

No.

OPINION BELOW

f f

BOYD D. EVANS and LOIS A. EVANS, The opinion of the Court of Appeals, not

Petitioners, yet reported, appears in the Appendix hereto,

-. p. la.

UNITED STATES OF AMERICA,

JURISDICTION

Respondent.

The judgment of the Court of Appeals was

entered on September 14, 1977. (App., infra,

PETITION FOR A WRIT OF CERTIORARI p-4a ) A timely petition for rehearing and sug-

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT gestion for rehearing en banc was denied on

October 17, 1977. (App., infra, p.5a ) This

Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1)

QUESTION PRESENTED

Whether, in a prosecution for making a

false statement to a government agency in viol-

ation of 18 U.S.C. § 1001, it is proper to in-

struct the jury that the element of acting "know-

ingly and willfully" may be established by proof

that the defendant made the statement with "reck-

less disregard" for its truthfulness.

STATUTE INVOLVED

18 U.S.C. § 1001

Whoever, in any matter within the

jurisdiction of any department or agency

of the United States knowingly and will-

fully falsifies, conceals or covers up

by any trick, scheme, or device a

material fact, or makes any false, ficti-

tious or fraudulent statements or repre-

sentations, or makes or uses any false

writing or document knowing the same to

contain any false, fictitious or fradu-

lent statement or entry, shall be fined

not more than $10,000 or imprisoned not

more than five years, or both.

STATEMENT OF THE CASE

Preliminary Statement

Petitioners Boyd and Lois Evans (husband

and wife), and five others were charged in a 13-

count indictment with knowingly and willfully mak-

ing false statements or representations to a

department or agency of the United States in viol-

ation of 18 U.S.C. § 1001.

Lois Evans was tried before the Hon. John

A. Reed Jr. and a jury in the United States Dis-

trict Court for the Middle District of Florida

in February and March, 1976. Boyd Evans, who

was granted a severance, was tried before the

same judge and a jury, in May, 1976.

Lois Evans was convicted on all counts

and Boyd Evans on three counts. They were both

sentenced to concurrent terms of three years on

each count, with all but four months suspended.

Each was also fined a total of $10,000.

Basis of the Indictment

As suppliers and servicers of respir-

ation equipment, the Evans Respirator Company,

operated by petitioners, often had occasion to

submit bills on behalf of their patients to Medi-

care Part B. That is the division of the Social

Security Administration which handles claims of,

and payments to, suppliers of medical equipment.

The actual processing of the claims was handled

by Blue Shield of Florida under contract with the

Social Security Administration.

The government alleged that petitioners

submitted claims to Blue Shield of Florida for

services and supplies that were not actually ren-

dered or supplied.

The Charge to the Juries

At the trials of both petitioners, the

Court instructed the jury as follows regarding

intent:

The terms knowingly and willfully

as used in relaiton to the making

of a statement mea: the statement

must have been made voluntarily,

deliberately, and intentionally and

with the knowledge of its contents

and falsity of its contents as

distinguished from the making of a

false statement by inadvertence,

mistake, carelessness or for any

other innocent reason.

However, a person who makes a

statement with a reckless dis-

regard of the truthfulness of the

statement and with a conscious

purpose to avoid learning the truth-

fulness of the statement is deemed

to have knowledge of the statement

and its truthfulness of [sic] lack

thereof.

Petitioners contend that the quoted

portion of the charge concerning "reckless dis-

regard" of truthfulness is an inaccurate state-

ment of the law and that the trial courts’ error

warranted reversal of their convictions. The

Court of Appeals held the charge to be proper

and affirmed.

REASONS FOR GRANTING THE WRIT

Without further explanation, the trial

court’s equating of "reckless disregard of the

truth" with actual knowledge, erroneously in-

structed the juries as to the degree of culp-

ability that the government was required to

prove. In affirming petitioners’ convictions,

the Court of Appeals condoned the use of a

charge which has come under increasing criti-

cism.

The principal cases cited by the court

below in support of its decision upholding this

charge emanate from the Second Circuit. United

States v. Abrams, 427 F.2d 86 (2d Cir.),

cert. denied, 400 U.S. 832 (1970); United States

v. Engenberg, 441 F.2d 441 (2d Cir.) cert.

denied, 404 U.S. 994 (1971); and United States

v. Sarantos, 455 F.2d 877 (2d Cir. 1972).

However, careful examination of these

and other cases will show that the Second Circuit

actually disfavors use of the charge and is on

the brink of forbidding it.

Abrams, supra, the case relied on in

Engenberg, supra, and Sarantos, supra, did not

concern a jury instruction. Rather, the court

stated that the evidence in that case was such

that the jury could have found that the defen-

dant "acted with reckless disregard of whether

the statements made were true and with a con-

scious purpose to avoid learning the truth."

427 F.2d at 91. This discussion of the evi-

dence has since been cited as approving the

complained of instruction. However, it is a

gross distortion of the Abrams opinion to find

that it supports the instruction.

In one of its most recent pronounce-

ments on the subject, the Second Circuit upheld

a conviction wherein "knowingly" and "willfully"

were key elements stating, "Our conclusion

is supported by the fact that the trial judge

scrupulously avoided use of the technical

and confusing phrase ‘reckless disregard' ...."

United States v. Gentile, 530 F.2d 461, 470

(2d Cir.) cert. denied 426 U.S. 936 (1976).

This year, the Second Circuit in United

States v. Hanlon, 548 F.2d 1096, 1101-1102,

(2d Cir. 1977), stated:

We are troubled, however, by the

repeated use of the term "reckless."

This Court has previously had occasion

to criticize the use of this "technical

and confusing" term. United States

v. Gentile, supra, 530 F.2d at 470;

United States v. Bright, supra; see

United States v. Sarantos, supra.

The distinction between recklessness

and negligence is elusive enough for

even the most respected legal scholars.

See Prosser on Torts, 32, 184-86 (4th

ed. 1971). It follows that to the

laymen on the jury, it might prove a

significant source of confusion. It

is thus preferable, in cases such as

this, to omit the use of the term.

It adds nothing to the "conscious

avoidance" language which we have

approved, and might tend to mislead

the jury. We are satisfied that, in

this case the challenged portion of

the charge was not error, plain or

otherwise. However, should trial

courts continue to employ this dis-

favored language, we will not hesi-

tate to take appropriate corrective

measures. .. .

10

The court in Hanlon recognized that

the failure to insure that jurors are properly

instructed in terms which are meaningful to them

severely hampers the search for justice and can

no longer be countenanced.

Thus, the Second Circuit has clearly put

to rest the notion that Abrams or its progeny

should be read as approving the "reckless dis-

regard" charge.

Here, the anomolous situation exists

wherein the Fifth Circuit has relied on Second

Circuit decisions in support of a principal

actually repudiated by the Second Circuit.

This case presents the Court with an opportu-

nity to correct the developing conflict among

the Circuits and to insure that a jury in-

struction which has been the source of extensive

litigation is finally and unequivocally re-

tired.

ll

CONCLUSION

For the foregoing reasons, a writ of

certiorari should issue to review the judgment

and opinion of the Fifth Circuit.

November, 1977

Respectfully submitted,

HENRY ROTHBLATT

Attorney for Petitioner

Boyd D. Evans

232 West End Avenue

New York, New York 10023

WILLIAM B. BARNETT

Attorney for Petitioner

Lois A. Evans

P.O. Box 1667

Orlando, Florida 32802

la

UNITED STATES v. EVANS 5803

UNITED STATES of America,

Plaintiff-Appelice,

v.

William Byron EVANS, a/k/a Wesle,;

Evans, and Lois A. Evans,

Defendants- Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

v.

Boyd E. EVANS, Defendant-Appellant.

Nos. 76-1972 and 76-2498.

United States Court of Appeals,

Fifth Circuit.

Sept. 14, 1977.

Defendants were convicted in the

United States District Court for the Mid-

dle District of Florida, John A. Reed, Jr.,

J., of fraudulent submission of Medicare

claims. Defendants’ appeals were con-

solidated, and the Court of Appeals held

that it was proper for the District Court

to instruct the jury that a person who

makes a statement with reckless disre-

gard of the truthfulness of the state-

ment and with the conscious purpose to

avoid learning the truthfulness of the

statement is deemed to have knowledge

of the statement and its truthfulness or

lack thereof.

Affirmed.

l. The statute states:

Whoever, in any matter within the jurisdic-

tion of any department or agency of the

United States knowingly and wilfully falsi-

fies, conceals or covers up by any trick,

scheme, or device a materia) fact, or makes

1. Fraud 69(7)

In prosecution for fraudulent sub-

mission of Medicare claims, jury was

properly instructed that “a person who

makes a statement with reckless disre-

gard of the truthfulness of the state-

ment and with the conscious purpose to

avoid learning the truthfulness of the

statement, is deemed to have knowledge

of this statement and its truthfulness or

lack thereof.” 18 U.S.C.A. § 1001.

2. Fraud @=68.10(2)

For purpose of proving that a de-

fendant “knowingly” made a false, ficti-

tious or fraudulent statement or repre-

sentation in a matter within the jurisdic-

tion of any department or agency of the

United States, a person who makes a

statement with reckless disregard of the

truthfulness of the statement and with

the conscious purpose to avoid learning

the truthfulness of the statement may

be deemed to have made the statement

“knowingly.” 18 U.S.C.A. § 1001.

See publication Words and Phrases

for other judicial constructions and

definitions.

Appeals from the United States Dis-

trict Court for the Middle District of

Florida.

Before WISDOM, SIMPSON and

TJOFLAT, Circuit Judges.

PER CURIAM:

These consolidated appeals involve the

fraudulent submission of claims under

the Medicare program. Lois Evans was

found guilty on all thirteen counts for

violating 18 U.S.C. § 1001.' William By-

any false, fictitious or fraudulent statements

or representations, or makes or uses any

false writing or document knowing the same

to contain any false, fictitious or fraudulent

statement or entry, shall be fined not more

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1977, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

2a

5804 UNITED STATES v. EVANS

ron Evans was found guilty on two of

these counts, and Boyd D. Evans, in a

separate trial, was found guilty on three

counts. On appeal, the defendants chal-

lenge the trial court’s charge to the

jury? We find no error and affirm their

convictions.

I

The claim by the Government at both

trials was that there was a conscious

plan of business activities by all three

Evans to submit and cause to be sub-

mitted false and excessive bills under the

Medicare program for services supplied

by the defendants’ medical] services sup-

ply company to elderly citizens on Medi-

care. The company, Evans Respirator

Center (ERC), in which al] three Evans

had an interest was a company to supply

and service respiration equipment.

Many of ERC’s patients were eligible for

Medicare benefits to cover part of the

cost of such equipment. ERC initially

communicated with patients and deter-

mined whether they were eligible for

Medicare benefits for services to be ren-

dered to them by ERC. ERC asked the

patients to sign a lease for the particular

durable equipment that had been pre-

scribed for them. In addition, patients

were asked to sign twelve copies of So-

cial Security Administration form No.

1490. The forms were signed in blank

and subsequently used by ERC to submit

claims for services rendered during the

than $10,000 or imprisoned not more than

five years, or both.

18 U.S.C. § 1001. For background on the stat-

ute, see United States v. Lange, 5 Cir. 1976,

528 F.2d 1280, 1283 n.2.

2. The appellants contend that the district court

erred with respect to the exclusion of certain

testimony, the scope of examination at trial,

and the sufficiency of the evidence to support

the verdicts. These contentions are without

merit and do not warrant discussion.

twelve month period covered by the

lease agreement. The Government

claim, supported by the evidence, was

that all three of the Evans participated

in a scheme whereby services would be

included on these forms and billed to

Medicare which the patients did not re-

ceive.

Il.

{1,2} The only issue that merits dis-

cussion is the claimed impropriety of the

trial court's instruction.’ Specifically,

the defendants attack a portion of the

charge that reads “the term knowingly

and wilfully as used in relation to the

making of a statement means the state-

ment must have been made voluntarily,

deliberately, and intentionally, and wiih

knowledge of its contents and falsity of

its contents as distinguished from the

making of a false statement by inadvert-

ence, mistake, carelessness or for any

other innocent reason.”

“However, a person who makes a

statement with reckless disregard of the

truthfulness of the statement and with

the conscious purpose to avoid learning

the truthfulness of the statement, is

deemed to have knowledge of this state-

ment and its truthfulness or lack there-

of.” (Emphasis supplied.) The appel-

lants assert that the charge is erroneous

on the ground that reckless disregard of

the falsity of the statement and a con-

scious effort to avoid learning the truth

does not amount to “knowledge”.

3. It is claimed that since Boyd Evans did not

object to the instruction below he should be

precluded from assigning the charge in ques-

tion as error. See, e. g., United Staies v. Man-

cuso, 5 Cir. 1970, 423 F.2d 23, cert. denied, 400

U.S. 839, 91 S.Ct. 79, 27 L.Ed.2d 73, United

States v. Bacher, 5 Cir. 1970, 430 F.2d 663. In

light of our disposition, made necessary by the

tumely objections to the charge by the other

defendants, we need not consider this claim.

3a

UNITED STATES v. EVANS 5805

This charge has been approved in cases

involving 18 U.S.C. § 1001 by the Second

and Sixth Circuits. See, e. g., United

States v. Abrams, 2 Cir. 1970, 427 F.2d

86, cert. denied, 400 U.S. 832, 91 S.Ct. 64,

27 L.Ed.2d 68; United States v. Egen-

berg, 2 Cir. 1971, 441 F.2d 441, cert. de-

nied, 404 U.S. 994, 92 S.Ct. 530, 30

L.Ed.2d 546; United States v. Thomas, 6

Cir. 1978, 484 F.2d 909, cert. denied,

1974, 415 U.S. 924, 94 S.Ct. 1428, 39

L.Ed.2d 480. In United States v. Saran-

tos, 2 Cir. 1972, 455 F.2d 877, 881, the

Second Circuit, approving an instruction

similar to that attacked here,‘ relied on

its earlier decisions in Abrams and Egen-

berg and then stated:

We stand by our decision in Abrams.

Its purpose in cases such as this was to

prevent an individual like Sarantos

from circumventing criminal] sanctions

merely by deliberately closing his eyes

to the obvious risk that he is engaging

in unlawful conduct. Our ruling in

Abrams was intended to foreclose this

possible loophole, not to create a new

4. The court in Sarantos was faced with a

charge that allowed conviction where there

was reckless disregard of the truth or con-

scious purpose to avoid learning the truth.

The court felt that the use of “or’’ instead of

crime as defendant suggests. Constru-

ing “knowingly” in a criminal statute

to include wilful blindness to the exist-

ence of a fact is no radical concept in

the law. [Citations omitted.]

We are in accord with the Second and

Sixth Circuits and with the views ex-

pressed in Sarantos. In fact, although

not addressing the claim raised in the

instant case, in United States v. Lange, 5

Cir. 1976, 528 F.2d 1280, 1288, we stated

that “[a] violation of § 1001 requires

proof that the defendant had the specific

intent to make a false or fraudulent

statement. The misrepresentation must

have been made deliberately, knowingly,

and wilfully, or at Jeast with reckless

disregard of the truth and with a con-

scious purpose to avoid learning the

truth.” (Citations omitted and emphasis

added.) Consequently, we find that the

instruction here is proper and affirm the

judgment of the district court.

AFFIRMED.

“and”, although not to be recommended, was

at worst harmless error. In the instant case,

however, properly the conjunctive “and” was

used.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

4

United States Court of Appeals

FOR THE FIFTH CIRCUIT

Nos. 76-1972

76-2498

D. C. Docket No. 75-105-Orl-Cr-R

UNITED STATES of America,

Piaintiff-Appellee,

v.

William Byron EVANS, a/k/a Wesley

Evans, and Lois A. Evans.

Defendants-Appellants

UNITED STATES of America,

Piaintiff-Appellee,

v.

Boyd E. EVANS, Defendant-Appeliant.

Appeals from the United States District Court for the

Middle District of Florida

Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Middle District

of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here ordered and adjudged

by this Court that the judgment of the said District Court in this

cause be, and the same is hereby, affirmed,

September 14, 1977

Issued as Mandate:

5a

Zinited States Cort of Appeals

FirTH CIRCUIT

TE. 804-se0-6514

EDWARD W. WADSWORTH OFFICE OF THE CLERK @00 CAMP STREET

ane EW ORLEANS. LA POIBO

October 17, 1977

CORRECTED

TO ALL PARTIES LISTED BELOW:

NO, _ - U.S.A. v. BOYD E. EVANS

an

NO. 76-1972 - U.S.A. v. LOIS A. EVANS

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing} *and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

EDWARD W. WADSWORTH, Clerk

py Bunda Mrucb)

puty cle

**on behalf of appellants Boyd E. Evans and lois A. Evans

cc: Mr. Henry B. Rothblatt™

Mr. Mark L. Horwitz

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