# Petition — Evans v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0058%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1015 ## Text 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 BEST COPY AVAILABLE | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0058%3A1. Public record. Not legal advice.