Petition — Reamer v. United States

JAN 19 1979

IN THE

Supreme Court of the United “Beate

OcTOBER TERM, 1978

No. €8°1142

HOWARD G. REAMER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL E. MARR,

1215 Fidelity Building,

Baltimore, Md. 21201,

Counsel for Petitioner.

a

The Daily Record Co., Baltimore, Md. 21202 >

TABLE OF CONTENTS

PAGE

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CONSTITUTIONAL PROVISIONS AND RULEs INVOL-

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REASONS FOR GRANTING THE WRIT:

I. This Case Presents An Important Con-

stitutional Question Regarding The

Breadth And Scope Of This Court’s

j Decisions In Alford v. United States

And Davis v. Alaska In Cross-

Examining A Biased Witness ................ 6

II. The Instant Case Presents The Oppor-

tunity For The Court, In The Exercise

Of Its Supervisory Powers, To Delineate

The Standard Under Federal Rule Of

Evidence 611(b) That Federal Courts

Should Apply In A Criminal Case ...... 8

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TABLE OF CITATIONS

Cases

Alford v. United States, 282 U.S. 687 (1931) ..... 6,7

Davis v. Alaska, 415 U.S. 308 (1974) ..............0.. 6,7

Egger v. United States, 509 F.2d 745 (9th Cir.)

cert. denied 423 U.S. 842 (1976) ...........ceceee 8

Gordon v. United States, 344 U.S. 414 (1953) ... 8

United States v. Crumley, 565 F.2d 945 (5th Cir.

il

United States v. Daniels, 528 F.2d 705 (6th Cir.

PAGE

ERROR rR Fy MEE PP Sr NO I 8

United States v. Gloria, 494 F.2d 477 (5th Cir.),

cert. denied 419 U.S. 995 (1975) .......ccccsccceseee 8

United States v. Green, 523 F.2d 229 (2nd Cir.)

cert. denied 423 U.S. 1074 (1976) .........cccccc 8

United States v. Smolar, 557 F.2d 13 (1st Cir.

I ied Real cain.» dtaiala tie vascrtabemnaniiniibatesidonans 8

United States v. Williams, 478 F.2d 369 (4th Cir.

SIT i ithusindalltiliscten tviciansascinihssiidekdbalclaciceagedalibcnashososieis 8

Constitutional Provisions

United States Constitution — Amendment VI .. 2,6,8

Rules

Federal Rules of Evidence — Rule 611 ............. 2,3, 8,9

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

HOWARD G. REAMER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Howard G. Reamer respectfully moves this

Court to issue a writ of certiorari to review the opinion

and judgment of the United States Court of Appeals for

the Fourth Circuit entered in this case on December 22,

1978.

2

OPINION BELOW

The opinion of the Court of Appeals upon petitioner’s

appeal from conviction is not yet published and is

attached as Appendix A.

JURISDICTION

The Judgment of the Court of Appeals for the Fourth

Circuit was entered on December 22, 1978. This Court’s

jurisdiction is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Did the Court of Appeals err in concluding that the

trial court had 1.9t abused its discretion nor abridged

Petitioner’s right of confrontation in restricting cross-

examination of a key prosecution witness where that

cross-examination was designed to show not merely the

fact of bias, but further, the extent to which that bias

infected the witness’ testimony?

CONSTITUTIONAL PROVISIONS AND RULES

INVOLVED

United States Constitution — Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

Federal Rules of Evidence — Rule 611

(a) Control by court. The court shall exercise

reasonable control over the mode and order of

interrogating witnesses and presenting evidence so

as to (1) make the interrogation and presentation

3

effective for the ascertainment of the truth, (2)

avoid needless consumption of time, and (3) protect

witnesses from harassment or undue embarrass-

ment.

(b) Scope of cross-examination. Cross-

examination should be limited to the subject matter

of the direct examination and matters affecting the

credibility of the witness. The court may, in the

exercise of discretion, permit inquiry into addi-

tional matters as if on direct examination.

(c) Leading question. Leading questions should

not be used on the direct examination of a witness

except as may be necessary to develop his testi-

mony. Ordinarily leading questions should be

permitted on cross-examination. When a party

calls a hostile witness an adverse party, or a

witness identified with an adverse party, interroga-

tion may be by leading questions.

STATEMENT OF THE CASE

On February 25, 1976, Howard G. Reamer, a Balti-

more, Maryland attorney was indicted on twenty-one

counts of mail fraud under 18 U.S.C. 1341. The charges

grew out of an investigation of inflated and false claims

for personal injuries arising from automobile accidents

and submitted for insurance payments.

The initial trial began on April 26, 1976, and ended in

a mistrial on May 20, 1976, when the jury was unable to

reach a decision. A second trial began on September 13,

1976. On October 17, 1976, the jury found Petitioner

guilty on ten counts while acquitting him of the

remaining eleven. On January 28, 1977, Petitioner

received a five year sentence on each count, to run

concurrently. His conviction was affirmed in the United

States Court of Appeals for the Fourth Circuit on

December 22, 1978.

The essence of the alleged scheme to defraud was that

Petitioner, in representing automobile accident victims

4

against the insurers of the persons purportedly liable

for the accidents, submitted false and fraudulent

medical reports and bills to the insurance company in

an effort to obtain larger settlements. The indictment

also alleged that Petitioner, in furtherance of this

scheme, employed “runners” to procure clients and that

these “runners” induced clients to represent that the

clients had incurred injuries which in fact had not been

sustained.

At trial, the Government presented testimony of

representatives of various insurance companies alleged

to have been defrauded. These witnesses testified that

Petitioner had provided them with claimants’ medical

bills and reports and that the claims were settled in

reliance on those bills and reports.

Also presented by the Government was the testimony

of two runners and several clients. The first runner

testified that he had solicited clients whom he believed

to be genuinely injured. The other stated that although

he gratuitously coached some colicited clients, Peti-

tioner was unaware of his “coaching” activities and

had instructed him to refer only cases in which there

were bonda fide injuries. The clients who testified

stated that either they were not sure or could not

remember the number of times they had visited the

treating physician; several did state, however, that they

had not received the number of treatments reflected by

the bills.

The only real evidence of Petitioner’s intent to

defraud which the Government sought to produce was

offered by three physicians, each of whom had been

previously convicted and each of whom had agreed to

cooperate with the Government. The first physician, Dr.

Stuart Perkal, testified that he had back dated reports

for Petitioner. In two cases, Petitioner himself had been

the claimant, and in those cases Dr. Perkal testified

5

that the bills were inflated. However, with regard to all

of the other reports represented by the indictments, he

was unable to say that they were in fact false.

Also testifying was Dr. Frank Washington. However,

his testimony was that he had no agreement with

Petitioner to inflate bills and backdate reports, and any

inflated bill that he had prepared could well have been

done without Appellant’s knowledge.

The crux of the Government’s case came down to the

testimony of Dr. Melvin Sobkov whc testified that,

although his reports were accurate with respect to the

clients’ injuries, he had backdated and inflated bills at

Petitioner’s request. He testified that virtually all the

bills he forwarded to Appellant were inflated. On cross-

examination, Petitioner introduced a list of clients

Petitioner had referred to Dr. Sobkov. This list,

prepared by Dr. Sobkov, purported to show the number

of actual doctor visits for each client. Dr. Sobkov

testified that he had prepared the list for federal

investigators using a complex formula of his own

making and based on information within the client/pa-

tient file. He further stated that while the number on

the list represented a conservative estimate, it was

accurate within four or five visits.

Petitioner sought to impeach Dr. Sobkov by asking

that he re-create his calculations using only his file. The

trial court ruled, however, that while the witness could

be questioned with respect to his calculations, Peti-

tioner would have to supply the witness with both the

file and the list. Petitioner objected to the trial court’s

ruling, arguing that this procedure effectively fore-

closed the credibility attack because Dr. Sobkov was

permitted to explain his calculations while referring to

his ‘answer sheet.” Petitioner argued then, and later on

appeal,! that although the fact of Sobkov’s conviction

and the nature and extent of his agreement with the

1 Although Petitioner fully briefed this issue for the‘Court

of Appeals, that court’s opinion totally disregards and fails to

address the argument. See, infra. at la-4a.

6

Government were brought to the jury’s attention,” the

trial court’s mandated procedure for cross-examination

concerning the list prevented demonstrating to the jury

the full extent to which Dr. Sobkov’s testimony was

colored by his own desire to assist the Government.

Petitioner argued that the purpose of the exercise was to

show that the witness could not re-create the list with

any accuracy and that his attempt to implicate

Petitioner was solely to protect and gain favor for

himself.

REASONS FOR GRANTING THE WRIT

4

THIS CASE PRESENTS AN IMPORTANT CONSTITUTIONAL

QUESTION REGARDING THE BREADTH AND SCOPE OF THIS

COURT’S DECISIONS IN ALFORD v. UNITED STATES AND

DAVIS v. ALASKA IN CROSS-EXAMINING A BIASED WITNESS.

In a series of cases beginning with Alford v. United

States, 282 U.S. 687 (1931) and culminating in Davis v.

Alaska, 415 U.S. 308 (1974), this Court has unequivoca-

bly held that prohibiting an accused from showing that

a central Government witness is biased or prejudiced

constitutes a denial of the Sixth Amendment right of

confrontation. As Chief Justice Burger stated in Davis

v. Alaska:

... While counsel was permitted to ask Green

whether he was biased, counsel was unable to

make a record from which to argue why Green

might have been biased or otherwise lacked that

degree of impartiality expected of a witness at trial

.. . 415 U.S. at 318 (Emphasis in original)

2 Dr. Sobkov’s agreement with the Government embraced

two areas. First, although Dr. Sobkov had previously been

convicted of mail fraud, his sentence had been reduced in

return for his agreement to cooperate. Second, the Govern-

ment had written a letter on his behalf to the State Licensing

Board advising the Board of his cooperation, and it was clear

that Sobkov viewed his cooperation with the prosecution as

essential to regaining his right to practice medicine.

7

The instant case presents for this Court’s review the

logical extension of the Alford-Davis holdings. It is not

contended that Petitioner was unable to demonstrate

whether Dr. Sobkov was biased or prejudiced; the jury

was informed of the arrangement between Dr. Sobkov

and the Government. Petitioner was, however, fore-

closed from showing, in a direct and concrete manner,

how that bias impacted upon and infected the witness’

testimony.

This Court has not heretofore decided just how far the

Alford-Davis principle sweeps in demonstrating a

witness’ bias. To show that a particular witness is

biased, is, of course, a significant point bearing on the

witness’ credibility. That preliminary showing, how-

ever, is dramatically enhanced where the defense can

demonstrate to the jury a specific example of the

operation of that bias. It is this further evidence which

Petitioner believes is logically embraced by the Alford-

Davis principle and which was prohibited in the instant

case. Petitioner was denied the opportunity to graphi-

cally present the full extent to which Dr. Sobkov would

implicate Petitioner in Dr. Sobkov’s effort to curry favor

for himself, and as a result, a principal prosecution

witness was insulated from a proper and legitimate

credibility attack. Petitioner urges that the trial court’s

ruling constituted an undue restriction of the right of

cross-examination and an abridgement of the right of

confrontation. Since the decision of the Court of

Appeals represents an undercutting of Alford and

Davis and is unsupportable in light of those cases, this

Court should grant the writ.

8

IT.

THE INSTANT CASE PRESENTS THE OPPORTUNITY FOR THE

COURT, IN THE EXERCISE OF ITS SUPERVISORY POWERS, TO

DELINEATE THE STANDARD UNDER FEDERAL RULE OF

EVIDENCE 611(b) THAT FEDERAL COURTS SHOULD APPLY IN

A CRIMINAL CASE.

Federal Rule of Evidence 611(b), reprinted in full

supra at 2-3, provides that the trial court has

discretion in limiting the cross-examination of wit-

nesses, and the various courts of appeals have deter-

mined that the extent of cross-examination is a matter

which normally rests within the sound discretion of the

court. See, e.g., United States v. Gloria, 494 F.2d 477

(5th Cir.), cert. denied 419 U.S. 995 (1974); United States

v. Daniels, 528 F.2d 705 (6th Cir. 1976); Egger v. United

States, 509 F.2d 745 (9th Cir.) cert. denied 423 U.S. 842

(1976); and United States v. Green, 523 F.2d 229 (2nd

Cir.) cert. denied 423 U.S. 1074 (1976).

Notwithstanding the relegation of this issue to the

trial court’s discretion, several courts have noted that in

a criminal case, cross-examination of a witness relative

to his credibility is to be given the broadest possible

scope. United States v. Crumley, 565 F.2d 945 (5th Cir.

1978); United States v. Williams, 478 F.2d 369 (4th Cir.

1973); and United States v. Smolar, 557 F.2d 13 (1st Cir.

1977). This principle is particularly applicable where

the witness’ testimony is essential or important to the

case. See, Gordon v. United States, 344 U.S. 414, 422

(1953). Underlying this principle is the recognition that,

while every limitation of cross-examination does not

raise Sixth Amendment issues, the right of confronta-

tion does hover behind and is potentially abridged

when that discretion is exercised.

Given the interplay between Rule 611(b), the Sixth

Amendment, and the wide latitude vested in the trial

judge, Petitioner suggests that this Court should grant

certiorari in order to clarify the standards which trial

9

courts should apply under Rule 611(b). Because of the

conflicting intersts represented by confrontation clause

principles on the one hand, and needless use of a trial

court’s time on the other, Petitioner submits that review

by this Court would provide much needed guidance on a

sensitive issue. Furthermore, review by this Court

would serve to resolve what necessarily must be a

widely disparate application of Rule 611(b) in the.

various district courts.

The instant case is an appropriate one for this Court

to undertake such a review because Petitioner’s attempt

to impeach Dr. Sobkov was of critical importance to the

defense case. Indeed, Dr. Sobkov was the primary

witness by which the Government sought to prove

Petitioner’s criminal intent. Evening assuming that the

trial court’s limitation of cross-examination did not

offend the right of confrontation, it did nonetheless

severly restrict the defense from adducing facts from

which the jury could reasonably discount Dr. Sobkov’s

testimony. Consequently, the instant case highlights

the pitfalls in the application of Rule 611(b) and

presents an opportunity to correct them.

CONCLUSION

For the above-stated reasons, the Petitioner prays

this Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit.

Respectfully submitted,

MICHAEL E. MARR,

1215 Fidelity Building,

Baltimore, Md. 21201,

Counsel for Petitioner.

la

APPENDIX

OPINION

United States Court of Appeals

for the Fourth Circuit

No. 77-1351

United States of America,

Appellee,

v.

Howard G. Reamer,

Appellant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore.

Argued: October 6, 1978 Decided: December 22, 1978

Before BRYAN, Senior Circuit Judge, WIDENER and

HALL, Circuit Judges.

Michael E. Marr (Mark E. Mason, Sutley and Marr on

brief) for Appellant; Joshua R. Treem, Assistant United

States Attorney, Herbert Better, Assistant United

States Attorney (Russell T. Baker, Jr., United States

Attorney on brief) for Appellee.

2a

HALL, Circuit Judge:

Howard G. Reamer, a practicing attorney in Balti-

more, Maryland, was convicted on ten counts of mail

fraud in violation of 18 U.S.C.A. § 1341, on charges that

he operated a scheme to defraud insurance companies

in the settlement of automobile accident claims. He

objects primarily to the district court’s instructions to

the jury that if it found from the evidence that

defendant (i) had attempted to suppress evidence or (ii)

had knowingly violated the Maryland barratry statute!

or the professional code of ethics incident to the

submission of false medical reports, then it could

consider such findings as probative of defendant’s

criminal intent. We affirm.

This scheme was considered in United States uv.

Perkal, 530 F.2d 604 (4th Cir.) cert. denied, 97 S. Ct. 70

(1976), and involved three parties: (1) a “runner” who

contacts injured parties and refers them to the doctor or

the lawyer;? (2) the doctor who sees the claimants and

prepares reports of their alleged injuries and bills for

medical services;’ and (3) the lawyer who, representing

the claimants, submits to the insurance carrier the

exaggerated medical bills and reports and makes

settlement on the basis of such inflated bills and

reports, dividing the proceeds among the claimants and

the parties to the scheme.

During the investigation, postal inspectors obtained .

sworn statements from certain of defendant’s clients to

prove the falsity of the medical bills and reports

specified in the indictment. Subsequently, but before

trial, some of these persons were personally interviewed

by the defendant. When called upon to testify each

client who had been so interviewed by the defendant

! Md. Code Ann. art. 27 §13 (1976 Repl. Vol.)

2 The defendant paid one runner the sum of $14,920 for the

referral of about 100 cases over a five month period.

* The record indicates that several doctors participated. Dr.

Perkal, who testified for the government in this case was

convicted for his participation. Perkal, supra.

3a

”

disavowed the statements given to the postal inspec-

tors.

Because of this pattern — Reamer’s pre-trial inter-

views with witnesses and each one’s subsequent failure

of memory at trial — the government requested and the

court gave an instruction on the suppression of

evidence, as a matter for the jury to consider on the

issue of criminal intent.

We think there was ample evidence to support the

court’s instruction, and it was properly given. The law

is well established that, in a criminal case, evidence of a

defendant’s attempt to influence a witness to testify

regardless of the truth is admissible against him on the

issue of criminal intent. See Wilson v. United States,

162 U.S. 613, 620-21 (1896); United States v. Jamar, 561

F.2d 1103, 1106-07 (4th Cir. 1977). Therefore, we think

the court properly instructed that, if the jury found that

the defendant attempted to suppress evidence, it could

consider such evidence against him on the issue of:

consciousness of guilt. See Allen v. United States, 164

U.S. 492, 498-500 (1896); 1 Devitt and Blackmar, Federal

Jury Practice and Instructions, 3rd Ed. § 15.09.

Also, on the issue of criminal intent, the court

instructed that state law and the code of professional

conduct prohibit the solicitation of clients by attorneys,

and the standards for violation of the professional code

were read to the jury. The court concluded its charge

with the admonition that defendant was not on trial for

any conduct not alleged in the indictment. We think

this latter instruction was supported by the evidence

and was properly given. U.S. v. Keane, 522 F.2d 534,

553-57 (7th Cir. 1975), cert. denied, 424 U.S. 976 (1976);

United States v. Mandel, 415 F. Supp. 997, 1008-10 (D.C.

Md. 1976).

Defendant also raises as an issue in his appeal the

district court’s refusal to allow his proffer of similar act

evidence, which he contended would support his defense

of good faith by contradicting the testimony of

4a

participating doctors to the effect that, in their dealings

with defendant, he knew their bills were inflated. The

proffer consisted of a number of Dr. Perkal’s files which

had not been backdated to show consultations occur-

ring soon after the claimants’ injury. Dr. Perkal was

only one of three doctors who testified against defend-

ant. Dr. Perkal testified that he falsified his files by

noting fictitious injuries and treatments, and his files

were, in fact, rarely backdated. We think the limited

purpose of the proffer and the extrinsic proof required

for it made its admission or exclusion entirely a matter

of discretion for the court.

Finding no error in the various issues raised on

appeal, the judgment of conviction is

Affirmed.