Appendix — Winkle v. United States

Supreme Court, U. '

FILED

MAR 12 1979

4

IN THE L_MICHAR RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

ERNEST A. WINKLE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDICES TO PETITION

* ARNOLD D. LEVINE, ESQ.

Levine, Freedman, Hirsch & Levinson, P.A.

725 E. Kennedy Boulevard

Tampa, Florida 33602

(813) 229-6585

Attorneys for Petitioner

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

NO.

ERNEST A. WINKLE,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDICES TO PETITION

APPENDIX A

Opinion of the Fifth Circuit Court of Appeals, below.

APPENDIX B

Order of the Fifth Circuit Court of Appeals, below, deny-

ing Petitioner/Appellant’s Petition for Rehearing and Re-

view.

APPENDIX C

Rule 103, Federal Rules of Evidence.

APPENDIX D

Rule 404, Federal Rules of Evidence.

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

Vv. =

Ernest A. WINKLE,

Defendant-Appellant.

Nos. 76-4145, 77-5195.

United States Court of Appeals,

Fifth Circuit.

Jan. 11, 1979.

Defendant was convicted in the

United States District Court for the Mid-

dle District of Florida, Ben Krentzman,

J., of 19 counts charging the submission

to the Government of medicare payment

requests that contained fraudulent state-

ments. On appeal, the Court of Appeals,

Alvin B. Rubin, Circuit Judge, held that:

(1) indictment was not insufficient; (2)

no harmful errors appeared at trial, and

(3) defendant was not entitled to new

trial based on alleged jury impropriety.

Affirmed.

Roney, Circuit Judge, dissented and

filed opinion.

1. Conspiracy <—28(3)

Under statute proscribing any con-

spiracy to defraud the United States,

there is no requirement that the fraud

comprise conduct that could be held un-

lawful under some other statute or rule.

18 U.S.C.A. § 371.

2. Indictment and Information ©71.-

4(3)

Indictment charging violation of

statute proscribing any conspiracy to de-

fraud the United States was not vague.

18 U.S.C.A. § 371.

A-1 |

UNITED STATES v. WINKLE

3. Fraud @=69(2)

Indictment charging 19 substantive

counts involving the submission to the

Government of medicare payment re-

quests that contained fraudulent state-

ments was sufficient. 18 U.S.C.A. §§ 2,

1001.

4. Witnesses 406

Impeachment to demonstrate the

untruth of a witness’ testimony is not

excludable as hearsay because it is not

offered primarily to prove the truth of

the matter asserted, but to contradict

the prior testimony. Fed.Rules Evid.

rule 801(c), 28 U.S.C.A.

5. Criminal Law = 1036.1(9)

Court will not even consider the pro-

priety of a decision to exclude evidence

if no offer of proof was made at trial.

Fed.Rules Evid. rule 103(a)(2), 28 U-S.

C.A.

6. Criminal Law @=1036.1(9)

Although former proffer is not re-

quired, proponent of excluded evidence

must show in some fashion the substance

of his proposed testimony if reviewing

court is to consider propriety of decision

to exclude evidence. Fed.Rules Evid.

rule 103, 28 U.S.C.A.

7. Criminal Law 670

Defense counsel's statement that de-

fendant would testify as to his version of

conversations he had with other witness-

es was not sufficient to make known to

court the substance of the evidence and

did not constitute an adequate offer of

proof. Fed.Rules Evid. rule 103, 28 U.S.

C.A.

8. Criminal Law @=338(1)

In prosecution for submission to the

Government of medicare payment re-

quests that contained fraudulent state-

ments, it was within discretion of trial

court to exclude as irrelevant defend-

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1979, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A-2

2095 UNITED STATES v. WINKLE

ant's testimony regarding his interpreta-

tion of c medicare publication and his

conversations in correspondence’ with

various persons at the Social Security

Administration Bureau of Health Insur-

ance and Florida Department of Health

and Rehabilitative Services. 18 U.S.C.A.

§§ 2, 1001.

9. Criminal Law @371(3)

In prosecution for submission to the

Government of medicare payment re-

quests that contained fraudulent state-

ments, court did not err in permitting

Government to introduce evidence of

wrongful acts extrinsic to immediate

prosecution. 18 U.S.C.A. §§ 2, 1001;

Fed.Rules Evid. rule 404, 28 USCA.

10. Criminal Law @1169.1(2)

In prosecution for submission to the

Government of medicare payment re-

quests that contain fraudulent state-

ments, error in overruling objection to

testimony with respect to contents of ,

certain charts which Government failed

to produce although available was harm-

less beyond a reasonable doubt. 18 U.S.

C.A. §§ 2, 1001; Fed.Rules Evid. rule

1002, 28 U.S.C.A.

11. Criminal Law @683(2)

Scope of rebuttal testimony is ordi-

narily a matter to be left to sound dis-

cretion of trial judge.

12. Criminal Law = 683(2)

In prosecution for submission to the

Government of medicare payment re-

quests that contained fraudulent state-

ments, court did not abuse its discretion

in ruling on evidentiary matters in re-

buttal and surrebuttal. 18 US.C.A.

§§ 2, 1001.

13. Fraud @69(7)

In prosecution for submission to the

Government of medicare payment re-

quests that contained fraudulent state-

ments, court's instruction to jury that

statements made in billing forms were

material was proper. 18 U.S.C.A. §§ 2,

1001.

14. Criminal Law @ 1172.1(1)

In prosecution for submission to the

Government of medicare payment re-

quests that contained fraudulent state-—

ments, there was no reversible error in

court's instructions on relevant medicare

statutes and regulations. IW USCA

§§ 2, 1001.

15. Criminal Law @ 1144.15

In any trial, there is initially a pre-

sumption of jury impartiality; prejudice

will not be presumed, but can be demon-

strated by a defendant by a preponder-

ance of credible evidence.

16. Criminal Law *855(1)

Jury prejudice may be shown by evi-

dence that extrinsic factual matter taint-

ed jury's deliberations; any prejudicial

factual intrusion denies a defendant his

right to trial by an impartial jury and to

challenge the facts adverse to him that

are made known to the jury.

17. Criminal Law @ 868

Where a colorable showing of ex-

trinsic jury influence appears, court

must investigate asserted impropriety.

18. Criminal Law @ 1144.15

An adequate demonstration of ex-

trinsic influence upon jury overcomes

presumption of jury impartiality; it

shifts burden to Government to demon-

strate that influence in question was not,

in fact, prejudicial.

19. Criminal Law @1174(1)

Even though jury learned of code-

fendant’s plea of guilty to conspiracy

count, defendant was not prejudiced

when jury returned guilty verdict to sub-

stantive counts where conspiracy count

A-3

UNITED STATES v. WINKLE. 2096

was the only count which defendant and

codefendant were jointly charged with

and jury did not return guilty verdict on

conspiracy count,

Appeals from the United States Dis-

trict Court for the Middle District of

Florida.

Before RONEY, RUBIN and VANCE,

Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

An intricate and clever scheme to de-

fraud the Government of money asserted

to be due for Medicare services resulted

in a lengthy and complicated indictment,

a protracted trial, and a_ verdict of

guilty. The defendant seeks to overturn

that verdict by charging a bevy of errors

in the indictment and trial. Because we

find his arguments without merit, or the

errors asserted harmless beyond a rea-

sonable doubt, we affirm.

Ernest Winkle and three co-defendants

were charged with conspiring to defraud

the United States by securing unlawful

Medicare payments.’ In the same indict-

ment, Winkle and two of the three co-

defendants were named in 19 additional

counts charging the submission to the

Government of Medicare payment re-

quests that contained fraudulent state-

ments? Alan Colmar, a nursing home

administrator who was charged only

with conspiracy, pleaded guilty to a re-

duced charge after the jury selection

process in this case had begun. After

the trial of a second co-defendant was

severed? and the substantive charges

1. WUSC § 37)

2. IKRUSC §§ 2 and 1001

3. The co-defendant severed from the trial was

Ernest Winkle's wife, Leonarda Winkle She

has not yet been tned on any charge

against the remaining co-defendant were

dismissed, Winkle and Joseph DiStefano

were tried together on the conspiracy

count and on the substantive charges

against Winkle alone. During the three-

week trial the parties called nearly 60

witnesses. The jury was unable to reach

a verdict on the conspiracy count, but

convicted Winkle on all substantive

counts.£ On the Government's motion,

the conspiracy count against Winkle was

dismissed.’ We set forth below the com-

plex facts of this case only in detail suf-

ficient to make comprehensible our anal-

ysis of the relatively straightforward

principles of law that result in the denial

of the relief he seeks.

Factual Background

The conspiracy charged by the Govern-

ment had three aspects: first, the de-

fendants initiated a sales scheme for a

Tampa, Florida, medical laboratory un-

der which physicians ordered lab tests, at

no charge to their patients; the lab then

charged Medicare and unlawfully remit.

ted “interpretation” or “consultation”

fees to the referring physicians. Second,

the defendants solicited and charged

Medicare for the laboratory business of

several chiropractors when they knew

that those services for chiropractic physi-

cians could not lawfully be charged to

Medicare. Third, the defendants con-

ducted a program of respiratory testing

and inhalation therapy for nursing home

patients, and billed Medicare for such

tests and therapy, although no physician

4. Winkle was sentenced to imprisonment for

five years on each count, Two through Twen

ty, the sentences on Counts Three through

Twenty to run concurrently with the sentence

on Count Two

5. FRCrP., Rule 48(a)

A-4

2097 UNITED STATES v. WINKLE

had determined that either the tests or

therapy were medically necessary as re-

quired by the applicable statutes and

regulations.®

The 19 substantive counts grew out of

the defendants’ inhalation therapy pro-

gram. Evidence showed that the de-

fendant Winkle had submitted 19 Medi-

care out-patient billing forms, prepared

by him or at his direction, for medically

unnecessary therapy. The Government

introduced the forms, each of which indi-

cated a diagnosis of “upper respiratory

infection” or “emphysema” that the

treating physician, Dr. Alvarez, as a

Government witness, denied making.

Dr. Alvarez further testified that he had

neither ordered nor given permission for

either the tests or the therapy treat-

ments in question,

Sufficiency of the Indictment

The defendant urges that the* court

below erred in not dismissing the indict-

ment because of a variety of alleged de-

ficiencies.

Winkle argues, first, that the conspir-

acy count is impermissibly vague and, in

violation of F R-Cr.P., Rule 7(cK1), does

not afford “a plain, concise and definite

written statement of the essential facts

constituting the offense charged.” He

6 42 USC. §& 1995K and 1595y(ayl), 20

C.F.R. § 405.250 [relating to Medicare Part B),

Intermediary’s Part B Manual for Receiving

and Processing Claims, § 2070.1

7. The dismissal of Count One under FR CrP,

Rule 4&(a), does not moot the defendant's suf

ficiency or vagueness arguments, because such

a dismissal is without prejudice to the filing of

a new indictment on the same charge. United

States v. Cavis, 5 Cir, 1973, 487 F.2d 112, 118,

cert. denied, 1974, 415 U.S. 981, 94 S.Ct. 1573,

39 L.Ed. 2d 878

8. IRUSC § 371 provides

further asserts that the indictment, in

violation of Rule 7(c1), omits “the offi

cial or customary citation of the statute,

rule, regulation or other provision of law

which the defendant is alleged therein to

have violated.”7

{1] These contentions are frivolous

Count One specifically alleges a violation

of Title 18, Section 371 of the United

States Code, which proseribes any con-

spiracy to defraud the United States *

There is no requirement that the fraud

comprise conduct that could be held un-

lawful under some other statute or rule

The statute is broad enough in. its

terms to include any conspiracy for the

purpose of impairing, obstructing, or

defeating the lawful function of any

department of government.

Haas v. Henkel, 1910, 216 US. 462, 479,

30 S.Ct. 249, 254, 54 Led. 569, 577; ae

cord, United States v. Johnson, 1966, 383

U.S. 169, 172, 86 S.Ct. 749, 7Th1, 1h

L.Bd.2d 681, 684. It is essential only

that an indictment under 18 USC. § 371

“properly [charge] a conspiracy, and with

the required specificity [allege] the cul-

pable role” of each of the alleged con

spirators. Dennis v. United States, 1966,

384 US B55, R60, 86 S.Ct. 1840, 1844, 16

L. Fd. 2d 973, 978.

If two of more persons conspire either to

commit: any offense against the United

States, or to defraud the United States, or

any agency thereof in any manner or for any

purpose, and one or more of such persons

do any act to effect the object of the con

spiracy, each shall be fined not more than

$10,000 of imprisoned not more than five

years, or both

lf, however, the offense, the commission

of which is the object of the conspiracy, is a

misdemeanor only, the punishment for such

conspiracy shall not exceed the maximum

punishment provided for such misdemeanor

A-5

UNITED STATES v. WINKLE 2098

[2] The indictment before us clearly

passes this test. It alleges that the ob-

ject of the conspiracy to defraud was:

causing the payment of Medicare ben-

efits under the provisions of Title

XVIII of the Social Security Act, as

amended (42 USC. §§& 1801 1879

[1395 1895pp]), to be made in amounts

greater than the amounts which: were

properly payable and which excess

payments were not authorized under

Tithe X VIEL of the Social Security Act,

It further elaborates that the defendants

arranged reambursement for “medically

unnecessary lab tests” by Medicare,

when in faet that program authorizes

payment and reimbursement as provid-

ed in Tithe XVIIE of the Social Securt

ty Act, Sections I861 and 1862(axK 1),

for only those tests which are medical-

ly necessary

Thus, even if reference to other stat

utes or rules, the contravention of which

would constitute fraud, were necessary

to complete a charge under IR USC.

§ 371, sufficient notice of the relevant

9 20 CER §& 405250 provides, in relevant

part

Payment for medical and other health serv

ices furnished by a participating

provider of services is made to such provider

only if

. . . * ° *

(b) Ao physician certified that

(1) In the case of medical and other health

services . such services were

medically required

10. IKRUSC § 1001 provides

Whoever, in any matter within the jurisdi

tion of any department or agency of the

United States knowingly and willfully falsi

fies, conceals or covers up by any trick,

scheme, or device a material fact, or makes

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

statutes is afforded by this indictment.

The thrust of the Government's case

was, in the instance of lab tests, that

physicians ordered tests not properly re-

lated to their patients’ diagnosis or treat

ment” and, in the case of inhalation

therapy, that Winkle charged for tests

and treatments that physicians did not

order at all) With respect to the latter,

in particular, the defendant testified

Well, we can't do any testing and sub

mit for payment to Medicare unless

we did have a doctor's order and that

is also true of any treatments that

would be instituted

This is precisely the interpretation for

which the Government argues. We can

not diseern any undue vagueness ino the

indictment

[3] We must also reyeet Winkle's ar-

gument that he would be prejudiced by a

prosecution under any count of the in

dictment because the language of the in-

chetment might be deemed to track e1

ther 1% USC. §& 1001 or 42 USC

§ 1895nn'* The indictment specifically

than $10,000 of imprisoned not more than

five vears, or both

420 SC & 1495nn provides

(a) Whoever

(1) knowingly and willfully makes or caus

es to be made any false statement or rep

resentation of a maternal fact in any apph

cation for any benefit or payment under

this subchapter,

(2) at any time knowingly and willfully

makes or causes to be made any false

statement or representation of a material

fact for use in determining rights to any

such benefit of payment,

. * . . ° .

shall be guilty of a misdemeanor and upon

conviction thereof shall be fined not more

than $10,000 of imprisoned for not) more

than one year, or both

(b) Whoever furnishes items or services to

an individual for which payment is or may

be made under this subchapter and who so

licits, offers, or receives any

A-6

2099 UNITED STATES v. WINKLE

names the former statute as the rule of

law on which the substantive counts

rely. To the extent that the same con-

duct could be punished under either stat-

ute, the choice lies within the discretion

of the prosecutor. United States v.

Chakamakis, 5 Cir. 1971, 449 F.2d 315.

Were the Government to attempt a

second prosecution, under a_ different

statute, for the same conduct at issue in

this case, the defendant could properly

raise a double jeopardy claim at that

time. Absent a second prosecution, the

defense is, of course, premature. The

indictment is clear, concrete and specific;

that is enough to meet the defendant's

challenge.

III.

Conduct of the Trial

The defendant urges that his convic-

tions should be reversed because the trial

judge erroneously excluded evidence fa-

vorable to the defendant, the trial ‘judge

erred in admitting evidence of similar

wrongful acts, the judge erred in his rul-

ings regarding the conduct of rebuttal

and surrebuttal, and the judge erred in

his instructions to the jury.

[4] The defendant urges that the tri-

al court erred in excluding as hearsay his

renditions of conversations with his

salesmen, Matthew Rackstein and Gerald

Talty, with Drs. Nessan McCann, Frank

(1) kickback or bribe in connection with

the furnishing of such items or services or

the making or receipt of such payment, or

(2) rebate of any fee or charge for refer

ring any such individual to another person

for the furnishing of such items or serv

Ices,

shall be guilty of a misdemeanor and upon

conviction thereof shall be fined net more

than $10,000 or imprisoned for not more

than one year, or both

(c) Whoever knowingly and willfully makes

or causes to be made, or induces or seeks to

Norton and Robert Moorehead, and with

his wife, Leonarda Winkle; he would

have contradicted their testimony re-

garding the same conversations, and,

therefore, this was proper impeachment

and should not have been excluded as

hearsay. See F.R.Evid. Rule 801(c). See

United States v. Palacios, 5 Cir. 1977,

556 F.2d 1359, 1362 63; United States v.

Sisto, 5 Cir. 1976, 534 F.2d 616, 622 23

(dicta). (No argument is made that

Winkle’s testimony was admissible for

substantive purposes.) The legal propo-

sition on which the assertion is based is

correct; impeachment to demonstrate

the untruth of a witness’ testimony is

not excludable as hearsay because it is

not offered primarily to prove the truth

of the matter asserted, but to contradict

the prior testimony. J. Weinstein & M.

Berger, Weinstein’s Evidence, © 607[06]

(1977). However, a crucial prerequisite

to concluding that the ruling was errone-

ous IS Missing.

[5] Rule 103(a2) of the Federal

Rules of Evidence provides that’ error

may not be based on a ruling excluding

evidence unless “the substance of the ev-

idence was made known to the court by

offer or was apparent from the context

within which questions .were asked.”

While some circuits have apparently tak-

en a more lenient approach, e. g., Char-

ter v. Chleborad, & Cir. 1977, 551 F.2d

induce the making of, any false statement or

representation of a maternal fact with re

spect to the conditions or operation of any

institution or facility in order that such insti

tution or facility may qualify (either upon

initial certification or upon recertification) as

a hospital, skilled nursing facility, or home

health agency (as those terms are defined in

section 1861 [42 USCS § 1395x]), shall be

guilty of a misdemeanor and upon convic

tion thereof shall be fined not more than

$2,000 or imprisoned for not more than 6

months, or both.

A-7

UNITED STATES v. WINKLE 2100

246, 248 9, cert. denied, 434 U.S. 856, 98

S.Ct. 176, 54 L.Ed.2d 128, this circuit will

not even consider the propriety of the

decision to exclude the evidence at issue,

if no offer of proof was made at trial.

Mills v. Levy, 5 Cir, 1976, 587 F.2d 1331,

1333; United States v. Muncy, 5 Cir.

1976, 526 F.2d 1261, 1263. See also El-

liott v. Maggiolo Corp. 2 Cir. 1975, 525

F.2d 439, 444; Nanda v. Ford Motor Co.,

7 Cir. 1974, 509 F.2d 213, 223.

[6,7] We do not require a formal

proffer, but the proponent of excluded

evidence must show in some fashion the

substance of his proposed testimony.

The defendant here gave no indication

concerning what he would have testified

or the manner in which his contradiction

or denial of what had already been ad-

duced would have been admissible or

helpful. While the defendant was given

the opportunity to do so, outside the

Il. Rackstein'’s conversation with Winkle. Part

of Rackstein'’s testimony concerned Winkle's

January 1975 address before the Pinellas

County Chiropractic Association. Because

Winkle was not convicted on the first count of

the indictment, he could not have been preju

diced by the exclusion of testimony about this

meeting. We also note that Winkle admitted

speaking before the Chiropractic Association,

thus any difference in the accounts of what

was said between Rackstein and Winkle just

before Winkle spoke to the group would go to

the degree of Winkle's surprise at discovering

himself at a meeting of chiropractors. Rack

stein did not discuss another conference that

he and Winkle held with Bernie Oppenheim

prior to the meeting with the chiropractors

Thus the exclusion of Winkle’s account of

Rackstein's remarks at that conference was

proper.

Winkle also sought to testify as to several

conversations with Rackstein that took place

on March 13, 1975, before, during and after a

luncheon meeting with Dr. McCann Rack

stein did not testify about these conversations

Consequently, the exclusion of Winkle’s test

mony concerning these, as hearsay was cor

rect

presence of the jury, his counsel merely

stated that Winkle would testify as to

his version of the conversations that he

had with Rackstein, Talty, MeCann, Nor-

ton, Moorehead, and Mrs. Winkle. This

was not sufficient to make known to the

court the substance of the evidence. See

J. Weinstein & M. Berger, Weinstein’s

Evidence © 103[04] at 103 38 (1977); 10

Moore's Federal Practice § 103.22 (2d ed.

1976). Because an adequate offer of

proof was not made, we “may not” find

error under Rule 103, as interpreted in

this circuit. Moreover, an analysis of the

evidence that had been admitted in the

light of what Winkle proposed to say, so

far as the record permits some kind of

inference, fails to persuade us that the

exclusion of the testimony was harmful

Rather than unduly prolong this opinion,

we have discussed each of the instances

in the footnote."

Talty's conversation with Winkle Talty testi

fied that Winkle told him he was not selling

the program correctly, Winkle re-explained

how the participating doctors would receive

double payment for medicare patients and said

the program was legal In the testimony that

was admitted, Winkle denied that he had told

Talty to offer double payments to doctors

Winkle did not seek to testify to anything else

concerning his conversation with Talty Be

cause Talty related only what Winkle said

about the program, it was proper to prevent

Winkle from testifving as to what Talty Said

on that occasion

Dr McCann's conversation with Winkle

Winkle was not permitted to testify to the con

versation of the other participants at the

luncheon meeting on March 13, 1975 Dr

McCann's testimony about the luncheon meet

ing was limited to what Winkle said to him

and to identifying the check that was given to

him at that meeting; Dr) McCann did not testi

fy to what he personally said at the luncheon

Winkle was permitted to relate what he said at

the luncheon and the circumstances under

which the check was given to Dr. MCann

The exclusion of Winkle’s version of what Dr

McCann said at that meeting was correct

A-8

2101 UNITED STATES v. WINKLE

[8] The trial judge excluded as irrele-

vant the defendant’s testimony regard-

ing his interpretation of a Medicare pub-

lication, and his conversations and corre-

spondence with various persons at the

Social Security Administration Bureau of

Health Insurance and the Florida De-

partment of Health and Rehabilitative

Services. The judge’s rulings on this ev-

idence, as well as the proffered list of

prevailing Medicare rates, were well

within his discretion concerning ques-

tions of relevance. JU/nited States v.

Bryant, 5 Cir. 1974, 490 F.2d 1372, 1378,

cert. denied, 419 U.S. 832, 95 S.Ct. 57, 42

L.Ed.2d 58.

{9} The court did not err in permit-

ting the Government to introduce evi-

dence of wrongful acts extrinsic to the

immediate prosecution. The Govern-

ment produced requisitions that were

purportedly signed in 1972 by a Dr. Wil-

liam Braell of Elmira, N.Y. for two pa-

tients’ x-rays; attached were request

forms for Medicare payments for the x-

rays that had been mailed to Blue Cross.

These forms indicated that the provider

of services was Integrated Medical X-

Ray Services, and the requests for pay-

ment were signed “Ernest A. Winkle.”

Dr. Norton's conversation with Winkle. Win-

kle was allowed to testify what he said during

a telephone conversation with Dr. Norton in

May 1975. However, the judge refused to let

Winkle relate what Dr. Norton said in this

conversation. The exclusion of this evidence

was proper because Dr. Norton's testimony

never mentioned this conversation. Dr. Nor-

ton said that he never had an opportunity to

question Winkle in regard to the inhalation

therapy program at Colonial Manor Nursing

Home. Winkle was never asked whether Nor-

ton had interrogated him; had this question

been put, a simple ‘yes’ or “no” answer might

have furnished the predicate for further testi-

mony, or for finding error in its exclusion.

Dr. Moorehead's conversation with Winkle.

Dr. Moorehead was permitted to testify re

garding a telephone conversation that he had

Dr. Braell testified that he had ordered

neither x-ray, and that, in one instance,

he had expressly declined to sign the

form, which someone named Ernest Win-

kle had brought to him; he had refused

because the person named on the form

was not Dr. Braell’s patient. Dr.

Braell’s signature on the second form

was, according to Dr. Braell, not only

forged, but misspelled. The Government

subsequently called a former employee

of the defendant, who testified that, to

his personal knowledge, the defendant

was president of Integrated Medical X-

Ray Services up until at least two

months prior to the submission of the

forms in question to Blue Cross.

Rule 404 of the Federal Rules of Evi-

dence permits the introduction of evi-

dence of extrinsic acts to show intent

and the absence of mistake or accident,

issues squarely raised by Winkle’s de-

fense. The evidence offered was rele-

vant and, as the court properly deter-

mined, probative and not unfairly preju-

dicial, especially in view of the court's

limiting instructions. United States v.

Beechum, 5 Cir. 1978, 582 F.2d 898 (en

banc).

with Winkle during June or July of 1975 on

the subject of money iat Winkle'’s laboratory

owed him. During his testimony, Dr. Moore.

head related only what Winkle told him. The

one statement that Dr. Moorehead attributed

to himself was that he told Winkle that Rack.

stein had not represented himself as a doctor.

This statement is not prejudicial to Winkle. It

was not harmful error to exclude Winkle’s ver-

sion of Dr. Moorehead's remarks during their

telephone conversation.

Leonarda Winkle's conversation with Winkle.

Winkle was not permitted to give his version

of his wife's words in their first conversation

about filling out Medicare out-patient provider

billing forms. This exclusion was also proper,

and, in view of his wife's testimony, harmless

beyond doubt.

A-9

UNITED STATES v. WINKLE 2102

{10} On rebuttal, the Government

produced a therapist to rebut Mrs. Win-

kle’s testimony concerning the manner in

which the diagnostic information report-

ed on the billing forms was obtained,

and a doctor to rebut testimony that

blanket orders had been given to permit

the respiratory testing of his patients.”

The testing and treatment of these pa-

tients were comprised only in the con-

spiracy count, although they might be

considered evidence of extrinsic acts rel-

evant to the issue of intent with respect

to the substantive counts as well. The

judge incorrectly overruled an objection

to the doctor's testifying with respect to

the contents of the charts, notwithstand-

ing the Government's failure to produce

the charts themselves, which concededly

were available. F.R.Evid., Rule 1002.

In view of the limited relevance of the

witness's testimony to the defendant's

convictions, and the content of his testi-

mony, we are persuaded that the defend-

ant’s inability to cross-examine the wit-

ness on the basis of the original charts

was harmless beyond a reasonable doubt.

In the course of the first rebuttal wit-

ness's testimony, he described an “incen-

tive plan” for the respiratory therapists

that Winkle allegedly put into effect al-

though the therapists did not receive any

money under the plan. The defense

proffered further testimony by the de-

fendant DiStefano tending to show that

the plan was considered, but not put into

effect. The court refused to permit such

testimony in surrebuttal.

{11,12] The scope of rebuttal testi-

mony is ordinarily a matter to be left to

the sound discretion of the trial judge.

Geders_v. United States, 1976, 425 U.S.

80, 86,°96 S.Ct. 1830, 1834, 47 L.Ed.2d

12. The court properly excluded, as not pertain.

ing to a newly raised issue, the evidence of a

third proffered rebuttal witness.

592, 598; United States v. Sadler, 5 Cir.

1974, 488 F.2d 434, 435, cert. denied, 417

U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234.

In this case, the new issue raised on re-

buttal was of tangential relevance. The

proffered surrebuttal testimony was not

entirely contradictory, and, indeed, the

witness's proffered testimony concerning

the reason why an incentive plan was

considered, i. e., the therapists thought

the defendants’ lab was “making a tre-

mendeus amount of money” and they

“wanted more,” would have been helpful

to the Government. Under these cir-

cumstances, the judge's ruling was not

an abuse of discretion.

The defense also proffered in surre-

buttal the further testimony of a thera-

pist who had already appeared for the

Government; her testimony with regard

to the defendant's representations vel

non as to the existence of doctors’ orders

for inhalation tests and therapy would

not have been addressed to a new issue.

The defense was itself not sure of what

she would have said on the matter in

dispute. Again, the denial of surrebuttal

was not an abuse of discretio'.

[13] The defense asserts that. in in-

structing the jury, the court invaded the

jury's province by stating that the state-

ments made in the billing forms involved

in Counts Two through Twenty were

material. The requirement of materiali-

ty under the second, or “false statement”

clause of 18 U.S.C. § 1001," is a judge-

made limitation to insure the reasonable

application of the statute. United States

v. Beer, 5 Cir. 1975, 518 F.2d 168, 170.

We have repeatedly viewed the question

of materiality in a “false statement”

prosecution as a question of law for de-

13. See note 10, supra.

A-10

2103 UNITED STATES v. WINKLE

termination by the court. United States

v. Krause, 5 Cir. 1975, 507 F.2d 113, 118;

ef. United States v. Crippen, 5 Cir. 1978,

570 F.2d 535, rehearing and rehearing en

banc denied, 579 F.2d 340. United

States v. Haynie, 5 Cir. 1978, 568 F.2d

1091; United States v. Beer, supra.

Consequently, the instruction was prop-

er.

[14] We also find no reversible error

in the court’s instructions on the rele-

vant Medicare statutes and regulations.

Although one or two phrases, if taken

wholly out of context, might tend to

mislead, the charges taken as a whole

and read against the factual background

of this case were proper. United States

v. Wells, 5 Cir. 1975, 506 F.2d 924; Unit-

ed States v. Jackson, 5 Cir. 1972, 470

F.2d 684, cert. denied, 1973, 412 U.S. 951,

93 S.Ct. 3019, 37 L.Ed.2d 1004.

IV. :

Jury Impropriety

The defendant finally asserts as error

the court’s denial of his motion for a

new trial based on alleged jury impro-

priety.

Voir dire of the jury began on Thurs-

day, July 22, 1976. Alan Colmar, who

had not yet pleaded guilty to any charge,

was present before the jury. On July

23, Colmar entered his plea. The trial

began after the weekend. The judge in-

quired of counsel what, if anything, they

wished the jury to be told concerning

Colmar’s absence. The defense asked

that nothing ‘be said; the Government

took no position. The jury was not told

the reason for Colmar’s absence.

14. The defendant later submitted to the trial

court an article from The Tampa Tribune, dat-

ed July 27, 1976, that reported Colmar's plea

and from which a juror hypothetically could

After the jury rendered its verdict, its

foreman, a member of another state's

bar, telephoned Winkie’s trial counsel to

discuss various aspects of the case in

which he was interested. According to

the trial counsel, the foreman told him

that one juror, a barber named Shifler,

had disclosed to the jury that he knew

Colmar had pleaded guilty. Trial coun-

sel discussed the development with Win-

kle, who, according to counsel, decided

that he did not want to raise the issue in

a motion for new trial for fear it would

affect his sentencing. Consequently, tri-

al counsel failed to mention the possible

impropriety to the court."

After the defendant was sentenced,

trial counsel withdrew, and the defend-

ant retained new counsel to handle his

appeal. New counsel, upon learning of

the possible impropriety, filed a motion

of intention to interview the trial jurors.

The court ordered that no interviews be

held, but scheduled a hearing, at which it

considered the testimony of trial counsel

and of the jury foreman.

The foreman testified that, during the

jury’s consideration of Count One, a

woman juror named Marjorie Graham

had said to the jury that Colmar had

pleaded guilty. The foreman did not re-

call having heard any such statement

from another juror. The defendant’s tri-

al counsel recounted his version of his

telephone conversation with the fore-

man, and the circumstances surrounding

his failure to notify the court of the

asserted impropriety.

The defendant moved for a new trial.

The court supplemented its first hearing

by taking the testimony, several weeks

later, of Graham. She testified that she

have learned of that plea. The jurors were

repeatedly instructed throughout the trial not

to read anything concerning the trial.

A-11

UNITED STATES v. WINKLE 2104

had “supposed” Colmar had _ pleaded

guilty, but did not recall saying so to the

jury."5 The court denied Winkle’s new

trial motion based on the hearing, his

repeated instructions to the jury to avoid

extrinsic influences on their delibera-

tions, and the trial counsel's ethical

breach both in speaking to the jury fore-

man and in not reporting the incident to

the court.'

[15,16] The basic principles under

which the question before us must be

‘resolved are well-settled. In any trial,

there is initially a presumption of jury

impartiality; prejudice will not be pre-

sumed, but can be demonstrated by a

defendant by a preponderance of credi-

ble evidence. United States v. Wayman,

5 Cir. 1975, 510 F.2d 1020, 1024, cert.

denied, 423 U.S. 846, 96 S.Ct. 84, 46

L.Ed.2d 67. Such prejudice may be

shown by evidence that extrinsic factual

matter tainted the jury's deliberations,

any “prejudicial factual intrusion” denies

a defendant his rights to trial by an im-

partial jury and to challenge the facts

adverse to him that are made known to

the jury. United States v. Howard, 5

Cir. 1975, 506 F.2d 865, 866; Remmer v.

United States, 1954, 347 U.S. 227, 229, 74

S.Ct. 450, 451, 98 L.Ed. 654, 656.

[17,18] Where a colorable showing of

extrinsic influence appears, a court must

investigate the asserted impropriety:

15. The juror testified that her husband, who

was not bound to disregard public reportage of

the trial, drove her to court each day and re-

mained there through most of the proceedings

She denied, however, that she had discussed

the case with him prior to its conclusion

16. See Rules of the United States District

Court, Middle District of Florida, Rule 2.04(c),

Code of Professional Responsibility of the Flor-

ida Bar, D.R. 7-108&(D); E.C. 7. 29

17. Q [By Mr. Levine]: Mr. Dempsey, do you

have any recollection as to the source of the

information that was extraneous and present.

The evidentiary inquiry before the dis-

trict court must be limited

to objective demonstration of extrinsic

factual matter disclosed in the jury

room. Having determined the precise

quality of the jury breach, if any, the

district court must then determine

whether there was a reasonable possi-

bility that the breach was prejudicial

to the defendant. . . |. In this

determination, prejudice will be as-

sumed in the form of a rebuttable pre-

sumption, and the burden is on the

Government to demonstrate the harm-

lessness of any breach to the defend-

ant.

United States v. Howard, supra, 506 F.2d

at 869. Thus, an adequate demonstra-

tion of extrinsic influence upon the jury

overcomes the presumption of jury im-

partiality; it shifts the burden to the

Government to demonstrate that the in-

fluence in question was not, in fact, prej-

udicial.

In the case before us, the record indi-

cates that the fact of Colmar’s plea was

published in a newspaper. Winkle’s trial

counsel recalled that the foreman told

him that the juror who knew of Colmar's

plea had read about it.” At the hearing,

the foreman could not recall the source

from which the juror knew of Colmar'’s

plea."* Given this evidence, and the fail-

ed before the jury? Did Mr. Putnam at any

time allude to the source of the barber's infor-

mation?

A: | believe it's—my recollection is that it was

a newspaper article and ! believe he said that

it was Mr. Shifler who had read the newspaper

and so commented

18. Q: Did he say how—did the juror say how

he knew that [Colmar had pleaded guilty}?

A: | can't say that definitely. 1! don't recall

how the juror knew that

Q: Did he say he had read about it in the

newspaper?

A-12

2105 UNITED STATES v. WINKLE

ure of the trial judge to say so, we can

neither conclude that he found no extrin-

sic influence to have existed nor rest our

disposition on an assessment of such a

finding.* We thus assume that a jury

breach occurred, and consider the ques-

tion of prejudice.

The sole count on which Colmar was

tried jointly with other people was the

conspiracy count, on which he was not

convicted. The jury foreman testified

that the fact of Colmar’s plea was dis-

cussed in relation to the jury’s delibera-

tions on that count. By contrast, the

defendant Winkle was convicted of 19

substantive offenses, the evidence of

which, both documentary and testimoni-

al, was not only relatively discrete but

damning. We fail to discern any genu-

ine possibility of prejudice to the defend-

ant in his trial on the substantive counts

from the jury’s awareness, with respect

to the conspiracy count, that he may

have associated with a criminally:tainted

individual.

{19} In United States v. Hansen, 5

Cir. 1977, 544 F.2d 778, we reversed the

conviction of a defendant after the trial

court informed the jury that his co-de-

fendant had pleaded guilty; in Hansen,

unlike this case, the jury had no previous

knowledge that any co-defendant exist-

ed. We said:

The prejudice to the remaining parties

who are charged with complicity in the

A: At the moment, | can't remember wheth-

er—whether that was stated or not, whether

he had read it in the newspaper or found out

from some other source.

19. A more complete record could have been

made on this point had the court interviewed

the juror Shifler, who was implicated by virtue

of Winkle’s lawyer's recollection.

20. This case is entirely distinguishable from

cases in which the relevant extrinsic influence,

once proven, is so egregious that prejudice

must be inferred, e. g., Stimack v. Texas, 5 Cir.

acts of the self-confessed guilty partic-

ipant is obvious.

Id., 544 F.2d at 780 (emphasis supplied).

Here, Winkle was not found guilty on

any count in which he was charged with

“complicity in the acts of the self-con-

fessed guilty participant,” Colmar. The

jury breach created no apparent preju-

dice to the defendant Winkle.*

Because we find no insufficiency in

the indictment, no harmful error at trial,

and no prejudice accruing to Winkle

from the uncontrolled presentation to

the jury of an extrinsic fact, the convic-

tions of the defendant are AFFIRMED.

RONEY, Circuit Judge, dissenting:

I respectfully dissent. Six witnesses

were allowed to testify as to conversa-

tions they had with defendant Winkle.

Testifying in his own defense, Winkle

attempted to testify as to his version of

these conversations. The trial court al-

lowed him to testify only as to his own

remarks, apparently under the impres-

sion that testimony as to what others

said in the same conversation was hear-

say. As Judge Rubin points out in his

opinion, this ruling was wrong.

Judge Rubin, however, would affirm

the trial court’s ruling on the ground

that the proffer was inadequate, and on

the further ground that “in light of

what Winkle proposed to say, so far as

1977, 548 F.2d 588, in which a male caller

telephoned several jurors, identified himself as

defense counsel, and told the jurors that they

would be killed by the Mafia if they convicted

the defendant; United States v. Kum Seng

Seo, 3 Cir. 1962, 300 F.2d 623, in which a juror

clipped and, just prior to the jury's vote, read

to her fellow jurors a newspaper story con-

cerning the trial, which contained inaccurate

and prejudicial statements about the defend-

ant.

A-13

UNITED STATES v. WINKLE 2106

the record permits some kind of infer-

ence, [an analysis of the evidence] fails

to persuade us that the exclusion of the

testimony was harmful.” My view of

the law and the record is that a suffi-

cient proffer was made, under the cir-

cumstances permitted by the trial court.

Winkle indicated that he wanted to Lesti-

fy as to his recollection of the conversa-

tions previously testified to by the

Government witnesses. What his recol-

lection might be is irrelevant to the

question of admissibility. He had a

right to testify as to these conversations,

even if his recollection was essentially

the same as the testimony of the

Government witnesses, which it appar-

ently was not. The error severely cur-

tailed the ability of the defendant to

present his testimony which the jury was

entitled to hear. In my judgment, the

record of the trial does not support a

decision that the error was harmless be-

yond a reasonable doubt.

I would reverse the conviction and re-

mand for a new trial.

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

APPENDIX B

B-1

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NOS, 76-4145 & 77-5195

UNITED STATES OF AMERICA,

Plaintiff Appellee,

versus

ERNEST A. WINKLE,

Defendant Appellant.

Appeals from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

(February 8, 1979)

Before RONEY, RUBIN and VANCE, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Form 703-2

APPENDIX C

C-1

FEDERAL RULES OF EVIDENCE

Rule 103

Rulings On Evidence

(a) Effect of erroneous ruling. Error may not be predicated

upon a ruling which admits or excludes evidence unless a sub-

stantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evi-

dence, a timely objection or motion to strike appears of record,

stating the specific ground of objection, if the specific ground

was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding

evidence, the substance of the evidence was made known to the

court by offer or was apparent from the context within which

questions were asked.

APPENDIX D

D-1

FEDERAL RULES OF EVIDENCE

Rule 404

Character Evidence Not Admissible

To Prove Conduct; Exceptions;

Other Crimes

* * *

(b) Other crimes, wrongs, or acts. Evidence of other

crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show that he acted in conformity there-

with. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

D-2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Appendices to Petition for Writ of Certiorari has been

furnished by U.S. Mail to Loretta V. Anderson, Assistant U.S.

Attorney for the Middle District of Florida, P.O. Box 600, Jack-

sonville, Florida 32201; Wade McCree, Jr., Solicitor General of

the United States of America, Department of Justice, Washing-

ton, D.C.; and Edward W. Wadsworth, Clerk of the United

States Court of Appeals for the Fifth Circuit, 600 Camp Street,

New Orleans, Louisiana 70130, this day of April,

1979.

Attorney