# Appendix — Winkle v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0121%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 444 U.S. 827 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0121%3A2. Public record. Not legal advice.