Petitioners Reply Brief — Goldstein v. United States

ALEXANDER L. STEVAS,

CLERK

No. 82-1652

In the Supreme Court of the United States

October Term, 1982

LAWRENCE GOLDSTEIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

REPLY BRIEF OF PETITIONER

JAMES R. WyRscH

Counsel of Record

KOENIGSDORF, KUSNETZKY & WyYRSCH

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 221-0080

Attorneys for Petitioner

Of Counsel:

Mont! L. BELOT

WeEKs, THomas & LYSAUGHT, CHARTERED

420-14 Corporate Woods

8717 W. 110 Street

P.O. Box 12245

Overland Park, Kansas 66212

(913) 642-7770

E. L. Menpennaut, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8030

TABLE OF CONTENTS

bi AE UEP IRIIT ~ccnnaivusecssascintgincensseenvaisaatednedesanaanantanie 1

. THE JURISDICTIONAL “QUESTION” .................... 1

3. FACTUAL INACCURACIES IN THE BRIEF IN

GI PIE TIT cscsstccrtensenseienicinaneeiveestnnsinenenienancnesenieniiinetie 3

i SPO IIIEY cosenicicccnsrrscuctvsosenctensntninnintsciisieiicmievaianies 4

TABLE OF AUTHORITIES

Cases

Communist Party of Indiana v. Whitcomb, 414 U.S. 441

EIT" scsisincsccnictisincienscienannenteienamneappeobauaniateatiaiedaaiananniaaal 2

Department of Banking v. Pink, 317 U.S. 264 (1942) 2

Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134 (1980) .......cccsesceseeseeseeesenee 2

Statutes

Se ins CUNO UII ccscsensecesnscnnenpeessseeprepesvbinianmnusuniianaens 3

ee ee SOTACID SI ccteccneccccssecescinimnictethinsicsiiabainnsidieialaainian 3

Rules

Federal Rule of Appellate Procedure 35(¢) 20.00.00... 2

Supreme Court Rule 20.1 .............. saiinanaiicsipindestaididetiias 1

RD COURS TOD. BI x cecnccercaszeeiesiersanictttiantnpssnstabianiatiais 1,2

Text

Stern and Gressman, Supreme Court Practice, p. 399

CS Fl SOND sectncitcerinicnnniennenes ‘ 2

No. 82-1652

In the Supreme Court of the United States

October Term, 1982

LAWRENCE GOLDSTEIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

REPLY BRIEF OF PETITIONER

1, INTRODUCTION

Petitioner does not believe that he needs to respond to

every point raised in the Brief for the United States in Op-

position, as those matters were adequately covered in Peti-

tioner’s Petition for Wrii of Certiorari to the Court. How-

ever, there are certain matters raised in the Brief for the

United States in Opposition which Petitioner feels should

be responded to.

2. THE JURISDICTIONAL “QUESTION”

The Solicitor General asserts that the Petition for Cer-

tiorari was untimely under Rule 20.1. The Solicitor Gen-

eral’s position in this regard is totally frivolous. The record

before this Court shows that Petitioner’s Motion for Rehear-

ing En Banc was denied on February 18, 1983 by the

United States Court of Appeals for the Tenth Circuit. Rule

20.4 of this Court’s rules expressly provides that “.. . if a

2

petition for rehearing is timely filed by any party in the

case, the time for filing the petition for writ of certiorari

for all parties . . . runs from the date of the denial of

rehearing ...”. This rule follows the cases decided by

this Court. Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134, 149-150, n. 24 (1980);

Communist Party of Indiana v. Whitcomb, 414 U.S. 441,

445-46 (1974); Department of Banking v. Pink, 317 U.S.

264, 266 (1942). The Solicitor General has confused the

finality mentioned in Federal Rule of Appellate Procedure

35(c) with the finality mentioned in Rule 20.4. As Stern

and Gressman have stated:

“By thus suspending the finality of the lower court’s

judgment, the filing and pendency of a timely petition

for rehearing also render premature the filing of a

petition for certiorari in the Supreme Court prior to

final action below on the petition for rehearing... .

In this context, finality relates not to the final or

interlocutory nature of the judgment on the merits,

but to the finality of the action being taken by the

lower court. If a rehearing is sought in the court

below, there is no absolute certainty that the judgment

below will not be altered. Only when there is such

certainty can the judgment properly be made the sub-

ject of a petition for certiorari. And thus it is that

the time for petitioning for certiorari commences on

the date when certainty and finality attach to the

action taken by the lower court. Where rehearing

has been sought, that date is the one on which the

hearing was denied.”

Stern and Gressman, Supreme Court Practice, p. 399 (5th

Ed. 1978).

3. FACTUAL INACCURACIES IN THE BRIEF

IN OPPOSITION

Solicitor General, at page 5 of its Brief in Opposition,

states that the alleged scheme to defraud in this case

had at its heart the commission of a violation of 18 U.S.C.

Section 1001. The Solicitor General has misread the record.

The information in this case charged a violation of 18

U.S.C. Section 1341 in Counts I through X. Only Counts

XI-XIV charged a violation of 18 U.S.C. Section 1001. It

was not the government’s theory in the trial court as to

Counts I through X that Petitioner and his co-defendants

had in fact violated 18 U.S.C. Section 1001.

The Solicitor General also has misread the record when

he makes the statement that the claim forms submitted

by Petitioner’s pharmacy were clearly false under the

Kansas Medicare Act and regulations issued thereunder

because they listed that pharmacy as the provider of ser-

vices actually provided at the Central Clinic. Brief in

Opposition at pp. 4-6, 8. The record is abundantly clear

that neither the claim forms, nor the regulations issued

under the Kansas Medicare/Medicaid Program, required

that the “provider number” listed on the claim form was

the place where the drugs were dispensed. The govern-

ment’s trial attorney in fact admitted this to the trial

court. Pet. for Cert., p. 7, FN 5; p. 22. In fact, the Court

of Appeals in this case did not hold that the regulations

or claim forms submitted were literally untrue; the court

merely held that the Kansas Medicaid laws and regulations

provided guidelines “under which defendants should have

known what material facts they had a duty to disclose in

claiming Medicaid reimbursements.” Pet. for Cert., at p.

A-13, emphasis added. The Brief in Opposition at pp. 4-5

clearly misstates the record—and the holding of the Court

of Appeals—when it states that this is not a fiduciary duty

4

to disclose case. In this respect, the most glaring mis-

statement of fact in the Brief in Opposition appears at

p. 8, where it is asserted that the Kansas regulations

specifically prohibited the conduct of defendant. It was

not until 1979—after the period mentioned in the indict-

ment—that the regulations were amended to require spe-

cifically that “provider number” meant the place where

the drugs were dispensed. Pet. for Cert., at p. 7.

4. CONCLUSION

For the reasons set out herein and in Petitioner’s Peti-

tion for Certiorari, his Petition for Certiorari should be

granted,

KoenicsporF, KusNetzKy & WyRSCH

By JaMes R. Wyrscu

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 221-0080

Attorney for Petitioner