Appendix — Katz v. United States

' INDEX TO APPENDIX

Document Date

Opinion of United States February 23, 1972 _Al-A5

Court of Appeals forthe —

Fifth Circuit

Judgment February 23, 1972 __A5-A6

Order Denying Petition for | March 8 eae A6

Rehearing

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2063

Summary Calendar*

. UNITED STATES OF AMERICA,

Plaintiff-Appellee,

? - a

HARRY M. KATZ,

Defendant-Appellant.

Appeal from the United States District Court for the

Middie District of Florida

(February 23, 1972)

Before BELL, DYER and CLARK, Circuit J udges.

BELL, Circuit Judge: This appeal is from a judg-

ment of conviction entered on a jury verdict finding Dr.

Katz guilty on five counts of an indictment, two of which

charged him with filing false statements in violation of 18

“Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casu-

alty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409.

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USCA, § 1001,' and three counts of which charged him with

filing false statements in violation of 42 USCA § 408(c).

He was acquitted on a conspiracy count and on an addi-

tional count charging a violation of § 1001. |

Dr. Amadio, another defendant, was found guilty on

two counts charging violations of § 408(c), supra. Two

employees of Pinellas General Hospital, charged in the

conspiracy count, were acquitted. Dr. Amadio received

a suspended sentence. Dr. Katz was given concurrent

sentences with two years imprisonment. This appeal is

by Dr. Katz.

The gist of the indictment was that Dr. Katz, a medi-

cal doctor, Chief of Staff of Pinellas General Hospital in

Largo, Florida, and president of the corporation which

owned the hospital, individually, and in conspiracy with

others, falsified and misrepresented claims to the Social

Security Administration for services allegedly rendered to

Medicare patients. See Health Insurance For the Aged

Act. 42 USCA, §§ 1395 et seq.

1. 18 USCA, § 1001:

“Whoever, in any matter within the jurisdiction of any

department or agency of the United States knowingly and

willfully falsifies, 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 than $10,000 or imprisoned not more than

five years, or both.”

2. 42 USCA, § 408(c):

“Whoever—

“(c) at any time makes or causes to be made any false

statement or representation of a material fact for use in de-

termining rights to payment under this subchapter;

. = —

“shall be guilty of a misdemeanor and upon conviction

thereof shall be fined not more than $1,000 or imprisoned for

more than one year, or both.”

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There was much evidence concerning the government’s

contention that needless and unauthorized hospital and

‘treatment services were rendered to patients for which

statements were submitted. There was also evidence to

support the government's claim of billings for services of

this type which were not rendered. There were acquittals

on the counts embracing these charges.

The convictions rested on counts charging that Dr.

Katz and Dr. Amadio billed for patient visits in the hos-

pital which were not made. Dr. Katz vigorously disputes

the sufficiency of the evidence in this regard. He also com-

plains of the failure of the district court, on two occasions,

to order a mistrial as a result of statements made in the

‘presence of the jury which he categorizes as prejudicial.

Finding no error, we affirm.

I.

The test by which we adjudge the sufficiency of the

evidence is the now familiar oue that the verdict of a jury

must be sustained if there -is substantial evidence, taking

the view most favorable to the government, to support it.

Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457,

- 469, 86 L. Ed. 680, 704: Strauss v. United States, 5 Cir., 1963,

311 F.2d 926, 928.

Each of the counts in question charged that Dr. Katz

billed for and received Medicare payments for hospital

visits to patients which were not made. The five counts

involve five patients, each count resting on transac-

tions having to do with a single patient. The patient

visits for which billings were made at either ten or

fifteen dollars per visit, were in the totals of 40, 18, 10,

9, and 9 visits,

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The uniform procedure established on the trial was

that Dr. Katz billed for one visit per day during each

day that a patient was confined to the hospital. The evi-

dence in support of the government’s case was in the form

of testimony of some patients and relatives of some pa-

tients that many of the visits were not made. One nurse

testified that Dr. Katz made visits to patients on two out

of three days at best. Another nurse testified that Dr.

Katz visited the approximately twenty five patients in the

hospital in a total of twenty minutes. There was other

testimony that a patient visit by a doctor was generally

noted on the nurse’s patient notes. These notes disclosed

only nine of the claimed visits. A doctor who resigned

after three weeks with the hospital, testified that he never

saw Dr. Katz make patient visits.

The evidence by way of a defense of Dr. Katz was

to the contrary. There was testimony from nurses and

office assistants that Dr. Katz made daily rounds in the

hospital which would have included all patients. His-own

testimony was to the same effect and that often he made

rounds twice daily. The testimony of some of the patients

was negative in the sense that they could have been sleep-

ing or under medication and might not have known of a

visit by Dr. Katz. There was some testimony that nurses

did not always record a visit by a doctor.

In sum, this evidence was sufficient to make a ques-

tion for the jury as to each count. The jury resolved the

issues against Dr. Katz on the five counts and there the

matter ends.

II

The other assignment of error relates to two occur-

rences during the trial which gave rise to motions for a

mistrial. We have carefully examined the substance of

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each of them by considering them in context and in light

of the corrective action taken by the district court. We

conclude that the district court did not abuse its discretion

in denying the motions for mistrial. Cf. United States v.

Pritchard, 5 Cir., 1969, 417 F.2d 327; Leonard v. United

States, 5 Cir., 1967, 386 F.2d 423.

AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1971

No. 71-2063

Summary Calendar

D. C. Docket No. 69-223-CR-T

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRY M. KATZ,

Defendant-Appellant.

Appeal from the United States District Court for the

-Middle District of Florida bao

Before BELL, DYER and CLARK, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Middle District of Florida, and was taken under submis-

sion by the Court upon the record and briefs on file, pur-

suant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

—

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the said District Court in this cause be, and the same is

hereby, affirmed.

PR EST ACE Miary ott y ee Nae eae usd

February 23, 1972 —

Issued As Mandate:

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2063

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRY M.. KATZ,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Florida

(March 17, 1972)

ON PETITION FOR REHEARING

Before BELL, DYER and CLARK, 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.

pen ary Sar cy

Nation

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(CERTIFICATE OF SERVICE

I HEREBY. CERTIFY that three true copies of the

foregoing Petition for Writ of Certiorari to the-United

Stafes Court of Appeals for the Fifth Circuit and Appen-

dix have been furnished by U.S. mail, postage prepaid to

Solicitor General, Department of J ustice, Washington, D.C.

20530; Bernard Dempsey, Jr., Esquire, Assistant United

States Attorney, Post Office Building, Tampa, Florida

33602; and to Edward W. Wadsworth, Clerk, United States

Court of Appeals, Fifth Circuit, Room 408, 400 Royal

Street, New Orleans, Louisiana 70130 on this __. day

of April, 1972.

aan eee

FOWLER, WHITE, GILLEN, HuMKEY,

KINNEY AND Boces, P.A.

Post Office Box 1438

Tampa, Florida 33601

Counsel for Petitioner

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