The opinion of the court was delivered by: BRODERICK
Broderick, District Judge.
Defendant, James Bernard Johnson, was indicted for conspiracy and bribery of one James Hartman, Sr., a Blue Shield utilization representative acting on behalf of the United States Department of Health, Education and Welfare in the administration of the Medicare Program, in violation of Title 18, U.S.C. Sections 201(b)(1), (2), (3), 201(c)(2), 201(f) and 371. Upon a trial before this judge and a jury, defendant was found guilty of two (conspiracy and bribery) of the five counts on which he was charged in the indictment. The jury returned a verdict of not guilty on the remaining counts.
This matter is presently before the Court on defendant's motion for judgment of acquittal or in the alternative for a new trial.
Motion for Judgment of Acquittal
Viewing the evidence in a light most favorable to the Government, the record establishes the following:
In June of 1971 James Hartman, Sr., a Blue Shield employee engaged in Medicare investigation, had begun an investigation of Dr. Stanford Bazilian's Medicare claims. Dr. Bazilian was allegedly submitting false claims for services under the Medicare Act. In one instance, Dr. Bazilian appeared at the Ponce De Leon Nursing Home with a violinist who played for about a half hour. Upon completion of the performance, Dr. Bazilian obtained the names and Medicare numbers of the patients in the audience. Dr. Bazilian then billed each one of the patients under the Medicare Act for psychiatric treatment. By July 28, 1971, Hartman had completed investigating four or five complaints that had been made against Dr. Bazilian.
On July 28, 1971, Hartman received a telephone call from the defendant, James Bernard Johnson, a fellow employee also engaged in Medicare investigation work at Blue Shield. Johnson stated that Dr. Bazilian was presently visiting him regarding problems which had arisen as a result of Hartman's investigation. Hartman told Johnson about his investigation. He also told Johnson that his investigation had not yet been reported to his superiors. Hartman had it within his power to suppress the results of his investigation at the time of this phone call. Dr. Bazilian came on the line and cried:
I am Dr. Bazilian and I'd appreciate anything you could do. Could you help me? Help me, anything. Please, thousands.
Hartman asked Johnson what he wanted to do, and Johnson replied, "Don't worry about how we are going to do it, but we will just be able to do it." Hartman reported the Johnson-Bazilian telephone call promptly to his superiors. It was decided that Hartman should play along to see what would develop. On August 4, 1971, Dr. Bazilian, Johnson and Hartman met at Johnson's house with Hartman's investigation reports and Bazilian's records. Johnson instructed Hartman to arrive early so that they could privately review Hartman's reports and get together on a price to present to the doctor. Later, at this meeting, Johnson made a demand of $10,000. Subsequent negotiations reduced the $10,000 demand to $5,000. On the evening of defendant's arrest, Dr. Bazilian had given a $1,000 part-payment to Dr. William King, who, in turn, turned over the $1,000 to Johnson. United States v. King, Crim. No. 72-417 (E.D. Pa. July 9, 1973).
Defendant contends that the evidence adduced at trial may have established him guilty of extortion but does not support a conviction for conspiracy and bribery as charged in the indictment. The Defendant contends that Dr. Bazilian paid $1,000 out of fear for his life, predicated upon statements made by Johnson, to wit, that if anything went wrong he (Johnson) could "buy death for $100,000"; that one phone call to a certain friend would buy "broken arms or death"; and that "if anyone squeals he could buy death."
Defendant submits no other argument in support of his motion for judgment of acquittal. Viewed in a light most favorable to the Government, there is abundant evidence upon which the jury could find beyond a reasonable doubt that Johnson conspired to and did attempt to bribe a Blue Shield utilization representative acting on behalf of the United States ...