Appeal from the United States District Court for the Western District of Pennsylvania.
Rosenn and Hunter, Circuit Judges, and Hannum, District Judge.
The defendant, a physician, was tried to a jury and convicted of ten counts of an indictment for fraudulently submitting false Medicare claims for payment. We affirm.
Each count of the indictment upon which the defendant was convicted was in the following form:
On or about [date], at Carnegie, in the County of Allegheny, in the Western District of Pennsylvania, defendant William P. Catena, M.D., presented and caused to be presented to an agency of the United States under the Health Insurance for the Aged Act, a claim against the United States for medical services supplied and rendered to [name and address of patient] for [number] house calls, on [dates of treatment], pursuant to the provisions of the Health Insurance for the Aged Act, knowing the said claim to be false, fictitious, and fraudulent in that no medical services were supplied and rendered by William P. Catena, M.D., to the said [name of patient] on said dates.
In violation of Section 287 of Title 18, United States Code.
We first consider the question of whether the evidence most favorable to the Government shows acts which constitute violations of the statute under which the defendant was indicted and convicted.*fn1
18 U.S.C. § 287 makes illegal the fraudulent presentation of claims "to any person or officer in the civil . . . service of the United States, or to any department or agency thereof . . . ."*fn2 The evidence at trial indicated, however, that the defendant had submitted the allegedly fraudulent claims to Pennsylvania Blue Shield (Blue Shield) and to the Travelers Insurance Company (Travelers), rather than directly to any federal official or federal agency.
The Government tried the case on the theory that Blue Shield and Travelers were agencies of the United States within the meaning of § 287. The Government contended that the defendant, by submitting false claims to these private insurance carriers, had submitted false claims to agencies of the United States in violation of § 287. In support of this theory, the Government introduced at trial the contracts between federal agencies and each of the insurance carriers.*fn3 These contracts provided that the carriers would process and pay Medicare claims, in return for federal reimbursement for claims paid and for administration costs. The district court, in its opinion denying the defendant's post-trial motions, accepted the Government's theory that these reimbursement provisions made the insurance carriers agencies of the United States.
We have considerable doubt that Blue Shield and Travelers may be considered "agencies" of the United States for purposes of the criminal prohibition of § 287, regardless of their contractual arrangements with the United States. 18 U.S.C. § 6 states that for purposes of Title 18,
the term "agency" includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.
The final phrase of this definition indicates that the prior terms were intended as the outer limits of the definition of agency, and, given the criminal nature of the statute, it would be difficult to contend that private organizations with reimbursement contracts ...