are based on conjecture as he has not seen the grand jury transcripts, does not know what charge or instructions were given or even which judge impaneled the grand jury. Instead, defendant's claim is that the charge made by the impaneling judge was what he describes as the standard charge given by all judges in the Eastern District of Pennsylvania and that the instructions given by the prosecutors were those generally given in this district. Defendant further contends that the charge and instructions were insufficient and therefore prejudicial to the defendant.
According to defendant, the "standard charge" given in the Eastern District consists of a mere recitation of the relevant criminal statutes and does not adequately instruct the laymen who sit on grand juries about the elements of the crimes alleged. Without such guidance, defendant argues, the grand jury cannot determine legitimately whether or not there is probable cause to indict. Defendant Simon also challenges the sufficiency of the charge and instructions on such crucial subjects as evaluating the credibility of witnesses and determining probable cause. It is defendant's contention that as a result of such failures on the part of the court and the government, the grand jury loses its independence as an investigative body and becomes a mere "rubber stamp" of the prosecutor.
I do not share defendant's view that there is a standard charge given by the judges of the Eastern District of Pennsylvania when they impanel grand juries. More importantly, however, I believe that plaintiff's argument concerning the inadequacy of the grand jury instructions is based on an incorrect premise. In effect, defendant argues that instructions to a grand jury must be as comprehensive as those given to a petit jury; however, there is no legal authority for such a theory. The functions of the petit jury and of the grand jury are clearly distinguishable. The former is charged with determining the truth of the charges while the job of the latter is to determine whether there is probable cause to believe the charges are true. See, e.g., Bracy v. United States, 435 U.S. 1301, 1302, 98 S. Ct. 1171, 1172, 55 L. Ed. 2d 489 (1978). Given this difference, the argument that the grand jury must receive as detailed instructions as the petit jury is not persuasive.
Another problem with defendant's argument is that it is based on mere speculation about what happened during the grand jury deliberations which culminated in the present indictment. This motion simply makes a general indictment of the way grand juries operate in this district. Such a broadside attack, lacking both a specific factual basis and supporting legal precedent, cannot justify the dismissal of an indictment, an extraordinary form of relief. As defendant Simon has not succeeded in rebutting the presumptive regularity of the grand jury proceedings, Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974), I will deny his motion to dismiss for inadequate and misleading grand jury instructions.
MOTION TO DISMISS BECAUSE THE GOVERNMENT HAS CHARGED DEFENDANT UNDER THE WRONG STATUTES
This motion argues that since Congress has enacted a specific statute dealing with Medicaid fraud, 42 U.S.C. § 1396h, the indictment charging Sidney Simon with seventeen counts of mail fraud, 18 U.S.C. § 1341, and three counts of making a false statement, 18 U.S.C. § 1001, for allegedly filing false and fraudulent Medicaid cost reports should be dismissed. In the Medicaid fraud context, defendant contends, the specific criminal statute, § 1396h has preempted the applicability of more general criminal statutes such as § 1341 (mail fraud) and § 1001 (false statement). Defendant further complains that by so indicting the government has been able to proceed against him on twenty counts rather than three, thus increasing the maximum possible sentence from fifteen years to one hundred years.
This theory is flawed in at least two respects. First, defendant has failed to identify either language in 42 U.S.C. § 1396h or any part of its legislative history which would support the view that congress intended the enactment of the statute to preempt the use of other federal criminal statutes in prosecution of Medicaid fraud. Without some evidence of legislative intent a court cannot presume the existence of a preemption.
Second, there is no firm rule that the government must choose to prosecute under a specific rather than a general statute.
Indeed, the general rule is "that when an act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 2204, 60 L. Ed. 2d 755 (1979). Mr. Simon neither has alleged nor shown that the decision to prosecute him under the mail fraud and false statement statutes resulted from the fact that he belonged to a class of defendants against whom the government discriminates. Rather, it is his contention that the government's decision was based on the fact that proceeding in that way would expose Mr. Simon to greater penalties. The Supreme Court, however, has rejected this argument:
The prosecutor may be influenced by the penalties available upon conviction, but this fact standing alone does not give rise to a violation of the Equal Protection or Due Process clause. Id. at 125, 99 S. Ct. at 2205.
Accordingly, I also will deny this motion to dismiss the indictment.
MOTION TO DISMISS COUNTS 18, 19 AND 20 FOR IMPROPER VENUE
The fourth motion to dismiss filed by defendant Simon urges that counts eighteen, nineteen and twenty be dismissed on the ground that venue is not proper in the Eastern District of Pennsylvania. These three counts charge violations of 18 U.S.C. § 1001;
allegedly, the defendant knowingly and wilfully made materially false statements (three false Medicaid reports) concerning matters within the jurisdiction of the Department of Health and Human Services. Citing Travis v. United States, 364 U.S. 631, 81 S. Ct. 358, 5 L. Ed. 2d 340 (1961) and Fed.R.Crim.P. 18,
defendant argues that in a § 1001 case, the crime is committed only where the false statement is filed, and venue is proper only in the place of filing. As other counts in the indictment state that the three reports were mailed to D.P.W. in Harrisburg, which is located in the Middle District of Pennsylvania, it is defendant's view that venue lies only in that district.
I do not believe that the Travis decision controls the issue of venue presented in this case. In Travis, a union officer was indicted and convicted in Colorado for making and filing false non-communist affidavits in violation of § 9(h) of the National Labor Relations Act and Section 35A of the Criminal Code (a statute which has been replaced by 18 U.S.C. § 1001). The Supreme Court reversed the conviction, finding that venue lay not in Colorado but in Washington, D.C. where the non-Communist affidavits were filed with the National Labor Relations Board.
Like the Fifth Circuit, I believe that the Travis holding is limited to the factual and legal setting of that case. In United States v. Herberman, a case which also involved alleged Medicaid fraud, the Fifth Circuit observed:
... the holding in Travis is limited since the applicable statute, Section 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 146 and further amended by the Act of Oct. 22, 1951, § 1(d), 65 Stat. 601, 602, read in conjunction with § 1001 requires that the NLRB make no investigation nor issue any complaint in the matters described in that statute unless there was on file with the NLRB a non-Communist affidavit. Section 9(h) did not require union officers to file non-Communist affidavits. Instead, the filings were conditions precedent to a union's use of the NLRB's procedures.
We believe Travis merely limits the general venue statute in instances where Congress has particularly limited jurisdiction to the time of filing.