June 15, 1989, a judicially approved search warrant executed at the offices of House Calls, Incorporated resulted in the seizure of many original CMNs and Form 485s.
During the initial trial of the mail fraud offenses, counsel learned that CORCORAN was in possession of other subpoenaed documents. On repeated occasions in preparation for the second trial, counsel renewed her request for any and all additional subpoenaed documents. Counsel for CORCORAN advised that all subpoenaed documents in CORCORAN's Possession had been produced.
Counsel seriously doubted the veracity of CORCORAN's representation and informed the Court, during numerous pre-trial conferences, that the Government would move to preclude use of any subpoenaed document which had not been produced. Consequently, the Court directed CORCORAN to disclose any and all subpoenaed documents which had not been produced. CORCORAN did not produce a single document.
At various times during the trial, CORCORAN had the audacity to attempt to cross-examine witnesses with subpoenaed original documents which had not been produced. The Court properly precluded use of these documents.
CORCORAN's deliberate conduct was a willful contempt and an obstruction of justice. CORCORAN intentionally defied the authority of the Grand Jury as well as the Court. Preclusion was a wholly appropriate exercise of the District Court's duty to enforce the orderly administration of justice. See e.g., Rule 16(d)(2), Federal Rules of Criminal Procedure.
It must be noted that the proffered Exhibits which the Court precluded, contrary to CORCORAN's assertion, do not reflect the physicians' authorized testing. As previously noted, no physician authorized the over 800 purported tests for which CORCORAN billed.
(iii). Testimony of Debbie Weinstein
Debbie Weinstein testified, in part, that the cost reports for 1987, 1988 and 1989 were all settled and that CORCORAN had no pending administrative appeals. On cross-examination, Weinstein was asked if she would be surprised to learn that CORCORAN, during a recess had, as the result of a telephone call, been advised that the cost report for 1987 was scheduled for administrative review in August, 1992. Weinstein replied that, indeed, she would be surprised.
When Weinstein was recalled as a witness by the prosecution, she was asked if she recalled the concluding exchange with counsel for CORCORAN regarding the 1987 cost report. In an attempt to establish that CORCORAN had misrepresented the administrative status of that cost report, Weinstein was asked what, if anything, she did as the result of that exchange. When Weinstein began to testify that she consulted the National Review Board, counsel for CORCORAN objected on the ground of hearsay and the District Court sustained the objection. Had Weinstein's answer been allowed, the jury would have learned that no hearing was scheduled because CORCORAN had refused all certified correspondence from the Board. During trial, CORCORAN telephoned Mr. Bater and sought to accept the previously returned correspondence by asking Mr. Bater to fax a copy of the letter to the Courthouse.
Clearly, CORCORAN's assignment of error in the admission of testimony that was precluded is frivolous.
(iv). Denial of Good Faith Instruction
At the conclusion of the evidence, counsel for CORCORAN, terming the proposed instructions filed by the Government prior to trial a fair statement of the law, declined the opportunity to present any proposed instructions.
At the conclusion of the District Court's charge, counsel for CORCORAN requested a good faith instruction. In view of the District Court's adequate charge that the Government was required to prove that CORCORAN acted willfully and knowingly in committing the offenses, the District Court properly declined the requested instruction. See United States v. Gross, 961 F.2d 1097, 1102 (3d Cir. 1992).
(v). Inconsistent Verdicts
CORCORAN alleges that the verdicts of conviction are inconsistent with the verdicts of acquittal. Specifically, CORCORAN asserts that his conviction for Medicare fraud with respect to the cost reports (Count 1) is inconsistent with the acquittal on the conspiracy and substantive offenses involving the illegal renumeration to David Warke (Counts 2 and 3) in view CORCORAN's inclusion of Warke's salary as a reimbursable expense in the cost reports. CORCORAN deliberately distorts the evidence.
Count 1 charged CORCORAN with making false representations in the cost reports that the administrative expenses included in those reports were solely those of House Calls, Incorporated, the sole certified provider when, in fact, they included the expenses of all of CORCORAN's corporations.
Counts 2 and 3 involved a scheme by CORCORAN to pay Warke a kickback (an illegal renumeration) for referring discharged patients to the care of House Calls, Incorporated. To augment proof of CORCORAN's fraudulent intent, the evidence established that CORCORAN disguised the illegal renumeration as a salary payment to Warke and created fictitious documents to deceive auditors from discovering the illegal renumeration.
Theoretically, CORCORAN could have been charged with the additional fraud with respect to inclusion of Warke's purported salary as a reimbursable expense in the cost reports. He was not; consequently the verdicts are not inconsistent.
For the reasons noted in this Memorandum, CORCORAN's appeal is solely for the purpose of delay and raises no significant question of law in fact. CORCORAN's conviction is more likely than any other event to be affirmed. Accordingly, CORCORAN has not demonstrated entitlement to bail pending appeal.
JAMES J. WEST
United States Attorney
BARBARA KOSIK WHITAKER
Assistant U.S. Attorney
309 Federal Building
Scranton, PA 18501
Dated: October 29, 1992
CERTIFICATE OF SERVICE BY MAIL
The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania, and is a person of such age and discretion as to be competent to serve papers.
That on October 29, 1992 she served copies of the attached:
The Government's Memorandum in Opposition to
CORCORAN's Motion for Bail Pending Appeal
by placing said copy in a postpaid envelope addressed to the person hereinafter named, at the place and address stated below, which is the last known address, and by depositing said envelope and contents in the United States Mail at Scranton, Pennsylvania.
Joseph Sklarosky, Esquire
1575 Wyoming Avenue
Forty Fort, PA 18704