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UNITED STATES v. CORCORAN

December 22, 1993

UNITED STATES OF AMERICA
v.
JOHN B. CORCORAN, ET AL., Defendants



The opinion of the court was delivered by: RICHARD P. CONABOY

 On April 24, 1992, after a lengthy trial, a jury verdict was entered finding the Defendants guilty of Count I, Medicare Fraud, in violation of Title 42 U.S.C. § 1320a-7b(a); Count IV, Medicare Fraud, in violation of Title 42 U.S.C. § 1320a-7b(a) and Title 18 U.S.C. § 2; and Count V, Medicare Fraud, in violation of Title 42 U.S.C. § 1320a-7b(a) and Title 18 U.S.C. § 2. The Defendants were found not guilty on Count II, Conspiracy to Commit Medicare Fraud, in violation of Title 18 U.S.C. § 371 and Count III, Medicare Fraud, in violation of Title 42 U.S.C. § 1320a-7(b)(2)(A) and Title 18 U.S.C. § 2.

 Thereafter, the Defendants filed a Motion for Judgment of Acquittal and a Motion for a New Trial. These Motions were denied and the Appellants filed an appeal on September 8, 1992.

 Because of the lengthy illness of one of the court reporters who took the testimony during part of the trial, the complete transcript in this case has not been filed and thus the appeal has not been heard.

 Federal Rule of Appellate Procedure 10(c) provides as follows:

 
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten days after service. Thereupon, the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the Clerk of the District Court in the record on appeal.

 This Court directed the parties to file a statement of the evidence in accordance with Rule 10(c). On March 11, 1993, the appellant filed a "statement pursuant to Rule 10(c), Fed.R.App.P.". In that submission, however, the appellant indicated that it was "impossible for counsel to reconstruct thirteen days of testimony from a complex medicare fraud trial, based on his recollection". Thereafter, on March 17, 1993, the Government filed its submission pursuant to Rule 10(c). The Government in its submission, included a copy of a memorandum it had submitted in opposition to the Defendant's Motion for Bail Pending Appeal. In that Motion, the Government included a lengthy and substantial "Statement of the Case", which is essentially a reconstruction of the testimony. The Government seeks to have us accept this for a proposed statement of the evidence pursuant to Fed.R.App.P.10(c).

 As mentioned earlier, because of the lengthy illness of one of the reporters who served in the course of the trial, some of the testimony has not been transcribed. There have been submissions of various parts of the testimony which were transcribed by other reporters. Rather than delay this matter any longer, it appears most appropriate to proceed pursuant to Rule 10(c).

 We have reviewed the submission made by the Government and find the Government's Statement of the Evidence to be in compliance with Rule 10(c) and we will, therefore, adopt that Statement since none other has been submitted and since it appears to be an adequate recollection of the testimony in the case.

 Under the circumstances, the following Order is entered.

 Richard P. Conaboy

 United States District Judge

 DATE: 12/22/93

 ORDER

 NOW, THIS 22nd DAY OF DECEMBER, 1993, in view of the foregoing, the Government's Proposed Statement of the Evidence pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure, is hereby approved and the Clerk of Court is directed to include it in the record of this case and forward it to the Appellate Court for proper inclusion in the appellate record. *fn1"

 Richard P. Conaboy

 United States District Judge

 ATTACHMENT

 BKW: gpw

 IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 UNITED STATES of AMERICA

 vs.

 JOHN B. CORCORAN, et al.

 Defendants

 CRIMINAL NO. 3:CR-91-065

 THIRD CIRCUIT NO. 92-7486

 (CONABOY, C.J.)

 THE GOVERNMENT'S PROPOSED STATEMENT

 OF THE EVIDENCE PURSUANT TO RULE 10(c)

 OF THE FEDERAL RULES OF APPELLATE PROCEDURE

 INTRODUCTION

 On September 8, 1992, JOHN CORCORAN and several health care related corporations over which he presided, filed a Notice of Appeal from multiple convictions of Medicare fraud.

 In view of the fact that transcripts of the proceedings before the District Court are not yet available, on March 1, 1993, the Clerk for the Court of Appeals directed the parties to proceed in accordance with Rule 10(c) of the Federal Rules of Appellate Procedure. *fn1"

 On March 15, 1993, counsel was served by CORCORAN with a statement that simply fails to comply with the provisions of Rule 10(c) of the Federal Rules of Appellate Procedure. For the reasons which follow, the Government submits its proposed Statement of the Evidence.

 DISCUSSION

 In his Motion for Bail pending Appeal, CORCORAN identified the following issues to be presented on Appeal: (1) the sufficiency of the evidence on all counts of conviction; and (2) alleged trial errors which include the denial of his Motion to Dismiss, the preclusion of certain defense exhibits, the admission of certain testimony by Weinstein, the denial of a good faith instruction and a claim of inconsistent verdicts.

 To the extent that a statement of the evidence is necessary to resolve at least some of the issues raised by CORCORAN, the Government respectfully submits a copy of its Memorandum in Opposition to Corcoran's Motion for Bail Pending Appeal. That Memorandum sets forth the facts of the prosecution as recited in the Presentence Report as well as counsel's recollection of those matters which CORCORAN alleges to constitute trial error.

 CONCLUSION

 For the reasons noted, it is respectfully submitted that the Court approve the Government's proposed statement of the evidence.

 Respectfully submitted

 JAMES J. WEST

 United States Attorney

 BARBARA KOSIK WHITAKER

 Assistant U.S. Attorney

 309 Federal Building

 Scranton, PA 18501

 Dated: March 17, 1993

 IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 UNITED STATES of AMERICA

 vs.

 JOHN B. CORCORAN, et al.

 Defendants

 CRIMINAL NO. 3:CR-91-065

 THIRD CIRCUIT NO. 92-7486

 (CONABOY, C.J.)

 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 March 17, 1993 she served copies of the attached:

 THE GOVERNMENT'S PROPOSED STATEMENT

 OF THE EVIDENCE PURSUANT TO RULE 10(c)

 OF THE FEDERAL RULES OF APPELLATE PROCEDURE

 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 ...


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