United States v. Universal Rehab ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-11-1999
    USA v. Universal Rehab
    Precedential or Non-Precedential:
    Docket 97-1412
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    Recommended Citation
    "USA v. Universal Rehab" (1999). 1999 Decisions. Paper 38.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/38
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    Filed February 11, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 97-1412
    UNITED STATES OF AMERICA,
    Appellant
    v.
    UNIVERSAL REHABILITATION SERVICES
    (PA), INC.,
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal Action No. 94-cr-00147-1
    District Judge: Hon. Robert F. Kelly
    Nos. 97-1413 & 97-1467
    UNITED STATES OF AMERICA
    v.
    ATTILA HORVATH,
    Appellant/Cross-Appellee
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal Action No. 94-cr-00147-2
    District Judge: Hon. Robert F. Kelly
    Nos. 97-1414 & 97-1468
    UNITED STATES OF AMERICA
    v.
    RICHARD J. LUKESH,
    Appellant/Cross-Appellee
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal Action No. 94-cr-00147-3
    District Judge: Hon. Robert F. Kelly
    Argued: May 22, 1998
    Before: ROTH, MCKEE, and GARTH, Circuit Judges
    (Opinion filed February 11, 1999)
    Michael R. Stiles
    United States Attorney
    Walter S. Batty, Jr.
    Assistant United States Attorney
    Chief of Appeals
    Valli F. Baldassano (Argued)
    Suzanne B. Ercole (Argued)
    Assistant United States Attorneys
    Suite 1250
    615 Chestnut Street
    Philadelphia, PA 19106
    Attorneys for Appellee/
    and Cross-Appellant
    2
    Thomas Colas Carroll, Esquire
    (Argued)
    Carroll & Cedrone
    The Curtis Center, Suite 750
    Independence Square West
    Philadelphia, PA 19106
    Attorney for Appellants/
    and Cross-Appellees
    OPINION OF THE COURT
    ROTH, Circuit Judge:
    Defendants, Universal Rehabilitation Services, Inc.
    (Universal), Attila Horvath, and Richard Lukesh, were
    charged with mail fraud and false claims in a 39 count
    indictment. The government alleged that they conducted a
    Medicare fraud scheme over a three-year period. The jury
    convicted the defendants only on a mail fraud count, Count
    One, the earliest count of the indictment. The government
    now argues that evidence of illegal activity, which occurred
    after the date of the offense in Count One but still within
    the three-year period of the originally charged scheme, can
    be used to sustain the verdict of guilty on Count One.
    In this appeal, we must determine to what extent post-
    offense evidence can be considered to support the
    conviction on Count One. We must also decide whether the
    District Court properly admitted into evidence the guilty
    pleas of two testifying mid-level managers after defendants
    had represented to the court that they would not, on cross
    examination, challenge the credibility of these witnesses or
    otherwise make the pleas admissible.
    I. Facts
    The corporate defendant, Universal, provided
    rehabilitative services, including speech therapy, to
    Medicare patients in nursing homes. The patients served
    were primarily the elderly. Universal submitted claims for
    the patients it treated to Independence Blue Cross (IBC),
    which administered Medicare coverage. IBC would then
    submit claims to Medicare.
    3
    Medicare is authorized to reimburse speech therapy
    treatments that are both medically reasonable and
    necessary. Pursuant to 42 U.S.C. S 1395 et seq. and its
    implementing regulations, manuals are published that
    provide Medicare coverage guidelines. These include four
    criteria to determine if the treatment is medically
    reasonable and necessary, and therefore reimbursable: 1)
    the therapy must be safe and effective for treatment of the
    patient's condition; 2) the services provided to the patient
    must be of a level of complexity that the services can only
    be provided by a certified speech pathologist; 3) where
    restorative treatment is ordered, there must be an
    expectation that the services being provided to the patient
    will bring about significant improvement in a reasonable
    period of time; and 4) the frequency and duration of
    services must be reasonable and necessary for the patient's
    condition.
    Universal therapists would evaluate patients in accord
    with the physician's orders and prepare a plan of
    treatment. The evaluation and plan of treatment must state
    whether the treatment is in fact necessary. The evaluation
    and plan is then approved (signed) by the doctor. As
    treatment progresses, speech therapists create progress
    notes. If treatment is to continue, Medicare requires that
    the need for it be certified every 30 days by a medical
    doctor. Medicare will continue to pay for speech therapy as
    long as patients are making progress toward the goals
    established in the plan of treatment. The doctor executes
    the 30 day certification by signing a Medical Information
    Form (MIF), which contains a summary, primarily from the
    therapists' progress notes, of the previous 30 days of
    treatment, as well as a recommended course of treatment
    for next 30 days.
    Universal submitted electronic Medicare bills to IBC.
    Essentially, IBC would review Universal's reimbursement
    claims. Universal and IBC often disagreed about the
    interpretation of Medicare guidelines and the propriety of
    the bills submitted. At some point, IBC began requesting
    that Universal supply the following documentation to
    support the electronic bills: a) the evaluation and plan of
    treatment, b) the progress notes, and c) the MIFs.
    4
    Claims that were rejected would be "rewritten" by
    Universal staff. Depending on the reason for rejection, the
    "rewriting" to obtain reimbursement might be fraudulent.
    For example, if information was missing from a form,
    Universal personnel would "rewrite" the form to include the
    missing information. Other "rewriting," however, was not as
    innocuous. For example, a mid-level corporate employee
    pled guilty to mail fraud for falsifying the performance
    record of a patient on certain speech therapy tests to create
    the "appearance" that the patient had made progress,
    thereby rendering the services reimbursable. In fact, the
    patient was not making progress and the services should
    not have been reimbursable. Another type of "rewriting"
    consisted of changing evaluations and MIFs after the doctor
    had signed them. The doctor's signature would then be
    taped and xeroxed onto the "rewritten" forms.
    The government alleged that a mail fraud scheme
    occurred from the summer of 1988 through September 21,
    1991, during which 1) evaluations and plans of treatment
    were rewritten to create the "appearance" of patients who
    could properly receive reimbursable therapy; 2) MIFs
    containing physician's certifications were falsified, that is,
    altered after the doctor originally signed them and the
    signature photocopied back on; and 3) progress notes were
    altered to conform with the falsified evaluation and MIFs. A
    grand jury indicted Attila Horvath, Vice President and
    Director of Finance at Universal; Richard Lukesh, Director
    of Operations at Universal; Universal, the corporation itself;
    and three other Universal employees for mail fraud, in
    violation of 18 U.S.C. S 1341 (Counts One through
    Seventeen, charging 17 mailings in furtherance of the
    fraud), and false claims, in violation of 18 U.S.C.S 287
    (Counts Eighteen through Thirty-nine).
    After a jury trial, Horvath, Lukesh and Universal were
    convicted on Count One and acquitted on each of the other
    38 counts, representing 16 other mailings and false claims
    that arose from the practice of falsifying speech therapy
    documents. Count One charged that, in furtherance of the
    scheme, Blue Cross mailed a check, dated May 10, 1989, to
    Universal. The check represented a claim for treatment
    5
    rendered to a patient, Mildred Hynds, from February 15 to
    28, 1989.1
    Before trial, defendants had moved in limine to prevent
    the government from presenting evidence that government
    witnesses Judy Blum Bonjo and Penny Martin, employees
    of Universal, had pled guilty to mail fraud.2 Defendants
    promised that they would not challenge these witnesses'
    credibility on cross-examination. Defendants argued that
    the guilty pleas were not relevant under Rule 401 of the
    Federal Rules of Evidence and, if relevant, were more
    prejudicial than probative under Rule 403. The District
    Court denied the motion in limine. Defendants appeal this
    evidentiary ruling.
    After the verdict, defendants moved for a Fed. R. Crim. P.
    Rule 29 judgment of acquittal, arguing that there was
    insufficient evidence to support the jury's verdict. The court
    denied the motion. Defendants appeal this ruling as well.3
    The District Court had subject matter jurisdiction over
    federal indictments, charging violations of the federal
    criminal code. We have appellate jurisdiction over
    defendants' direct appeal from a judgment of conviction. 28
    U.S.C. S 1291.
    II. Sufficiency of the Evidence
    Immediately after the jury returned its verdict of
    conviction on Count One, defendants moved for acquittal
    under Rule 29, arguing that there was insufficient evidence
    _________________________________________________________________
    1. Counts Two, Three, and Four also involved the mailing of checks that
    pertained to Mildred Hynds. Count Twenty-seven charged a false claim
    arising out of a bill that was submitted for the treatment of Hynds.
    2. Blum Bonjo testified that she had pled guilty to Count One of the
    indictment before the jury. App. 2190. Martin was charged in a separate
    indictment and testified that she had pled guilty to one count of mail
    fraud.
    3. The government also filed a cross-appeal, claiming that the District
    Court erred at sentencing in refusing to consider the fraud loss from the
    "virtually identical" conduct charged in the other 38 acquitted counts as
    relevant conduct under Section 1B1.3 of the Sentencing Guidelines.
    Because of our holding on defendants' appeal, we do not reach the
    government's cross-appeal.
    6
    to sustain the verdict. The District Court denied the motion
    as to all three defendants. United States v. Universal
    Rehabilitation Services, Inc., Attila Horvath, and Richard
    Lukesh, No. 94-147, E.D.Pa., slip op. 3-12, May 31, 1996.
    We review de novo the district court's denial of a post-
    verdict judgment of acquittal. United States v. Iafelice, 
    978 F.2d 92
     (3d. Cir. 1992).
    We apply the same legal standard as the District Court.
    We must view the evidence in the light most favorable to
    the jury verdict and presume that the jury properly
    evaluated the credibility of the witnesses, found the facts,
    and drew rational inferences. 
    Id. at 94
    . In that light, we
    "must affirm the convictions if a rational trier of fact could
    have found defendant[s] guilty beyond a reasonable doubt,
    and the verdict is supported by substantial evidence." U.S.
    v. Coyle, 
    63 F.3d 1239
    , 1243 (3d Cir. 1995).
    "The mail fraud statute, 18 U.S.C. S 1341, proscribes any
    scheme or artifice to defraud in which the defendant
    participated with the specific intent to defraud and in
    which the mails were used ``in furtherance of the fraudulent
    scheme.' " Coyle, 
    63 F.3d at 1243
    ."Proof of specific intent
    . . . may be found from a material misstatement of fact
    made with reckless disregard for the truth." United States
    v. Hannigan, 
    27 F.3d 890
    , 892 n.1 (3d Cir. 1994). As such,
    the government must prove that a scheme to defraud
    existed, that each defendant participated in that scheme,
    and that each participated with specific intent to defraud.
    United States v. Pflaumer, 
    774 F.2d 1224
    , 1233 (3d Cir.
    1985).
    It follows from the above that an individual must join a
    scheme while the scheme exists; that is, that the scheme
    and a defendant's knowing participation in it must occur
    over the same period of time. In this case, the government
    alleged in the thirty-nine count indictment that a scheme
    took place from the summer of 1988 through September
    21, 1991. However, the jury convicted the defendants only
    on Count One, the May 10, 1989, mailing. The jury
    acquitted the defendants on the remaining 38 counts,
    relating to mailings and false claims after May 10, 1989.
    Thus, we must define the period of time which constitutes
    the scheme for which the jury convicted the defendants.
    7
    Because of the acquittals on Counts Two through Thirty-
    nine, the scheme could not have run through the entire
    period which the government charged in the indictment.
    Nevertheless, May 10, 1989, the date of the offense charged
    in Count One, is not necessarily the evidentiary cut-off. We
    must determine whether events that took place after May
    10, 1989, up until September 1991, can be used to support
    the jury verdict on the May 10 mailing.
    The government argues that the scheme is not bound in
    time by the May 10, 1989, mailing -- that the Hynds check,
    the subject of Count One, was a mailing in furtherance of
    a broad three year scheme. However, as we made clear in
    United States v. Pflaumer, 
    774 F.2d 1224
     (3d Cir. 1985), in
    the context of a conspiracy to commit mail fraud in
    violation of 18 U.S.C. S 371, the conspiracy at issue "was a
    conspiracy to violate the mail fraud statute, which end[s]
    with the last mailing." 
    Id. at 1232
    . As such, willful
    membership in the scheme must have existed on or before
    May 10, 1989, the date of the mailing for the count of
    conviction. There is no concept of retroactive joinder in mail
    fraud schemes after the last culpable mailing. Moreover,
    because the defendants were acquitted of the later-
    occurring mail fraud counts, those mailings cannot be
    considered to be "culpable mailings."
    Furthermore, the fact that Pflaumer concerned conspiracy
    to commit mail fraud, not just mail fraud, is a distinction
    without a difference under the circumstances of this case.
    A conspiracy to violate a substantive prohibition in a
    federal statute ends when the unlawful object of the
    conspiracy has been accomplished. Grunewald v. United
    States, 
    353 U.S. 391
    , 406-15 (1957). In Pflaumer, the object
    of the conspiracy was the use of the mails to effectuate a
    scheme to defraud states of tax revenues. Although the
    scheme to defraud the states may have continued past the
    last mailing, the use of the mails to effectuate the scheme
    ceased upon the last mailing. 774 F.2d at 1232.
    As was the situation in Pflaumer, the object of the
    scheme here was mail fraud, the mailing was in
    furtherance of the scheme, and the mailing marks the end
    of the scheme. To be sure, subsequent words and deeds
    may bear on whether a person was participating and
    8
    participating willfully in a scheme. For example, a
    statement by a defendant after the end of the scheme may
    make clear that he was in fact willfully participating in, or
    had knowledge of, the scheme before it ended. There must,
    however, be substantial evidence of participation before the
    mailing. United States v. Pearlstein, 
    576 F.2d 531
    , 537 (3d
    Cir. 1978).
    A. Evidence That a Crime Was Committed
    The question then is whether there is sufficient evidence
    of events prior to the May 10, 1989, mailing to sustain the
    jury verdict? To sustain the jury verdict, in addition to
    demonstrating that each defendant willfully joined the mail
    fraud scheme, the government must produce sufficient
    evidence that a mail fraud scheme existed. This means that
    there must be sufficient evidence that the Hynds mailing
    was in furtherance of a mail fraud scheme, i.e. , that the
    services to Mildred Hynds for which defendants billed and
    were paid $1,411 by IBC's check # 0249905, dated May 10,
    1989, were unauthorized under Medicare coverage
    guidelines and that defendants' misrepresentation of these
    services was part of the scheme to defraud.
    Defendants argue that there was no evidence that a
    crime was in fact committed. They argue that the evidence
    indicates that the treatment rendered to Hynds was
    authorized by her physician as medically necessary and
    appropriate. The record reveals a different story. Carol
    Pomilio, a speech therapist at Universal, testified that
    Medicare initially rejected the Hynds billing. In order to
    obtain reimbursement, the February 15, 1989, evaluation
    and plan of treatment, which the doctor had signed, was
    destroyed and replaced by one with an altered evaluation
    that did not accurately reflect Hynds' treatment plan. The
    doctor's signature was then xeroxed onto the altered
    document. As documentary support for this treatment plan,
    Pomilio lowered the scoring percentages on the progress
    notes. The fact that the treatment was originally ordered by
    a doctor does not neutralize the fraud; i.e., that the billing
    for the continued treatment, based on falsified progress
    notes and a xeroxed doctor's signature, was fraudulent.
    There is no doubt that, as defendants argue, the
    rewriting of or resubmission of rewritten documents is not
    9
    per se fraudulent. In fact, Julia Blum Bonjo, another
    Universal speech therapist, testified that a large part of her
    job consisted of legitimate rewriting or redrafting of
    documents. However, when the rewriting consisted of
    misrepresentation of a patient's test results with the intent
    of obtaining otherwise unauthorized reimbursement, there
    is sufficient evidence to find an underlying scheme to
    defraud, which is required as an element of the offense of
    mail fraud.
    The next question we must consider is whether there is
    sufficient evidence that each of the defendants willfully
    joined the scheme to commit mail fraud. United States v.
    Pearlstein, 
    576 F.2d at 537
    . In this connection, the
    government must prove that each defendant willfully joined
    the scheme before May 10, 1989, the date of the last
    mailing in furtherance of the scheme. It must show that
    each defendant possessed the requisite intent to defraud.
    Proof is required that "defendants must either have devised
    the fraudulent scheme themselves, or have wilfully
    participated in it with knowledge of its fraudulent intent."
    
    Id.
     A defendant need not personally be involved with the
    actual mailing to be liable so long as there was knowledge
    that the use of mails would follow in the ordinary course of
    business or that such use can reasonably be foreseen.
    United States v. Sturm, 
    671 F.2d 749
    , 751 (3d Cir. 1982);
    United States v. Funt, 
    896 F.2d 1288
    , 1294 (11th Cir. 1990).4
    B. Evidence Linking Defendant Horvath to the Crime
    We will first examine the evidence against defendant
    Attila Horvath up to and through the May 10, 1989, mailing
    of the count of conviction. The government must prove that
    Horvath willfully joined the scheme before that date. The
    District Court enumerated specific record references to
    Horvath's knowledge and willful participation in the scheme
    upon which the jury could have relied. However, once we
    _________________________________________________________________
    4. Defendants also contend in their appeals that there was insufficient
    evidence of the use of the mails. We have reviewed the evidence of the
    business practices and of specific reference to the correspondence in
    question, and we will affirm the District Court on this point. See United
    States v. Burks, 
    867 F.2d 795
     (3d Cir. 1989); United States v. Hannigan,
    
    27 F.3d 890
     (3d Cir. 1994).
    10
    eliminate the post-May 1989 evidence, there is little of any
    significance.
    (1) There is the testimony of Wendy Gold, who was
    Director of Speech Therapy before Penny Martin. Gold
    testified that on April 28, 1989, she discussed with Horvath
    and Lukesh the problem of over-utilization, i.e., treating
    patients unnecessarily to increase production. Moreover,
    Gold discussed with Horvath the fact that many of the
    patients in the nursing homes with which Universal
    contracted would not qualify for Medicare therapy. At this
    meeting and in subsequent memos, dated May 8 and May
    15, 1989, there was extensive discussion about ways to
    increase productivity. There was, however, no evidence that
    anyone suggested falsification in billing. Gold took the
    position that asking therapists to do what Universal wanted
    done in order to increase production would not be ethical.
    Gold subsequently quit due to pressure to increase
    production.
    (2) Judy Blum Bonjo, Director of Utilization Review,
    testified that her department was directed by Horvath in an
    April 15, 1991, memo to bill the "risk patients" in order to
    reduce documentation backlogs. This evidence is not
    relevant, however, because it refers to an event more than
    2 years after the Count One mailing. Additionally, Horvath
    argues that the memo refers to billing prior to receipt of all
    the paperwork, not to falsifying information.
    Blum Bonjo also testified that Horvath directed her to bill
    without physician signatures and without some requisite
    documentation in place. This evidence is problematic
    because there is no reference to its date. Horvath asserts,
    and the Government does not controvert, that this
    reference is to the same April 15, 1991, memo and for that
    reason occurred after the Count One mailing.
    (3) Penny Martin, Director of Speech Therapy after Gold,
    testified that Horvath wanted patient documentation
    billable no matter what had to be done. Martin explained
    that Horvath ran weekly meetings and closely monitored
    the results of speech therapy practices at Universal.
    Furthermore, Martin explained that between 1989 and
    1991 Blum Bonjo met with Lukesh on a daily basis and
    11
    with Horvath and Lukesh on a weekly basis. Once again,
    Horvath asserts, and the Government does not controvert,
    that Martin's testimony refers to her observations of what
    Horvath told her in June 1990, one year after the Count
    One mailing. In fact, Martin did not join Universal until
    August 1989, several months after the Count One mailing.
    Examined as a whole, the record is extremely sparse as
    to Horvath's willful participation in the scheme before May
    10, 1989. The only evidence that clearly concerns pre-
    mailing events is the Gold testimony. This testimony,
    however, only establishes pressure to bill, not pressure to
    bill falsely. Although we hesitate to overturn a jury verdict,
    we conclude in this instance that, after we exclude the
    post-mailing evidence, upon which the jury likely relied,
    there is little to support the jury's verdict. As such, we hold
    that the District Court erred in denying Horvath's motion
    for judgment of acquittal. We will remand the case to the
    District Court to enter a judgment of acquittal for Horvath.
    C. Evidence Linking Defendant Lukesh to Crime
    Contrary to Horvath, the relevant evidence against
    Lukesh is stronger.
    1) Lukesh admitted he was aware that documents were
    being rewritten in order to "augment" the billing record. A
    memo, dated Oct. 28, 1988, directed therapists "to be
    creative" in getting Medicare reimbursements. On cross-
    examination, Lukesh testified that one such "creative way"
    to get reimbursed was to rewrite the document to change
    the patient profile. Defendants point out that no witness
    ever testified to interpreting the term "creative" to imply
    falsification. Nevertheless, the jury could infer Lukesh's
    state of mind from his choice of words.
    2) Lukesh authored a document in the spring of 1988
    known as the "billing hold" which became an administrative
    measure at Universal. This directive was designed to gather
    information on what billing documents were being held up
    and for what reason. It was provided to the speech
    therapists, often with specific directions on how to alter
    speech therapy documents. While it is possible that Lukesh
    did not intend that the rewriting of documents, pursuant to
    this directive, would be fraudulent (Lukesh testified that he
    12
    believed documents were merely being corrected or
    augmented), the jury was certainly entitled to infer that
    Lukesh had knowledge of the fraudulent billing practices.
    3) Lukesh was present at an April, 1989, meeting where
    Blue Cross alerted Universal that documents "were being
    improperly altered and inappropriate patients were being
    treated." Lukesh's contention as to the billing hold directive
    described above, that he believed documents were merely
    being corrected or augmented, is belied by this meeting
    with Blue Cross. The information gathered by Lukesh at the
    meeting, together with his authoring of the directive, lead to
    the permissible inference that Lukesh knew, well before the
    Count One mailing, that his employees were falsifying
    documents.
    4) Karen Lightman Pallies, a speech therapist from
    January 1989 through September 1989, testified that she
    was required to falsify her therapy documentation and that
    Lukesh told the therapists at a pre-May 1989 meeting that
    reports were being rejected by Blue Cross and the
    therapists would have to keep rewriting these reports until
    they were accepted. Pallies did admit that re-writing could
    involve simply "documenting accurate historical facts" as
    distinguished from "making something up."
    5) Blum Bonjo and Martin testified that Lukesh was
    aware that documents were being altered before being
    submitted to Blue Cross for payment. The testimony by
    Martin is problematic because she started working after the
    Count One mailing. Furthermore, Lukesh asserts, and the
    government does not controvert, that Blum Bonjo's
    testimony refers to events around April 1990, after the
    mailing.
    6) Therapist Audrey Isaak told the jury that she attended
    regular staff meetings between 1988 and 1991 and at one,
    Lukesh told the staff that "our documentation need[s] to be
    written in such a way that payment would be granted."
    Clearly, the evidence against Lukesh is more substantial
    than that against Horvath. Certainly Lukesh's authoring of
    documents designed to effectuate a policy of resubmitting
    bills and rewriting the documents underlying them, a policy
    that led therapists to submit fraudulent documents,
    13
    provides evidence of intent on Lukesh's part. When this
    evidence is coupled with the fact that Lukesh was informed
    by Blue Cross of the fraudulent practices, there was
    sufficient evidence that Lukesh willfully joined the scheme
    to commit mail fraud.
    D. Evidence Linking the Corporation to the Crime
    Universal, the corporate defendant, argues as the basis
    for its post-verdict judgment of acquittal motion that there
    was not substantial evidence that it directed its employees
    to falsify claims. "A corporation is criminally responsible for
    the unlawful acts of its employees or other agents, provided
    such unlawful acts are done on behalf of the corporation
    and within the scope of the agent's employment or apparent
    authority." United States v. American Radiator & Standard
    Sanitary Corp., 
    433 F.2d 174
    , 205 (3d Cir. 1970).
    Universal argues that there was never a corporate policy
    of falsifying claims and that no individual was directed to
    falsify claims on behalf of the company. Universal contends
    that the individual defendants were acting on their own.
    This argument has no merit. As the District Court
    explained, without even considering the guilt of the high-
    level officials Horvath and Lukesh, the evidence was
    sufficient for the jury to have concluded that Carol Pomilio
    was acting within the scope of her authority and in the
    course of her employment with the intent to benefit
    Universal when she knowingly misled Medicare by altering
    Hynds' patient documentation. Additionally, numerous
    witnesses testified that they were pressured to bill for
    treatment to inappropriate patients and to rewrite patient
    documentation in order to make claims reimbursable, i.e.,
    to benefit the corporation. For these reasons, wefind
    sufficient evidence to support the conviction of defendant
    Universal.
    III. Admissibility of the Guilty Plea of a Testifying Co-
    Defendant
    Julia Blum Bonjo, a speech therapist at Universal, pled
    guilty to Count One, the mail fraud count on which the
    other defendants were later convicted. Penny Martin also
    pled guilty in a separate information to one count of mail
    fraud. In exchange for the pleas, Blum Bonjo and Martin
    14
    agreed to testify as government witnesses. Before the trial,
    defendants moved to bar testimony of the pleas. In their
    motion, defendants argued that the plea agreements were
    irrelevant, and, even if they were relevant, they were more
    prejudicial than probative. Defendants represented that
    they would not examine Blum Bonjo or Martin in any way
    that would make this evidence admissible, i.e., they would
    not challenge their credibility. Moreover, defense counsel
    asserted that, even if the government was skeptical about
    his representation that he would not challenge the
    credibility of Blum Bonjo or Martin on cross examination,
    the proper procedure was for the court to then permit the
    government to prove the pleas on redirect.
    The District Court denied defendants' motion. Relying on
    United States v. Gaev, 
    24 F.3d 473
     (3d Cir. 1994), the court
    explained that, although a guilty plea cannot be used to
    establish a co-conspirator's guilt, it can be introduced for
    some valid purpose. After enumerating the proper purposes
    for which the pleas could be admitted, the trial judge found
    that the probative value of the evidence outweighed its
    prejudicial effect and admitted it, denying defendants'
    motion. The defendants assert that this ruling was
    erroneous and that the error was not harmless, arguing
    that "there is a high probability that the jury's conviction
    on Count One -- in light of its acquittal verdicts on close to
    40 other counts -- was influenced by the Bonjo plea to
    Count One."5
    The decision to admit or exclude the evidence is
    committed to the sound discretion of the district court. In
    re Merritt Logan Inc., 
    901 F.2d 349
    , 359 (3d Cir. 1990). We
    use an abuse of discretion standard to review the District
    Court's decision not to exclude evidence under Rule 403.
    United States v. Gaev, 
    24 F.3d 473
    , 476 (3d Cir. 1994).
    We note at the outset the well-settled proposition that
    plea agreements of co-conspirators cannot be used as
    evidence of a defendant's guilt. Gaev, 
    24 F.3d at 476
    . We
    stated in United States v. Gambino, 
    926 F.2d 1355
     (3d Cir.
    1991) that:
    _________________________________________________________________
    5. In her testimony, Blum Bonjo stated that she had pled guilty to
    "Count One."
    15
    [t]here are strong considerations against using a co-
    conspirator's guilt as substantive evidence of another
    defendant's guilt. "The foundation of [this] policy is the
    right of every defendant to stand or fall with the proof
    of the charge made against him, not against somebody
    else . . . . The defendant ha[s] a right to have his guilt
    or innocence determined by the evidence presented
    against him, not by what has happened with regard to
    a criminal prosecution against someone else.
    
    926 F.2d at 1363
     (quoting in part Bisaccia v. Attorney
    General of New Jersey, 
    623 F.2d 307
    , 312 (3d Cir. 1980)).
    However, we have recognized certain valid purposes for
    which co-conspirators' guilty pleas can be admitted. See,
    e.g., Gaev, 
    24 F.3d 476
    -77 (enumerating proper purposes).
    The District Court here explained that a plea was
    admissible for a number of valid purposes. First, the court
    explained that a plea was admissible to assist the jury in
    assessing the credibility of the testifying witness. As we
    explained in Gambino, "by eliciting the witness' guilty plea
    on direct examination, the government dampens attacks on
    credibility, and forecloses any suggestion that it was
    concealing evidence." 
    926 F.2d at 1363
    . But, defendants in
    their pre-trial motion pledged not to challenge Blum Bonjo's
    and Martin's credibility based on their plea agreements.
    Thus, there was no reason to allow the government this
    pre-emptive strike on direct examination. See United States
    v. Thomas, 
    998 F.2d 1202
    , 1205 (3d Cir. 1993).
    The District Court also justified its ruling on the motion
    in limine after the trial by referring to defendants' cross-
    examination of Blum Bonjo. The court explained that
    defendants challenged critical aspects of Blum Bonjo's
    participation in the activities that formed the basis for the
    mail fraud charge. One cannot, however, use defense
    counsel's behavior after denial of the motion as any
    indication of what he would have done had his motion been
    granted by the court.
    The District Court also explained that the pleas were
    admissible to make clear that defendants were not being
    singled out for selective prosecution. Indeed in United
    States v. Inadi, 
    790 F.2d 383
     (3d Cir.), rev'd on other
    16
    grounds, 
    106 S.Ct. 1121
     (1986), we allowed the admission
    of a co-conspirator's guilty plea "in order to rebut defense
    counsel's persistent attempts on cross-examination to raise
    an inference that the co-conspirators had not been
    prosecuted, and that [the defendant] had been singled out
    for prosecution." Id. at 384, n.2. But that is not the case
    here. Defense counsel in his motion in limine pledged not
    to engage in questioning on cross examination that would
    render the pleas admissible. Certainly, if the defense had
    raised an inference of selective prosecution, this tactic
    would have been covered by counsel's pledge. However,
    selective prosecution never became an issue in this case. In
    Thomas, where selective prosecution was also not an issue,
    we explained that "there was no need to mention the guilty
    pleas to deter any concern that Thomas was being singled
    out for prosecution." 
    998 F.2d at 1205
    . Moreover, even if
    the implication of selective prosection had become an issue,
    it could have been dealt with by instructing the jury that
    the issue of selective prosecution was not their concern. 
    Id.
    The trial court suggested a further reason to admit the
    plea -- to explain the witnesses' firsthand knowledge of the
    defendant's misdeeds. See United States v. Halbert, 
    640 F.2d 1000
    , 1005 (9th Cir. 1981). But a witness's guilty plea
    doesn't establish her basis of knowledge. The witness's
    testimony itself will establish that basis.
    After the valid purposes for which the plea may be
    admissible are proffered, the trial court must balance the
    probative value of the testimony with its prejudicial effect.
    The standard for the balancing is that of Federal Rule of
    Evidence 403.6 That is, the prejudice that inures to the
    defendant by the admission of a co-conspirator's guilty plea
    may be overcome by its probative value. Furthermore, in
    some circumstances, a limiting instruction against the use
    of the plea as substantive evidence of defendant's guilt, as
    _________________________________________________________________
    6. Fed. R. Evid. 403 provides:
    Although relevant, evidence may be excluded if its probative value
    is
    substantially outweighed by the danger of unfair prejudice,
    confusion of the issues, or misleading the jury, or by
    considerations
    of undue delay, waste of time, or needless presentation of
    cumulative evidence.
    17
    was given in this case, reduces that prejudice. United States
    v. Werme, 
    939 F.2d 108
    , 114 (3d Cir. 1991). However, in
    Gaev, we recognized that "there may be cases where the
    inference of guilt from the co-conspirator's plea agreement
    is sufficiently strong that even limiting instructions will not
    effectively contain it." 
    24 F.3d at 478
    . This is one of those
    cases.
    Notwithstanding the limiting instruction here, the jury,
    having heard evidence accusing defendants of 39 counts of
    mail fraud and false claims, acquitted all 3 defendants on
    38 of the counts. The only count of conviction was the one
    to which the government's star witness, Blum Bonjo, a mid-
    level employee, had pled guilty. In addition, the patient
    involved in Count One, Mildred Hynds, was also involved in
    four other counts on which defendants were acquitted. It
    would appear then that whether a particular patient needed
    treatment, at least in the Hynds case, was not a
    determining factor in the jury verdict. Moreover, the
    government has conceded in its cross-appeal that the
    conduct charged in the other 38 counts was virtually
    identical to the conduct charged in Count One. The
    evidence cited by the government, in arguing that there is
    sufficient evidence to support the convictions on Count
    One, is for a large part the same evidence that the jury
    heard and then found not to support conviction on 38 of
    the counts. There is, therefore, the strong possibility that
    Blum Bonjo's guilty plea to that count was considered by
    the jury as direct evidence against the defendants.
    Concerning the probative value of the pleas, as we have
    described above, the proffered reasons for admitting the
    evidence were weak. Therefore, notwithstanding the
    discretion due a district court judge making an evidentiary
    determination, we find that the probative value of the pleas
    was substantially outweighed by the danger of unfair
    prejudice. Despite the fact that we have found sufficient
    evidence to support Lukesh and Universal's convictions, the
    evidence on the count of conviction was very similar to the
    evidence supporting the thirty-eight acquitted counts. In
    view of the fact that the only distinguishing evidence on the
    count of conviction is the consideration of the co-
    conspirators' guilty pleas, we must conclude that the denial
    18
    of defendants' motion in limine and the subsequent
    introduction at trial of evidence of Blum Bonjo's and
    Martin's guilty pleas was reversible error. We will reverse
    the judgment of conviction as regards Lukesh and Universal.7
    CONCLUSION
    For the reasons stated above, we will reverse the
    conviction of Attila Horvath for the insufficiency of the
    evidence against him and remand his case to the District
    Court for entry of a judgment of acquittal. We will reverse
    the convictions of defendants Lukesh and Universal and
    remand their cases to the District Court for a new trial.
    _________________________________________________________________
    7. As regards Horvath, our holding that the post-verdict judgment of
    acquittal should have been granted renders moot his appeal of the denial
    of the motion in limine.
    19
    GARTH, Circuit Judge, dissenting:
    The majority of the panel (my colleagues Judges Roth
    and McKee) have reviewed the record and reversed the
    conviction of the defendant Attila Horvath ("Horvath"), who
    had been charged with mail fraud in conducting a Medicare
    fraud scheme over a three-year period.1 In doing so, they
    have directed Horvath's acquittal on Count One2 despite the
    credible evidence found against him by the jury and despite
    the District Court's application of the undeniably correct
    standard, under United States v. Glasser, 
    315 U.S. 60
    (1942), which requires affirmance of a conviction so long as
    the verdict is supported by substantial evidence, with all
    reasonable inferences viewed in a light most favorable to
    the Government. That standard, to which this Court
    adheres, requires an affirmance of the defendants'
    convictions on this appeal.
    A.
    In light of the majority's rejection of the jury's verdict,
    which is tested by the Glasser standard just adverted to,
    and in light of an even more erroneous holding that
    completely eviscerates the deference which we are required
    to give to a District Court's discretionary ruling to admit
    pleas of codefendants,3 I must respectfully dissent.
    _________________________________________________________________
    1. The damage from Medicare fraud has been extensive. See, e.g.,
    Medicare Contractors Aren't Pursuing Fraud, Audit Shows, USA TODAY,
    Dec. 2, 1998, at A1; Probers Allege Medicare Fraud by Columbia/HCA,
    CHICAGO TRIBUNE, Feb. 11, 1998, at N3 (disclosing investigation of
    nationwide Medicare fraud by large health care organization); Fraud and
    Waste in Medicare, N.Y. TIMES, Aug. 1, 1997, at A30 (stating
    government estimates approximately $23 billion per year lost to Medicare
    fraud).
    2. Count One charged that Horvath, Lukesh and Universal violated 18
    U.S.C. section 1341, which proscribes use of the mails in furtherance of
    a fraudulent scheme.
    3. See General Elec. Co. v. Joiner, 
    522 U.S. 136
     (1997) (recognizing, in
    context of expert testimony, that trial courts have discretion to admit
    such testimony, and rejecting standard that "fail[s] to give the trial
    court
    the deference that is the hallmark of abuse of discretion review"). A long
    line of cases from this Court has respected the District Court's
    discretion
    20
    B.
    Indeed, I dissent not only from the majority's insistence
    on refusing the admission of the guilty pleas of
    codefendants Penny Martin and Judy Blum Bonjo on the
    record presented here, but I strongly urge the full court to
    grant en banc consideration to what can only be
    characterized as an aberration in our jurisprudence-- an
    aberration dictated in the first instance by the suspect
    holding in United States v. Thomas, 
    998 F.2d 1202
     (3d Cir.
    1993). In Thomas, in the face of a compelling and reasoned
    dissent by Judge Rosenn of this Court, our own precedents,
    decisions from our sister Circuits,4 and fully documented
    and detailed discretionary rulings by the District Court
    Judge, the same distorted result as to the exclusion of a
    plea agreement gave rise to the same miscarriage of justice
    that we now see here.
    Our court -- the full court -- should undertake to clarify
    this significant aspect of our criminal jurisprudence by
    vacating the instant majority opinion, by rehearing the
    issue en banc, and by reaffirming the standard that Judge
    Scirica of this Court found appropriate in Gaev . It should
    re-align the Third Circuit on the correct and proper course,
    which provides for the acceptance of guilty pleas at trial by
    codefendants when the correct standard of a District
    Court's discretion is applied to the facts and when the
    proper purposes of credibility, selective prosecution and
    establishing firsthand knowledge are found, as they were
    unquestionably applied by the District Court and found
    here. Such a course would comport with the jurisprudence
    _________________________________________________________________
    in admitting pleas of codefendants. See United States v. Gaev, 
    24 F.3d 473
     (3d Cir.), cert. denied, 
    513 U.S. 1015
     (1994); United States v.
    Gambino, 
    926 F.2d 1355
     (3d Cir.), cert. denied, 
    502 U.S. 956
     (1991);
    United States v. Newman, 
    490 F.2d 139
     (3d Cir. 1974); United States v.
    Gullo, 
    502 F.2d 759
     (3d Cir. 1974). Indeed, this Court has held
    repeatedly that admission of a plea, without more, is not ordinarily
    reversible. See, e.g., United States v. Restaino, 
    369 F.2d 544
     (3d Cir.
    1966).
    4. See, e.g., United States v. Tse, 
    135 F.3d 200
     (1st Cir. 1998); United
    States v. Casto, 
    889 F.2d 562
     (5th Cir. 1989), cert. denied, 
    493 U.S. 1092
     (1990); United States v. Louis, 
    814 F.2d 852
     (2d Cir. 1987).
    21
    of our sister Circuits that have wisely, and in accord with
    prevailing legal standards, accepted such evidence.
    Based on the record before us, I believe (1) that the
    evidence was sufficient to support Horvath's conviction, and
    (2) that the District Court did not abuse its discretion in
    admitting the codefendants' guilty pleas, and that the guilty
    pleas were admitted for a proper purpose and did not
    invalidate the convictions of all the defendants. Therefore,
    I would hold the majority's disregard of the District Court's
    rulings and its reversal of those convictions is unwarranted
    and violates both the District Court's and this Court's
    proper standards of review.
    C.
    Although not addressed in the majority opinion, see
    Majority Op. at 6 n.3, I further conclude that pursuant to
    the teaching of United States v. Watts, 
    519 U.S. 148
     (1997),
    the District Court grievously erred in not considering
    acquitted and uncharged conduct pursuant to Section
    2F1.1 of the Guidelines in calculating the Sentencing
    Guidelines range of each of the defendants.
    Accordingly, I dissent from the majority's decision to
    remand Horvath's case to the District Court to enter a
    judgment of acquittal, and to reverse the convictions of
    Lukesh and Universal and remand for a new trial on Count
    One.
    I
    As the majority opinion notes, see Majority Op. at 6,
    Horvath, Lukesh and Universal appealed the denial by the
    District Court of their post-conviction motion for a
    judgment of acquittal, or in the alternative, a new trial.
    These defendants had moved for relief on the basis of
    insufficiency of the evidence and claimed that the
    admission of the codefendants' guilty pleas were unduly
    prejudicial.
    Prior to that motion, however, these defendants had
    made an in limine motion to exclude testimony concerning
    the plea agreements entered into by the codefendants. The
    22
    District Court took the matter under advisement, accepted
    submissions by the parties and heard argument as to the
    applicable legal principles. The District Court, in its
    discretion, denied the motion, concluding that
    if [Bonjo and Martin] testify the jury is going to
    certainly wonder whether or not they have been
    charged. It's going to wonder perhaps what they have
    been promised by the prosecutor if anything and what
    they may be getting in return for their testimony.
    I think in weighing all of those factors with the possible
    prejudice that I am going to allow the Government to
    bring out the fact of the guilty plea and the fact of the
    guilty plea agreement.
    The District Court considered the issue again after the
    conclusion of the trial. In denying these defendants' post-
    conviction motion, the District Court first noted that, in a
    motion challenging the sufficiency of the evidence, the court
    must view the evidence in the light most favorable to
    the government. A claim of insufficiency places a very
    heavy burden on the [defendants]. [The court] must
    affirm the convictions if a rational trier of fact could
    have found defendant[s] guilty beyond a reasonable
    doubt, and the verdict is supported by substantial
    evidence.
    The mail fraud statute, 18 U.S.C. S 1341, proscribes
    any "scheme or artifice to defraud" in which the
    defendant participated with the specific intent to
    defraud and in which the mails were used "in
    furtherance of the fraudulent scheme." The scheme
    "need not be fraudulent on its face but must involve
    some sort of fraudulent misrepresentations or
    omissions reasonably calculated to deceive persons of
    ordinary prudence and comprehension." Proof of
    specific intent is required, which "may be found from a
    material misstatement of fact made with reckless
    disregard for the truth." United States v. Coyle, 
    63 F.3d 1239
    , 1243 (3d Cir. 1995) (citations omitted). Thus, a
    mail fraud conviction stands where the evidence
    demonstrates a defendant's willful participation in a
    scheme to defraud with knowledge of its fraudulent
    23
    nature. See United States v. Pearlstein, 
    576 F.2d 531
    ,
    537 (3d Cir. 1978).
    In denying the motion, the District Court conducted a
    careful review of the evidence indicating a crime had been
    committed, and the evidence connecting each defendant to
    the crime. After outlining the testimony and documentation
    connecting Horvath and the other defendants to the crime
    charged in Count One, the District Court summarized the
    evidence as follows:
    In the instant case, the individual defendants' guilty
    knowledge could rationally be inferred beyond a
    reasonable doubt from (1) the active parts Horvath and
    Lukesh played in the daily operation of the speech
    therapy practice, (2) [d]efendants' knowledge and
    monitoring of Universal's billing problems -- the
    number of patient cases being billed and met with
    record requests, denials and increased scrutiny by
    Blue Cross . . . (3) the testimony of key administrators,
    Julia Blum Bonjo, Penny Martin and Wendy Gold,
    recalling how Horvath and Lukesh wanted patient
    documentation billable no matter what had to be done
    to it, and (4) the directives given to speech therapists
    by their supervisors, under tremendous pressure from
    Lukesh and Horvath, to pick up patients, even though
    inappropriate, to warrant skilled services, and to
    rewrite patient documentation to make patient services
    "billable" and reimbursable by Medicare.
    The District Court found this evidence sufficient to support
    the jury's finding that a crime had been committed and that
    Horvath and Lukesh (and, through their actions, Universal)
    had the intent required under the mail fraud statute.
    Neither the appellants nor the majority have given any
    reason to question that conclusion by the District Court or
    the jury's verdict.
    The District Court next addressed the issue of admission
    of the plea agreements. It reiterated its concern over
    selective prosecution, and noted as well that the testimony
    from Bonjo and Martin would assist the jury in assessing
    credibility. I believe that the majority has artfully finessed
    the issue of admitting the codefendants' guilty pleas,
    24
    without ever providing reasons or presenting evidence that
    the District Court had abused its discretion - indeed,
    without ever even holding that the District Court Judge did
    so. In so doing, the majority has not dealt fairly with the
    jurisprudence dealing with this subject, and has ignored a
    completely developed record. I thus turn first to the District
    Court's rulings admitting the guilty pleas. I do so observing
    that the admission of the guilty pleas at trial does not
    impact upon the other, independently sufficient evidence
    against the defendants.
    II
    The panel majority has reversed the Count One
    convictions of Lukesh and Universal because of the putative
    prejudicial effect that the introduction of Bonjo's and
    Martin's guilty pleas had at trial. Although the majority
    does not address this issue with respect to Horvath, it is
    obvious that the admission of the guilty pleas did not affect
    the other evidence presented to the jury to support
    Horvath's conviction. As the defendants were acquitted of
    thirty-eight (38) counts of the indictment but were
    convicted of the very count to which Bonjo pleaded guilty,
    defendants contend -- and the majority concurs-- that the
    guilty pleas were not admitted for a proper purpose and
    were so prejudicial that their admission constitutes
    reversible error. Majority Op. at 17-19.
    I strongly disagree. In my view, the pleas of both Bonjo
    and Martin,5 after careful consideration and discussion in
    accordance with our requirements set forth in Gaev, were
    properly admitted. Even if not properly admitted, the
    evidence adduced at trial, combined with the curative
    instructions given by the District Court, rendered any error
    harmless. Indeed, the majority admits as much when it
    declares that the evidence against Lukesh and Universal is
    sufficient to support the jury's verdict. Majority Op. at 13-
    14.
    _________________________________________________________________
    5. Bonjo was charged in the same indictment as Horvath, Lukesh and
    Universal. Martin, it appears from the record, was charged separately by
    information and pled guilty to one count of mail fraud.
    25
    The District Court, at the time of both Bonjo's and
    Martin's testimony, gave a curative instruction, advising the
    jury that the purpose for admitting testimony concerning
    their respective plea agreements was so that they could
    "adequately assess the credibility" of the testimony. The
    jury was also instructed that the jury was not to consider
    the plea agreements as evidence of the guilt of Horvath,
    Lukesh or Universal. The District Court, while charging the
    jury at the end of the trial, instructed the jury again, as
    follows:
    Julia Blum Bonjo and Penny Martin entered into plea
    agreements with the Government. Such plea
    agreements are expressly approved as lawful and
    proper by the United States Supreme Court and are
    appropriate, are proper. Each witness' decision to plead
    guilty is a personal decision about her own guilt. You
    may not consider this evidence against the defendants
    on trial nor may you draw any conclusions or inferences
    of any kind about the guilt of the defendants on trial
    from the fact that a prosecution witness pled guilty to
    similar charges.
    The testimony of such witnesses, as I indicated, should
    be scrutinized with caution and give it the weight that
    you think should be given under all of the
    circumstances.
    And I indicated to you during the trial that the fact
    that [Bonjo and Martin] entered pleas of guilty could
    not be considered by you in determining the guilt or
    innocence of any of the people on trial here. The only
    reason the plea and the plea agreement were brought
    out was so that you would know all of the
    circumstances surrounding the entry of the plea, you'd
    know the terms under which the plea was entered and
    you could judge for yourselves whether the witness in
    the trial is testifying truthfully or whether the witness
    has a motive to embellish testimony or vary from the
    truth.
    That is the only basis or the only reason why the plea
    and the plea agreement were admitted.
    26
    (Emphasis added.) This Court reviews a District Court's
    decision to admit evidence of plea agreements for abuse of
    discretion, and we have been directed in no uncertain
    terms to defer to that discretion. See Joiner, 
    522 U.S. at 136
    ; Gaev, 
    24 F.3d at 476
    .
    Although a co-conspirator's guilty plea cannot be used as
    substantive evidence of a defendant's guilt, evidence of a
    guilty plea or plea agreement may be introduced for other
    permissible purposes. Judge Rosenn, in a cogent analysis
    of this issue in United States v. Thomas, included as proper
    purposes "(1) to bolster the credibility of the co-conspirators
    as prosecution witnesses; (2) to quell the inference that the
    co conspirators were not punished and that [the
    defendants] w[ere] thus ``singled-out' for punishment; and
    (3) to establish the basis for the co-conspirators'firsthand
    knowledge of the crime about which they testified. Each of
    these is a proper purpose for admitting a guilty plea." 
    998 F.2d at 1208
     (Rosenn, J., dissenting). See also Gaev, 
    24 F.3d at 476
    ; Gambino, 
    926 F.2d at 1363
    ; United States v.
    Werme, 
    939 F.2d 109
    , 113 (3d Cir. 1991), cert. denied, 
    502 U.S. 1092
     (1992); United States v. Inadi, 
    790 F.2d 383
    , 384
    n.2 (3d Cir. 1986). To this list should be added the
    overarching principle that trial judges have broad discretion
    to admit testimony under Rule 403 that "discloses the
    purpose, knowledge or design of a particular person."
    Glasser, 
    315 U.S. at 80
    ; cf. Joiner, 
    522 U.S. 136
    (recognizing, in context of expert testimony, that trial courts
    have discretion to admit such testimony, to which this
    Court must defer). The mere admission of a plea is not
    ordinarily reversible. See, e.g., Restaino, 
    369 F.2d 544
    .
    Other Circuits have also held that admission of a plea by a
    co-conspirator is appropriate for purposes other than to
    persuade a jury of a defendant's guilt. See, e.g., Tse, 
    135 F.3d 200
    ; Casto, 
    889 F.2d 562
    ; Louis, 
    814 F.2d 852
    .
    In Gaev, this Court summarized that the underlying
    principle concerning the admissibility of a plea agreement
    as follows: "If a co-conspirator who appears as a witness
    has pleaded guilty, the trier of fact should know about the
    plea agreement in order properly to evaluate the witness's
    testimony, unless that would unduly prejudice the
    defendant." 
    24 F.3d at 476
     (emphasis added). Moreover, as
    27
    the credibility of the Government's witnesses normally is
    critical to the successful prosecution of a case, this Court
    has acknowledged that the strategic admission of a guilty
    plea "dampens attacks on credibility, and forecloses any
    suggestion that [the Government] was concealing evidence.
    Such disclosure is appropriate." Gambino, 
    926 F.2d at 1363
    .
    Here, the District Court permitted the introduction of the
    guilty pleas because of credibility concerns that might arise
    in the minds of the jurors as to Bonjo's and Martin's
    testimony. In addition, the District Court determined that
    the admission of the guilty pleas would allay the jurors'
    concerns -- that might arise in the absence of such
    admission -- that Horvath and Lukesh were subjected to
    selective prosecution. In making these rulings, the District
    Court, following this Court's direction in Gaev, balanced the
    probative and prejudicial impact of the pleas. The District
    Court found that, as in Gaev, credibility was an issue
    because the witnesses' testimony was challenged, and that
    the limiting instructions cured any prejudice. Even more so
    than in Thomas, here the District Court found "specific
    issues of credibility" that warranted admission of the pleas.
    These determinations were well within the District
    Court's discretion, and this Court must (and I emphasize
    the word must) accord the proper deference such rulings on
    admissibility by the District Court. Cf. Joiner, 
    522 U.S. 136
    (finding discretionary decisions of trial court must be
    upheld in absence of manifest error).
    A fair reading of the record reveals that the District Court
    admitted the pleas for a proper purpose, and the
    Government's limited use of the guilty pleas at trial caused
    no undue prejudice that would not have been corrected by
    the District Court's curative instructions. This is not a case
    in which the prosecution placed "undue emphasis" upon
    the pleas, Restaino, 
    369 F.2d at 545
    , to convince the jury
    of the defendants' guilt. Nor is this a case in which the
    curative instruction failed to advise the jury not to consider
    the admission of guilt by the witness against the
    defendants. See Newman, 
    490 F.2d 139
    ; Gullo, 
    502 F.2d 759
    . Here, another co-defendant (Vicki Meitus) was
    acquitted of the charge alleged in Count One. This fact,
    28
    when combined with the curative instruction, more than
    amply supports the conclusion that admission of the pleas
    was not an abuse of discretion. See Restaino, 
    369 F.2d at 546
    .
    Indeed, the majority at no point claims that the District
    Court Judge abused his discretion -- nor could it in light
    of the careful and detailed consideration that Judge Kelly
    gave to the evidence in accordance with this Court's
    direction in Gaev. See Appendix 1768-72; Memorandum of
    May 31, 1996 at 16-20. Nor does the majority point to any
    evidence in the record that could support a determination
    that the District Court abused its discretion.
    The only reason I can discern that the majority gives in
    holding that the guilty pleas were not admitted for a proper
    purpose was because Horvath, Lukesh and Universal
    pledged not to raise the issue of the accomplices' guilty
    pleas. Majority Op. at 16-17. Thus, the majority concludes
    that there was no need preemptively to bolster the
    credibility of the witnesses with the admission of their
    guilty pleas because the defendants would not have
    attacked Blum Bonjo and Martin on credibility grounds.
    In so holding, however, the majority totally ignores prior
    directions of this Court that guilty pleas can be admissible
    even in the absence of an attack on a witness' credibility.
    See Gambino, 
    926 F.2d at 1363
     ("[E]ven in the absence of
    this attack [on the Government witness' credibility], the
    elicited testimony [i.e., the guilty plea] was proper here.")
    See also Thomas, 
    998 F.2d at 1208
     (Rosenn, J., dissenting).
    As Gambino has not been overruled, it remains the rule in
    this Circuit. The absence of an attack on a witness's
    credibility is simply insufficient for a court to find that a
    judge abused his discretion in admitting the plea; here, the
    District Court cited Gambino in its post-trial ruling for
    precisely this proposition. To hold otherwise, as the
    majority does, not only presents a conflict with Gambino,6
    but it would for all time foreclose the government's
    admission of evidence of a guilty plea on direct examination
    of its witnesses by the preemptive promise by defense
    _________________________________________________________________
    6. See Internal Operating Procedure 9.1 ("[N]o subsequent panel
    overrules the holding in a published opinion of a previous panel").
    29
    counsel not to question the witness concerning the plea.
    That rule is not the rule of this Circuit. See Gaev, 
    24 F.3d at 477-78
     ("While plea agreements have often been
    admitted in response to actual or anticipated attacks on a
    witness's credibility, an attack is not always necessary to
    justify their introduction") (emphasis added).
    I urge that the Court consider this issue en banc because
    the majority opinion here -- as the majority opinion did in
    Thomas, which concerned an almost identical set of facts --
    in effect rules out the use of any guilty plea, without regard
    to the discretion of the District Court, so long as defense
    counsel promises not to question the witness concerning
    the plea. Thomas and the analysis of the majority in the
    present case, when seen through the lens of Gaev,
    Gambino, Newman, Gullo and Restaino, makes a mockery of
    the holdings in those cases. To resolve the conflict between
    these precedents and Thomas and this case, the Court as
    a whole should confront this issue.
    III
    The majority has concluded that the evidence presented
    at trial was insufficient to support the conviction of
    Horvath, Majority Op. at 12, although there was sufficient
    evidence to support the convictions of Lukesh and
    Universal. Majority Op. at 13-14. My reading of the record
    leads me to a contrary conclusion with regard to Horvath.
    Because I conclude that the jury's verdict can be easily
    sustained by the evidence produced at trial, and that the
    admission of Bonjo's and Martin's guilty pleas does not
    affect this conclusion, I would affirm the conviction of
    Horvath.
    The District Court enunciated and applied the correct
    standard in reviewing a challenge to a jury verdict based on
    insufficiency of evidence. In reviewing a jury verdict, the
    court "must view the evidence in the light most favorable to
    the jury verdict and presume that the jury verdict properly
    evaluated credibility of the witnesses, found the facts, and
    draw rational inferences." United States v. Iafelice, 
    978 F.2d 92
    , 94 (3d Cir. 1992). A conviction must be sustained if the
    verdict is supported by substantial evidence, and all
    30
    reasonable inferences must be viewed in a light most
    favorable to the Government. 
    Id.
     This Court must simply
    determine whether "the conclusion chosen by the fact
    finders was permissible." United States v. McGill, 
    964 F.2d 222
    , 230 (3d Cir. 1992), cert. denied, 
    506 U.S. 1023
     (1992).
    If there is substantial evidence to support the verdict, we
    will not reverse even though this Court may have decided
    the case differently. United States v. Sain, 
    141 F.3d 463
    ,
    470 (3d Cir. 1998).
    Despite the majority's emphasis upon the fact that much
    of the evidence that the District Court relied upon to link
    Horvath to the fraudulent scheme did not directly relate to
    the Hynds incident charged in Count One, the elements of
    mail fraud do not necessitate that a defendant participate
    in every act executed in furtherance of that scheme. As the
    District Court noted, relying on Pearlstein, 
    576 F.2d at 541
    ,
    the jury can infer the requisite intent from circumstantial
    evidence.
    To obtain a conviction under section 1341, the
    Government must establish (1) the existence of a scheme to
    defraud; (2) the participation by the defendant in the
    particular scheme charged with the specific intent to
    defraud; and (3) the use of the United States mails in
    furtherance of the fraudulent scheme. See United States v.
    Hannigan, 
    27 F.3d 890
    , 892 (3d Cir. 1994).
    Here, the evidence showed that Horvath, the Director of
    Finance, and Lukesh, the Director of Operations, actively
    participated in the daily operations of Universal and worked
    closely together. Both knew that Universal was having
    difficulty with Independence Blue Cross in getting its
    speech therapy services reimbursed. In addition, the
    testimony from the Universal administrators (i.e., Martin,
    Blum Bonjo, and Wendy Gold) indicated that Horvath
    and Lukesh created a "coercion" culture in which pressure
    was placed upon Universal's employees to obtain
    reimbursement in any way possible.
    Specifically, Gold testified that Horvath and Lukesh had
    placed her under enormous pressure to increase
    production, which included pressure to rewrite the patient
    documentation. Blum Bonjo testified that she met with
    31
    Horvath and Lukesh together weekly for discussions about
    cases in which Medicare denied reimbursement for the
    speech services rendered and also testified that Universal
    handled non-billable cases by rewriting patient
    documentation to make such treatment billable.
    Similarly, Martin testified that Horvath said that "he
    wanted the documentation billable no matter what had to
    be done to it." Some of the cases were put on hold (meaning
    that they would not be submitted for billing) because they
    did not seem appropriate for billing to Medicare. Martin
    testified that when the number of claims on hold were high,
    Horvath instructed that the claims be billed without
    doctors' signatures. Further, Martin stated that the
    documentation had to be rewritten and altered and
    originals had to be destroyed in order to avoid
    discrepancies in the documentation. Finally, the District
    Court reviewed the evidence presented at trial and found
    that Horvath was very active in the daily operations of
    Universal from the outset of the scheme, and closely
    monitored the results of the speech therapy practice.
    Horvath, through his approval of Universal's "rewriting"
    policy, sanctioned the fraudulent scheme alleged in Count
    One, for which he was found guilty.
    In my view, there is no question that the jury's verdict
    linking Horvath to the fraudulent scheme is supported by
    the record. There was sufficient evidence to convince the
    jury, and this Court should not "weigh evidence or
    determine the credibility of witnesses." United States v.
    Casper, 
    956 F.2d 416
    , 421 (3d Cir. 1992) (quoting Glasser,
    415 U.S. at 80). Reversal for insufficiency of evidence
    should not be granted except where the failure of the
    prosecution is "clear." Id. That situation is not present here.
    See also United States v. Anderson, 
    108 F.3d 478
    , 480-81
    (3d Cir. 1997) ( "Only when the record contains no
    evidence, regardless of how it is weighed, from which the
    jury could find guilt beyond a reasonable doubt, may an
    appellate court overturn the verdict"); United States v.
    McGlory, 
    968 F.2d 309
    , 321 (3d Cir.), cert. denied, 
    506 U.S. 956
     (1992).
    The question, then, for the jury to answer was whether
    the evidence sufficiently established that Horvath was
    32
    connected to the conduct charged in Count One. The jury
    determined that there was, and the record more than fairly
    supports that determination.
    IV
    As the majority has reversed the convictions on all three
    defendants, its opinion does not discuss the sentence
    imposed by the District Court, which was the subject of the
    government's cross-appeal. Although I would affirm the
    respective convictions of Horvath, Lukesh and Universal, I
    would reverse the District Court's sentence calculation
    under the Sentencing Guidelines ("the Guidelines"), as
    presumably the issue of uncharged and acquitted conduct
    can arise again in this case.
    The majority opinion, oddly enough, does not reflect the
    sentences imposed upon the defendants. Let me do so. The
    District Court sentenced Universal to two years' probation
    and a $25,000 fine. Horvath and Lukesh were sentenced to
    three years of probation each. Horvath was fined $10,000,
    plus $705.20 in restitution. Lukesh was fined $15,000,
    plus restitution of $705.20.
    Under Section 1B1.3 of the Guidelines, a District Court
    can consider relevant conduct when calculating a
    defendant's guideline range whether or not that conduct
    was formally charged. See United States v. Watts, 
    519 U.S. 148
    , 152-53 (1997); see also U.S.S.G. S 1B1.3 cmt. 1 ("The
    principles and limits of sentencing accountability under
    this guideline are not always the same as the principles
    and limits of criminal liability. [T]he focus is on the specific
    acts and omissions for which the defendant is to be held
    accountable . . . rather than on whether the defendant is
    criminally liable.") In addition, under Watts, a defendant's
    guideline range is affected even by acquitted conduct, as
    long as that conduct has been proved by a preponderance
    of the evidence. See Watts, 
    519 U.S. at 156
    . See also United
    States v. Cianci, 
    154 F.3d 106
     (3d Cir. 1998); United States
    v. Baird, 
    109 F.3d 856
     (3d Cir. 1997) (finding conduct
    uncharged pursuant to plea agreement may be considered
    at sentencing).
    33
    Notwithstanding the Guidelines and Watts, at sentencing,
    the District Court declined to consider uncharged and
    acquitted conduct when calculating defendants' guidelines
    ranges. Instead, the District Court only considered the loss
    associated with the conviction obtained in Count One--
    totaling $1,411.20 -- without explaining why it was not
    considering the uncharged and acquitted conduct that the
    Government sought to be included. I believe that this
    omission was an abuse of discretion.
    While I conclude that the evidence proved that Horvath,
    Lukesh, and Universal could be held accountable for the
    relevant (i.e., uncharged or acquitted) conduct, at the very
    least, the District Court should have made findings of fact
    as to why it declined to consider that conduct in the
    calculation of the sentences of Horvath, Lukesh and
    Universal. See, e.g., E.C. Ernst, Inc. v. Koppers Co. Inc., 
    626 F.2d 324
     (3d Cir. 1980) (remanding because District Court
    failed to make factual findings and thus this Court could
    not determine how District Court assessed evidence). The
    District Court merely identified the standard under Watts
    and its conclusion not to consider the relevant conduct
    without stating its reasons, stating "I find under the Watts
    case that the burden is preponderance of the evidence and
    decline to include that conduct in the specific offense
    characteristics."
    Given that the District Court ruled in denying the post-
    conviction motion that there was substantial evidence to
    support the underlying conviction in Count One, I fail to
    understand how the District Court could conclude that the
    Government had not met its burden by a preponderance of
    the evidence of Horvath, Lukesh, and Universal's
    involvements in the other related counts of the very same
    scheme to defraud.
    The inclusion of uncharged and acquitted conduct, which
    may have amounted to a total loss of $343,500, would have
    resulted in an increase of eight levels under the Guidelines.
    See U.S.S.G. S 2F1.1(I). Horvath had an offense level of 8,
    providing a guidelines range of 0-6 months, and Lukesh
    had an offense level of 10, providing a guideline range of 6-
    12 months. If uncharged and acquitted conduct were
    considered at sentencing, however, Horvath's sentencing
    34
    range could have increased to 21-27 months (i.e., to offense
    level 16) and Lukesh's range could have increased to 27-33
    months (i.e., offense level 18).
    Accordingly, I would hold the defendants accountable at
    sentencing for the uncharged and acquitted conduct with
    which they were involved in executing their fraudulent
    scheme.
    V
    In its opinion, the majority has reversed a jury verdict
    founded on sufficient evidence and has reversed detailed
    evidentiary rulings by the District Court. In doing so, the
    majority has violated four appellate strictures: 1) it has
    ignored our established standard of review under Glasser,
    which requires that all reasonable inferences be resolved in
    favor of the government in an appeal challenging sufficiency
    of the evidence; 2) it has substituted its own "jury verdict"
    for that of the enpanelled jury; 3) it has refused to give the
    required deference to a District Court Judge's discretionary
    rulings; and 4) it has perpetuated a jurisprudential conflict
    over the admission of codefendant guilty pleas at trial.
    The trial transcript and post-conviction order reveal that
    the District Court carefully considered the arguments
    raised by the defendants, and rejected them in accordance
    with principles long established by prior panels of this
    Court. Under these circumstances, when the issues raised
    on appeal concern evidentiary issues addressed by the
    District Court in a careful analysis that considered the
    arguments for both sides, I am unable to agree that the
    District Court abused its discretion -- a claim that not even
    the majority justifies.
    In sum, therefore, I cannot subscribe to the majority
    opinion because I believe that the guilty pleas were
    admitted for a proper purpose and because there was
    sufficient evidence to support Horvath's conviction. The
    evidence revealed an elaborate scheme of fraud on the
    medical insurance system of this country, which, although
    35
    not acknowledged by the majority, is a continuing problem
    that has cost our country dearly.7
    I also conclude that the District Court erred in failing to
    state its reasons for not considering the uncharged and
    acquitted conduct of the defendants at sentencing.
    Accordingly, I respectfully dissent.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    7. See note 1, supra.
    36
    

Document Info

Docket Number: 97-1412

Filed Date: 2/11/1999

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (28)

united-states-v-martin-w-pearlstein-aka-martin-williams-frank-a , 576 F.2d 531 ( 1978 )

Glasser v. United States , 62 S. Ct. 457 ( 1942 )

United States v. Russell A. Werme , 939 F.2d 108 ( 1991 )

united-states-v-otto-samuel-gullo-appeal-of-sheila-holloway-in-no , 502 F.2d 759 ( 1974 )

United States v. Burks, (m.d.) Charles J. Appeal of Charles ... , 867 F.2d 795 ( 1989 )

General Electric Co. v. Joiner , 118 S. Ct. 512 ( 1997 )

E. C. Ernst, Inc., in No. 79-2290 v. Koppers Company, Inc., ... , 626 F.2d 324 ( 1980 )

United States v. Gary Halbert , 640 F.2d 1000 ( 1981 )

United States v. Stephen Tse , 135 F.3d 200 ( 1998 )

United States v. Darrin Casper, A/K/A Barry Jackson , 956 F.2d 416 ( 1992 )

United States v. Michael Newman and Frank X. Gaca. Appeal ... , 490 F.2d 139 ( 1974 )

United States v. Inadi, Joseph. Appeal of Joseph Inadi , 790 F.2d 383 ( 1986 )

United States v. Jeffrey Anderson, A/K/A Jonathan Thomas , 108 F.3d 478 ( 1997 )

United States v. John Baird , 109 F.3d 856 ( 1997 )

United States v. Frederick C. Sturm, III , 671 F.2d 749 ( 1982 )

United States v. Diana Hernandez Casto , 889 F.2d 562 ( 1989 )

United States v. Armando Restaino , 369 F.2d 544 ( 1966 )

United States v. Eugene Hannigan , 27 F.3d 890 ( 1994 )

united-states-v-francesco-gambino-in-no-89-2087-ignazio-antonino , 926 F.2d 1355 ( 1991 )

United States v. Watts , 117 S. Ct. 633 ( 1997 )

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