Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^** 

FACTS

A jury convicted Mildred Miller of multiple counts of mail fraud (18 U.S.C. § 1341), making false statements (18 U.S.C. § 1001), conspiracy (18 U.S.C. § 371) and obstruction of justice (18 U.S.C. § 1503). The charges stemmed from Miller's role in the operation of a clinic which dispensed the controversial drug dimethyl sulfoxide ("DMSO"). Treatment at the clinic was almost exclusively limited to DMSO therapy. The district court sentenced Miller to a total of nine years in prison based on three consecutive sets of concurrent three-year sentences. Miller appeals. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part.

MOTION TO PROCEED IN FORMA PAUPERIS

Miller argues that the district court erred in denying her motion to proceed in forma pauperis "to the extent of obtaining the attendance of witnesses" at her trial. (Appellant's Opening Brief at 10). She contends that although her counsel "made a low fee agreement [so she had counsel to represent her], no funds were available to subpoena witness [sic], investigate or travel to interview patients who had been treated at D.D.M.C." (Appellant's Brief at 7).

The trial court is required to order issuance of a subpoena for service on a named witness "upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense." Fed. R. Crim. P. 17(b). This right to have a subpoena issued and served at government expense "is not absolute, but is to be governed by the sound discretion of the trial judge, which will not be disturbed by an appellate court unless exceptional and compelling circumstances clearly indicate an abuse of discretion." Wagner v. United States, 416 F.2d 558, 564 (9th Cir. 1969), cert. denied, 397 U.S. 923 (1970) (citations and footnote omitted). There are no circumstances indicating an abuse of discretion in this case. Miller failed to identify the witnesses she sought to subpoena or explain how their attendance would be necessary to an adequate defense. She offered only her conclusory allegation that more than fifty defense witnesses would be absolutely necessary. She failed to make the showing required by Rule 17(b). See United States v. Bernard, 625 F.2d 854, 860 (9th Cir. 1980) (affirming district court's denial of Rule 17 subpoena seeking expert testimony found to be unhelpful to jury).

SUFFICIENCY OF THE EVIDENCE

Miller contends the evidence is insufficient to support her conviction of mail fraud (18 U.S.C. § 1341) and false statements (18 U.S.C. § 1001). She argues that the decisionmaking of the private insurers and Medicare could not have been affected by evidence that the clinic inflated insurance reimbursement claims, and thus there was no evidence that the private insurers or Medicare suffered any injury as a result of this alleged practice. This argument overlooks the overwhelming evidence that Miller and her co-conspirators designed and carried out an elaborate scheme to attract patients by fraud and to obtain payment for much of their DMSO therapy by submitting fraudulent insurance and Medicare claims. There was also evidence that the conspirators billed for doctors' services that had not been performed. "A reasonable jury, after viewing the evidence in the light most favorable to the government, could have found [Miller] guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986) (citations omitted).

Miller's argument that the evidence was insufficient to support her conviction of conspiracy (18 U.S.C. § 371) is without merit. In addition to the evidence which supports the convictions of mail fraud (18 U.S.C. § 1341) and false statements (18 U.S.C. § 1001), there was substantial evidence that Miller engaged with others in an ongoing conspiracy to commit the underlying crimes over a period of several years. Again, a reasonable jury, viewing the evidence in the light most favorable to the government, could have found Miller guilty of conspiracy under 18 U.S.C. § 371.

Miller argues that the government must prove that she intended to provide false information to the grand jury to convict her of obstructing justice under 18 U.S.C. § 1503. This is not so. We have held that section 1503 merely requires that a defendant do an act intended to obstruct justice. United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982) (holding that the concealment and destruction of documents "resulting in the improper suppression of evidence, and thus influencing, obstructing and impeding of judicial proceedings" falls under section 1503); United States v. Lester, 749 F.2d 1288, 1294 (9th Cir. 1984) (holding that noncoercive witnesses tampering, e.g., hiding a witness, falls under section 1503). Appellant's criticism of Rasheed is not persuasive. Contrary to Miller's suggestion, United States v. Gates, 616 F.2d 1103 (9th Cir. 1980), does not conflict with Rasheed. In Gates, the defendant provided a witness with a false story, but we did not hold that falsity was an essential element to the charge of obstructing justice. Id. at 1107. Indeed, Rasheed and Lester demonstrate that falsity is not essential.

In the present case, there was sufficient evidence from which the jury could conclude that Miller had tried to influence Cynthia Ee to provide false or misleading testimony to the grand jury.

The evidence is insufficient, however, to support Miller's conviction on count 69. This count charged that Miller, Rusteberg and Smith corruptly endeavored to influence the testimony of Cynthia Ee before the grand jury "in that ROBERT RUSTEBERG instructed Cynthia Ee to tell the grand jury that VERA SMITH and MILDRED MILLER had changed or handled documents after they had been subpoenaed by the Federal Grand Jury." The only evidence offered in support of this count was the testimony of Robert Rusteberg. He testified that he told Ee what he had told the grand jury and that it "was wrong." He also testified that he asked Ee "if she was going to testify in [the] case." But the record is void of any evidence that Rusteberg told Ee anything about Smith or Miller changing or handling documents subpoenaed by the grand jury, or how Ee should testify on that subject. Miller's conviction on this count must be reversed.

DEPOSITION OF SHASHIKANT VAIDYA

Miller argues that the district court improperly denied her motion to depose Shashikant Vaidya. She relies on Territory of Guam v. Ngirangas, 806 F.2d 895 (9th Cir. 1986). This reliance is misplaced. In Ngirangas, we held that it was reversible error for the district court to conclude that it did not have any discretion to authorize the deposition of a fugitive. Id. at 896-98. We further held that, "as a matter of law under the facts of this case " the deposition should have been allowed. Id. at 898 (emphasis added). In the present case, both the magistrate and the district court declined to rely on Vaidya's fugitive status. In Ngirangas, the appellate division of the district court of Guam found that the defense had made "a strong showing." Id. Other evidence suggested that the government's case, such as it was, may have been tainted. An internal investigation revealed that "the persons taken into custody at the Ngirangas residence were ... physically assaulted by the officers for refusing to cooperate." Id. at 898 n. 1. Moreover, the proposed witness, if believed, would have exculpated Ngirangas totally. Id. at 897. And, there was no evidence of undue delay.

In the present case, Miller waited until two years after Vaidya had left this country before she filed her motion. In addition, the district court found that Vaidya's proposed testimony would have been cumulative. Given the extraordinary delay in seeking Vaidya's deposition testimony, coupled with its cumulative nature, the district court did not abuse its discretion in denying Miller's motion to depose Vaidya.¹  See United States v. Cutler, 806 F.2d 933, 935 (9th Cir. 1986) (citing United States v. Richardson, 588 F.2d 12235, 1241 (9th Cir. 1978), cert. denied, 440 U.S. 947 (1979)).

MILLER'S MOTION FOR A CONTINUANCE

Miller argues that the trial court improperly denied her motion to continue the trial. As this court held in United States v. Powell, 587 F.2d 443, 447 (9th Cir. 1978),

The district court has broad discretion in granting or denying a continuance to procure the presence of an absent witness, and the district court's decision on that question must not be disturbed in the absence of an abuse of discretion.

Id. (citations omitted). Miller contends the continuance was necessary to permit the deposition of Vaidya. Since we have already held that the district court acted within its discretion when it denied Miller's request to depose Vaidya, the district court's decision to deny the continuance was clearly proper.

EVIDENTIARY RULINGS

Miller raises a series of objections to the evidentiary rulings made by the district court. We review evidentiary rulings for an abuse of discretion.²  United States v. Morlan, 756 F.2d 1442, 1446 (9th Cir.), cert. denied, 474 U.S. 837 (1985); United States v. Crenshaw, 698 F.2d 1060, 1063 (9th Cir. 1983) (judge's decision balancing the probative value versus prejudice "is given great deference and this court will reverse it only where there is an abuse of discretion"); United States v. Rohrer, 708 F.2d 429, 432 (9th Cir. 1983). This court explained in Rohrer that:

A court's evidentiary rulings will be overturned only for abuse of discretion.... Even if error is found, the nonconstitutional errors alleged here would not require reversal unless it was "more probable than not" that they affected the verdict.

Id. at 432 (citations omitted). A review of the record demonstrates that the trial court did not abuse its discretion in making its evidentiary rulings. Moreover, given the overwhelming evidence of Miller's guilt, it does not appear "more probable than not" that these rulings affected the verdict. Id.

JURY INSTRUCTIONS

This court reviews jury instructions as a whole to determine if the trial court abused its discretion. United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986), 107 S. Ct. 1289 (1987). Taken as a whole, the instructions presented all of Miller's valid defense theories. We find no abuse of discretion.

Count 42

Miller argues that the evidence was insufficient to support her conviction on Count 42. In reviewing the sufficiency of the evidence on this count, the relevant question is "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found (Miller) guilty (of Count 42) beyond a reasonable doubt." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986). Miller argues that the evidence was insufficient to support her conviction on Count 42.

Count 42 charged that Miller, Alcinda Miller, Sverre John Oftedal and Shashikant Vaidya "did prepare and submit or cause to be submitted on behalf of Camilla Corona ... materially false and fraudulent statements contained in a document designated as Request for Medicare Payment." Essentially, Count 42 alleged that the Request for Medicare Payment ("the claim") was false in three respects: (1) the claim falsely certified that medical services were provided and charged to Camilla Corona ("Corona") when in fact they were not given, (2) the claim falsely certified that "Dr. OFTEDAL, a licensed physician, conducted a physical examination (of Corona) ... when in fact neither OFTEDAL nor a licensed physician conducted such examination" and (3) the claim falsely represented that Corona "paid in full $1,057.40 to the defendants when (Corona) had paid them in full only $750.00."

The only evidence offered in support of Count 42 were exhibits numbers 16 and 161. These exhibits are insufficient to support Miller's conviction on this count. First, while the exhibits do reflect that medical services were rendered to Corona and Medicare was billed for medical services, there is nothing in the exhibits which even arguably establishes that Medicare was billed for services which Corona did not receive. Second, there is some evidence in exhibits to suggest that Dr. Oftedal did not examine Corona. Finally, while the exhibits reflect that Medicare was billed $1,057.40 and that it was represented to Medicare that Corona had paid this amount in full, there is nothing in the exhibits which establishes that Corona did not pay the amount specified. Accordingly, Miller's conviction on Count 42 must be reversed.

CONCLUSION

Miller's conviction is affirmed on all counts of which she was convicted, except count 42 (styled "Count XLII" in the indictment) and Count 69 (styled "COUNT LXIX" in the indictment). Miller's convictions on Count 42 and on Count 69 are reversed.

AFFIRMED IN PART AND REVERSED IN PART.