Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2000

United States v. Gomez
Precedential or Non-Precedential:

Docket 99-3979




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Recommended Citation
"United States v. Gomez" (2000). 2000 Decisions. Paper 254.
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Filed December 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3979

UNITED STATES OF AMERICA

v.

ANSELMO GOMEZ,
       Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 99-00020)
District Judge: Honorable Alan N. Bloch

Argued October 25, 2000

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges

(Filed: December 14, 2000)

       Harry Litman
       United States Attorney
       Bonnie R. Schlueter
       Assistant United States Attorney
       Thomas J. Farrell
       Assistant United States Attorney
       Paul J. Brysh (argued)
       Assistant United States Attorney
       Office of the United States Attorney
       633 United States Post Office &
       Courthouse
       Pittsburgh, PA 15219

        Attorneys for Appellee
       Shelley Stark
       Federal Public Defender
       W. Penn Hackney (argued)
       Assistant Federal Public Defender
       Karen Sirianni Gerlach
       Assistant Federal Public Defender
       Office of the Federal Public Defender
       960 Penn Avenue
       415 Convention Tower
       Pittsburgh, PA 15222

        Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on an appeal from
a judgment of conviction and sentence entered on
November 19, 1999, following the jury's retur n of a verdict
against appellant Anselmo Gomez, a physician, on 16
counts of health care fraud arising from Medicare billings
in violation of 18 U.S.C. S 1347. The district court
sentenced Gomez to concurrent 24-month ter ms of
imprisonment on each count to be followed by thr ee years
of supervised release. On this appeal Gomez raises the
following issues:

       I. The evidence, when viewed in the light most
       favorable to the Government, was not sufficient to
       convict Dr. Gomez of health care fraud, because it
       proved only that his patient care may have fallen below
       acceptable medical standards, but not that he had any
       knowledge of, or involvement with, Aquahab's billing
       procedures.

       II. The Government's evidence that Dr. Gomez failed to
       adhere to accepted medical practices and standards
       was irrelevant to the issue of whether he knowingly
       and willfully participated in fraudulent billings, and
       also [was] unduly prejudicial, so that it was improperly
       admitted under Federal Rules of Evidence 402 and
       403.

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       III. The district court denied Dr. Gomez his
       constitutional right to a defense when it refused to
       allow him to present evidence proving that the general
       practice of Aquahab was to exclude its doctors fr om
       billing matters.

       IV. The district court violated Dr. Gomez's fifth
       amendment right against compelled self-incrimination,
       when it subpoenaed him to appear before the grand
       jury; warned him that he must testify truthfully; never
       told him that what he said might be used against him
       or that he did not have to answer if he did not want to;
       and then indicted him based upon his grand jury
       testimony.

We have reviewed this matter car efully and have
concluded that the appeal is clearly without merit and
accordingly we will affirm without discussion except on the
Fifth Amendment issue that Gomez raises in point IV . Of
course, while Gomez complains that the district court
violated his Fifth Amendment rights, he actually is referring
to the actions of the assistant United States attor ney before
the grand jury. We exercise plenary r eview on the Fifth
Amendment issue. See United States v. McLaughlin , 

, 133 (3d Cir. 1997).

The circumstances underlying this point ar e as follows.
This case arises out of a Medicare fraud investigation of
Gomez's employer, Three Rivers Physical Therapy and
Occupational Therapy Center, which operated the AquaHab
program to which Gomez refers in his statement of the
issues. Gomez does not claim that he originally was a target
or subject of the investigation or the grand jury pr oceeding
and the government at least denies that he was a target.
Indeed, Gomez voluntarily cooperated with the
investigation, at least to the extent of allowing Medicare
fraud investigators to interview him. Nevertheless Gomez
was not in the position of a mere witness to the events
being investigated, as for example a witness to a r obbery,
for some of Three Rivers' questioned billings were in his
name and to a degree he was involved in its operations.

During the investigation the government served a
subpoena on Gomez requiring him to appear befor e a grand

                               3
jury in Pittsburgh and he obeyed the subpoena but
appeared without counsel. Before the grand jury the
following exchange took place between the assistant United
States attorney and Gomez:

        Q. Before we get started, I have a few war nings that I
        have to give to Grand Jury witnesses.

. . .

        Q. First of all, you understand that you're under oath
        here?

        A. (Witness moves head in an affirmative response.)

        Q. You have to answer orally, yes or no?

        A. Yes.

        Q. And you understand that your testimony is being
        taken down by a court reporter?

        A. Yes.

        Q. And you understand that it's against the law to lie,
        to knowingly misrepresent the truth to grand jurors?

        A. Yes.

        Q. And that would be the crime of perjury or making
        false statements; do you understand that?

        A. Right. Yes.

        Q. Do you understand, as well, that if you chose[sic],
        you could have a lawyer outside the Grand Jury r oom
        to consult with?

        A. Okay. Yes.

        Q. And today, did you come here with a lawyer?

        A. No. No, I didn't.

        Q. Okay. Now, are you willing to answer questions from
        me and the grand jurors about - -

        A. Sure.

App. at 772-73.

Following those warnings Gomez testified at length and
made incriminating statements. Indeed, he contends that

                               4
"[f]or all practical purposes, the gover nment recognized that
it decided to indict [him] based solely upon his grand jury
testimony." Br. at 48. While the gover nment does not
concede that this statement is true, there is no doubt but
that Gomez's testimony was harmful to him.

Prior to the trial Gomez moved to dismiss the indictment
by reason of his testimony before the grand jury,
contending that the grand jury indicted him "based upon
compelled self-incrimination." 

In the alternative
he asked that the court suppress the use of his testimony
at trial. The district court denied these motions and thus
the trial went forward with the government using Gomez's
grand jury testimony at the trial. As we have indicated, the
jury convicted Gomez.

On this appeal, Gomez contends that the procedure
followed before the grand jury violated his"Fifth
Amendment right to be free from compelled self-
incrimination." 

He develops his argument as
follows. First, he correctly points out that the privilege
against self-incrimination applies to a witness before the
grand jury. He then argues, again corr ectly, that he was
compelled to appear before the grand jury but he
incorrectly contends that he was compelled to testify. He
bases his argument that he was compelled to testify on the
circumstance that the assistant United States attorney
"never advised [him] that he did not have to answer any
questions, and . . . never told [him] that anything he said
could be used against him." 

He attempts to
overcome the logical problems with his ar gument, which
does not take into account that even without a war ning he
could have invoked his Fifth Amendment right not to
incriminate himself, see United States v. Mandujano, 

, 581, 

, 1778 (1976), by ur ging that
the government was obliged "to advise [him] that he could
remain silent and that anything he said could be used
against him . . . ." Br. at 50.

Unfortunately for Gomez, the law does not support his
argument. Indeed, he acknowledges that he"understands
that by faulting the government for its behavior, he is in
effect asking for an extension of the law; there is currently
no requirement that a citizen subpoenaed to appear before

                               5
a grand jury be informed of his right against self-
incrimination." 

asks us to "extend the
law" for two reasons. First, he makes the negative argument
that Supreme Court precedents do not "foreclose" granting
him relief, 

in this r egard citing United States v.
Washington, 

, 

(1977), and
Mandujano, 

, 

. He then makes
the affirmative argument that we should exercise our
"supervisory powers" to extend the law to r equire that the
government be obliged to advise a witness before a grand
jury of his right to remain silent and that his statements
can be used against him. Br. at 51.1 The government
argues that Gomez is wrong with r espect to existing law as
in its view the Supreme Court precedent does foreclose us
from granting the relief Gomez seeks, in this regard citing
United States v. Williams, 

, 

(1992), Minnesota v. Murphy, 

, 

(1984), and United States v. Wong, 

, 

(1977). Of course, the government also contends that
we should not use our supervisory power as Gomez
requests.

We are satisfied that the gover nment is correct and thus
we hold that the assistant United States attor ney did not
have a constitutionally mandated obligation to advise
Gomez that he could remain silent and that anything he
said could be used against him. See United States v.
Crocker, 

, 1055-56 (3d Cir. 1977). Moreover,
we are convinced that even if we could do so, we should not
exercise our supervisory power as Gomez r equests. See

, 112 S.Ct. at 1741-44. In
Williams the defendant contended that the Court should
affirm the action of the court of appeals in affirming a
_________________________________________________________________

1. Gomez does not argue that the United States Attorneys' Manual SS 9-
11:150, 9-11:151, which sets forth Department of Justice policy with
respect to giving advice to certain grand jury witnesses and with respect
to subpoenaing targets of a grand jury investigation, see United States v.
Pacheco-Ortiz, 

, 311-13 (1st Cir. 1989), creates any rights
entitling him to relief. Of course, any such contention would be against
the weight of judicial authority. See United States v. Myers, 

, 355-56 (6th Cir. 1997); United States v. Gillespie, 

, 802
(7th Cir. 1992).

                               6
district court order dismissing an indictment because the
prosecutor did not disclose substantial exculpatory
evidence to the grand jury. The defendant, however , did not
contend "that the Fifth Amendment itself obliges the
prosecutor to disclose substantial exculpatory evidence in
his possession to the grand jury." See 

112 S.Ct.
at 1741. Rather, he urged that the Court should uphold the
dismissal on the basis that the court of appeals pr operly
exercised its supervisory power. Id . The Court rejected this
argument emphasizing that "[g]iven the grand jury's
operational separateness from its constituting court, it
should come as no surprise that we have been r eluctant to
invoke the judicial supervisory power as a basis for
prescribing modes of grand jury procedur e." 

112 S.Ct. at 1743.

We had occasion promptly to consider Williams in the
grand jury supervisory power context in Baylson v.
Disciplinary Board of the Supreme Court of Pennsylvania,

, 110 (3d Cir. 1992). In Baylson, after
discussing Williams and other Supr eme Court cases, we
indicated that Supreme Court precedent"suggest[s] to us
that the district court may not under the guise of its
supervisory power or its local rule-making power , impose
the sort of substantive restraint on the grand jury that is
contemplated" by a rule requiring a pr osecutor to obtain
prior judicial approval to subpoena an attor ney before a
grand jury where the prosecutor will seek to compel the
attorney to provide evidence against his present or former
client.

Williams and Baylson supply the approach that guides us
here. After all, nothing unfair happened befor e the grand
jury. To start with, there is no suggestion that the
questioning before the grand jury cover ed topics discrete
from the subject matter that Gomez reasonably could have
believed would be within the scope of his questioning, i.e.,
Three Rivers' billing practices and related matters. Thus,
this is not a case in which a witness was br ought before the
grand jury on the ruse that the inquiry concer ned a matter
unrelated to that actually involved. Mor eover, it is beyond
doubt that Gomez had an adequate opportunity when he
was served with the subpoena to consult with counsel

                               7
regarding his rights before the grand jury and the perils of
testifying instead of invoking his privilege against self-
incrimination. Indeed, almost any witness subpoenaed to
testify before a grand jury would have such an opportunity.
Thus, the situation before us is sharply dif ferent from that
which concerned the Supreme Court in Miranda v. Arizona,

, 444, 

, 1612 (1966), a case on
which Gomez relies, i.e., that a witness in custody might be
questioned without the implementation of procedural
safeguards to secure his privilege against self-incrimination
even though he does not have counsel present. Therefore,
we see no reason to impose the requir ement for warnings to
be given witnesses in grand jury proceedings that Gomez
requests. Consequently, we hold that the district court
properly denied the motion to dismiss the indictment and
correctly refused to suppress Gomez's grand jury testimony.2

For the foregoing reasons the judgment of conviction and
sentence entered November 19, 1999, will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

2. We have noted that when the gover nment subpoenaed Gomez he was
not a target of the investigation. We do not imply by making this
observation that we would have reached a dif ferent result if he had been
a target. Obviously, we cannot decide that issue as it is not before us.

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