Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2002

USA v. Gumbs
Precedential or Non-Precedential:

Docket 1-1793




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PRECEDENTIAL

       Filed March 14, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1793

UNITED STATES OF AMERICA

v.

LINCOLN GUMBS,

       Appellant

On Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 97-cr-00005)
District Judge: Hon. Thomas K. Moore

Argued December 4, 2001

BEFORE: BECKER, Chief Judge, NYGAARD and COWEN,
Circuit Judges

(Filed March 14, 2002)

       STEPHEN A. BRUSCH, ESQ.
        (ARGUED)
       International Plaza, Suite 2G
       P.O. Box 988
       Charlotte Amalie, St. Thomas
       U.S. Virgin Islands, 00804

        Counsel for Appellant
       DAVID L. ATKINSON, ESQ.
       United States Attorney
       NELSON L. JONES, ESQ. (ARGUED)
       Assistant U.S. Attorney
       5500 Veterans Drive, Suite 260
       Charlotte Amalie, St. Thomas
       U.S. Virgin Islands, 00802-6424

        Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Defendant Lincoln Gumbs, a contractor in the United
States Virgin Islands, entered into construction contracts
with the Government of the Virgin Islands ("GVI") to
renovate a hospital and a high school gymnasium in St.
Thomas. The contracts were funded by a grant from the
United States Department of the Interior to the GVI for
capital improvement projects. To receive compensation for
work performed under the contracts, Gumbs would submit
to the GVI periodic requests for payment. The GVI would
send these requests to the United States Department of the
Interior, which would wire the funds to a GVI bank
account. Gumbs in turn received payments in the form of
checks drawn on the GVI's account.

At issue here is Gumbs's submission to the GVI of
requests for payment of $92,500 for bonding fees pursuant
to the gymnasium contract, and $144,426 for the cost of a
performance bond pursuant to the hospital contract.
Gumbs, however, paid only $10,000 for the performance
bond for the hospital contract, and had not paid any
amount for performance bonds for the gymnasium contract.
Gumbs was indicted on two counts of willfully causing a
false claim to be made or presented to a federal department
in violation of 18 U.S.C. S 2(b) and S 287.1
_________________________________________________________________

1. Gumbs was also indicted on two counts of making false statements in
a matter within the jurisdiction of a federal department in violation of
18
U.S.C. S 1001, but these counts were dismissed before trial.

                                2
Gumbs moved for judgment of acquittal at the close of
the government's case pursuant to Rule 29(a) of the Federal
Rules of Criminal Procedure, and renewed his motion at the
close of trial. The District Court denied Gumbs's motion,
and the jury convicted him on the two false claims counts.
The District Court sentenced Gumbs to eighteen months on
each count, to be served concurrently, and ordered him to
pay $251,131 in restitution. Gumbs appeals from the final
judgment of the District Court, which subsumes the
District Court's denial of his motion for judgment of
acquittal.

This appeal requires us to determine the mens rea
required for a defendant to be convicted of causing a false
claim to be made or presented to a department of the
United States, in violation of 18 U.S.C. S 2(b) and S 287.
Gumbs submits that there was insufficient evidence that he
knew that the contracts in question were federally funded,
and that such knowledge is required before a defendant
may be convicted under S 2(b) and S 287. The government
responds that S 2(b) and S 287 do not require a defendant
to know that he is causing a false claim to be presented to
a federal department.

Section 2(b) makes it a crime for a person to "willfully
cause[ ] an act to be done which if directly performed by
him . . . would be an offense against the United States." In
general, for a defendant to be convicted under S 2(b), the
government must prove two mens rea elements. First, the
defendant must possess the mental state required by the
underlying statute that the defendant caused another to
violate, in this case S 287. Section 287 makes it a crime to
"make[ ] or present[ ] . . . to any department [of the United
States] . . . any claim upon . . . the United States, or any
department or agency thereof, knowing such claim to be
false, fictitious, or fraudulent." We conclude that the mens
rea element of S 287 does not require a defendant who
presents a false claim to the federal government to know
that he is presenting the claim to the federal government.

In addition to requiring a defendant to possess the mens
rea required by the underlying statute, however,S 2(b)
imposes the further mens rea requirement that a defendant
"willfully" cause the act prohibited by the underlying

                               3
statute. More specifically, this additional mens rea element
means that in a prosecution under S 2(b) andS 287, a
defendant must willfully cause a false claim to be presented
to the federal government. Although on its face, this
willfulness requirement would seem to require a defendant
who causes an intermediary to present a false claim to a
federal department to know that the false claim will be
presented to a federal department, the requirement that the
false claim be presented to a federal department is a
jurisdictional requirement, and the Supreme Court has
held that a defendant generally need not be aware of the
existence of a jurisdictional element to be guilty of a federal
offense. See United States v. Feola, 

, 672-73,
696 (1975) (holding that knowledge that the intended victim
is a federal officer is not an element of the crime under 18
U.S.C. SS 111 and 371 of conspiracy to assault a federal
officer engaged in the performance of official duties); see
also United States v. Yermian, 

, 75 (1984)
(holding that to be guilty of making a false statement in a
matter within the jurisdiction of a federal agency in
violation of 18 U.S.C. S 1001, a defendant need not know
that the statement was made in a matter within the
jurisdiction of a federal agency).

However, to be convicted of willfully causing an
intermediary to present a false claim to a federal
department, a defendant must at least know that he is
causing the intermediary to present a false claim to
someone, even if he does not know that the department to
which he is causing the intermediary to present a false
claim is in fact a federal department. Applying this
standard to this case, we conclude that there is insufficient
evidence from which a rational jury could find beyond a
reasonable doubt that Gumbs knew that he was causing
the GVI to make or present a false claim. In particular,
there is no evidence that Gumbs knew that his contract
was funded by anyone other than the GVI. We cannot
uphold the conviction on some notion that it is generally
known that all government contracts in the Virgin Islands
are funded, at least in part, by the federal government.

                               4
Accordingly, we will reverse Gumbs's conviction and
remand with instructions to enter a judgment of acquittal.2

I.

Gumbs was convicted under the federal False Claims Act,
18 U.S.C. S 287, which provides that:

       Whoever makes or presents to any person or officer in
       the civil, military, or naval service of the United States,
       or to any department or agency thereof, any claim
       upon or against the United States, or any department
       or agency thereof, knowing such claim to be false,
       fictitious, or fraudulent, shall be imprisoned not more
       than five years and shall be subject to a fine in the
       amount provided in this title.

The actus reus element of S 287 thus requires the
defendant to present a claim to a "person or officer in the
civil, military, or naval service of the United States," or a
"department or agency" of the United States. 3 Since it is
undisputed that Gumbs presented his claims for payment
to the GVI, which is neither a "person or officer in the civil,
military, or naval service of the United States," nor a
"department or agency" of the United States, as defined in
18 U.S.C. S 6, he did not commit the requisite actus reus to
be convicted of directly violating S 287. 4
_________________________________________________________________

2. The District Court had jurisdiction over this case pursuant to 18
U.S.C. S 3241, and we have appellate jurisdiction pursuant to 28 U.S.C.
S 1291. In reviewing a guilty verdict for sufficiency of the evidence, we
must affirm the defendant's conviction if, viewing the evidence in the
light most favorable to the government, a rational jury could find beyond
a reasonable doubt that the government proved all the elements of the
offense. See United States v. Pressler, 

, 149 (3d Cir. 2001).

3. The actus reus element of a crime is the "wrongful deed that
comprises the physical components of a crime and that generally must
be coupled with mens rea to establish criminal liability." Black's Law
Dictionary 37 (7th ed. 1999).

4. The federal criminal code defines the terms"department" and "agency"
as follows:

       The term "department" means one of the executive departments
       enumerated in section 1 of Title 5, unless the context shows that

                               5
Even though Gumbs did not directly violate S 287
because he did not present a claim to a department or
agency of the United States, he may still be guilty under 18
U.S.C. S 2(b), which provides that "[w]hoever willfully
causes an act to be done which if directly performed by him
. . . would be an offense against the United States, is
punishable as a principal." If there is sufficient evidence
that Gumbs willfully caused the GVI to present a false
claim to a department or agency of the United States, then
his conviction must be affirmed under S 2(b) in combination
with S 287. See United States ex rel. Marcus v. Hess, 

(1943) (upholding defendants' liability in a qui tam
suit under the predecessor to S 287, which criminalized
causing a fraudulent claim to be presented to the federal
government, where the defendants presented fraudulent
claims to local entities, who in turn presented the claims to
the federal government); United States v. Catena , 

(3d Cir. 1974) (upholding a conviction underS 2(b)
and S 287, where the defendant presented false Medicare
claims to private insurance companies, who in turn
presented the claims to the federal government). 5
_________________________________________________________________

        such term was intended to describe the executive, legislative, or
        judicial branches of the government.

        The term "agency" includes any department, independent
        establishment, commission, administration, authority, board or
        bureau of the United States or any corporation in which the United
        States has a proprietary interest, unless the context shows that
        such term was intended to be used in a more limited sense.

18 U.S.C. S 6.

5. Although the government did not cite S 2(b) in the indictment, the
indictment charged that Gumbs "knowingly and willfully made and
presented and caused to be made and presented to the United States
Department of the Interior . . . a claim upon and against the United
States . . . knowing that such claim was false . . .." We held in Catena
that such an indictment is sufficient to charge a violation of S 2(b) in
tandem with S 287:

        The text of each count [of the indictment] accused the defendant of
        "presenting and causing to be presented" a false claim to an agency
        of the United States. While the indictment did not by its terms
refer
       specifically to S 2(b), but rather referred only to S 287, this
omission
       is not 

(internal alterations omitted).
6
Gumbs argues that to violate S 2(b) in conjunction with
S 287, a defendant must know that he is causing a false
claim to be presented to the federal government. See 

(noting that the predecessor toS 287,
which criminalized causing a false claim to be presented to
the federal government, "indicate[s] a purpose to reach any
person who knowingly assisted in causing the[federal]
government to pay claims which were grounded in fraud,
without regard to whether that person had direct
contractual relations with the [federal] government"
(emphasis added)); 

n.7 ("[I]t
would have been futile for the defendant to contend at trial
that he did not know that the claim forms he sent to the
carriers would ultimately be paid out of the federal
treasury. The forms each contained the heading, in large
letters, `Request for Medicare Payment,' and on the next
line, `Medical Insurance Benefits -- Social Security Act.' ").
Gumbs further cites cases from other circuits, identified in
the margin, which affirmed convictions under S 2(b) and
S 287 where it was clear that the defendant knew that he
was causing an intermediary to present a false claim to the
federal government.6 Accordingly, in Gumbs's submission,
his conviction must be reversed because there is
insufficient evidence that he possessed the requisite mens
rea.

The government responds that no showing that a
defendant knew that the false claim would be submitted to
_________________________________________________________________

6. See United States v. Murph, 

, 896 (6th Cir. 1983) (per
curiam) (affirming a conviction under S 287, where the defendant sold a
false income tax return to a discounter and "knew when he sold the
return to the discounter that the discounter was buying it for the
purpose of presenting it to the government for a refund"); United States
v. Blecker, 

, 634 (4th Cir. 1981) (upholding defendant's
conviction under S 2(b) and S 287 where"there was substantial evidence
that [defendant] submitted invoices for hourly rates based on falsified
resumes with knowledge that [the party to whom the claims were
submitted] would seek reimbursement for the payment of the invoices
from the GSA"); United States v. Beasley, 

, 273-74 (5th Cir.
1977) ("[W]e hold that false claims submitted to the state when the
claimants knew that the state would rely on these claims for
reimbursement from the federal government pursuant to a joint federal-
state program fall within the federal false claims statute.").

                               7
the federal government is required under S 2(b) and S 287,
citing United States v. Montoya, 

(10th Cir.
1983), which held that to be guilty of causing a false claim
to be submitted to the federal government in violation of
S 2(b) and S 287, a defendant need not know that the claim
would ultimately be paid out of federal funds. 

However, the Supreme Court's decision in Hess and our
decision in Catena suggest that knowledge that the false
claim will be paid from federal funds is necessary for a
defendant to be convicted of causing a false claim to be
presented to the federal government. Nonetheless, because
the defendant knew that the claims would be paid out of
federal funds in those cases, the Court did not have
occasion to address squarely the question whether a
conviction may be upheld under S 2(b) andS 287 where the
defendant does not know that the claims presented will be
paid out of federal funds. Given the absence of any binding
authority directly on point, we turn to the general
principles of criminal law underlying S 2(b) for guidance in
determining the mens rea required underS 2(b) and S 287.

A.

Section 2(b) imposes liability on a defendant who does
not himself commit the prohibited actus reus, but
intentionally manipulates an innocent intermediary to
commit the prohibited actus reus:

       It is but to quote hornbook law to say that in every
       crime there must exist a union or joint operation of act,
       or failure to act, and intent. However, this is far from
       suggesting that the essential element of criminal intent
       must always reside in the person who does the
       forbidden act. Indeed, the latter may act without any
       criminal intent whatever, while the mens rea--
       "willfulness" -- may reside in a person wholly
       incapable of committing the forbidden act. When such
       is [the] case, as at bar, the joint operation of act and
       intent prerequisite to commission of the crime is
       provided by the person who willfully causes the
       innocent actor to commit the illegal act. And in such a
       case, of course, only the person who willfully causes
       the forbidden act to be done is guilty of the crime.

                               8
United States v. Lester, 

, 73 (6th Cir. 1966),
quoted in United States v. American Investors of Pittsburgh,
Inc., 

, 1095 (3d Cir. 1989).

Consistent with these principles, we read S 2(b) as
establishing two general mens rea elements. First, to be
guilty under S 2(b), a defendant must possess the mens rea
required by the underlying criminal statute that the
defendant caused the intermediary to violate, in this case
S 287. See United States v. Curran, 

, 567 (3d
Cir. 1994) ("Section 2(b) imposes criminal liability on those
who possess the mens rea to commit an offense and cause
others to violate a criminal statute."); see also United States
v. Hsia, 

, 522 (D.C. Cir. 1999) (holding that
the mens rea element under S 2(b) requires proof of "the
mens rea for the underlying offense"); United States v.
Gabriel, 

, 99 (2d Cir. 1997) ("Generally, to
establish a conviction through the use of section 2(b), the
government must prove that the defendant had the mental
state necessary to violate the underlying criminal statute
. . . .").

In addition to requiring the defendant to possess the
mental state necessary to violate the underlying statute,
S 2(b) also requires the defendant to possess the intent to
cause the act prohibited by the underlying statute. This
element arises from the explicit requirement inS 2(b) that
the defendant "willfully" cause the prohibited actus reus.
For example, in United States v. Curran, 

(3d
Cir. 1994), we held that the mens rea element required
under S 2(b) for causing a false statement to be made in
violation of 18 U.S.C. S 1001 goes beyond the mens rea
required by S 1001:

       When proceeding under section 2(b) in tandem with
       section 1001, the government must prove that a
       defendant caused the intermediary to make false
       statements. The intent element differs from that needed
       when the prosecution proceeds directly under section
       1001. The prosecution must not only show that a
       defendant had the requisite intent under section 1001
       (deliberate action with knowledge that the statements
       were not true), but must also prove that he "willfully"
       caused the false representations to be made.

                               9


see also United States v. Barel, 

,
42 (3d Cir. 1991) (reversing a defendant's conviction under
S 2(b) where "[t]he government did not produce any
evidence to show [defendant] intended to cause[a third
party] to breach a statutory duty").

To sum up, in a prosecution under S 2(b), the government
must show the following mens rea elements: (1) that the
defendant had the mens rea required by the underlying
statute; and (2) that the defendant willfully caused the
innocent intermediary to commit the act prohibited by the
underlying statute. See United States v. Gabriel , 

, 101 (2d Cir. 1997) ("The most natural interpretation of
section 2(b) is that a defendant with the mental state
necessary to violate the underlying section is guilty of
violating that section if he intentionally causes another to
commit the requisite act." (emphasis omitted)); see also
United States v. Hsia, 

, 522 (D.C. Cir. 1999)
("The natural reading of SS 2(b) and 1001 is this: the
government may show mens rea simply by proof (1) that the
defendant knew that the statements to be made were false
(the mens rea for the underlying offense-- S 1001) and (2)
that the defendant intentionally caused such statements to
be made by another (the additional mens rea for S 2(b)).").
We will therefore consider the substance of each of these
general mens rea requirements in a prosecution under
S 2(b) in tandem with S 287.

B.

We first consider whether the mens rea required by S 287
requires the defendant to know that the department to
which the false claim is presented is a federal department,
and conclude that it does not. First, the phrase"knowing"
in S 287 is placed after the requirement that the false claim
be submitted to a federal agency: "Whoever makes or
presents . . . to any department or agency [of the United
States], any claim . . . against the United States, or any
department or agency thereof, knowing such claim to be
false, fictitious or fraudulent, shall be imprisoned not more
than five years . . . ." (emphasis added). This placement of
the mens rea requirement indicates that a defendant may
violate S 287 even if he does not know that the department

                               10
to whom he is presenting the false claim is a federal
department. Cf. United States v. Yermian, 

, 69
(1984) ("[T]he statutory language [in 18 U.S.C. S 1001]
makes clear that Congress did not intend the terms
`knowingly and willfully' to establish the standard of
culpability for the jurisdictional element of S 1001. The
jurisdictional language appears in a phrase separate from
the prohibited conduct modified by the terms `knowingly
and willfully.' ").

Moreover, the requirement in S 287 that the department
to whom the false claim is presented be a federal
department is jurisdictional in nature. Cf. 

("The statutory language [in 18 U.S.C. S 1001]
requiring that knowingly false statements be made`in any
matter within the jurisdiction of any department or agency
of the United States' is a jurisdictional requirement. Its
primary purpose is to identify the factor that makes the
false statement an appropriate subject for federal
concern."). Generally, to be guilty of a federal offense, a
defendant need not be aware of the existence of a
jurisdictional element. See 

("[T]he existence of
the fact that confers federal jurisdiction need not be one in
the mind of the actor at the time he perpetrates the act
made criminal by the federal statute." (quoting United
States v. Feola, 

, 676-77 n.9 (1975))).

We therefore hold that the mens rea necessary for a
direct violation of S 287 does not require knowledge that the
party to whom the claim was presented is a federal
department. See United States v. Montoya, 

,
1345 (10th Cir. 1983) ("[I]gnorance of the federal presence
does not negate the requisite mens rea for aS 287 violation
-- the intent to present a fraudulent claim.").

C.

As discussed above, however, S 2(b) requires a mens rea
element in addition to that required by the underlying
offense. In particular, S 2(b) requires that the defendant
"willfully" cause an intermediary to commit the prohibited
actus reus. This willfulness requirement means that in a
prosecution for causing an intermediary to present a false

                                11
claim to a federal department, the defendant must at least
have known that he was causing the intermediary to
present a false claim. If a defendant simply presents a false
claim, without any knowledge that the entity to whom the
false claim is presented will in turn present the false claim
to a third party, then the defendant cannot be said to have
willfully caused the intermediary to commit the actus reus
prohibited under S 287.

Accordingly, we may uphold Gumbs's conviction only if
there is sufficient evidence, when viewed in the light most
favorable to the government, for a rational jury to conclude
beyond a reasonable doubt that Gumbs knew that he was
causing the GVI to make or present a false claim. Put
differently, acquittal is required in this case unless there is
sufficient evidence that Gumbs knew that the contract was
actually funded by someone other than the GVI.

We need not decide whether a defendant, to be convicted
under S 2(b) in tandem with S 287 of causing an
intermediary to present a false claim to a federal
department, must know not only that he is causing the
intermediary to present a false claim, but also that the
party to whom the intermediary is presenting the claim is
a federal department. Although the willfulness requirement
of S 2(b) appears on its face to require the defendant to have
knowingly caused each element of the actus reus prohibited
by the underlying statute, including the requirement under
S 287 that the false claim be submitted to the federal
government, mens rea requirements generally do not extend
to the jurisdictional element of the actus reus , as discussed
above. See United States v. Feola, 

, 672-73,
696 (1975) (holding that knowledge that the intended victim
is a federal officer is not an element of the crime under 18
U.S.C. SS 111 and 371 of conspiracy to assault a federal
officer engaged in the performance of official duties); see
also United States v. Yermian, 

, 75 (1984)
(holding that to be guilty of making a false statement in a
matter within the jurisdiction of a federal agency in
violation of 18 U.S.C. S 1001, a defendant need not know
that the statement was made in a matter within the
jurisdiction of a federal agency).

                               12
At all events, as discussed below, there is insufficient
evidence that Gumbs knew that his contract was funded by
anyone other than the GVI, and therefore insufficient
evidence that he knew that he was causing the GVI to
present a false claim. Thus, we hold only that to violate
S 2(b) in conjunction with S 287 by willfully causing an
intermediary to present a false claim to a federal
department, a defendant must know at least that he is
causing the intermediary to submit a false claim.
Accordingly, we reserve the question whether such a
defendant must also know that the party to whom he is
causing the intermediary to present the false claim is a
federal department.

II.

Having concluded that a defendant may be convicted of
causing an intermediary to present a false claim to the
federal government in violation of S 2(b) andS 287 only if
the defendant knows that he is causing the intermediary to
submit a false claim, we turn to whether there is sufficient
evidence to support Gumbs's conviction in this case.
However, we find no evidence in the record that Gumbs had
any knowledge that the contracts in question were funded
by anyone other than the GVI. There is therefore no
evidence from which a rational jury could conclude beyond
a reasonable doubt that Gumbs knew that he was causing
the GVI to submit a false claim.

The government relies on Gumbs's testimony that he has
been a building contractor since 1966, and that he had
done "a lot of government projects." In particular, between
1989 and 1992 Gumbs had approximately $15 million
worth of contracts. But the mere fact that Gumbs was an
experienced government contractor is inadequate to
establish beyond a reasonable doubt that he knew that his
contract was funded by someone other than the GVI. Even
the most experienced contractor need not know that a
contract with the Virgin Islands is funded by a third party
unless there is some concrete indicia of third-party funding.
While it may be that nearly all government contracts in the
USVI are federally funded, this fact is not capable of
judicial notice under Federal Rule of Evidence 201(b), since

                               13
it is neither "generally known within the territorial
jurisdiction of the trial court," nor "capable of accurate and
ready determination by resort to sources whose accuracy
cannot reasonably be questioned."

The government argues that the contracts provided that
"[t]he Work shall be done under the direct supervision of
the Government, and in accordance with the laws of the
Government and its Rules and Regulations thereunder
issued and any and all applicable federal rules and
regulations."7 But it cannot be inferred beyond a reasonable
doubt from this provision that Gumbs knew that the
contract was federally funded. This provision simply
reminds contractors of their duty to comply with federal
rules and regulations such as OSHA and antidiscrimination
laws, and could be included in both federally funded
contracts and nonfederally-funded contracts alike. While it
may be that such language is unnecessary, insofar as
federal rules and regulations apply of their own force, it is
nonetheless customary to include such clauses in
contracts, regardless of their source of funding.

That the contractual provision requiring contractors to
comply with federal law provides insufficient evidence for a
reasonable jury to conclude beyond a reasonable doubt that
the contract was federally funded is illustrated by the fact
that the contractual provision also reminds contractors of
their duty to comply with the laws of the GVI. By the
government's logic, a rational jury could therefore infer
beyond a reasonable doubt that the contract was funded by
the GVI. But the hospital contract, which included this
provision requiring the contractor to comply with the laws
of the GVI, was 100% funded by federal money. Thus,
where a contract requires the contractor to comply with the
law of a given sovereign, it cannot be inferred beyond a
reasonable doubt that the contract is funded by that
sovereign.

In sum, there was insufficient evidence, even when
viewed in the light most favorable to the government, from
which a rational jury could conclude beyond a reasonable
doubt that Gumbs knew that he was causing the GVI to
_________________________________________________________________

7. The contracts define "Government" as the GVI.

                               14
make or present a false claim. Accordingly, we will reverse
Gumbs's conviction and remand with instructions to enter
a judgment of acquittal. See Burks v. United States, 

, 18 (1978) ("[T]he Double Jeopardy Clause precludes
a second trial once the reviewing court has found the
evidence legally insufficient . . . .").8

A True Copy:
Teste:

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

8. We acknowledge that this result is unfortunate, since Gumbs will
escape punishment even though a jury found that he intentionally
defrauded the GVI, and as a result obtained federal taxpayer dollars to
which he was not entitled. In the future, however, the GVI and other
entities that receive federal funding can avoid this result by including a
clause in contracts notifying contractors that the contract is federally
funded and that any claims presented pursuant to the contract will be
presented to the federal government, thus subjecting the contractors to
criminal penalties under the federal False Claims Act. Moreover, the
federal government could require grant recipients, such as the GVI, as a
condition on the receipt of the grant, to include such a provision in
contracts funded by the grant, as is required of states in the Medicaid
and Medicare context. See 42 C.F.R. S 457.950(b)(2) ("A State that makes
payments to fee-for-service entities under a separate child health
program must . . . [e]nsure that fee-for-service entities understand that
payment and satisfaction of the claims will be from Federal and State
funds, and that any false claims may be prosecuted under applicable
Federal or State laws . . . .").

                               15