931 F.

2d 725
32 Fed. R. Evid. Serv. 1281

UNITED STATES of America, Plaintiff-Appellee,

v.
Hooshang HOOSHMAND, Defendant-Appellant.
No. 87-6089.

United States Court of Appeals,

Eleventh Circuit.
May 16, 1991.

Joseph Beeler, Miami, Fla., for defendant-appellant.

Dexter Lehtinen, U.S. Atty., Anne Ruth Schultz, Linda Collins Hertz,
Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before JOHNSON and BIRCH, Circuit Judges, and MERHIGE * , Senior
District Judge.
JOHNSON, Circuit Judge:

Defendant Dr. Hooshang Hooshmand appeals his convictions for submitting

fraudulent Medicare claims to the United States Department of Health and
Human Services and fraudulent claims for medical services to private insurance
companies.

I. STATEMENT OF THE CASE

A. Background Facts
2

Dr. Hooshmand, a licensed physician specializing in neurology, treats patients

covered by private insurance companies as well as patients insured by
Medicare, a federal program which pays for much of the medical costs of

persons who are over the age of sixty-five or are disabled. Medicare is
administered by the Health Care Financing Administration, a federal agency
under the Department of Health and Human Services ("HHS"). The Medicare
program is divided into two parts. Medicare Part A covers hospital-related
costs, and Part B covers physician-related costs. Blue Cross and Blue Shield of
Florida, Inc., ("Blue Cross") administers Medicare in Florida as the agent of the
Health Care Financing Administration by processing claims and making
payments to physicians on behalf of the federal government.
3

If Blue Cross compensates a physician directly, it pays eighty percent of the

claim as determined by a schedule of allowances. The patient or co-insurer is
responsible for the remaining twenty percent. The patient is also responsible
for a seventy-five-dollar deductible and all non-covered charges. Physicians
participating in the Medicare program cannot collect more than the applicable
deductible and co-insurance. Participating physicians are required to obtain the
co-payment and deductible from the patient.

Blue Cross publishes a Manual for Physicians ("the Blue Cross Manual") which
provides physicians with the instructions necessary to file Medicare claims. A
physician submits a standard claim form, HCFA form 1500, to Blue Cross. This
form requires a physician to describe the services rendered using a set of
descriptive terms and codes. The Blue Cross Manual derived the terms and
codes from Current Procedural Terminology ("CPT"), a guide developed by the
American Medical Association to create a standardized nomenclature for use in
insurance claims, and the Florida Relative Value Studies ("FRVS"), developed
by the Florida Medical Association, Inc., another manual which provided a
standardized nomenclature.1

As part of his practice, Dr. Hooshmand administered electromyography

("EMG") exams which are designed to determine whether the muscles react to
the stimulus transmitted by the nerves. Dr. Hooshmand's practice consisted of
providing these tests as part of his care to his own patients as well as part of
consultations regarding patients under the care of others.
B. Procedural History

On March 11, 1987, a federal grand jury returned a superseding indictment

charging Dr. Hooshmand with seventeen counts of fraud for submitting false
Medicare claims ("Medicare fraud"), in violation of 18 U.S.C. Secs. 2 & 287,
and fifteen counts of mail fraud, in violation of 18 U.S.C. Secs. 2 & 1341. 2 The
mail fraud counts were based on allegedly false billings to private insurers. The

government charged that Dr. Hooshmand presented fraudulent claims for

consultation3 when he should have made claims for new patients and that he
presented claims for EMGs that he never performed. Dr. Hooshmand moved to
dismiss the indictment for vagueness and because Counts 18-32 failed to allege
sufficient use of the mails. The magistrate recommended that Counts 1-17 be
dismissed but that Counts 18-32 not be dismissed. The district court rejected the
magistrate's recommendation that Counts 1-17 be dismissed and denied Dr.
Hooshmand's motion to dismiss as to all counts.
7

A jury trial began on July 7, 1987. On August 4, 1987, the jury announced a
verdict. A poll of the jury revealed the verdict was not unanimous, and the jury
returned to deliberations. On August 5, 1987, the jury found Dr. Hooshmand
guilty on ten counts of Medicare fraud and seven counts of mail fraud.4 The
court sentenced Dr. Hooshmand to an aggregate sentence of eighteen months of
imprisonment, five years of probation to begin upon completion of the jail
sentence, full restitution in the amount of $3,101.24, 5000 hours of community
service while on probation, a fine of $250,000, and an assessment of $300.

Dr. Hooshmand raises the following issues on this appeal. He contends that his
mail fraud convictions for the allegedly fraudulent consultation billings are
inconsistent with the Supreme Court's holding in McNally v. United States, 483
U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). He also claims that the
definition of consultation is so vague that criminal prosecution for allegedly
submitting a false claim for consultation violates due process. Dr. Hooshmand
further contends that the evidence is insufficient to support his convictions for
fraudulently submitting false EMG claims and that the district court erred in its
jury instructions. He claims that the medicare fraud counts were inadequately
pleaded in the indictment and that the district court made numerous evidentiary
errors. Dr. Hooshmand also argues that the district court's denial of his postverdict motion to interview jurors violated his rights under the First and
Fourteenth Amendments. Finally, he claims that the district court erred in
imposing a fine of $250,000.II. ANALYSIS

A. The McNally Challenge to the Mail Fraud Convictions

10

Dr. Hooshmand argues that the mail fraud convictions for the allegedly
fraudulent consultation billings are inconsistent with McNally, supra. In
McNally, the Supreme Court held that the mail fraud statute applied only to
schemes to defraud for money or property and did not include schemes to
defraud individuals of intangible, non-property rights, e.g., a citizen's right to
honest government. Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98
L.Ed.2d 275 (1987).

11

Federal law prohibits the use of the mails in the furtherance of a scheme to
defraud. 18 U.S.C. Sec. 1341. To prove mail fraud, the government must show
that the defendant (1) intentionally participated in a scheme to defraud and (2)
used the mails to execute the fraudulent scheme. United States v. Hawkins, 905
F.2d 1489, 1496 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 707, 112
L.Ed.2d 696 (1991). Success of the scheme is not a necessary element of the
offense. United States v. Dynalectric Co., 859 F.2d 1559, 1576 (11th Cir.1988),
cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 157 (1989).

12

To determine whether a conviction for mail fraud is consistent with McNally,

this Court looks to the wording of the indictment and the jury instructions.
Dynalectric, 859 F.2d at 1570. If these are expressed in such a way that the jury
must have concluded that a defendant schemed to defraud a victim of a
monetary or property right, then we will uphold the convictions. Id. at 1570-71.
If the jury could have convicted a defendant of scheming to defraud a victim of
a McNally intangible right, then we will reverse the convictions. Id.

13

Turning to the indictment, paragraphs two and three of Count Fifteen, the first
mail fraud count, charged that the object of Dr. Hooshmand's scheme was to
obtain money from insurers for services he did not perform. All of the other
mail fraud counts incorporated these two paragraphs. To convict Dr.
Hooshmand in accordance with the indictment, the jury would have to conclude
that Dr. Hooshmand was engaged in a scheme to defraud the insurers of money.
Accordingly, the indictment complies with McNally.

14

We must next determine whether the jury instructions were consistent with
McNally. When reviewing jury instructions, this Court determines whether the
charges as a whole sufficiently instructed the jury so that it understood the
issues involved and were not misled. Everett v. Carnival Cruise Lines, 912 F.2d
1355, 1358 (11th Cir.1990).

15

The challenged instructions are substantially similar to the instructions this

Court upheld in Dynalectric, 859 F.2d at 1573.5 As in Dynalectric, the jury was
instructed that it was required to find a scheme to defraud money or property.
Id. "Or equal importance is that the jury was not instructed on the intangible
rights theory." Id. Finally, the court instructed the jury that the government had
to prove a scheme to defraud that was "substantially the same as the one alleged
in the indictment." As we have noted, the indictment alleged a scheme to
defraud the insurance companies of money. Accordingly, we find that the mail
fraud counts withstand Dr. Hooshmand's McNally challenge. Id.

B. Due Process
16

Dr. Hooshmand argues that the definition of consultation used by Medicare and
private insurers is so broad that his consultation claims fell within that
definition. In the alternative, he claims that the definition of consultation is so
vague that criminal prosecution for falsely submitting such a consultation claim
violates due process.

17

Blue Cross was the Federal Government's exclusive agent in processing

Medicare claims in Florida. The Blue Cross Manual defined a consultation as a
request for services by a physician or an agency. This definition is not vague; it
is plainly evident from the language. Dr. Hooshmand received no requests from
either physicians or agencies for the consultations that form the basis of the
Medicare fraud counts. The government presented overwhelming evidence that
Dr. Hooshmand knew and understood Blue Cross' claim procedures and terms.
Dr. Hooshmand sent his employees to Blue Cross seminars on claim
processing. FBI Agent Thuman testified that he found the Blue Cross Manual in
Dr. Hooshmand's office. This evidence is sufficient to support Dr. Hooshmand's
convictions for fraudulently billing Medicare for consultations.

18

Dr. Hooshmand's consultation claims to private insurers, however, represent a

slightly different question. It would have been appropriate for Dr. Hooshmand
to consult the private manuals instead of the Blue Cross Manual for the
definition of consultation for claims to private insurers.6 The private manuals
define consultation as a request for an examination by "a physician or other
appropriate source." Dr. Hooshmand's expert on Medicare billing, as well as
other physicians, testified that "other appropriate source" included self-referrals
by patients, referrals by a patient's neighbor or friends, even referrals from a
patient selecting a physician from the phone book. Blue Cross' legal counsel
admitted that she had never seen "other appropriate source" defined. Dr.
Hooshmand argues that his consultation billings to private insurers fell within
the private manuals' definition of consultation. Moreover, he claims that "other
appropriate source" is so vague that criminally prosecuting him for falsely
submitting a consultation claim to private insurers violates due process.

19

To establish that a statute is void for vagueness on due process grounds

requires a showing that the statute is so vague that persons " 'of common
intelligence must necessarily guess at its meaning and differ as to its
application.' " United States v. Mena, 863 F.2d 1522, 1527 (11th Cir.), cert.
denied, --- U.S. ----, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989) (quoting Connelly v.
General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322
(1926)). In Papichristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843,

31 L.Ed.2d 110 (1972), the Supreme Court stated that "greater leeway is
allowed" in the field of regulatory statutes governing business activities. More
importantly, we find the definition of consultation no more vague than other
ordinances upheld by the Supreme Court. See Village of Hoffman Estates v.
Flipside, 455 U.S. 489, 501, 102 S.Ct. 1186, 1194, 71 L.Ed.2d 362 (1982)
(holding constitutional ordinance requiring licensing for the sale of products
"designed or marketed for use" with illegal drugs); United States v. Nat'l Dairy
Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (holding
statute making it a crime to sell goods at "unreasonably low prices for the
purpose of destroying competition or eliminating a competitor" is not
unconstitutionally vague as applied to sales made below cost without any
legitimate commercial objective and with specific intent to destroy
competition). As noted above, a conviction for mail fraud requires the
government to show that the defendant intentionally participated in a scheme to
defraud through the use of the mails. Hawkins, 905 F.2d at 1496. Dr.
Hooshmand's staff testified that Dr. Hooshmand instructed them to address
consultation reports to doctors who never requested them, to place copies of
these reports in patients' files, and then to destroy the originals. Dr.
Hooshmand's expert conceded that she had never heard of a record-keeping
practice like Dr. Hooshmand's. Moreover, Dr. Hooshmand's expert admitted
that the copies of the letters to physicians could be used to satisfy a private
insurance claim adjuster seeking documentation of a consultation claim. This
evidence is more than sufficient for the jury to conclude that Dr. Hooshmand
was consciously scheming to defraud private insurers by creating the
impression that the doctors to whom the reports were addressed had actually
requested the consultations for which he was billing. Accordingly, we do not
find the definition of consultation unconstitutionally vague as applied to Dr.
Hooshmand's conduct.
C. Sufficiency of the Evidence
20

Sufficiency of the evidence is a question of law which this Court reviews de

novo. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). This Court
examines the evidence, including all reasonable inferences and credibility
choices, in the light most favorable to the government. Id. at 740. The inquiry is
whether a factfinder could find that the evidence establishes guilt beyond a
reasonable doubt. Id. The Court need not exclude every reasonable hypothesis
of innocence or find guilt to be the only reasonable conclusion. Id.

21

Dr. Hooshmand argues that the evidence supporting the convictions for false
EMG billing was insufficient. He argues that the government failed to rule out
the possibility that surface electrodes instead of needles were used to perform

the EMG tests and that the patient witnesses were not credible.
22

An EMG requires a needle to be inserted into the muscle. The insertion of the
needle generally causes considerable pain. Patients generally remember the
pain unless they have severe nerve problems. Occasionally, surface electrodes
instead of needles are used where detection of gross movement is sufficient for
diagnosis, e.g., Parkinson's disease. However, a needle exam is most common.

23

Each of the patient-witnesses testified about the tests performed on them by Dr.
Hooshmand and his technicians. Their accounts of procedures utilized
contradicted the customary EMG procedures described above. None of the
patients had nerve damage so severe as to render them incapable of feeling or
recalling the pain associated with an EMG test. Therefore, the jury could
reasonably infer that the tests were never conducted. Although one witness
apparently suffered from occasional hallucinations, the question of the capacity
and credibility of these witnesses to recall the procedures is properly a question
for the jury. United States v. McRary, 616 F.2d 181, 183 n. 1 (5th Cir.1980),
cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982).7

24

There was also testimony that Dr. Hooshmand ordered his staff to schedule
tests on patients and mark EMGs on charge sheets before he had even
examined the patients. Finally, neither of the technicians who assisted Dr.
Hooshmand in giving the EMGs testified about ever performing the EMG or
observing one performed with surface electrodes. This evidence was sufficient
to sustain Dr. Hooshmand's convictions on the EMG claims.8
D. Jury Instructions

25

When reviewing jury instructions, this Court determines whether the charges as
a whole sufficiently instructed the jurors so that they understood the issues
involved and were not misled. Everett, 912 F.2d at 1358.

26

At trial, the district court instructed the jurors that, if they found beyond a
reasonable doubt that Dr. Hooshmand consciously avoided learning that he
should not bill for a consultation without an actual referral from a physician,
then they could treat such avoidance as the equivalent of knowledge. The court
denied Dr. Hooshmand's objection that this instruction lacked an evidentiary
foundation.

27

Citing Lyle v. Bentley, 406 F.2d 325 (5th Cir.1969), Dr. Hooshmand argues
that such an instruction is reversible error because it presents the possibility that

the jury may have decided the case on a basis for which there is no evidence.
He claims that the problem is particularly acute in the instant case because the
jury may have convicted him on the basis of negligent ignorance.
28

To justify a conscious avoidance instruction, the facts must " 'point in the
direction of deliberate ignorance.' " United States v. Aleman, 728 F.2d 492, 494
(11th Cir.1984) (quoting United States v. Batencort, 592 F.2d 916, 918 (5th
Cir.1979)).

29

Dr. Hooshmand's defense at trial was to point to the "other appropriate source"
language in the private manuals and claim that his consultation billings fell
within the meaning of this language or, alternatively, that this language was
void for vagueness. Given the availability of the billing guides, as well as the
Blue Cross seminars on billing, Dr. Hooshmand's failure to discover that "other
appropriate source" did not include self-referrals by patients warranted the
district court's instruction on conscious avoidance. See United States v. Gold,
743 F.2d 800, 822 (11th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196,
84 L.Ed.2d 341 (1985) (approving conscious avoidance instruction where entire
defense rested on the argument that the defendants were "innocently oblivious
to the endemic fraud that permeated" their business).

30

Dr. Hooshmand also claims that the district court erred when it refused to give
his requested instruction that "each charge and the evidence related to it should
be considered separately." Instead, the court charged "A separate crime or
offense is charged in each count of the indictment. The fact that you may find
the defendant guilty or not guilty as to one of the offenses should not affect your
verdict as to any other offense charged."

31

A trial court's refusal to give a requested instruction is reversible error only if

(1) the substance of the instruction was not covered in an instruction given, (2)
the requested instruction is a correct statement of the law, (3) the requested
instruction deals with an issue properly before the jury, and (4) the party
seeking the requested instruction suffered prejudicial harm by the court's
refusal. Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1542 (11th Cir.1989).

32

The court's instruction was sufficient to protect Dr. Hooshmand from having a
guilty verdict on one count affect the remaining counts. The fact that the jury
acquitted the defendant on seven counts supports the conclusion that the jury
considered each count separately. Cf. United States v. Caporale, 806 F.2d 1487,
1511 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d
763 (1987) (the fact that a jury acquitted members of a conspiracy of different

counts supports the conclusion that the jury made individualized determinations
as to each defendant). Finally, as detailed above, the government presented
patient-witnesses who testified regarding each count. In light of this evidence,
Dr. Hooshmand has failed to show the requisite prejudice. See Dempsey, 876
F.2d at 1542.
33

E. The Adequacy of the Medicare Fraud Counts of the Indictment

34

Dr. Hooshmand argues that the Medicare fraud counts suffer from a fatal defect
because they fail to allege that he presented false or fraudulent claims to a
federal agency, thereby omitting an essential element of an offense under 18
U.S.C. Sec. 287.9 Because Dr. Hooshmand raises this argument for the first
time on appeal, this Court "must find the indictment sufficient 'unless it is so
defective that it does not, by any reasonable construction, charge an offense for
which the defendant is convicted.' " United States v. Chilcote, 724 F.2d 1498,
1504-05 (11th Cir.), cert. denied, 467 U.S. 1218, 104 S.Ct. 2665, 81 L.Ed.2d
370 (1984) (quoting United States v. Trollinger, 415 F.2d 527, 528 (5th
Cir.1969) (per curiam)).

35

Count one of the indictment alleged that Dr. Hooshmand presented to Blue
Cross a fraudulent claim upon the United States by seeking payment for
medical services he never performed. It is reasonable to construe the allegation
that Dr. Hooshmand presented a claim to Blue Cross, which the indictment
identified as an agent of HHS, as a charge that Dr. Hooshmand presented a false
claim to an agency of the United States. This reading is supported by United
States v. Catena, 500 F.2d 1319 (3rd Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct.
621, 42 L.Ed.2d 641 (1974), which upheld convictions for violating Section
287 where the evidence established that the defendant caused Blue Cross to
submit false claims to HHS' predecessor agency, the Department of Health,
Education, and Welfare.10 This Court has repeatedly stated that "practical,
rather than technical, considerations govern the validity of an indictment. Minor
deficiencies that do not prejudice the defendant will not prompt this Court to
reverse a conviction." Chilcote, 724 F.2d at 1505.
F. The Motion to Suppress

36

The district court denied, without a hearing, Dr. Hooshmand's motion to

suppress evidence obtained via a government search warrant. Dr. Hooshmand
argues that the district court erred because there was insufficient probable
cause to issue the warrant.

37

This Court reviews the denial of a motion to suppress as a mixed question of

law and fact. The appellant must demonstrate that the district court's findings of
fact are clearly erroneous, but this Court reviews the application of the law to
those facts de novo. United States v. Alexander, 835 F.2d 1406, 1408 (11th
Cir.1988). We construe the facts in the light most favorable to the party who
prevailed below. Id.

38

To find probable cause, the magistrate must make a "practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before
him ... there is a fair probability that contraband or evidence of a crime will be
found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct.
2317, 2332, 76 L.Ed.2d 527 (1983). According to the government, its affidavit
contained information from five of Dr. Hooshmand's former employees who
described fraudulent billing practices by Dr. Hooshmand. Dr. Hooshmand
complains that this information was uncorroborated. In this case, however, the
five informants corroborated each other.

39

Dr. Hooshmand also complains that the information was stale because it was
eleven months between the time the last employee-informant left Dr.
Hooshmand's employ and the issuance of the warrant. When the alleged
criminal activity is ongoing, however, it is unlikely that the passage of time will
dissipate probable cause. United States v. Domme, 753 F.2d 950, 953 (11th
Cir.1985). The informants, who worked for Dr. Hooshmand from 1977 to 1984,
described fraudulent activities allegedly practiced by Dr. Hooshmand
throughout this period. This evidence is sufficient to establish the likelihood
that the fraud was a part of an ongoing scheme and that the evidence of the
fraud was not stale. Accordingly, there was sufficient evidence to find probable
cause.

40

Dr. Hooshmand also argues that the non-Medicare files of two patients, Leo
Hayes and Darrell Shafranski,11 were not covered by the search warrant and
therefore should have been suppressed. Hayes' medical file, however, lists
Medicare as his second insurance company. Therefore, it was properly seized
under the warrant. The seizure of Shafranski's file was appropriate because it
refers to medical tests by technicians where Dr. Hooshmand is listed as the
doctor, thereby falling within the scope of the warrant.12
G. Admission of Extrinsic Act Evidence

41

Dr. Hooshmand contends that the district court erred in admitting testimony by
his former employees of the following extrinsic acts: (1) his alleged alteration

of test results in Maxine Burkett's file; (2) his alteration of hospital records
before a Medicare audit; (3) the destruction of the originals of the consultation
letters to doctors placed in patient files; (4) his instruction to his staff to
schedule certain tests for certain complaints automatically before he had even
seen the patients; (5) his instruction to technician Robert Henderson to list the
tennis lessons he gave Dr. Hooshmand in the EMG log book because
Henderson was paid the same amount for a tennis lesson as for administering
an EMG.
42

This Court reviews the decision to admit extrinsic act evidence under
Fed.R.Evid. 404(b) for "clear abuse of discretion." United States v. Eirin, 778
F.2d 722, 731 (11th Cir.1985). Before admitting such evidence, this Court
requires the government to show that (1) the evidence is relevant to an issue
other than a defendant's character and (2) the probative value of the evidence
outweighs any prejudicial effect. United States v. Dothard, 666 F.2d 498, 501
(11th Cir.1982). Moreover, such evidence is admissible only if the jury could
reasonably find by a preponderance of the evidence that the defendant
committed the extrinsic act. Huddleston, 485 U.S. 681, 690, 108 S.Ct. 1496,
1501, 99 L.Ed.2d 771 (1988).

43

Extrinsic act evidence is especially relevant when the government has, as it did
here, the burden to prove the defendant's intent to commit the charged offense.
United States v. Cardenas, 895 F.2d 1338, 1342 (11th Cir.1990). Such evidence
is also admissible to show a defendant's ability and experience to execute a
fraudulent scheme. United States v. Garcia, 880 F.2d 1277, 1278 (11th
Cir.1989) (per curiam). All of the extrinsic act evidence was relevant for these
two purposes. Moreover, the government presented sufficient evidence to meet
the Huddleston hurdle. The testimony describing the extrinsic acts came from
individuals who were employed by Dr. Hooshmand at the time he allegedly
committed the acts. Thus, the district court did not abuse its discretion by
admitting such evidence.

44

H. The Denial of Dr. Hooshmand's Post-Trial Request to Interview Jurors

45

Dr. Hooshmand argues that the district court violated his First and Sixth
Amendment rights when it denied his motion to interview jurors after the trial
about possible improper influences on their verdict. Local Rule 16 E of the
Southern District of Florida provides that a lawyer is to avoid communicating
with jurors on any subject unless, after the jury has been discharged and upon a
showing of good cause, the district court grants the lawyer permission to
interview jurors to determine whether the verdict is subject to legal challenge.
Dr. Hooshmand contends that the rule operates as an unconstitutional prior

restraint.

46

47

In a post-trial interview, juror Dorothy Roy stated, "I voted for [the verdict], but
it was not my verdict.... I had no choice. It was 11 to 1. It had to be
unanimous.... They wanted to get on with other trials." Roy added that there
were "things" that she did not want published until the trial judge made his
decision, but she gave no indication what these were.
This Court has held that a district court's refusal to permit juror interviews will
be reversed only upon a showing of abuse of discretion. See United States v.
Cuthel, 903 F.2d 1381, 1382 (11th Cir.1990). In Cuthel, this Court upheld a
district court's authority, under the very same rule at issue in this case, to refuse
permission to defense counsel to interview jurors on grounds similar to these.
Id. at 1382-83 (holding phone call to defendant from purported juror saying "we
were pressured into making our decision" inadequate to permit juror interview);
see also O'Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.1977); United States
v. Riley, 544 F.2d 237, 242 (5th Cir.1976), cert. denied, 430 U.S. 932, 97 S.Ct.
1554, 51 L.Ed.2d 777 (1977). Dr. Hooshmand's allegation of improper
extraneous influence is weaker than the allegations in these cases. Moreover, in
United States v. Griek, 920 F.2d 840, 843 (11th Cir.1991), this Court held that
Local Rule 16 E did not violate the First Amendment. Furthermore, the facts
alleged by Hooshmand are insufficient to raise a Sixth Amendment claim. See
id. at 844. Accordingly, the district court did not err when it refused to permit
defense counsel to interview the jurors.
I. Fines Under 18 U.S.C. Sec. 3623

48

As part of the sentence, the district court ordered restitution of $3,101.24 and
imposed a fine of $250,000. Dr. Hooshmand concedes that 18 U.S.C. Sec. 3623
authorized the district court to impose a fine of $250,000. He argues, however,
that 18 U.S.C. Sec. 3622 required the district court to make specific factual
findings before imposing the fine.13 Section 3622 requires a court to consider
nine enumerated factors when imposing a fine.14 This Court has not, however,
determined whether the statute requires a court to make specific factual
findings when imposing a fine.

49

The interpretation of a statute is a question of law subject to de novo review.

Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 157 (11th Cir.1990). A sentence
that falls within statutory limits, however, is reviewed for abuse of discretion.
United States v. Ard, 731 F.2d 718, 727 (11th Cir.1984).

50

Dr. Hooshmand correctly notes that the Fourth Circuit has held that the use of
the word "shall" in Section 3622 requires the district court to make specific
factual findings for each of the nine factors enumerated in the statute. See
United States v. Harvey, 885 F.2d 181, 182-183 (4th Cir.1989). The Eighth and
Ninth Circuits have held, however, that a court is not required to make oral or
written findings regarding these factors. See United States v. Weir, 861 F.2d
542, 545 (9th Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103
L.Ed.2d 858 (1989); United States v. Condon, 816 F.2d 434, 435-36 (8th
Cir.1987).

51

The plain language of Section 3622 states only that the district court "shall
consider" the listed factors. The statute does not state that the court shall make
factual findings. In United States v. Hairston, 888 F.2d 1349, 1352 (11th
Cir.1989), this Court analyzed the "shall consider" language of 18 U.S.C. Secs.
3579(a), 3580(a) of the Victim and Witness Protection Act ("VWPA").15
Relying on the "shall consider" language of Section 3580, this Court refused to
adopt a rigid rule requiring district courts to make findings of fact whenever
they impose an order of restitution. Id. Rather, we held that no specific findings
are necessary so long as the record is adequate for this Court to review the
district court's restitution order. Id. at 1353. In so holding, we rejected the
analysis of the Fourth Circuit in United States v. Bruchey, 810 F.2d 456, 458
(4th Cir.1987), which was the basis of the Fourth Circuit's decision in Harvey,
supra. After examining the record in this case, we hold that it is sufficient to
support the fine imposed by the district court.
J. Jencks Act Motion

52

Prior to oral argument, Dr. Hooshmand submitted a motion to this Court

seeking a ruling that the government violated its duties under the Jencks Act,
18 U.S.C. Sec. 3500, by failing to produce handwritten notes from an interview
with government witness Hattie Sullivan once Ms. Sullivan had testified on
direct examination.

53

Once a government witness has testified on direct examination, Section 3500

requires the government to produce, on motion by the defendant, any statement
of the witness which relates to the subject matter to which the witness has
testified. 18 U.S.C. Sec. 3500(b).

54

We have reviewed the handwritten notes from the government's interview of

Hattie Sullivan. We find that these notes do not represent a "statement" as
defined by 18 U.S.C. Sec. 3500(e). There is no evidence that the notes were

adopted by Ms. Sullivan and they do not represent any sort of recording of any
statements made by Ms. Sullivan. See United States v. Martino, 648 F.2d 367,
387 (5th Cir. June 1981), aff'd sub nom. on other grounds, 464 U.S. 16, 104
S.Ct. 296, 78 L.Ed.2d 17 (1983). Moreover, a review of the trial transcript
reveals that Dr. Hooshmand's counsel made no motion to the district court
seeking production of these notes as required by 18 U.S.C. Sec. 3500(b).
Finally, our review of the notes reveals that they contain no impeaching
material and therefore Dr. Hooshmand suffered no prejudice by his counsel's
lack of access to these notes during cross-examination of Ms. Sullivan.
Accordingly, we deny Dr. Hooshmand's motion to compel disclosure of the
government's notes from its interview with Hattie Sullivan.
III. CONCLUSION
55

For the foregoing reasons, we AFFIRM Dr. Hooshmand's convictions on all

counts.

Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the Eastern
District of Virginia, sitting by designation

Hereinafter, we will refer to the CPT and the FRVS collectively as "the private
manuals."

The initial indictment charged only Counts 1-15. Four of these counts were
redacted during the trial, and the indictment was renumbered. All references to
specific counts are from this redacted indictment

The Blue Cross Manual defines a consultation as performing services at the

request of an attending physician. CPT and FRVS define consultation as
performing services at the request of a physician or "other appropriate source".
All three manuals require, under most circumstances, that the consulting
physician prepare a report for the requesting source. Medicare and FRVS paid
more for a consultation than for a new patient

The district court polled the jurors and confirmed that this verdict was
unanimous

Moreover, the defendants in Dynalectric presented an even stronger McNally

challenge than Dr. Hooshmand does here. The indictment in Dynalectric, 859
F.2d at 1573, alleged a scheme to defraud a McNally intangible right

This is so even though Hooshmand used the same HCFA form to present his

claims to private insurers that he used for his Medicare claims

7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981

Dr. Hooshmand also argues that the government failed to prove that the
allegedly fraudulent claims were not the result of clerical error by his staff. Dr.
Hooshmand's current and former employees testified that Dr. Hooshmand had
final control of all decisions in his office, including filing insurance claims.
This evidence is sufficient for the jury to find that Dr. Hooshmand was
responsible for the filing of false claims

Section 287 makes it a crime to present "to any department or agency [of the
U.S.] any claim upon or against the United States, knowing such claim to be
false, fictitious, or fraudulent ..." 18 U.S.C. Sec. 287

10

Hooshmand notes correctly that Catena did not involve a challenge to the
indictment. A reading of the case, however, suggests that the underlying theory
of the government was that Blue Cross was the equivalent of a government
agency. Moreover, the cases Dr. Hooshmand cites are distinguishable. In
United States v. Huff, 512 F.2d 66, 68-69 (5th Cir.1975), the former Fifth
Circuit found that count one of an indictment that alleged a controlled substance
violation involving "3, 4 methylenedioxy amphetamine" was acceptable while
count two was unacceptable because it omitted the "3, 4" language. The former
Fifth Circuit noted that methylenedioxy amphetamine was a legal substance in
its own right unlike 3, 4 methylenedioxy amphetamine. In United States v.
Leigh, 487 F.2d 206 (5th Cir.1973), the former Fifth Circuit affirmed the
dismissal of a count which alleged that a physician "distributed" a controlled
substance but failed to allege that he "dispensed" a controlled substance as the
statute requires because Congress had passed a different statute than the one
cited in the indictment criminalizing the distribution

11

These records provided the evidentiary grounds for Counts Eighteen and
Twenty respectively

12

Hooshmand claims the magistrate should have restricted the warrant to the
patient files identified in the affidavits. This Court has held that "in cases
involving a pervasive scheme to defraud, all the business records of the
enterprises may properly be seized." United States v. Sawyer, 799 F.2d 1494,
1508 (11th Cir.1986), cert. denied, 479 U.S. 1069, 107 S.Ct. 961, 93 L.Ed.2d
1009 (1987) (per curiam) (refusing to limit warrant to the 25 transactions
described in the affidavits). Accordingly, this argument is meritless

13

14

15

The Comprehensive Crime Control Act of 1984, Pub.L. 98-473, repealed both
sections, effective November 1, 1987. The district court sentenced Hooshmand
on October 23, 1987
The factors listed in Section 3622 are: (1) the nature and circumstance of the
offense; (2) the history and characteristics of the defendant; (3) the defendant's
income, earning capacity, and financial resources; (4) the burden that the fine
will impose on the defendant and the defendant's dependents; (5) the pecuniary
loss suffered by others as a result of the defendant's actions; (6) the amount of
restitution, if any; (7) the need to deprive the defendant of any illegally
obtained gains from the offense; (8) whether the defendant can pass on to
consumers or others the expense of the fine; and (9) if the defendant is an
organization, the size of the organization and any measure taken by the
organization to discipline the official or employee responsible for the offense.
18 U.S.C. Sec. 3622
Section 3579(a)(2) states that if a "court does not order restitution, or orders
only partial restitution ... the court shall state on the record the reasons
therefor." Section 3580(a) states the court "shall consider" a list of factors
when determining whether to order restitution