United States v. Stewart Clinical Laboratory, Inc., Edward Morris Jorgensen and James Stewart

dissenting:

In my view the subsection of the statute cited in the indictment, 42 U.S.C. § 1396h(b)(2)(A) encompasses the referral of patient work from one health care provider to another. That is what occurred here. There is no claim that the defense would have been different if subsection (B) had been charged. I cannot accept the majority view that subsection (A) is violat *808 ed only if the patient himself physically journeys to the office where the referred services are performed. It should make no difference whether the substance to be analyzed arrives at the defendant’s premises in a bladder or in a bottle.

I therefore respectfully dissent from the majority’s holding that there was a fatal variance between the crime charged and the crime of which appellant was convicted.

Edward Jorgensen, James Stewart and Stewart Clinical Laboratory appeal their convictions by a jury for offering free medical laboratory services in exchange for referring government-paid medical laboratory work, in violation of 42 U.S.C. § 1396h(b)(2)(A). We reverse the convictions.

Jorgensen and Stewart are the owners and operators of Stewart Clinical Laboratory, Inc. Dr. Donald Dorr, the administrator of a medical clinic, agreed to cooperate with a Federal Bureau of Investigation probe of Medi-Cal 1 fraud by arranging a meeting with Jorgensen, ostensibly to discuss the referral of Dorr’s laboratory work to the Stewart Clinical Laboratory.

On August 17, 1979, Dorr and Jorgensen met at Dorr’s clinic. Dorr informed Jor-gensen that he was looking for a new lab to do his clinic’s laboratory work. Dorr represented that approximately 80 percent of the referred work would be paid for by MediCal. The other 20 percent of his practice, he said, consisted of private patients. Jor-gensen expressed interest in Dorr’s laboratory account, but told Dorr that he could not offer him “a brown envelope” or a new car to induce him to refer his Medi-Cal work. Jorgensen articulated his belief that…

652 F.2d 804 UNITED STATES of America, Plaintiff-Appellee, v. STEWART CLINICAL LABORATORY, INC., Edward Morris Jorgensen and James Stewart, Defendants-Appellants. No. 80-1539. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 3, 1981. Decided July 6, 1981. As Amended July 8, 1981. William Bryan Osborne, Monterey Park, Cal., for defendants-appellants. Deanne H. Smith, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief. Appeal from the United States District Court for the Central District of California. Before GOODWIN and SCHROEDER, Circuit Judges, and EAST, * District judge. GOODWIN, Circuit Judge. 1 Edward Jorgensen, James Stewart and Stewart Clinical Laboratory appeal their convictions by a jury for offering free medical laboratory services in exchange for referring government-paid medical laboratory work, in violation of 42 U.S.C. § 1396h(b)(2)(A). We reverse the convictions. 2 Jorgensen and Stewart are the owners and operators of Stewart Clinical Laboratory, Inc. Dr. Donald Dorr, the administrator of a medical clinic, agreed to cooperate with a Federal Bureau of Investigation…