United States v. Ernest A. Winkle
587 F.2d 705 (1979)
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Rule of Law:
Under Federal Rule of Evidence 103(a)(2), a trial court's erroneous exclusion of evidence is not reversible error unless the proponent of the evidence makes an offer of proof on the record that demonstrates the substance of the excluded evidence.
Facts:
- Ernest Winkle operated a medical laboratory that engaged in a scheme to defraud the federal Medicare program.
- The scheme involved paying 'interpretation fees' to physicians who ordered lab tests from Winkle's lab, which were then billed to Medicare.
- Winkle's company also solicited and billed Medicare for services provided to chiropractic patients, which were not lawfully covered.
- As part of the scheme, Winkle's company conducted respiratory testing and inhalation therapy for nursing home patients without a physician determining that the services were medically necessary.
- Winkle submitted 19 Medicare billing forms for these therapies, which falsely indicated diagnoses such as 'upper respiratory infection' or 'emphysema'.
- The treating physician, Dr. Alvarez, testified that he had not made these diagnoses nor had he ordered or given permission for the tests or therapy.
- Evidence was also introduced showing Winkle had previously forged another doctor's signature on Medicare payment requests for a separate X-ray service company he operated.
Procedural Posture:
- Ernest Winkle and three co-defendants were charged by a federal grand jury with conspiracy to defraud the United States and 19 counts of making fraudulent statements on Medicare claims.
- A co-defendant, Alan Colmar, pleaded guilty after jury selection.
- The trial of another co-defendant, Winkle's wife, was severed.
- The substantive charges against the third co-defendant, Joseph DiStefano, were dismissed before trial.
- At trial in the U.S. District Court, the jury convicted Winkle on all 19 substantive counts but was unable to reach a verdict on the conspiracy count.
- The trial court subsequently dismissed the conspiracy count against Winkle on the Government's motion.
- Winkle filed a motion for a new trial, alleging jury impropriety, which the trial court denied after a hearing.
- Winkle appealed his convictions to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does a trial court's erroneous exclusion of a defendant's impeachment testimony constitute reversible error when the defendant fails to make an adequate offer of proof showing the substance of the excluded testimony?
Opinions:
Majority - Rubin, J.
No. A trial court's decision to exclude evidence does not constitute reversible error if no adequate offer of proof was made at trial. Under Federal Rule of Evidence 103(a)(2), the proponent of excluded evidence must make the substance of the evidence known to the court to preserve the issue for appeal. In this case, defense counsel merely stated that Winkle would testify to 'his version' of conversations with other witnesses, which was insufficient to show the substance of the proposed testimony. Without knowing what the testimony would have been, an appellate court cannot determine if its exclusion was harmful. The court also held that the question of materiality under 18 U.S.C. § 1001 is a question of law for the judge, and any prejudice from the jury learning of a co-defendant's guilty plea was harmless because it related to the conspiracy count on which Winkle was not convicted.
Dissenting - Roney, J.
Yes. The trial court's exclusion of the defendant's testimony was a reversible error that was not harmless beyond a reasonable doubt. The trial court's ruling, preventing Winkle from testifying about his version of conversations previously described by government witnesses, was legally incorrect. The proffer was adequate under the circumstances, as Winkle clearly indicated he wanted to testify about his recollection of conversations already in evidence. This error severely curtailed the defendant's ability to present his testimony and his defense, which the jury was entitled to hear.
Analysis:
This case reinforces the critical importance of procedural preservation for appellate review, specifically the offer of proof requirement under Federal Rule of Evidence 103. The court's holding demonstrates that even a clear substantive error by a trial judge in excluding evidence can become unreviewable if trial counsel fails to make an adequate record of what the excluded evidence would have shown. This decision serves as a significant precedent and a practical warning for trial attorneys on the necessity of making a specific, detailed proffer. It also solidifies the doctrine within the Fifth Circuit that the element of materiality in a federal false statement prosecution is a question of law for the court, not a question of fact for the jury.
