United States v. Medical Therapy Sciences
583 F.2d 36 (1978)
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Rule of Law:
Under Federal Rule of Evidence 608(a), a party may introduce character evidence to support a witness's truthfulness after the opposing party's cross-examination constitutes an 'attack' on their character, such as by sharp questioning about prior fraudulent convictions or allegations of corrupt conduct like embezzlement. This holds true even when the witness's proponent first introduced the impeaching facts on direct examination.
Facts:
- Stanley Berman operated Medical Therapy Sciences, Inc., a medical equipment supply company that received Medicare reimbursements.
- Reimbursement rates for Medicare varied between the company's Connecticut and New York locations.
- Berman, along with his employee Barbara Russell, engaged in a scheme to defraud Medicare between 1971 and 1976.
- The scheme included double billing insurance carriers in both states for the same patients.
- The fraud also involved billing for more expensive equipment than was actually provided to patients.
- Additionally, the company billed for supplies that were neither delivered nor needed by the patients.
- Berman and Russell, who was a trusted employee and his personal intimate, had numerous discussions about Medicare rules and their 'questionable' billing practices.
Procedural Posture:
- Stanley Berman and Medical Therapy Sciences, Inc., were indicted in federal district court for filing false claims to obtain Medicare payments and for conspiracy.
- Berman was also separately indicted for perjury before the grand jury.
- Following a jury trial, the jury returned guilty verdicts, convicting Berman and his company on the false claims and conspiracy counts, and Berman on the perjury count.
- Berman and Medical Therapy Sciences, Inc. (appellants) appealed their convictions to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a cross-examination that questions a witness about her prior fraudulent convictions and accuses her of corrupt acts like embezzlement and theft constitute an 'attack' on her character for truthfulness under Federal Rule of Evidence 608(a), thereby permitting the introduction of rehabilitating character evidence?
Opinions:
Majority - Moore, Circuit Judge
Yes. A cross-examination questioning a witness about prior convictions for fraud and accusing her of corrupt conduct such as embezzlement and theft constitutes an 'attack' on her character for truthfulness under Federal Rule of Evidence 608(a). The court held that the trial judge has the discretion to permit the use of rehabilitating character evidence when cross-examination can be characterized as such an attack. The court distinguished between showing bias, which may not attack character, and proving bias through 'conduct rising to the level of corruption,' which does. Furthermore, the court found that a party who anticipates impeachment by revealing a witness's prior convictions on direct examination does not forfeit the right to rehabilitate that witness if the opposing party subsequently launches a full-scale attack on their character during cross-examination.
Analysis:
This decision clarifies the application of Federal Rule of Evidence 608(a) regarding the rehabilitation of a witness. It establishes that a vigorous cross-examination involving allegations of 'corrupt conduct' (e.g., embezzlement, theft, fraud) is sufficient to be deemed an 'attack' on a witness's character for truthfulness, thereby opening the door for supportive character evidence. The ruling affirms the trial judge's discretion in this area and solidifies the strategy of 'drawing the sting' by allowing a party to introduce its own witness's negative background on direct examination without losing the right to later defend that witness's credibility if it is more severely attacked on cross.
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