## Facts

- Ernest Winkle was prosecuted for a scheme to obtain improper Medicare reimbursements through sham or improperly ordered services and false claim submissions.
- The alleged conduct included (1) a laboratory-testing arrangement in which physicians ordered tests billed to Medicare and received unlawful “interpretation” or “consultation” fees, (2) use of chiropractors and respiratory therapy to generate claims for nursing-home patients for unnecessary or improperly billed services, and (3) submission of Medicare claim forms containing false statements about services, necessity, and/or providers.
- Winkle was charged with one count of conspiracy to defraud the United States (Medicare) under 18 U.S.C. § 371 and nineteen substantive counts of false statements in Medicare payment requests under 18 U.S.C. §§ 2 and 1001.
- Winkle was tried with a co-defendant; another co-defendant pleaded guilty to a reduced charge after jury selection began; Winkle’s wife was severed and not tried with him.
- After a three-week trial with nearly sixty witnesses, the jury hung on the conspiracy count but convicted Winkle on all nineteen substantive false-statement counts.
- The conspiracy count against Winkle was dismissed on the government’s motion under Fed. R. Crim. P. 48(a), and Winkle received concurrent five-year sentences on the substantive counts.
- On appeal, Winkle challenged multiple rulings, including exclusion of parts of his testimony about conversations with witnesses and the jury’s awareness of a co-defendant’s guilty plea.

## Issues

1. Whether the trial court committed reversible error by excluding Winkle’s proposed testimony about his versions of conversations with government witnesses when defense counsel did not make a sufficiently specific offer of proof under Fed. R. Evid. 103(a)(2).
2. Whether informing the jury that a co-defendant pleaded guilty to a reduced charge unfairly prejudiced Winkle and required reversal.
3. Whether alleged indictment defects and assorted trial errors, individually or cumulatively, deprived Winkle of a fair trial or warranted reversal.

## Decision

- The Fifth Circuit affirmed Winkle’s convictions on all nineteen substantive counts.
- The court held that the exclusion of Winkle’s proposed conversation testimony was not reversible error because the defense failed to provide a specific offer of proof stating the substance and non-hearsay purpose of the evidence.
- The court held that the reference to the co-defendant’s guilty plea did not require reversal; in context, any possible prejudice was harmless beyond a reasonable doubt.
- The court rejected remaining challenges to the indictment and trial proceedings as meritless or harmless in light of the record and the evidence supporting the verdict.

## Legal Principles

- To preserve appellate review of excluded evidence, the proponent must make an offer of proof specific enough to inform the trial court of the evidence’s substance and its purpose. (Fed. R. Evid. 103(a)(2))
- A generalized assertion that a witness will give “his version” of events may be insufficient to show admissibility (including for impeachment) and may forfeit a claim of evidentiary error on appeal.
- Disclosure to a jury that a co-defendant pleaded guilty is not automatically reversible error; courts assess the context and whether any resulting prejudice was harmless beyond a reasonable doubt.
- Convictions will be affirmed when asserted errors, considered individually or cumulatively, do not affect substantial rights or are harmless in light of the strength of the evidence.

## Conclusion

The Fifth Circuit upheld Winkle’s Medicare-fraud-related false-statement convictions, concluding that the defense failed to preserve an evidentiary challenge through a specific offer of proof and that any potential prejudice from the jury learning of a co-defendant’s guilty plea, along with other alleged trial and indictment errors, did not warrant reversal.


United States v. Winkle, 587 F.2d 705 (5th Cir. 1979)