In U.S. v. Pacchioli, No. 12-12913 (June 19, 2013), the Court affirmed convictions of contractors convicted of paying kickbacks to hospital facility managers to obtain contracts with South Florida hospitals, in violation of 18 U.S.C. § 666(a)(2).
The Court rejected one defendant’s claim that the statute of limitations barred his conviction because he agreed to give a bribe more than five years before the filing of the indictment. The Court noted that the statute of limitations begins to run when the crime is “complete.” The Court pointed out that the bribery statute is phrased in the alternative, criminalizing the agreement to give a bribe, offering to give a bribe – or giving the bribe. Here, the government alleged, and the jury found, the giving of the bribe – the installation of free generators at the hospital facility manager’s home – within the five-year limitations period.
The Court rejected a challenge to the sufficiency of the evidence, pointing the “remarkable coincidence” that the defendant gave free goods and services to the three hospital facility managers who were awarding him contracts.
The Court also rejected the argument that the district court abused its discretion when it failed to allow defense cross-examination of a government witness regarding a statement that the witness’s lawyer had made earlier about the witness’s mild cognitive impairment. The Court noted that the witness was subject to extensive cross-examination, which gave the jury the opportunity to evaluate the witness. Thus, an error in excluding the testimony was “harmless.” The Court noted that the lawyer’s statement was not admissible under Fed. R. Evid. 801(d)(2), because this rule applies only to the agents of party opponents, and the government’s witness was not a party opponent.
The Court rejected the argument that the district court abused its discretion when, in response to a request from the jury, it declined to read back requested trial testimony. The Court noted that the requested testimony “did not clearly benefit” the defendant’s case, and the defendant therefore could not show prejudice.
Finally, the Court rejected one defendant’s claim that the indictment was deficient, noting that it was being raised for the first time on appeal. http://www.ca11.uscourts.gov/opinions/ops/201212913.pdf
