United States v. Whiteside:
Granting a License to Steal?©
PETER CHATFIELD, PHILLIPS & COHEN LLP*
On March 22, 2002, a panel of the United States Court of Appeals for the Eleventh Circuit issued an opinion reversing the convictions of Robert W. Whiteside and Jay Jarrell for making false statements in Medicare reimbursement cost reports on the ground that the prosecution failed to prove beyond a reasonable doubt that the defendants' statements were not true under a reasonable interpretation of the law. See United States v. Whiteside, 285 F.3d 1345, 1351–52 (11th Cir. 2002). The decision is especially noteworthy because of the stark contrast between the Court's ultimate conclusion that criminal responsibility had not been proven and the damning recitation of the facts that appears at the beginning of the opinion—facts, evidently accepted by the jury, that suggest quite clearly that the defendants directed and participated in misrepresentation and concealment of a claim for Medicare reimbursement that they understood would be disallowed if Medicare were told the relevant facts.
In light of this contrast, what should one make of the Whiteside decision? Was the opinion wrong? Has the Eleventh Circuit effectively granted
* Mr. Chatfield and his law firm represent whistleblowers in civil False Claims Act litiga-
tion. Their clients included John Schilling and James Alderson, who were engaged in a
False Claims Act lawsuit against HCA that included, among other claims, allegations
relating to the misconduct alleged in the criminal suit discussed herein. He would like
to acknowledge the contribution of Paul Hoeber, Esq. and his colleagues at Phillips &
Cohen to the analysis in, and final preparation of, this paper.