United States v. Michael L. Mitchell , 165 F. App'x 821 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
February 3, 2006
No. 04-14450 THOMAS K. KAHN
_________________________ CLERK
D.C. Docket No. 03-00345-CR-TWT-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL L. MITCHELL,
Defendant-Appellee.
_________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(February 3, 2006)
Before ANDERSON, HULL and JOHN R. GIBSON*, Circuit Judges.
JOHN R. GIBSON, Circuit Judge:
*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
The United States appeals the district court's post-trial acquittal of Michael
L. Mitchell in this Medicare fraud case. The government contends that the district
court erred in holding that it failed to marshal sufficient evidence to support the
jury's verdict of guilty. We reverse the district court's entry of judgment of
acquittal, but affirm its alternative order granting a new trial.
Mitchell was charged with one count of conspiracy to defraud the United
States and four counts of money laundering. The conspiracy count alleged that
Mitchell conspired to commit three types of fraud: (1) health care fraud, 18 U.S.C.
§ 1347 (2000), or the obtaining of Medicare funds by false and fraudulent
pretenses and representations; (2) wire fraud, 18 U.S.C. § 1343 (2000),1 or
knowingly causing false and fraudulent billings for Medicare payments to be
transmitted by wire in interstate commerce; and (3) knowing and willful making or
use of a false writing or document in a matter within the jurisdiction of the
executive, legislative or executive branch of the government of the United States,
18 U.S.C. § 1001(a) (2000). The charges were tried to a jury, which was
instructed that it only had to find Mitchell had conspired to commit one of the
three fraud offenses, but that all jurors had to agree which of the offenses he
1
18 U.S.C. §§ 1001 and 1343 were both amended after the date of the offenses alleged,
and so we cite to the version in effect at the time of the offenses.
2
conspired to. The jury found Mitchell guilty on the conspiracy count, though the
verdict form did not specify which of the substantive offenses the jury found
Mitchell conspired to commit. The jury found Mitchell not guilty on the money
laundering counts.
Mitchell moved for judgment of acquittal and filed an alternative new trial
motion. The district court granted the judgment of acquittal, and in the alternative,
granted a new trial. The district court held that the government introduced no
evidence that would allow the jury to find that the Medicare claims filed by
Mitchell's company were false or made with fraudulent intent. The jury was "left
to infer fraudulent intent from the alleged illegality of the clinic's billing
practices," yet the government never introduced evidence of what the law required
"in the form of Medicare regulations, operational manuals, administrative rulings
or judicial decisions which showed that the clinic's billing practices were so
clearly illegal that an inference of fraudulent intent can be drawn." United States
v. Mitchell, No. 1:03-CR-345-1-TWT, slip op. at 2 (N.D. Ga. July 7, 2004). The
only Medicare manual referred to at trial was never introduced into evidence. Id.The district court held that although there was some evidence of falsification of
records at the clinic, there was no evidence that Mitchell had any knowledge of or
involvement in the falsification. Id. at 2-3.
3
I.
We review de novo a district court's grant of acquittal under Fed. R. Crim.
P. 29(c). United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999). We must
determine whether the evidence at trial was sufficient to permit a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt, id., which is the
same standard used to determine whether the evidence is sufficient to satisfy the
demands of due process. See United States v. Allen, 302 F.3d 1260, 1262 (11th
Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We must view
the evidence in the light most favorable to the government, accepting the jury's
reasonable inferences and credibility determinations. Glasser v. United States,
315 U.S. 60, 80 (1942), superseded by rule on other grounds, Bourjaily v. United
States, 483 U.S. 171 (1987); Ward, 197 F.3d at 1079.
To prove conspiracy, the government must show the existence of an
agreement to achieve an unlawful objective, the defendant's knowing and
voluntary participation in the conspiracy, and the commission of an overt act in
furtherance of the conspiracy. United States v. Suba, 132 F.3d 662, 672 (11th Cir.
1998). The elements of the three substantive offenses that were the subject of the
conspiracy charge are similar to each other. Violation of 18 U.S.C. § 1001requires: (1) that the defendant made a statement (2) that was false (3) and
4
material, (4) that the defendant acted knowingly and willfully, with specific intent,
and (5) that the statement was made in a matter within the jurisdiction of an
agency of the United States. United States v. Calhoon, 97 F.3d 518, 523 (11th Cir.
1996). Wire fraud under 18 U.S.C. § 1343 (2000) requires a defendant's
intentional participation in a scheme to defraud another of money or property and
use of wires in furtherance of the scheme. Pelletier v. Zweifel, 921 F.2d 1465,
1498 (11th Cir. 1991). The scheme to defraud must consist of actions that would
have deceived a reasonably prudent person, committed with a conscious, knowing
intent to defraud. Id. at 1499. Health care fraud under 18 U.S.C. § 1347 requires
knowing and willful execution of or attempt to execute a scheme to defraud a
health-care benefit program in connection with delivery of or payment for health
care.
II.
In 1999, Mitchell established a medical clinic, Family Physical Medicine,
with a business plan similar to clinics Mitchell operated in Houston. Family
Physical Medicine entered into an agreement with Mitchell's company MLM, Inc.
for MLM to do the Atlanta clinic's Medicare billing. Mitchell's sister, Stephanie
Locke, was named as Director of the clinic. When the clinic commenced
operations in July 1999, it employed Mitchell's brother-in-law, Bruce Locke, as
5
Vice President for sales; an office manager, Valencia Boone; a physician, Dr.
Stephen Dawkins, who worked six to eight hours per week, as medical director;
another physician, Dr. Green; and a physical therapy technician, Curley Daniel.
The clinic's method of doing business was that Bruce Locke would attend
health fairs frequented by senior citizens and encourage them to sign up for
physical therapy. Dawkins would then go to the patient's home, examine the
patient, and develop a treatment plan for physical therapy. The physical therapy
technician would then go to the patients' homes alone and perform the therapy.
Dawkins testified that he was not responsible for supervising the physical therapy
technicians who performed the therapy. His employment contract with the clinic
described his duties as "performing initial, as well as, follow-up evaluations;" it
said nothing about supervising the therapy. Dawkins testified that after
developing the treatment plan, he did not "in any way interact with a therapist,"
although he also said on cross examination that he made follow-up visits to the
patients and so did Dr. Green. Curley Daniel denied knowing Dr. Dawkins,
although she was apparently the only technician working for the clinic in July
1999. Likewise, Dr. Dawkins testified that he never knew Daniel. Daniel said
that the doctors did not supervise her when she was out of the clinic. Although
she said that she conducted therapy in accordance with the doctors' instructions,
6
those instructions were relayed to her through Boone or Stephanie Locke when
she was going to the patients' homes. Valencia Boone said Dr. Dawkins's duty
was "only to make that first assessment" of the patient's needs. Boone wasn't sure
Dawkins saw the patients' charts after the technician began treatments "unless [the
technician] had some sort of question or if they felt like the patient needed
something different. Then they would contact Dr. Dawkins to find out what they
should do."
Physical therapy technicians are minimally-trained, low-paid workers; it is
undisputed that under Medicare regulations, physical therapy technicians must
work under the direction of a skilled provider (a medical provider who is licensed
and enrolled with Medicare) for Medicare to pay for their services. In contrast, a
licensed physical therapist has a college degree in physical therapy and can work
as a skilled provider in his or her own right.
By October or November 1999, Boone had begun to question whether it was
permissible to use technicians rather than licensed physical therapists. About that
time, Curley Daniel told Mitchell that "we needed a physical therapist on premises
with us," but she did not explain at trial why she thought so. Daniel said Mitchell
told her, "If you don't like what's going on here, you can basically, like, leave."
Boone overheard the conversation and asked Mitchell about whether it was
7
permissible to have technicians do the work of therapists; he assured her that it
was fine and that was how his clinics in Texas did business. At the end of 1999,
Valencia Boone and Dr. Dawkins quit working for Family Physical Medicine.
After Boone left, Mitchell's sister, Stephanie Locke, took over as office
manager at the beginning of 2000. Stephanie Locke changed the clinic's method
of doing business by providing the physical therapy services inside the clinic.
During this time, the clinic had a number of personnel come and go. Dr. Shannon
Fields testified that he began working for the clinic at the end of 1999 or
beginning of 2000 and that the clinic was in transition to providing the physical
therapy at the clinic building. Dr. Fields testified that he worked 15-20 hours per
week doing physical exams and case histories and observing what he called the
"therapist's" work. Fields said a Dr. Omiago alternated days with him for some
unknown period of time, and that the clinic also hired a physician's assistant, Troy
Johnson. Fields said the clinic hired another physician, Dr. DeAlbuquerque, about
a month before Fields resigned. Curley Daniel and technician Karene Lamoi
Benoit testified that after the clinic began treating patients in-house, the doctors
did supervise them and they were told not to treat patients unless a physician was
present in the clinic.
8
After Boone and Dr. Dawkins quit working for Family Physical Medicine,
they worked together in another business. Stephanie Locke asked Boone if she
could get Dawkins's signature on some documents he had failed to sign while he
worked at Family Physical Medicine. Dawkins let Locke have his signature
stamp. Family Physical Medicine affixed his stamped signature to records relating
to services provided after he left. Dawkins did not authorize this use of the stamp.
Throughout its existence, Family Physical Medicine experienced severe
financial difficulties. Of approximately $2.4 million in Medicare billings,
Medicare only paid $490,828.22, apparently due at least in part to the clinic's
inability to submit the bills properly. The clinic went out of business sometime in
the second half of 2000.
III.
This case presents two kinds of alleged false statements: (1) submission of
claims for services that were not eligible for Medicare coverage, and (2)
submission of claims based on forged documentation, in particular, the use of a
doctor's signature stamp without his permission. The first type of statement was
allegedly deceptive by virtue of the fact that the claim submitted was not allowable
under the law at the time the claim was filed. See United States v. R&F Props. of
Lake County, Inc., -F.3d-, No. 04-15283, 2005 WL 3557420, at *5 (11th Cir. Dec.
9
30, 2005) ("Medicare claims may be false if they claim reimbursement for services
or costs . . . that . . . are not reimbursable . . . ."); United States v. Calhoon, 97 F.3d
518, 529 (11th Cir. 1996) (crux of 18 U.S.C. § 1001 offense was "the filing of
reports intended and designed to deceive and mislead the auditors for the purpose
of obtaining reimbursement of costs Calhoon knew to be at least presumptively, if
not clearly, non-reimbursable"). It was therefore incumbent on the government to
introduce evidence of what the Medicare laws and regulations permitted and
forbad during the period alleged in the indictment in order to establish both that
the claims were deceptive and that Mitchell acted with scienter. "In a case where
the truth or falsity of a statement centers on an interpretive question of law, the
government bears the burden of proving beyond a reasonable doubt that the
defendant's statement is not true under a reasonable interpretation of the law."
United States v. Whiteside, 285 F.3d 1345, 1351 (11th Cir. 2002); accord United
States v. Parker, 364 F.3d 934, 944-45 (8th Cir. 2004). In other words, if the law
that makes a statement false is ambiguous and the defendant's statement was
consistent with one reasonable interpretation of the law, the government must rule
out the possibility that the defendant was acting in reliance on that interpretation.
Some courts analyze the question as going to the element of false statement, e.g.,
United States v. Rowe, 144 F.3d 15, 21-23 (1st Cir. 1998), and some as going to
10
the element of scienter, e.g., Minnesota Ass'n of Nurse Anesthetists v. Allina
Health Sys. Corp., 276 F.3d 1032, 1053-56 (8th Cir. 2002) (civil false claims
case).
The district court considered the theories advanced by the government to
establish that Mitchell' s businesses violated clear Medicare rules: (1) that the
services were not billable because they had not been performed by a "skilled
provider," and (2) that the services were not billable because in the second half of
1999, the services had been provided by a technician in the patients' homes instead
of in a clinic with a physician present.
The government contends that "physical therapy provided by unlicensed
technicians" was not billable under Medicare. Government Brief at 21. However,
the government's evidence at trial indicated that this principle is overstated and
that under some circumstances physical therapy technicians' services could be
billed under Medicare.
The government did not introduce any statute, regulation, policy or other
written authority governing the circumstances under which physical therapy
technicians' services could be payable under Medicare. It did adduce the
testimony of an investigator, Karen Hurley, who testified generally that for
physical therapy services to be billable to Medicare, "The services must be
11
medically necessary to treat an injury or an illness, and they must be provided by a
skilled provider." Hurley testified that a physician or physical therapist can be a
"skilled provider." She said, "A group that is enrolled with medicare can only bill
for services for physicians that are employed by that group and who are licensed
and enrolled with Medicare."
Hurley's testimony taken at face value would thus support the conclusion
that it is flatly illegal to bill Medicare for services provided by a technician, rather
than a skilled provider. However, Hurley herself contradicted this conclusion.
She stated that the requirements for billing medical procedures would be set forth
by Medicare in local medical review policies and she identified such a policy for
physical therapy. The government failed to introduce the policy into evidence and
the policy, identified as Exhibit 10, was dated July 11, 2000, which would have
been after the relevant date for the bills at issue. Nevertheless, Hurley was
allowed to testify that the policy stated:
For claims submitted by a physician, services performed by
nonemployees or not under a physician's direct supervision are not
covered. . . . Services that do not require the professional skills of a
physician to perform or supervise them are not medically necessary.
Q: And what is the import of that policy statement?
A: It indicates that the services should be performed by a skilled
provider or under his direct supervision.
12
(emphasis added). Hurley's testimony thus establishes that services do not have to
be performed by the physician if the physician "directly" supervises them, so the
government's evidence does not establish a per se rule that technicians cannot
perform the therapy. Moreover, the Assistant United States Attorney arguing this
appeal admitted that it was permissible to use technicians under the supervision of
a doctor. Therefore, the district court did not err in concluding the government
had failed to prove that treatment by the technicians was per se illegal.
The government also contends that the services rendered in 1999 were non-
billable on the ground that they were performed by a technician in the patients'
homes instead of at a clinic with a physician present. We must determine whether
the rule as set out in Hurley's testimony clearly prohibits billing for technicians'
services not rendered within the clinic with a doctor present.
The question of whether the law was ambiguous is one for the court, not the
jury. United States v. Prigmore, 243 F.3d 1, 18 (1st Cir. 2001). In a civil False
Claims Act case this Circuit recently considered whether non-physician
employees' services could be billed as "incident to" the services of a physician
under the Medicare program if the physician was not present on the premises at
the time of the service. In United States v. R&F Properties of Lake County, Inc., -
F.3d-, No. 04-15283, 2005 WL 3557420, at *5 (11th Cir. Dec. 30, 2005), we held
13
that the regulations and policies existing before 2002 were ambiguous.
Unfortunately, we must decide the question on the record before us, which is
limited to Hurley's statement of the law, unlike the fulsome record provided in
R&F. A reasonable person could interpret "directly supervise" to apply where a
physician drew a treatment plan to be followed by a technician, consulted with the
technician before and after each treatment, was available for consultation by
telephone or pager during the visit, and conducted follow-up examinations to
ascertain the patient's progress, even if the therapy occurred in the patient's home
instead of in a clinic where the physician was present. Thus, the words "direct
supervision" in the record are ambiguous with regard to whether a home visit by a
technician could be billable, and a reasonable person could interpret those words
to extend to oversight of technicians conducting home visits.
Since the law as presented by Investigator Hurley was ambiguous, it was up
to the government to show that the language in context would have been
understood to preclude the kind of claims Family Physical Medicine filed. In
short, the government had to show that at the time of the claims, the government
and Mitchell understood "supervision" to hinge on whether the physician was
present in the same premises with the technician. See R&F, 2005 WL 3557420, at
*5-6.
14
Hurley testified on cross examination that it was necessary for the physician
to be at the site where services were provided in order to bill Medicare for the
services of non-physician employees, including physical therapy technicians: "The
physician must also be present in the office when the services are provided."
However, she did not refer to any statute, regulation or other published authority
that enshrined this rule or state when the rule first became effective. Similarly,
Valencia Boone testified that she had eventually learned, "A physical therapy tech
can only work inside a clinic under the direct supervision of a physician," but she
did not identify the basis for her opinion or state when she formed the opinion.
Curley Daniel testified that she told Mitchell that "we needed a physical therapist
on premises with us," but she did not state the basis for this opinion.
There was evidence at trial that a change in Medicare rules caused Mitchell
to change the clinic's practice of providing therapy in the patients' homes. Bruce
Locke testified that after Family Physical Medicine began business, there were
"some Medicare laws and changes and stuff, and we had to start bringing the
patients to the clinic." Locke said he was not personally familiar with the rules,
but that "you could hear the ruckus" the week a letter came changing the rules.
Locke explained,
15
Well, there was some sort of Medicare form that came in the
mail, and Michael had some people review it, some more of the inept
people, I guess, because he had some more people review it, and then
he came to the conclusion that we'll bring the patients to the clinic;
thus, increasing the cost to do business because he had to hire the
transportation to bring them there.
The government's investigator Priscilla Boyd also confirmed the idea that
the rules governing billing for services provided by physician's employees were
changed or clarified in 2000:
Q: What we're talking about is what services can be provided under
the supervision of a doctor.
A: Right.
....
Q: And what the rules and regulations are that govern that, correct?
A: Correct.
Q: And what you can bill for and what you can't, correct?
A: Correct.
Q: All right. Now, the only point I wish to make is that in the middle
of 2000, that newsletter put out by Medicare acknowledged that in the
industry, there was a lot of confusion as to what that meant and what
the proper application of that term was, correct?
A: That's what the newsletter indicates.2
In sum, rather than introducing any written statute, regulation, policy or
other authority establishing that a technician's services pursuant to a physician's
orders were not "directly supervised" by the physician if the physician was not
physically present in the same clinic, the government relied on testimony of an
2
The newsletter identified as Defendant's Exhibit 1 was not introduced into evidence.
16
investigator. That investigator did not identify when the rule she cited became
effective. Other testimony by government witnesses established that there was a
change or clarification in the applicable rules well into the alleged conspiracy
period, following which Family Physical Medicine changed its practices to comply
with Mitchell's new understanding that technicians had to be in the same building
with the physician. On this record, the government did not bear its burden of
proving that Family Physical Medicine intentionally submitted bills that were not
legally payable solely by virtue of the technician's treatment occurring in the
patient's home.
We emphasize that we express no opinion as to what the actual state of the
Medicare laws, regulations, or policies was at the time of the conduct charged.
Neither party supplied any direct evidence of what the law required at any
particular time other than the testimony we have discussed, and our business is
limited to the state of the record before the jury. We are mystified as to why the
government neglected to introduce such regulations if the rule was clear at the
time the services were rendered. Nevertheless, on the record before us, the
government has not borne its burden of proof either that the claims were illegal at
the time filed or that Mitchell had the necessary scienter in connection with the
filings merely because the services took place in the patients' homes.
17
Although we have determined that the district court's assessment of the
government's two principal theories of guilt was correct, it is nevertheless
necessary to consider whether the government proved that Mitchell's businesses
were billing for technicians' services that no one reasonably could have thought
were "directly supervised" by a physician. There was evidence that Dr. Dawkins
did not supervise the technicians because he did not believe it was his
responsibility to do so. Although Dr. Dawkins testified that he examined the
patients, drew up the plan for physical therapy, and conducted follow-up
examinations on the patients, the record shows that there was no contact
whatsoever between Dr. Dawkins and Curley Daniel, the technician who began
working in July 1999. Dr. Dawkins testified that after he developed the treatment
plan, he was not responsible for supervising the "therapists" and that he did not
interact with the technician in any way. No one asked him whether he was aware
that the therapy was being performed by a "technician" rather than a "therapist."
Curley Daniel testified that when she began working for Family Physical
Medicine, there was no physician on staff, although she said she had heard of Dr.
Dawkins. She testified that she did not know Dr. Dawkins and she did not work
with him. However, she later identified Dr. Green's signature and agreed that he
had done the evaluation of a patient whose records were being discussed. She did
18
say that she could not go out to treat a patient without an evaluation and
instructions from a doctor and that the doctor had to examine the patient
periodically to assess the progress of the treatment. She said she got the doctor's
instructions from her "supervisor"–apparently meaning Boone or Stephanie Locke.
Another technician, Karene Lamoi Benoit, testified that she began work in August
1999 and she worked with Dr. Dawkins.
We conclude that there is no reasonable interpretation of "direct
supervision" that would cover Dr. Dawkins's relationship with Curley Daniel, and
indeed, that Dr. Dawkins did not consider himself to be supervising Curley Daniel,
but appears to have been under the impression that the therapy was being
performed by a licensed physical therapist. Mitchell, however, gave Boone
instructions to hire technicians and it was technicians, not physical therapists, that
the clinic sent to the patients' homes. This evidence would allow a reasonable jury
to find that the claims filed in 1999 for in-home services by technicians were
fraudulent and Mitchell knew them to be so.
The government further contends that even after the clinic began providing
its services in-house with a physician present, there was no supervision of the
technicians. However, the technicians testified that after the therapy was moved
into the clinic, Dr. Fields and Dr. DeAlbuquerque did supervise them. The
19
government contended at oral argument that inadequate supervision could be
inferred from the fact that Dr. Fields only worked about twenty hours a week;
however, the government admitted that there was another doctor on staff at the
time, and the government neglected to introduce evidence about how much that
doctor was at the clinic. The government also contends that Dr. Fields established
lack of supervision when he said that he did not follow up to assure that patients'
therapy was discontinued when he ordered it to be; however, since there was no
showing that any patient received therapy after Fields ordered therapy
discontinued, Fields's statement would not support an inference of conspiracy to
commit fraud.
In sum, we conclude that the government did indeed adduce evidence that in
1999 Mitchell's clinic was engaged in a systematic practice of billing for the
services of unlicensed technicians whose work was not directly supervised by a
skilled provider. Though the government's more specific theories failed for lack
of evidence, the record was sufficient to allow a reasonable finder of fact to
conclude that Mitchell conspired to engage in a fraudulent scheme to obtain
Medicare payments for services performed without a sufficient degree of
physician supervision.
20
IV.
There was evidence at trial that Family Physical Medicine used Dr.
Dawkins's signature stamp on Medicare claims without his authorization to do so.
The question is whether there was any evidence linking Mitchell to the misuse of
the stamp.
The government indicted Stephanie Locke alone on five charges of false
statements based on use of this stamp, but she was determined to be physically
incapable of proceeding to trial and so her case was severed. Whatever Stephanie
Locke's culpability may have been, the government did not show that Mitchell had
anything to do with the misuse of the stamp. Valencia Boone said that to the best
of her knowledge, Mitchell had nothing to do with getting the stamp and she had
no reason to think he was aware that it had happened. There was no evidence
tying Mitchell to the unauthorized use of the stamp. The district court did not err
in concluding that the evidence was insufficient to support the conspiracy verdict
on the stamp theory.
V.
Because we conclude that the government proved that Mitchell conspired to
engage in a fraudulent scheme to bill for the services of inadequately supervised
technicians, we must reverse the district court's entry of judgment of acquittal.
21
Accordingly, we must consider whether the district court's alternative order of a
new trial was permissible.
We review for abuse of discretion a district court's grant of new trial on the
ground that the verdict was against the weight of the evidence; however, the
particular abuse of discretion standard employed in this situation is more searching
and rigorous than the name would suggest. See United States v. Hernandez, -
F.3d-, No. 04-16663, 2005 WL 3525613, at *7 (11th Cir. Dec. 27, 2005); Butcher
v. United States, 368 F.3d 1290, 1297 (11th Cir. 2004). While the district court
may weigh the evidence and assess the credibility of the witnesses, the district
court may not set aside the verdict unless the evidence preponderates so heavily
against the verdict that it would be a miscarriage of justice to let the verdict stand.
Butcher, 368 F.3d at 1297.
Here, the government pursued various theories of guilt that failed entirely
for lack of evidence. The one theory that supports the conspiracy conviction was
based on an inference that Mitchell knew that Dr. Dawkins was not providing
supervision of the technicians. This inference was tenuous and the district court
did not abuse its discretion in granting the motion for new trial.
Accordingly, the judgment of acquittal is REVERSED and the order
granting a new trial is AFFIRMED.
22
HULL, Circuit Judge, specially concurring:
I concur in the judgment only.
23