COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71703 & 71704 STATE OF OHIO : : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION DORIAN VIDU, ET AL. : : : Defendants-Appellants : DATE OF ANNOUNCEMENT : JULY 23, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas Pleas Court Case No. CR-326090 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor James A. Gutierrez, Esq. Patrick J. McCarthy, Esq. David Hildebrandt, Esq. John R. Mitchell, Esq. Assistant Prosecutors The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 [Attorneys continued on Page ii] Attorneys [Continued] For defendants-appellants: Alan Dershowitz, Esq. Nathan Dershowitz, Esq. Dershowitz & Eiger 350 Fifth Avenue ii Suite #7912 New York, NY 10118 F. Lee Bailey, Esq. Kenneth J. Fishman, Esq. Peter Charles Horstmann, Esq. Bailey, Fishman & Leonard 66 Long Wharf Boston, MA 02110 Victor Goodman, Esq. Benish, Friedlander, Coplan & Aronoff, LLP 200 Public Square, Suite 2300 Cleveland, Ohio 44114 Jerome F. Weiss, Esq. Jerome F. Weiss & Assoc. 1600 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 -2- MICHAEL J. CORRIGAN, J.: Dorian Vidu, et al., defendants-appellants, appeal their convictions in the Cuyahoga County Court of Common Pleas for seven counts of insurance fraud in violation of R.C. 2913.47 and eight counts of theft in violation of R.C. 2913.02. Defendants-appellants raise four assignments of error. This court, finding no error, affirms the convictions. The facts that are relevant to the issues raised on appeal are derived from an extensive record which includes, but is not limited to, a 4,772 page trial court transcript, trial motions, exhibits and memorandum, and the parties' respective appellate briefs and trial arguments. Dorian Vidu, defendant-appellant, is a physician licensed to practice medicine in the state of Ohio. On July 26, 1995, he was indicted by the Cuyahoga County Grand Jury, together with Southwest Primary Care, Inc., defendant-appellant, Melania Vidu (his mother) and Dr. Marlene A. Bednar. The twenty-two (22) count indictment charged defendants-appellants with engaging in a pattern of corrupt activity in violation of R.C. 2923.32, insurance fraud in violation of R.C. 2913.47, theft in violation of R.C. 2913.02, and tampering with records in violation of R.C. 2913.45.1 On or about November 20, 1995, counsel for defendants- appellants filed a motion to disqualify prosecutor Marilyn Cassidy. 1On September 17, 1996, the trial court dismissed two counts of insurance fraud, two counts of theft, and both counts of tampering with records. The state subsequently dismissed the single count of engaging in a pattern of corrupt activity. -3- Defendants-appellants argued that during a period when they were being investigated, they sought the legal advice of Paul Cassidy of the law firm Cassidy & Mottl. Since Marilyn Cassidy was designated of-counsel with the law firm at that time, defendants-appellants argued a conflict of interest exists from the prior association. Citing to the Code of Professional Responsibility, the Disciplinary Rules and various case law, it was defendants- appellants' contention that Marilyn Cassidy used information gained from her former association with Cassidy & Mottl in the state's prosecution and that the presumption of shared confidences compels her dismissal.2 Defendants-appellants also filed a motion to dismiss the indictment on grounds of prosecutorial misconduct before the Grand Jury. Again, the defendants-appellants cited to prosecutor Cassidy's alleged conflict of interest. Specifically, defendants- appellants argued prosecutor Cassidy had engaged in two acts of misconduct warranting the dismissal of the indictment: 1) using client confidences obtained from the defendants-appellants by her prior association with the law firm against them in the Grand Jury; and 2) acting as an advocate/witness for a third-party insurance company, Blue Cross/Blue Shield of Ohio. This alleged misconduct was argued but not supported by any evidence. 2Defendants-appellants filed supplemental briefs in support of this motion arguing, among other things, that the doctrine of vicarious disqualification and the substantial relationship test also mandate Marilyn Cassidy's dismissal. -4- A hearing on the motion to disqualify the prosecutor was conducted January 11 and February 21, 1996. On March 5, 1996, the trial court granted said motion. Defendants-appellants immediately moved to disqualify the entire Cuyahoga County Prosecutor's Office and have a special prosecutor appointed.3 This motion was denied by the trial court on March 12, 1996. Subsequently, on March 14, 1996, the trial court denied defendants-appellants' motion to dismiss the indictment. After thirteen months of pre-trials, motion hearings, and rulings by the court, the case proceeded to trial on September 17, 1996. During the five-week trial, the jury heard testimony from forty-three (43) witnesses for the state who were former patients, former employees/contractors, two representatives from defendants- appellants' outside billing service, insurance and hospital representatives, law enforcement representatives and expert witnesses. The state's case centered on the fact that defendants- appellants not only billed insurance companies for numerous procedures which were not performed, but they also performed and billed for a number of tests which were not related to the patients' medical conditions. The defense presented seven witnesses in an effort to establish that Dr. Vidu, defendant-appellant, was not involved with the billing process he used which was called the CPT coding procedure. Moreover, defense argued that billing errors are 3For a discussion of a trial court's inherent authority to appoint a special prosecutor see State v. Talikka (March 31, 1994), Ashtabula App. No. 93-A-1816, unreported. -5- prevalent in the industry since many physicians do not understand billing procedures and/or its application to their practice. It is for that reason, the defense argued, physicians like Dr. Vidu hire outside billing service. Moreover, it was defense counsel's contention that changes in the CPT Code Book and the practice of bundling a few procedures into one code contributed to the billing mistakes. After the state's case-in-chief, the trial court granted a defense motion to acquit Melania Vidu and Dr. Marlene Bednar. On October 21, 1996, the jury found Dorian Vidu and Southwest Primary Care, Inc., defendants-appellants, guilty of the remaining counts. Defendants-appellants timely filed this appeal. Defendants-appellants state as their first assignment of error: I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S (SIC) MOTION TO DISQUALIFY THE CUYAHOGA COUNTY PROSECUTOR'S OFFICE AND APPOINT A SPECIAL PROSECUTOR TO PROSECUTE THE DEFENDANT-APPELLANT'S CASE FOLLOWING THE DISQUALIFICATION OF PROSECUTOR MARILYN CASSIDY. Defendants-appellants argue that there is a split in jurisdictionson whether an entire prosecutor's office must be per sedisqualified where one of its staff had represented a defendant in a related matter. Defendants-appellants then cite to Lux v. Commonwealth, 1997 WL 190965 (Va. App. 4/22/97), which recognizes Ohio as being a per se disqualification state. Accordingly, defendants-appellants argue the trial court erred in failing to disqualify the prosecutor's office and appoint a special prosecutor. -6- Defendants-appellants go on to argue that even if this court were to reject the per se disqualification rule, the failure of the Cuyahoga County Prosecutor's Office to implement a screening mechanism not only increases the likelihood of breaches of confidentiality, but it also creates the appearance of impropriety. This impermissible appearance of impropriety is even more likely since the Cuyahoga County Prosecutor's Office permits assistant prosecutors to engage in the private practice of law. In such instances, defendants-appellants argue, even those states rejecting the per se disqualification rule should be required to disqualify the entire prosecutor's office. Finally, defendant-appellant asserts that while the mere appearance of impropriety is sufficient to warrant disqualification of the entire prosecutor's office, there is sufficient evidence in the record demonstrating that, contrary to the trial court's conclusion, Marilyn Cassidy's involvement with Cassidy & Mottl was more than form over substance which resulted in prejudice to defendants-appellants. Contrary to defendants-appellants' assertions, State v. Cooper (1980), 63 Ohio Misc. 1, which appears to adopt the per se disqualification standard, is not representative of the majority of case law in Ohio regarding the disqualification of a prosecutor and/or the entire prosecutor's office. Rather, we believe a more rationale approach is one which appears to have been adhered to by a majority of appellate districts throughout Ohio, i.e., to conduct the review on a case-by-case basis. See State v. Waggaman (Aug. 20, -7- 1997), Medina App. No. 96-CA-0078, unreported; State v. Bryant (June 26, 1997), Meigs App. No. 96-CA-14, unreported; State v. Hiatt (March 26, 1997), Adams App. No. 95-CA-609; State v. Luna (Sept. 2, 1994), Huron App. No. H-93-24, unreported; State v. Perotti (May 15, 1991), Scioto App. No. 89-CA-1845, unreported; State v. Faulkner (Aug. 20, 1990), Preble App. No. CA89-04-007, unreported; State v. Jacobs (Jan. 3, 1990), Summit App. No. 14089, unreported. In accordance with the above cited cases and for the following reasons, we hold that the mere appearance of impropriety is insufficient,in and of itself, to warrant the disqualification of an entire prosecutor's office. First, we agree with the analysis in State v. Waggaman (Aug. 20, 1997), Medina App. No. 96-CA-0078, which held where a governmental lawyer coming from private practice is disqualified in a matter, Disciplinary Rule 5-105(D) cannot be construed to mandate the disqualification of a government department or division with respect to that matter.4 DR 5-105(D) states: If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment. In that case, it was held that if vicarious disqualification were required in such circumstances, the government's ability to function would be unreasonably impaired. Additionally the court noted: 4Adopting the American Bar Association's Formal Opinion 342. -8- The ABA described how differing relationships among lawyers in a government office, compared to those among lawyers in a private firm, lesson[] (sic) the temptation to circumvent the disciplinary rules through the action of associates. The two groups have differing interests in the financial success of the entities in which they practice. In addition, all governmental lawyers have the duty to seek just results rather than to seek the result desired by a client. See, also, State v. Murphy (Nov. 17, 1988), Marion App. No. 9- 87-35, unreported. We note that this finding should not be construed in a way to prohibit the disqualification of a prosecutor's office. However, such a decree should only be issued by a court when actual prejudice is demonstrated.5 In making the determination, relevant factors may include: 1) the type of relationship the disqualified prosecutor previously had with a defendant; 2) the screening mechanism, if any, employed by the office; 3) the size of the prosecutor's office; and 4) the involvement the disqualified prosecutor had in the case. In this case, the facts and circumstance do not warrant the disqualification of the entire prosecutor's office, which exceeds well over one hundred (100) in number. Here, there was no evidence presented establishing that prosecutor Cassidy represented defendants-appellants in a related matter. When defendants- appellants went to Cassidy & Mottl, they spoke with other members of the firm, not Mrs. Cassidy. The record is quite clear that prosecutor Cassidy was merely designated of-counsel and 5Prejudice will not be presumed by an appellate court where none is demonstrated. State v. Freeman (1985), 20 Ohio St.3d 55. -9- maintained a very low profile at the law firm. Moreover, there is no evidence that Ms. Cassidy performed any work indirectly for defendants-appellants while at the law firm. Simply put, prosecutor Cassidy did not represent defendants-appellants in a prior related matter. Additionally, the state presented the affidavit of Marilyn Cassidy, who stated she was not engaged in any matters dealing with defendants-appellants during the period from 1990-1992 and has never seen any materials which may have been provided to the law firm by defendants-appellants. Also, she stated that she had never had any discussions relative to the defendants-appellants with any member of the firm. In fact, she stated that after she joined the prosecutor's office in May of 1992, her assignment in June of that year to the ongoing investigation team was the first time she had ever heard of defendants-appellants. For the above stated reasons, we find the trial court did not err to the prejudice of defendants-appellants when it denied their motion to disqualify the prosecutor's office. Defendants- appellant's first assignment of error is not well taken. Defendants-appellants state as their second assignment of error: II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING APPELLANT'S (SIC) MOTION TO QUASH THE INDICTMENT BASED UPON THE DISQUALIFICATION OF MARILYN CASSIDY, WHO PARTICIPATED IN SECURING AN INDICTMENT AGAINST APPELLANTS. Defendants-appellants argue that the trial court erred in denying their motion to dismiss the indictment. Specifically, -10- defendants-appellants argue since Marilyn Cassidy should have been disqualified from participating in the prosecution, at the onset, she is an unauthorized person before the Grand Jury in the matter and her presence vitiates the indictment. We disagree. Initially, we note there is a strong presumption that a prosecutor's decision to prosecute has been in good faith. See State v. Flynt (1980), 63 Ohio St.2d 132. Stated differently, a presumption of regularity supports prosecutorial decision-making, and "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Armstrong (May 13, 1996), 1996 WL 241682, quoting United States v. Chemical Foundation, Inc. (1926), 272 U.S. 1, 14-15. Indeed, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes (1978), 434 U.S. 357, 364. See, also, State v. Steffen (1987), 31 Ohio St.3d 111, 124-25, (stating that prosecutorial "[d]iscretion is essential to the functioning of the criminal justice system. Thus, exceptionally clear proof is required before an abuse of that discretion will be presumed."). In light of the presumption that prosecutors do not engage in improper selective prosecution, and after a review of the record, we find the trial court did not err in denying defendants- -11- appellants' motion to dismiss the indictment. First, the investigation of defendants-appellants began prior to the time Marilyn Cassidy joined the prosecutor's office and was assigned to the investigation team. More importantly, we find there is no evidence establishing any actual impropriety by the prosecutor's office and/or prejudice suffered by defendants-appellants. It is interesting to note that even in State v. Cooper (1980), 63 Ohio Misc. 1, the case which defendants-appellants relied upon in their first assignment of error, the court did not dismiss the indictment even though it dismissed the entire prosecutor's office. Obviously, even though there existed the appearance of impropriety, there was no evidence that the indictment process was tainted. See, also, State v. Faulkner (Aug. 20, 1990), Preble App. No. 89-04-007, unreported. Similarly, the trial court in this case reviewed in camera the Grand Jury proceedings and discovered no irregularities relative to Marilyn Cassidy's participation. Finally, we note that any potential problem was alleviated by the subsequent proceedings. An indictment is merely a charging letter putting the defendant on notice of the charges being brought against him/her. If probable cause is found to exist, the case then gets presented anew to a petit jury. In this case, the evidence was presented to the petit jury by a different prosecuting attorney. The jury then came back finding defendants-appellants were guilty of said charges beyond a reasonable doubt. Accordingly, any impropriety in the grand jury proceeding was rendered harmless by the jury's finding of guilt beyond a reasonable doubt. See, e.g., -12- State v. Hill (Nov. 25, 1992), Columbiana App. No. 90-C-56, unreported, citing to Talamante v. Romero (C.A. 10, 1980), 620 F.2d 784 (in view of petit jury's later subsequent finding of guilt, error in grand jury proceeding was harmless). Not only does a review of the record fail to establish any impropriety at the Grand Jury stage of the proceedings, but the disqualification of prosecutor Cassidy and the subsequent guilty verdicts by the petit jury purged any alleged impropriety during the said proceeding.6 The trial court did not err when it denied defendants-appellants' motion to dismiss the indictment. Defendants-appellants' second assignment of error is not well taken. Defendants-appellants' third assignment of error states: III. THE TRIAL COURT ERRED IN EXCLUDING THE VIDEOTAPE OF APPELLANT VIDU'S STATEMENTS TO AN UNDERCOVER INSURANCE INVESTIGATOR WORKING WITH THE PROSECUTION. Defendants-appellants argue the trial court erred in denying the videotape of a conversation between an undercover investigator and Dorian Vidu, defendant-appellant. Specifically, defendants- appellants argue that although the undercover investigator acknowledged Dr. Vidu did not incriminate himself in their conversation, he claimed that Dr. Vidu rationalized, projected and minimized his activities which insinuated criminal activity. Therefore, defendants-appellants argue, the court should have 6Although there may be a question as to whether defendants- appellants timely filed their motion to dismiss the indictment pursuant to Crim.R. 12 (B) and (C), we do not find this to be determinative of our outcome. -13- permitted defense counsel to play the videotape for the jury to prevent the prejudice suffered by defendants-appellants. It is well established that pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion of the trial court. State v. Heinish (1990), 50 Ohio St.3d 231; State v. Sibert (1994), 98 Ohio App.3d 412. An abuse of discretion connotes more than an error in law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As the Supreme Court has noted: An abuse of discretion involves far more than a difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an abuse in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222. In this case, defendants-appellants attempted to introduce a videotape of statements made by Dorian Vidu to impeach the testimony of the undercover investigator (whom they called as a witness) and to alleviate any prejudice suffered by his testimony. Initially, after a review of the record, we find defendants- appellants' characterization of the undercover agents testimony as inconsistent with the videotape to be tenuous. More importantly, however, is the fact that defense counsel attempted to introduce the videotape of statements by defendant- -14- appellant (who chose not testify) to impeach their own witness. This situation raises a number of concerns. First, if the videotape was to be introduced to impeach defense counsel's own witness, then there normally must be a showing of surprise and affirmative damage. Evid.R. 607. This was not done. Moreover, such impeachment is done primarily through prior inconsistent statements and does not include statements and/or admissions by a party-opponent. Next, the introduction of statements/admissions made by a defendant are normally controlled by Evid.R. 801(D)(2). However, the statements/admissions set forth in this rule can be introduced only by the opposing party. It is clear that a party may not introduce his/her own statements under this rule. See State v. Gatewood (1984), 15 Ohio App.3d 14. This is due, in part, to the state's right to cross-examine a witness/defendant who is providing testimony. Accordingly, because Dorian Vidu, defendant-appellant refused to take the stand and subject himself to cross-examination, he cannot be permitted to introduce his own statements caught on videotape unless an exception to the hearsay rule is found. See In re Coy (1993), 67 Ohio St.3d 215. In this case, none of the exceptions to the hearsay rule applies. Finally we note that the trial court permitted defense counsel wide latitude in examining the undercover agent regarding what was and what was not said on the videotape. We agree with the trial court in that through direct examination, defense counsel was able to accomplish what he intended to accomplish with the videotape. Thus, assuming arguendo there was an error by the trial court in -15- refusing to permit defense counsel to play the videotape for the jury, any error would be rendered harmless by the subsequent examination. Defendants-appellants' third assignment of error is not well taken. Defendants-appellants state as their fourth assignment of error: IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE CO-DEFENDANT BEDNAR WITH EXHIBITS NOT PRODUCED IN DISCOVERY IN VIOLATION OF APPELLANTS' RIGHTS AS SECURED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. Defendants-appellants argue the trial court erred in permitting the state to reference an insurance claim forms signed by Dr. Bednar (who was originally a defendant) for treatment she received from Dorian Vidu, defendant-appellant. Since the state failed to disclose these documents and since the state was aware that Dr. Bednar planned to testify, it constitutes a violation of the state's duty under Crim.R. 16(B)(1) to disclose said materials. Defendants-appellants argue the willful violation by the state in concealing the documents until they were referenced for impeachment purposes clearly prejudiced defendants-appellants and the trial court abused its discretion in permitting their use thereby denying defendants-appellants a fair trial. It should be noted that Dr. Bednar was not a state's witness, but was called by the defense. The United State Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87 held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process -16- where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Both exculpatory and impeachment evidence may be the subject of a Bradyviolation so long as the evidence is material. United State v. Bagley (1985), 473 U.S. 667. In State v. Johnson (1988), 39 Ohio St.3d 48, the Ohio Supreme Court held in paragraph five of the syllabus: In determining whether the prosecution improperly suppressed the evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result in the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See, also, In re Rivera (Aug. 22, 1996), Cuyahoga App. No. 69320, unreported. Without addressing whether or not the insurance claim form was a statement under Crim.R. 16, we find after a review of the voluminous record that the insurance claim form (which was only referred to and not introduced into evidence) was not material to the outcome of the trial. See, also, State v. Aldrige (March 14, 1997), Montgomery App. No. 15785, unreported. Moreover, we note that Brady does not require the government to disclose information which is already available to the defense from other sources. See State v. Hughes (Nov. 4, 1993), Cuyahoga App. No. 62884, unreported. In this case, a partner in Physicians Billing Management testified that Dorian Vidu was a client of theirs and that all of the billing information, including that -17- which would appear on the insurance claim form, was available to their clients. For all of these reasons, we find the trial court did not abuse its discretion in permitting the state to reference to the insurance claim form in an attempt to impeach the testimony of Dr. Bednar. Defendants-appellants' fourth assignment of error is not well taken. Judgment affirmed. -18- It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. CONCUR; DIANE KARPINSKI, J.,CONCURS WITH CONCURRING OPINION ATTACHED JUDGE MICHAEL J. CORRIGAN N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71703 & 71704 STATE OF OHIO : : Plaintiff-Appellee : : CONCURRING v. : : OPINION DORIAN VIDU, ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1998 KARPINSKI, J., CONCURRING: I agree with the majority opinion, but write to address an additional concern. While we have found that there was no need to disqualify the Prosecutor's Office in this matter, we also noted the appearance of impropriety in assigning an assistant prosecutor to a case with a defendant represented by a firm the assistant prosecutor was previously associated with, albeit only of counsel. Although we found no evidence that her prior relationship prejudiced the defense, especially since the trial judge prudently removed her from the case at an early stage, I am concerned, nevertheless, by the appearance of impropriety. Any appearance of impropriety would be alleviated in the future if .