513 F.3d 527 (6th Cir. 2008), 06-5581, United States v. Moon

Docket Nº:06-5581.
Citation:513 F.3d 527
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Young MOON, Defendant-Appellant.
Case Date:January 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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513 F.3d 527 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Young MOON, Defendant-Appellant.

No. 06-5581.

United States Court of Appeals, Sixth Circuit.

Jan. 16, 2008

Argued: Oct. 24, 2007.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 05-00003-Todd J. Campbell, Chief District Judge.

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COUNSEL

ARGUED:

T. Clifton Harviel, Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, for Appellant.

Ellen Bowden McIntyre, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

ON BRIEF:

T. Clifton Harviel, Jr., Harviel Law Office, Memphis, Tennessee, for Appellant.

Samuel G. Williamson, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MERRITT and CLAY, Circuit Judges; COX, District Judge.[*]

OPINION

CLAY, Circuit Judge.

Defendant, Dr. Young Moon, appeals from her conviction and sentence entered by the United States District Court for the Middle District of Tennessee on April 25, 2006, for three counts of health care fraud in violation of 18 U.S.C. § 1347 and one count of making false statements regarding health care matters in violation of 18 U.S.C. § 1001. Specifically, Defendant appeals 1) the district court's denial of her motion to dismiss count four of her indictment; 2) the district court's denial of her motion to suppress evidence; 3) the reasonableness of her sentence; and 4) the

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district court's evidentiary rulings with respect to "summary evidence." For the reasons that follow, we AFFIRM the district court's judgment.

BACKGROUND

A. Factual Background

Defendant, Young Moon, was a medical doctor licensed by the State of Tennessee, specializing in oncology and hematology. Defendant operated a medical practice in Crossville, Tennessee where she treated patients with various forms of cancer. As part of her practice, Defendant contracted with the State of Tennessee to provide medical treatment to patients pursuant to a state and federally funded health benefit program for the uninsured known as "TennCare." A number of providers participated in the program, including Blue Cross Blue Shield and Medicaid. Defendant routinely utilized chemotherapy medications such as Taxol, Camptosar and Procrit1 in her treatment of cancer patients insured under the program. As a medical provider, Defendant was required to seek reimbursement for services, including medication, provided to patients under the insurance program.

In March of 2001, the Tennessee Bureau of Investigation ("TBI") received a complaint from one of Defendant's employees alleging that Defendant administered partial doses of chemotherapy medication while billing the insurance program for full doses. It was also alleged that the fraud was facilitated by the fact that Defendant mixed the cancer drugs she administered. The matter was referred to the Medicare Fraud Control Unit ("MFCU") of TBI and a joint investigation was initiated between the United States Department of Health and Human Services Office of Inspector General ("HHS-OIG") and TBI. After an initial investigation, agents from HHS-OIG and TBI conducted an "on site review" at Defendant's office.

On January 9, 2002, 10 agents associated with TBI, HHS-OIG and Blue Cross Blue Shield conducted an on-site review at Defendant's office. The objective of the review was to "scan TennCare, Medicaid and Medicare patient records" and secondarily to "interview Dr. Moon and all of her employees." (J.A. at 267) Members of the on-site review team were instructed that "attire will be business professional, no raid gear. All weapons, police paraphernalia shall be concealed." (Id. ) On the morning of the review, three agents arrived, unannounced, at Defendant's office. The agents identified themselves, informed Defendant of a general complaint against her and requested permission to "scan" particular patient records. It is unclear whether Defendant was made aware of her right to withhold permission. After asking about the nature of the allegations and being told they were confidential, Defendant told agents it would be "fine" for them to scan the requested records and that agents could "scan whatever [they] needed to." (J.A. at 341) Defendant also provided agents with a location where they could scan the requested files.

During the on-site review, agents requested an interview with Defendant regarding her billing practices. Defendant agreed to be interviewed "as long as it did not interrupt patient care." (J.A. at 346) At one point, Defendant left the interview to attend to a patient. During the interview,

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Defendant stated that she always prescribed full doses of chemotherapy medication and never instructed her staff to give partial doses of medication.

B. Procedural Background

After further interviews with employees, reviewing bills submitted to relevant health insurance programs and consultation with experts regarding Defendant's patient charts, the government sought an indictment for three counts of health care fraud.

1. Pretrial

On June 24, 2004, a grand jury sitting in the Middle District of Tennessee indicted Defendant on three counts of health care fraud in violation of 18 U.S.C. § 1347. Subsequently, Defendant moved to dismiss the indictment, alleging that it failed to include an interstate commerce element. The district court agreed and granted Defendant's motion to dismiss. The government returned with a superseding indictment that suffered from a similar infirmity and was also dismissed. In response, the government sought and obtained a second superseding indictment that included the three original counts as well as an additional count alleging that Defendant made false statements to government agents in violation of 18 U.S.C. § 1001. Defendant challenged the addition of the fourth count of the indictment in a motion to dismiss, alleging prosecutorial vindictiveness. The district court denied Defendant's motion and the fourth count of the indictment proceeded to trial.

Defendant also moved to suppress evidence of the two files obtained from her office and statements she made during the TBI/HHS-OIG on-site review, alleging they were obtained during a warrantless search in violation of the Fourth Amendment. After conducting a suppression hearing, the district court denied Defendant's motion to suppress, finding that Defendant consented to the search of her office based on her verbal assent during the on-site review. Further, the district court found that Defendant's contractual relationship with TennCare and other insurance programs provided a basis for voluntary consent and therefore the denied the motion to suppress.

2. Trial

Defendant went to trial on all four counts enumerated in the superseding indictment and the government was permitted to introduce evidence obtained as a result of its warrantless search of Defendant's office. The trial lasted just over two weeks. During the trial, the jury heard testimony from former employees who recounted that Defendant had instructed them to "short" medication to patients. The government presented evidence in the form of testimony by Dr. Mace Rothenburg, an expert witness who testified that Defendant could not have administered the amount of medication she billed as the patient side effects were too mild. The government also presented evidence in the form of records from various pharmaceutical companies regarding Defendant's purchases of chemotherapy medication. Despite Defendant's objection to the admission of the business records, the court ultimately ruled that the evidence was admissible under Federal Rule of Evidence 803(6). In addition, Special Agent Robert Turner with HHS-OIG testified regarding Defendant's billing records, patient charts and drug purchases. As part of his testimony, Agent Turner prepared chart summaries of Defendant's billing and purchasing as well as her administration of chemotherapy medication. Again, Defendant objected, but the district court found the summaries to be admissible.

At the close of the trial, Defendant was convicted of all four counts enumerated in the second superseding indictment.

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3. Sentencing

After Defendant's conviction on all four counts of the indictment, a Presentence Report ("PSR") was prepared in anticipation of sentencing. For purposes of sentencing, the PSR recommended grouping Defendant's convictions for health care fraud with her conviction for making a false statement. The PSR further recommended a number of sentencing enhancements, including enhancements for risk of bodily harm or death, vulnerable victims and obstruction of justice. Consequently, Defendant's total offense level was calculated at 34. The fact that Defendant had no prior criminal history placed her in Criminal History Category I. Together, the base offense level and Criminal History Category yielded an advisory Guidelines range of 151-188 months. On April 24, 2006, the district court conducted Defendant's sentencing hearing. During the hearing, the district court heard testimony from four family members of Defendant's deceased patients. Defendant objected to the admission of this testimony, contending that the patients were not "victims" of the offenses for which she was convicted. The court overruled the objection, noting that the testimony was "relevant to the nature and circumstances of the offense" under 18 U.S.C. § 3553(a). (J.A. at 1516)

The court also heard testimony from government witnesses regarding the harm that resulted from Defendant's conduct...

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