United States v. Meda

• Decision Date: 23 December 2015
• Docket Number: Nos. 13–2598,13–2599.,s. 13–2598
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Vishnu Pradeep MEDA (13–2598); Mehran Javidan (13–25990), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

812 F.3d 502

UNITED STATES of America, Plaintiff–Appellee,
v.
Vishnu Pradeep MEDA (13–2598); Mehran Javidan (13–25990), Defendants–Appellants.

Nos. 13–2598
13–2599.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2015.
Decided and Filed: Dec. 23, 2015.
Rehearing En Banc Denied Jan. 27, 2016.

812 F.3d 506

ARGUED:Brandy Y. Robinson, Legal Aid & Defender Assn., Inc., Detroit, Michigan, for Appellant in 13–2598. Jonathan I. Edelstein, Law Office Of Alan Ellis, New York, New York, for Appellant in 13–2599. Ross B. Goldman, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Brandy Y. Robinson, Legal Aid & Defender Assn., Inc., Detroit, Michigan, for Appellant in 132598. Jonathan I. Edelstein, Law Office of Alan Ellis, New York, New York, for Appellant in 13–2599. Ross B. Goldman, United States Department of Justice, Washington, D.C., for Appellee.

Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

This is a consolidated appeal. Vishnu Pradeep Meda and Mehran Javidan were tried jointly and convicted on multiple charges arising from a Medicare scam. On appeal, Vishnu Pradeep Meda argues that his conviction violated the Fifth Amendment's Double Jeopardy Clause and that he was subjected to prosecutorial vindictiveness for refusing to plead guilty and asserting his right to a jury trial in prior case. Mehran Javidan raises multiple issues for review. However, each issue falls into one of the following categories: (1) improper evidentiary rulings, or (2) sentence calculation errors.

For the reasons set forth below, we AFFIRM both convictions.

I. INTRODUCTION

Mehran Javidan ("Javidan") and Vishnu Pradeep Meda ("Meda") worked together at Acure Home Care ("Acure"). Javidan, as a part-owner, handled the daily operations. Meda worked for Acure as a physical therapist.

In mid–2008, Javidan approached her friend Muhammed Shahab ("Shahab") for help entering the home-health business. At that time, Shahab was involved with at least two fraudulent home-health agencies—Patient Choice and All American.¹

812 F.3d 507

Shahab allowed Javidan to shadow him, and it was during this time that she learned the fraudulent scheme that she would later duplicate.

In November 2008, Javidan, Shahab, and two other individuals purchased Acure. Javidan was a twenty-percent owner of Acure. However, for all intents and purposes, she managed the business. She signed Acure's Medicare application and maintained payroll. She was also the only person with signature authority on Acure's bank account and, most importantly, was solely responsible for Acure's Medicare billing decisions.

Javidan illegally recruited patients to Acure two different ways. First, she paid "kickbacks" to corrupt physicians in exchange for referrals. Second, she hired "marketers" to recruit patients by offering Medicare beneficiaries cash or prescription medications in exchange for their Medicare numbers and signatures on various blank Medicare forms. After obtaining the beneficiaries' information, Acure's employees completed the necessary documents and submitted fraudulent reimbursement forms to Medicare for services that were either unnecessary or never rendered. Many of the recruited patients were not homebound and/or never received care.

Javidan hired Meda to be a physical therapist at Acure. Meda participated in the fraud at Acure by signing revisit notes for patients that he did not visit. He also told Javidan which patients were not homebound and which patients demanded money in exchange for their Medicare information.

The government filed a sealed indictment on February 3, 2011, charging Javidan and Meda with health care fraud conspiracy under 18 U.S.C. § 1347, and one count of conspiracy to receive kickbacks under 18 U.S.C. § 371.² On November 29, 2012, the grand jury retuned an eleven count superseding indictment.

At trial, Javidan called four witnesses and testified herself. She asserted that she did not participate in any fraudulent activity and that she was generally unaware of the fraudulent business practices at Acure. Meda called no witnesses. The jury found both Javidan and Meda guilty.³ Javidan and Meda were sentenced to terms of 65 and 46 months of imprisonment, respectively. The pair timely appealed.

II. DOUBLE JEOPARDY

Meda contends that the government's prosecution of him in this case violated his right to be free from double jeopardy under the Fifth Amendment. He argues that the Patient Choice/All American conspiracy and the Acure conspiracy were, in fact, one conspiracy. If that were the case, once he was acquitted in the Patient Choice/All American case, the government was constitutionally estopped from indicting him in this case. Although a close call, for the reasons detailed below, we hold that the indictment in this case did not violate the Fifth Amendment's Double Jeopardy Clause.

A. FACTS

In January 2010, the government charged Meda with conspiracy to commit

812 F.3d 508

health care fraud at Patient Choice and All American. The indictment alleged that the conspiracy lasted from August 2007 to September 2009. In that case, the government contended that Meda fraudulently completed Medicare documents that falsely indicated that he provided care. The government further alleged that those documents played a major role in Patient Choice and All American submitting approximately $14.5 million in fraudulent claims to Medicare. In October 2012, a jury acquitted Meda.

In November 2012, the government filed charges in this case against Meda alleging that he had continued his fraudulent Medicare practices at Acure. In many respects, the conduct alleged in the Acure indictment mirrored the conduct alleged in the Patient Choice/All American indictment. Meda moved to dismiss the indictment on double jeopardy grounds, arguing that the Acure and Patient Choice/All American conspiracies were, in fact, only one conspiracy. The district court denied Meda's motion.

B. ANALYSIS

We review de novo the district court's denial of a motion to dismiss a conspiracy charge on double jeopardy grounds. United States v. Wheeler, 535 F.3d 446, 449 (6th Cir.2008) ; United States v. WRW Corp., 986 F.2d 138, 140 (6th Cir.1993).

The Double Jeopardy Clause of the Fifth Amendment commands that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense." Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The Double Jeopardy Clause "serves principally as a restraint on courts and prosecutors." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal." Brown, 432 U.S. at 165, 97 S.Ct. 2221. "In a conspiracy case, it is the agreement which forms the nucleus of the offense." United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.1983). "Therefore, a determination of whether the government can prosecute on more than one conspiracy rests on whether there exists more than one agreement." Id.

In conspiracy cases, we determine whether the government violated the Double Jeopardy Clause by analyzing the "totality of the circumstances" utilizing the following five factors:

(1) the time period covered by the two alleged conspiracies;

(2) the identity of the persons alleged to be coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses charged which indicates the nature and scope of the activity the government sought to punish in each case; and

(5) the places where the events alleged as part of the conspiracy took place.

Id. "Where several of these factors differ between the conspiracies, the conclusion follows that the alleged illegal conspiracies are separate and distinct offenses." Id. at 1256–57.

With respect to the first factor, the record illustrates that both alleged conspiracies took place during different time

812 F.3d 509

periods. The operative indictments indicate that the Patient Choice/All American conspiracy took place from August 2007 through September 2009, while the conspiracy in this case occurred between March 2009 through November 2010. Although there was an overlap of approximately six months, the time period in the Acure indictment did not completely subsume the Patient Care/All American indictment. Such a small overlap suggests that these were two distinct conspiracies. See Sinito, 723 F.2d at 1257 (stating that an overlap of ten months was not indicative of one conspiracy); see also United States v. Inmon, 594 F.2d 352, 354 (3d Cir.1979) (opining that...