U.S. v. Anderson, No. 98-20030-01-JWL.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtLungstrum
Citation85 F.Supp.2d 1047
Decision Date21 July 1999
Docket NumberNo. 98-20030-01-JWL.,No. 98-20030-04-JWL.,No. 98-20030-06-JWL.,No. 98-20030-03-JWL.
PartiesUNITED STATES of America, Plaintiff, v. Dan ANDERSON (01), Robert C. LaHue (03), Ronald H. LaHue (04), Dennis McClatchey (06), Defendants.
85 F.Supp.2d 1047
UNITED STATES of America, Plaintiff,
v.
Dan ANDERSON (01), Robert C. LaHue (03), Ronald H. LaHue (04), Dennis McClatchey (06), Defendants.
No. 98-20030-01-JWL.
No. 98-20030-03-JWL.
No. 98-20030-04-JWL.
No. 98-20030-06-JWL.
United States District Court, D. Kansas.
July 21, 1999.

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Keith E. Drill, Ronald D. Lee, Jacqueline A. Cook, James R. Wyrsch, David A. Kelly, Wyrsch Hobbs Mirakian & Lee, P.C., Kansas City, MO, for Dan Anderson (1), defendant.

Robert J. Campbell, James E. Kelley, Jr, Lewis, Rice & Fingersh, L.C., Kansas City, MO, for Ronald Keel (2), defendant.

Bruce C. Houdek, Kansas City, MO, Robert C LaHue, Stillwell, KS, for Robert C Lahue (3), dba Robert C LaHue, defendants.

Anne M. Brafford, Bryan Cave LLP, Kansas City, MO, James L. Eisenbrandt, Jeffrey D. Morris, Bryan Cave LLP, Overland Park, KS, Ronald H LaHue, Leawood, KS, for Ronald H LaHue (4), defendant.

Thomas E. Carew, Morrison & Hecker L.L.P., Kansas City, MO, Gerald A Feffer, Williams & Connolly, Washington, DC, for Ruth Lehr (5), defendants.

Charles W. German, Scott M. Brinkman, Rouse, Hendricks, German, May & Shank, Kansas City, MO, for Dennis McClatchey (6), defendants.

Michael D. Strohbehn, Walters, Bender & Strohbehn, Kansas City, MO, R. Stan Mortenson, Barry J. Pollack, Jody M. Kris, Miller, Cassidy, Larroca & Lewis, Washington, DC, for Mark Thompson (7), defendants.

Tanya J. Treadway, Office of United States Attorney, Kansas City, William Bowne, U.S. Department of Justice Fraud Section, Washington, DC, for U.S. Attorneys.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.


This matter is presently before the court on motions for acquittal, new trial, arrest of judgment, and dismissal (Docs.423, 425, 426, 427, 428, 432) filed by the four defendants who were convicted of various Medicare fraud offenses by a jury following a nine week trial. Also before the court is the defendants' motion to compel production of the lengthy and detailed sentencing memo (Doc. 420) which the government provided ex parte to the District of Kansas probation officers involved in preparing the Pre-Sentence Investigation report in this case. The court has devoted countless hours to consideration of the arguments put forth in the parties' papers. It has carefully considered the factual and legal points addressed and has conducted its own thorough legal research. The questions presented are often difficult to resolve and some are exceedingly close calls. While most of the issues have been raised, litigated and decided by the court previously before and during trial, other matters are ripe for indepth consideration virtually for the first time at this stage of the case. In any event, the court is now prepared to rule.

For the reasons set forth below, the court grants Mr. McClatchey's motion for acquittal and, in the alternative,1 for a new

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trial. The court also grants Ronald LaHue's motion for acquittal as to count eight. The remainder of the motions for acquittal, new trial, arrest of judgment, and dismissal, are denied. The defendants' motion for production of the government's sentencing memorandum is granted.

 TABLE OF CONTENTS
                 I. Background .............................. 1052
                 A. Procedural History and
                 Parties ............................ 1052
                 B. BVMG's Relationship with
                 Baptist ............................ 1053
                 C. Laboratory and Other Relationships
                 Between
                 Baptist and BVMG ................... 1059
                 D. BVMG's Relationship with
                 Other Hospitals .................... 1060
                 1. St. Joseph Medical
                 Center .......................... 1060
                 2. Deaconess Hospital ................ 1060
                 3. Bethany Medical Center ............ 1061
                 4. Alexian Brothers Hospital ......... 1061
                 5. Liberty Hospital .................. 1061
                 II. Motions for Acquittal ................... 1061
                 A. Standard ............................. 1061
                 B. Robert and Ronald LaHue .............. 1062
                 C. Dan Anderson ......................... 1064
                 D. Dennis McClatchey .................... 1065
                 E. Unlawful Inducement .................. 1068
                III. Motions for New Trial ................... 1069
                 A. Standard ............................. 1069
                 B. Variance ............................. 1070
                 C. Severance ............................ 1073
                 D. Jury Instructions .................... 1074
                 1. Instruction Nos.32 and
                 33 .............................. 1074
                 2. Instruction No. 30 ................ 1076
                 3. Instruction Nos. 36
                 and 37 .......................... 1076
                 4. Instruction Nos. 7 and
                 21 .............................. 1077
                 5. Instruction No. 24 ................ 1077
                 E. Coconspirator Hearsay ................ 1079
                 F. Prosecutorial Misconduct ............. 1079
                 1. Preindictment Delay ............... 1080
                 2. Judicial Immunity ................. 1081
                 3. Other Alleged Misconduct .......... 1081
                 IV. Arrest of Judgment ...................... 1082
                 V. Production of Sentencing Memo ........... 1082
                

I. Background

A. Procedural History and Parties

On July 15, 1998, a grand jury returned a twelve-count superseding indictment charging seven defendants with conspiracy pursuant to 18 U.S.C. § 371 (count one). The indictment also charged each defendant with one or more substantive violations of the Medicare Anti-Kickback Act pursuant to 42 U.S.C. § 1320a-7b(b) (counts two through ten). Two defendants were charged with false claims conspiracy pursuant to 18 U.S.C. § 286 (count eleven), and one defendant was charged with witness tampering pursuant to 18 U.S.C. § 1512 (count twelve).

Throughout this case, the court and the parties have placed the defendants into three distinct groups. One group, which the parties and the court have referred to generally as the doctor defendants, consists of two brothers, Drs. Robert and Ronald LaHue. The Drs. LaHue are osteopathic physicians, and were the longtime principals of a now-defunct organization called Blue Valley Medical Group ("BVMG"). BVMG was wholly owned by Robert LaHue, and Ronald LaHue was at all times a key employee. A second group, which the parties and the court have referred to generally as the hospital executive defendants, consists of Dan Anderson, Dennis McClatchey, and Ronald Keel. All of the hospital executive defendants worked for Baptist Medical Center ("Baptist"), a Kansas City, Missouri hospital. Dan Anderson was the President and Chief Executive Officer of Baptist, Dennis McClatchey was Senior Vice President and Chief Operating Officer, and Ronald Keel was a Vice President whose responsibilities included monitoring the relationship between Baptist and BVMG. A third group, which the parties and the court have referred to generally as the lawyer defendants, consists of attorneys Ruth Lehr and Mark Thompson. Both attorneys represented Baptist at various times during the course of the alleged conspiracy.

In count one, the indictment alleged a conspiracy among all seven defendants to offer, pay, solicit, and receive remuneration in return for Medicare patient referrals at seven different hospitals in the

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Kansas City, Wichita, and St. Louis areas. The count one conspiracy allegedly involved all of the substantive conduct alleged in counts two through ten. Count two alleged substantive violations of the Medicare Anti-Kickback Act against the doctor defendants in connection with BVMG's relationship with Baptist. Count three alleged substantive violations of the Medicare Anti-Kickback Act against the hospital executive defendants and attorney Ruth Lehr in connection with Baptist's relationship with BVMG. Count four alleged similar conduct against attorney Mark Thompson. Counts five through ten alleged substantive violations of the Medicare Anti-Kickback Act against the Drs. LaHue in connection with St. Joseph Medical Center in Wichita, Deaconess Hospital in St. Louis, Bethany Medical Center in Kansas City, Kansas, Alexian Brothers Hospital in St. Louis, Liberty Hospital in Liberty, Missouri, and Olathe Medical Center in Olathe, Kansas, respectively. Count eleven alleged a false claims conspiracy against the Drs. LaHue in connection with their practices at BVMG. Count twelve alleged witness tampering against Robert LaHue.

Over the course of the nine week jury trial, portions of the indictment were pared away. Specifically, the court severed counts eleven and twelve, holding the counts improperly joined pursuant to Fed. R.Crim.P. 8(b). The court granted the doctor defendants' motion for acquittal as to count 10, involving Olathe Medical Center, on statute of limitations grounds. The court granted the lawyer defendants' motion for acquittal on all counts, holding the evidence to be such that no reasonable jury could conclude that the lawyer defendants had the criminal intent necessary to commit the crimes alleged. The court also held that as to the count one conspiracy charge, the evidence was such that no reasonable jury could conclude that the hospital executives and lawyers had any involvement with a conspiracy at hospitals other than Baptist. In the end, the case was submitted to the jury only on the Baptist conspiracy charged in count one, the substantive violations involving Baptist alleged in count two against the doctors and count three against the hospital executives, and the substantive violations against the doctors alleged in counts five through nine.

The jury convicted four of the five remaining defendants, finding specifically that the four were involved in a conspiracy at Baptist and that they committed the substantive anti-kickback violations with respect to Baptist alleged in counts two (Robert and Ronald LaHue) and three (Dan Anderson and Dennis McClatchey). The jury acquitted the fifth defendant, Ronald Keel, on all charges based on his statute of limitations defense. The jury convicted both LaHues on counts seven through nine, involving Bethany Medical Center,...

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4 practice notes
  • U.S. v. Anderson, No. 98-20030-01-JWL.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 6, 1999
    ...objections and finds that the offense occurred as stated in pages *1-20 of its earlier order. See United States v. Anderson, 85 F.Supp.2d 1047 (D.Kan. VII. Amount of the Bribe Enhancement The PSIRs recommend a fourteen-level enhancement for each defendant based on a calculation of the amoun......
  • US v. Lahue, Nos. 99-3344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 17, 2001
    ...for Medicare or Medicaid patient referrals, and violation of the conspiracy statute, 18 U.S.C. 371. See United States v. Anderson, 85 F. Supp. 2d 1047, 1053 (D. Kan. 1999). In ruling on defendants' objections during trial and denying their motions for a new trial, the district court conclud......
  • US v. Lahue, Nos. 99-3344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 18, 2001
    ...for Medicare or Medicaid patient referrals, and violation of the conspiracy statute, 18 U.S.C. 371. See United States v. Anderson, 85 F. Supp. 2d 1047, 1053 (D. Kan. 1999). In ruling on defendants' objections during trial and denying their motions for a new trial, the district court conclud......
  • U.S. v. McClatchey, No. 01-3327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 16, 2003
    ...cert. denied, 534 U.S. 1083, 122 S.Ct. 818, 819, 151 L.Ed.2d 701 (2002), and the district court's opinion in United States v. Anderson, 85 F.Supp.2d 1047, 1052-61 (D.Kan.1999). We summarize here those facts relevant to the present The gist of the offense was that Baptist Medical Center (Bap......
4 cases
  • U.S. v. Anderson, No. 98-20030-01-JWL.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 6, 1999
    ...objections and finds that the offense occurred as stated in pages *1-20 of its earlier order. See United States v. Anderson, 85 F.Supp.2d 1047 (D.Kan. VII. Amount of the Bribe Enhancement The PSIRs recommend a fourteen-level enhancement for each defendant based on a calculation of the amoun......
  • US v. Lahue, Nos. 99-3344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 17, 2001
    ...for Medicare or Medicaid patient referrals, and violation of the conspiracy statute, 18 U.S.C. 371. See United States v. Anderson, 85 F. Supp. 2d 1047, 1053 (D. Kan. 1999). In ruling on defendants' objections during trial and denying their motions for a new trial, the district court conclud......
  • US v. Lahue, Nos. 99-3344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 18, 2001
    ...for Medicare or Medicaid patient referrals, and violation of the conspiracy statute, 18 U.S.C. 371. See United States v. Anderson, 85 F. Supp. 2d 1047, 1053 (D. Kan. 1999). In ruling on defendants' objections during trial and denying their motions for a new trial, the district court conclud......
  • U.S. v. McClatchey, No. 01-3327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 16, 2003
    ...cert. denied, 534 U.S. 1083, 122 S.Ct. 818, 819, 151 L.Ed.2d 701 (2002), and the district court's opinion in United States v. Anderson, 85 F.Supp.2d 1047, 1052-61 (D.Kan.1999). We summarize here those facts relevant to the present The gist of the offense was that Baptist Medical Center (Bap......

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