U.S. v. Bieganowski

Citation313 F.3d 264
Decision Date22 November 2002
Docket NumberNo. 00-50593.,00-50593.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arthur C. BIEGANOWSKI, M.D., Richard J. Goldberg, C.P.A., Gustavo Diaz, and Jesse Jaime Lopez, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Joseph H. Gay, Jr., Asst. U.S. Atty., Diane D. Kirstein (argued), San Antonio, TX, for U.S.

Randolph Joseph Ortega, Ellis & Otctega, El Paso, TX, for Diaz.

Dick W. DeGuerin (argued), DeGuerin & Dickson, Houston, TX, for Goldberg.

Mary Stillinger (argued), El Paso, TX, for Lopez.

Charles Louis Roberts (argued), Lauren K.S. Murdoch, El Paso, TX, for Bieganowski.

Appeals from the United States District Court for the Western District of Texas.

Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI,1 Judge.

GARWOOD, Circuit Judge:

Defendants-Appellants Gustavo Diaz (Diaz), Richard J. Goldberg (Goldberg), Jesse Jaime Lopez (Lopez), and Dr. Arthur C. Bieganowski (Bieganowski) appeal their convictions and sentences for various charges arising out of a scheme to defraud medical-insurance companies, including mail fraud, conspiracy to commit mail fraud, aiding and abetting mail fraud, and conspiracy to money launder. For the following reasons, we affirm all the appellants' convictions and sentences.

Background

As reflected by the trial evidence, physicians and medical service providers typically bill insurance companies by means of a standardized form known as a Healthcare Finance Administration (HCFA) Form No. 1500, the actual service for which a bill is submitted being designated on the HCFA Form by a Current Procedural Terminology (CPT) code, a numerical code that represents a specific service or procedure for which an insurance company will pay on behalf of an insured.2 On August 4, 1998, Diaz, Goldberg, Lopez, Bieganowski, and five others were charged in a twenty-three-count indictment with a series of offenses arising from a complex scheme to use these forms to defraud insurance companies. The essence of the scheme involved a conspiracy to submit bills for services that were either never performed, were known to be unneeded, or contained CPT codes that reflected a higher level of service than was actually provided.

Dr. Bieganowski began practicing medicine in Texas in 1979. By the time of his arrest in 1996, he owned five medical clinics in El Paso: El Paso Pain & Stress Clinic (EPPSC), a clinic specializing in pain management and the center of Dr. Bieganowski's medical practice; El Paso Institute of Physical Medicine & Rehabilitation (EPIPMR), a physical therapy clinic; El Paso Doctors Medical Center (EPDMC), a chiropractic clinic; and El Paso Radiology Services (EPRS), a radiology clinic. As a licensed physician and owner of the various clinics, Dr. Bieganowski was the central figure in the conspiracy, with Diaz, Lopez, and Goldberg fulfilling secondary roles. Diaz worked as a physician's assistant in Dr. Bieganowski's primary clinic, while Lopez worked as a physical therapist at the El Paso Institute of Physical Medicine & Rehabilitation. Goldberg was nominally Dr. Bieganowski's outside accountant, but actually served as the de facto business manager for the various businesses.

The operation of the conspiracy, as charged in the indictment, covered the period between 1989 and 1996, and can be divided into three operational stages, the first of which involved the solicitation of patients. To obtain patients, Dr. Bieganowski initially engaged a self-styled telemarketer, Richard Griego, to solicit patients for the El Paso Pain & Stress Clinic. To avoid the appearance that he was soliciting directly for Dr. Bieganowski, Griego was later employed through EPDMC, Dr. Bieganowski's chiropracty clinic. The connection, however, was only thinly veiled, as both Dr. Bieganowski and Goldberg met periodically with Griego to monitor his work, prepare scripts, and set quotas. Griego would obtain automobile accident reports from the El Paso Police Department and then use those reports to contact the accident victims by telephone. Once Griego contacted victims and referred them to EPDMC for chiropractic care, they would then be referred again to Dr. Bieganowski for further medical treatment.

The second stage of the scheme was the heart of the conspiracy and involved the creation and submission of fraudulent bills and HCFA Forms to medical insurance companies for reimbursement. The Government presented evidence of a number of fraudulent acts, including double billing, billing for services performed by Dr. Bieganowski on days when he was not in El Paso, billing for treatments known to be unneeded, billing for treatments performed by a non-physician at a physician's rate, double billing, and billing for the use of equipment that the clinic never possessed. Lopez, for example, was convicted of billing for therapy provided in a device called a Hubbard Tank, when none of Dr. Bieganowski's clinics actually possessed such a device.

The third aspect of the conspiracy involved money laundering, and the movement of the funds derived from the submission of the fraudulent HCFA Forms. In the early stages of the conspiracy, before 1994, payments from insurance companies were deposited directly into bank accounts maintained in the names of the various clinics at Norwest Bank in El Paso. After November 1994, the scheme increased in complexity and the billing operations for the various clinics were consolidated through Servicio de Facturacion y Cobranza, S.A. de C.V. (Servicio), a Mexican corporation established by Goldberg and located in Ciudad Juarez, Mexico.3 Under the direction of Lucy Campos, Dr. Bieganowski's nominal office manager and a named co-conspirator, Servicio assumed the role of submitting bills for the clinics for reimbursement from various insurance companies. Insurance company reimbursements were then deposited into accounts held in the clinics' names at the Bank of the West in El Paso. From there Campos, the sole signator on the Servicio account, would transfer the entire amount of the reimbursements into an account held in the name of Servicio, also at the Bank of the West. Once the funds were consolidated in the Servicio account, Campos shifted those amounts necessary to cover the clinics' operating expenses back to the original clinic accounts maintained at Norwest Bank. The excess funds that remained in the Servicio account then followed the below described routes from the Bank of the West to Dr. Bieganowski's pocket.

A certain amount of the surplus funds held in the Servicio account was delivered directly to Dr. Bieganowski. The remainder, however, was transferred to UTM Professional Management (UTM), a shell corporation established under Goldberg's guidance, whose nominal owner and sole officer was a young college student and former nanny to Dr. Bieganowski's children. Under Goldberg's direction, the funds deposited in UTM's name were moved by means of wire transfers from UTM's account in El Paso to Barclays Bank in New York. From New York, the funds were transferred to a Barclays account held by International Medical Management, a limited partnership in the Cayman Islands, where they eventually became available for Dr. Bieganowski's personal use.

In 1994, the Federal Bureau of Investigation (FBI) along with the Internal Revenue Service (IRS) began to investigate Dr. Bieganowski's medical practice. An undercover investigation soon followed, which, together with the results of a search executed in 1996, led to the appellants' arrest in August of 1998. Shortly after his arrest, Dr. Bieganowski was diagnosed with cancer. Although incarcerated in El Paso, he began treatment and was briefly transferred to New York for medical attention. As a result of Dr. Bieganowski's condition and the volume of discovery, the case was considerably delayed, and did not proceed to trial until March 13, 2000.

A jury returned a guilty verdict on at least some counts for all four appellants. Goldberg was found guilty on two counts, conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371, and conspiracy to money launder in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (a)(2)(B)(i), and (h). A third count against Goldberg was dismissed on the government's motion. He was sentenced to one hundred months' imprisonment on the conspiracy to money launder count and to a sixty month concurrent term on the mail fraud conspiracy count. Lopez was charged in five counts of the indictment, was convicted on two counts of mail fraud, and was acquitted on the other three counts. He was sentenced to concurrent terms of forty-one months' imprisonment and a two-year period of supervised release. Diaz was charged in two counts of the indictment. He was convicted of one count of conspiracy to commit mail fraud, and sentenced to a term of fifty-one months' imprisonment. He was acquitted on the other count. Bieganowski, the central participant in the conspiracy, was charged in fifteen of the twenty-three counts of the indictment. The jury returned a guilty verdict on ten of those counts, including nine counts of mail fraud and conspiracy to commit mail fraud, and one count of conspiracy to money launder. He was acquitted on five counts. Bieganowski was sentenced to 168 months' imprisonment.

All the defendants appeal.

Discussion
A. Voir Dire

Bieganowski's first argument on appeal is that the district court erred by denying him the right to voir dire certain members of the venire individually out of the hearing of the rest of the venire and in overruling his motion for mistrial after one mentioned a prejudicial statement from a newspaper article.4

On the opening day of the trial, a story appeared in the El Paso Times reporting a number of prejudicial allegations, including allegations that Dr. Bieganowski had threatened witnesses and agents of the FBI. Six of the venire panel indicated they may...

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