U.S. v. Boesen

• Citation: 473 F.Supp.2d 932
• Decision Date: 06 February 2007
• Docket Number: No. 4:05-cr-00262-.JEG.,4:05-cr-00262-.JEG.
• Parties: UNITED STATES of America, Plaintiff, v. Peter Vincent BOESEN, Defendant.
• Court: U.S. District Court — Southern District of Iowa

473 F.Supp.2d 932

UNITED STATES of America, Plaintiff, v. Peter Vincent BOESEN, Defendant.

No. 4:05-cr-00262-.JEG.

United States District Court, S.D. Iowa.

February 6, 2007.

COPYRIGHT MATERIAL OMITTED

Mary C. Luxa, U.S. Attorney's Office, Des Moines,' IA, for Plaintiff.

Guy R. Cook, Clark I. Mitchell, Nicholas J. Mauro, Grefe & Sidney, Des Moines, IA, for Defendant.

ORDER

GRITZNER, District Judge.

This matter is before the Court on Defendant's August 13, 2006, Motion for New Trial and Judgment of Acquittal, and the Government's September 5, 2006, Motion for Order of Preliminary Forfeiture of Property. Both parties have filed responses to the pending motions. Hearing on the Government's motion took place on September 18, 2006; hearing on Defendant's motion took place on December 18, 2006. Defendant was represented by attorneys Guy Cook and Nicholas Mauro. The Government was represented by Assistant United States Attorney Mary Luxa. As directed by this Court's Order of December 18, 2006, supplemental briefing on the forfeiture issue was filed by the Government on January 8, 2007, and by the Defendant on January 15 and January 24, 2007.¹ The matter is fully submitted for review.

PROCEDURAL BACKGROUND

On December 14, 2005, a grand jury indictment was filed in the above-captioned case. The indictment contained 57 counts against Defendant Peter V. Boesen ("Defendant") and co-defendant James Boesen, charging them with conspiracy to commit health care fraud (count one) and specific acts of health care fraud (counts two through 56). The indictment also contained a forfeiture count (count fifty-seven). On February 15, 2006, a superseding indictment was filed, which contained eighty-four counts against both defendants. The superseding indictment again charged both defendants with conspiracy to commit health care fraud (count one) and specific acts of health care fraud (counts two through eighty-three). The superseding indictment also contained a forfeiture count (count eighty-four).

A trial against both defendants began on July 24, 2006. The jury returned its verdict on August 7, 2006. Both Defendant and co-defendant James Boesen were found guilty on counts one through eighty-three of the superseding indictment, and the jury was excused from service. Having reserved ruling on co-defendant James Boesen's Rule 29 motion pursuant to Fed. R.Crim. Pro. 29(b), once the jury was excused, the Court addressed the motion. As required by the rule, the Court considered the evidence as it was at the close of the Government's case and in the light most favorable to the Government. Upon careful consideration, the Court concluded that no reasonable jury could find beyond a reasonable doubt that co-defendant, and nonphysician, James Boesen had the necessary knowledge of actual underlying medical procedures and the inconsistency with billings, and therefore the requisite intent and knowledge of the purpose of a conspiracy, to be found guilty of any of the counts charged against him. Co-defendant James Boesen's Rule 29 motion was therefore granted, and James Boesen was acquitted on all counts charged against him in the superseding indictment. As a result of the Court's ruling on James Boesen's Rule 29 motion, the Court necessarily had to find Defendant Peter Boesen not guilty as to count one, the conspiracy count, as there were no other unnamed co-conspirators. United States v. Peterson, 488 F.2d 645 (5th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 49, 42 L.Ed.2d 53 (1974) (if the other conspirator has been acquitted of the conspiracy, there can be no conviction of the sole remaining alleged conspirator). The Court found the matter at bar did not implicate the rule of United States v. Morton, 412 F.3d 901, 904 (8th Cir.2005), because the determination was being made as a matter of law by the Court on a reserved ruling under Rule 29(b), following the jury verdict, and would not therefore implicate the considerations set out in Morton based upon United States v. Powell, 469 U.S. 57, 65-7, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).

In his post-trial Motion for Judgment of Acquittal and Motion for New Trial, Defendant contends that (1) he is entitled to a judgment of acquittal or a new trial with respect to counts two through fifty-two and counts sixty-five through sixty-seven; (2) misconduct of the Assistant United States Attorney in various respects deprived him of his right to a fair trial; (3) the interests of justice dictate he is entitled to a new trial free from the unduly prejudicial evidence related to the conspiracy charge; (4) the admission of Agent Kohler's summary charts deprived him of a fair trial; (5) he was deprived of his right to cross-examine his accusers with DVD's that depicted the procedures at issue; and (6) the length of jury deliberations illustrate the unfairness of the proceedings.

APPLICABLE LAW AND DISCUSSION

Motion for judgment of acquittal.

Rule 29(a) states that the court may grant a defendant "a judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Fed. R.Crim.P. 29(a). The district court has very limited latitude when considering a motion for acquittal. United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). "In ruling on a motion for judgment of acquittal, the role of the district court is not to weigh evidence, or consider the credibility of the witnesses, but rather to determine whether the Government has presented evidence on each element sufficient to support a jury verdict." United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir2000). Focusing upon the level of evidence presented by the Government and whether that evidence could support the jury determination, [u]nless the district court ultimately determines that a miscarriage of justice will occur, the jury's verdict must be allowed to stand." United States v. Campos, 306, F.3d 577, 579 (8th Cir.2002).²

In order to establish guilt of the crime of health care fraud, the Government had to prove beyond a reasonable doubt at trial that Defendant knowingly and willfully executed or attempted to execute a scheme or artifice to defraud a health care benefit program by means of materially false or fraudulent representations or omissions, that the health care benefit program affected commerce, that the scheme or artifice to defraud was in connection with the delivery of or payment for health care benefits, items, or services, and the Defendant did so with the intent to defraud. 18 U.S.C. § 1347; United States v. Cooper, 283 F.Supp.2d 1215, 1232 (D.Kan2003). Defendant does not challenge the verdict on all of these elements but focuses on whether the Government has demonstrated materially false or fraudulent representations or omissions, a scheme or artifice to defraud, and the requisite intent.

In support of his argument that he is entitled to a judgment of acquittal with respect to counts 2 through 52, Defendant cites to a portion of the testimony of Dr. Thomas Kidder, a board certified otolaryngologist who testified on behalf of the Government. Defendant asserts that Dr. Kidder's unrebutted testimony regarding the procedures at issue in counts 2 through 52, which pertained to the nasal endoscopy with debridement procedure (CPT³ code 31237), was such that no reasonable jury could have found Defendant guilty on any one particular procedure beyond a reasonable doubt. Defendant cites to the following portion of Mr. Weinhardt's cross-examination of Dr. Kidder for support:

Q: All right. You can have crusting of the mucous or drying of 'the mucous without having allergic fungal sinusitis, cystic fibrosis, and et cetera, correct?

A: Oh, yes.

Q: And you could, without anesthetic, remove that crusted or dried mu cous using an endoscope and some other tool?

A: Right. Assuming that you have a patient that will tolerate it and, you do it gently, yes, you could do that.

Q: And you would say that's a debridement if you did that?

A: Yes.

Q: And so how many of the cases could there be in the indictment that sort of mismatch, a removal of dried or crusted mucous and nonetheless a mismatch between that procedure which you will call a debridement and the medical record that was written?

A: I believe a number of his cases that is probably what happened is that he removed crusts or dried secretions from the nose using suction or forceps and the endoscope to see what he was doing.

Q: And you have no way of giving us a firm number of how many of the cases that is as you sit here today?

A: I don't have that number on the top of my head. I would have to go back through all of these records and try to list them.

Defendant claims that Dr. Kidder never went over the records to identify such a list; therefore his undisputed, unrebutted testimony is that the removal of dried or crusted mucous constitutes a debridement, and that is what indeed occurred in a number of the counts charged. This limited portion of the testimony of Dr. Kidder is what Defendant relies upon for asserting that he is entitled to a judgment of acquittal with respect to counts 2 through 52. The Court cannot weigh this testimony in isolation but must consider the entire record.

Dr. Kidder testified that in forming his opinions regarding the actions of Defendant, he reviewed Defendant's patient files, including notes that were generated by Defendant, Defendant's dictations, operative reports, pathology reports, and CT scan reports. Dr. Kidder testified that he reviewed the entire medical file of each patient, to the extent it was presented to him. While Dr. Kidder's testimony cited above, in which he indicated that the removal of dried or crusted mucous could constitute a debridement, may in fact be correct, Defendant's own patient notes do not reflect that is what he removed. Dr. Kidder testified that Defendant's own patient...