U.S. v. Daniels
| Citation | 159 F.Supp.2d 1285 |
| Decision Date | 13 July 2001 |
| Docket Number | No. CR.A.01-40002-01-KHV.,CR.A.01-40002-01-KHV. |
| Parties | UNITED STATES of America, Plaintiff, v. Herbert A. DANIELS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Scott K. Logan, Fred J. Logan, Jr., M. Bradley Watson, Logan & Logan, L.C., Prarie Village, KS, Jeff K. Brown, Logan & Logan, LC, Prairie Village, KS, Thomas J. Bath, Jr., Bath & Edmonds P.A., Overland Park, KS, Jeffrey D. Morris, Berkowitz, Feldmiller, Stanton, Brandt, Williams & Stueve, LLP, Prairie Village, KS, Herbert A. Daniels, Leawood, KS, for defendant.
The United States has charged defendant with numerous counts of health care fraud, mail fraud and perjury. This matter is before the Court on Herbert Daniels' Motion To Dismiss (Doc. # 44) filed May 18, 2001; Herbert Daniels' Motion For Bill Of Particulars With Suggestions In Support (Doc. # 47) filed May 18, 2001; Herbert Daniels' Motion For Clarification On Brady Disclosure (Doc. # 48) filed May 18, 2001; Herbert Daniels' Motion To Summarize The Indictment And To Not Submit A Copy Of The Indictment To The Jury With Final Instructions (Doc. # 52) filed June 15, 2001; and Herbert Daniels' Motion To Strike Surplusage From The First Superseding Indictment With Suggestions In Support (Doc. # 46) filed May 18, 2001. Except for defendant's motion to summarize the indictment and defendant's motion to strike, the Court held oral argument on the above motions on June 11, 2001. After carefully considering the parties' briefs and oral argument, the Court is prepared to rule.
On February 14, 2001, a grand jury returned a first superseding indictment which charges defendant with 36 counts of health care fraud in violation of 18 U.S.C. § 1346, seven counts of mail fraud in violation of 18 U.S.C. § 1341 and four counts of perjury in violation of 18 U.S.C. § 1623(a). See First Superseding Indictment (Doc. # 12). The allegations of the superseding indictment, which the Court assumes as true for purposes of defendant's motion to dismiss, may be summarized as follows:
Defendant committed a scheme to defraud his patients and numerous health care benefit programs of money and to defraud his patients of the intangible right to honest services. Id. ¶ 1. Defendant's scheme began as early as March 1986 and has continued through the return of the indictment. See id. ¶¶ 1, 16. Through his scheme, defendant enriched himself and attempted to enrich himself through billings to and receipts from various health care benefit programs. Id. ¶ 5. Defendant's scheme included (1) billing for services not rendered; (2) "upcoding" (charging for a service reimbursable at a higher rate than appropriate for the service actually provided, which would make more money for defendant); (3) luring patients to surgery, which could cause and did cause bodily injury and serious bodily injury to patients; and (4) covering up his fraud by creating false documents and providing false testimony. Id.
The first superseding indictment charges that defendant employed the following patterns or practices to execute his scheme:
a. billing for sham surgeries, that is surgery procedures he claims to have performed but could not have performed in time frames of as little as 5 minutes to 35 minutes, no matter the number or complexity of the procedures ostensibly performed;
b. upcoding, that is, misrepresenting the service provided by charging for a procedure which would make more money for him, but which he did not perform;
c. covering up his false billings and fraud against his patients, including the following patterns of falsification:
(1) training residents to "tap dance on the charts," that is, falsify patient charts and histories and physicals to justify treatment;
(2) falsifying documents including: correspondence, history and physical reports, and operative reports to justify procedures recommended and/or ostensibly performed, including but not limited to falsifying patient complaints and symptoms, falsifying assessments, and falsifying informed consent from patients;
(3) falsifying documents concerning the patient's condition following surgery, to make it appear the patient was doing well after surgery, when in truth and in fact, patients were continuously complaining to him about debilitating pain and loss of hearing after surgery, or the defendant had worsened a patient's condition and caused bodily injury and serious bodily injury to the patient;
(4) falsely testifying under oath regarding material facts to conceal his scheme;
d. luring patients into surgery with false representations and omissions of material information, including:
(1) concealing from patients material and recognized complications, risks and alternatives to surgery;
(2) concealing the fact he was performing or claiming to perform procedures for which he intended to and did bill;
(3) scare tactics, such as suggesting the presence of cancer and the immediate need for surgery to prevent hearing loss;
(4) guaranteeing results;
(5) representing that the surgery was virtually painless;
(6) exaggerating conditions, such as representing to patients that they had the worst deviated septum Daniels had ever seen; and
(7) representing that his sinus surgeries produced little or no bleeding, when he knew that his blood loss was pronounced; and
e. utilizing these false billings, false documents, false representations and omissions of material information to optimize, and attempt to optimize, his billing of health care benefit programs.
Id. ¶ 17. In furtherance of his scheme to defraud, defendant also (1) represented to patients that they required surgery or diagnostic procedures at a hospital when in truth and in fact, the patient could have been treated or tested in the office, see id. ¶¶ 18-19, and (2) obtained sufficient tissue, bone and/or cartilage from the patient while under anesthesia, to obtain a pathology report that would ostensibly justify his surgery recommendation, see id. ¶ 20.
Last year, defendant was tried before a jury in federal court in Topeka, Kansas. The jury was unable to reach a verdict. The health care fraud and mail fraud charges in this action include many of the same charges brought against defendant at the first trial. In addition to the fraud charges, defendant is charged with four counts of perjury arising in part from his testimony at the first trial.
An indictment is sufficient if (1) it contains "the elements of the offense and sufficiently apprises the defendant of what he must be prepared to meet," and (2) it shows to what extent the defendant may plead a former acquittal or conviction as a bar to further prosecution for the same cause. United States v. Darrell, 828 F.2d 644, 647 (10th Cir.1987) (quoting United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976)). An indictment also "is required to implement the Fifth Amendment guaranty and make clear the charges so as ... to avoid [a defendant's] conviction on facts not found, or perhaps not even presented to, the grand jury that indicted him." Radetsky, 535 F.2d at 562; see Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Brown, 995 F.2d 1493, 1504 (10th Cir. 1993), cert. denied, 510 U.S. 935, 114 S.Ct. 353, 126 L.Ed.2d 317 (1993). An indictment is held only to minimal constitutional standards. See United States v. Edmonson, 962 F.2d 1535, 1541 (10th Cir.1992). The Court reviews the sufficiency of an indictment by reading it as a whole and interpreting it in a common-sense manner. See United States v. Kilpatrick, 821 F.2d 1456, 1462-63 (10th Cir.1987), aff'd, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Courts should not "insist that any particular word or phrase be used in stating an essential element" and should not read the indictment in a hypertechnical manner. Id.; see United States v. Yoon, 128 F.3d 515, 522 (7th Cir.1997).
To establish health care fraud, the government must prove that defendant knowingly devised or participated in a scheme or artifice to defraud health care benefit programs in connection with the delivery of and payment for health care benefits, items and services. See 18 U.S.C. § 1347. Defendant argues that Counts 1 through 12 and 22 through 36 are insufficient because the indictment does not link defendant's purported conduct with the actual criminal charges against him. Defendant maintains that based on the chart format of the indictment, he must guess as to the actual basis for the charges. With regard to Counts 1 through 12, paragraph 23 alleges:
On or about the dates set forth below, in the District of Kansas, the defendant, HERBERT A. DANIELS knowingly and wilfully executed and attempted to execute a scheme and artifice to defraud the health care benefit programs listed below, in connection with the delivery of and payment for health care benefits, items, and services, and resulting in bodily injury and serious bodily injury to Michelle U., including extreme physical pain and protracted loss of hearing:
The patients in the following chart were subjected to surgery:
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