U.S. v. Gray

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: JAMES T. MOODY
• Citation: U.S. v. Gray, 731 F.Supp.2d 810 (N.D. Ind. 2010)
• Decision Date: 11 August 2010
• Docket Number: No. 2:07 CR 166,2:07 CR 166
• Parties: UNITED STATES of America v. Wynell GRAY.

731 F.Supp.2d 810

UNITED STATES of America

v.Wynell GRAY.

No. 2:07 CR 166.

United States District Court,

N.D. Indiana,

Hammond Division.

Aug. 11, 2010.

David A. Capp-AUSA, Diane L. Berkowitz-AUSA, Susan L. Collins-AUSA, U.S. Attorney's Office, Hammond, IN, for United States of America.

Kerry C. Connor-FCD, Viniyanka Prasad-FCD, Federal Community Defenders Inc., Hammond, IN, for Wynell Gray.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

Defendant Wynell Gray has moved for a judgment of acquittal notwithstanding the verdict as to Counts 1 and 2 of the Indictment pursuant to Federal Rule of Criminal Procedure 29(c) (DE # 125) and for a new trial pursuant to Rule 33. (DE # 124.) The government has responded (DE # 136), and Gray has filed a reply (DE # 138) and a supplemental reply to the motion for a new trial. (DE # 141.)

The following is a much-abbreviated summary of the case. Gray and her codefendant, Randy Suddoth, were charged with conspiracy to defraud the Indiana Medicaid Program in violation of 18 U.S.C. § 371 by submitting fraudulent billings to Indiana Medicaid on behalf of Dovies Medicar Transportation ("Dovies") from March 2002 to March 2004 (Count 1) and on behalf of Lane Medical Transportation ("Lane") from November 2005 to January 2006 (Count 3). (DE # 1 at 2, 5.) Count 2 of the Indictment charged defendants with executing a scheme to defraud the Indiana Medicaid Program in violation of 18 U.S.C. § 1347 by submitting fraudulent billings for Dovies stating that it had provided transportation services from April to August of 2004 on behalf of B. Hawkins when "in truth and in fact no transportation service was actually provided." ( Id. at 4.) Counts 4, 5, 6, 7, 8, 9 and 10 charged defendants with executing a scheme to defraud through the operation of Lane. ( Id. at 7-13.) Suddoth plead guilty to Count 3 of the Indictment. (DE # 29.) A jury found Gray guilty of Counts 1 and 2. (DE # 114.)

Motion for Acquittal Notwithstanding the Verdict

I. STANDARD OF REVIEW

A Rule 29(c) motion should be granted only if there is no evidence from which a rational juror could find the defendant guilty beyond a reasonable doubt. United States v. Galati, 230 F.3d 254, 258 (7th Cir.2000). In considering a Rule 29(c) motion, the court will review all evidence and make all reasonable inferences in the light most favorable to the government. Id. When evaluating the sufficiency of evidence to support a jury's determination of guilt, a court must defer to the jury's role of evaluating credibility and weighing evidence and should not re-weigh evidence or question the jury's credibility determinations unless the evidence is "so improbable on its face that no reasonable factfinder could accept it." United States v. Paneras, 222 F.3d 406, 410 (7th Cir.2000); United States v. Yusufu, 63 F.3d 505, 508-509 (7th Cir.1995). Defendants challenging the sufficiency of evidence at trial face a "nearly insurmountable hurdle." Cueto, 151 F.3d at 629.

II. ANALYSIS

Gray argues that the evidence presented at trial was insufficient to sustain her convictions under both Counts 1 and 2 of the Indictment.

a. Evidence presented on elements of agreement and intent for Count 1

Gray's first argument is that the elements of agreement and intent to commitan offense were not established for Count 1 of the Indictment-conspiracy to defraud the U.S. government under 18 U.S.C. § 371. (DE # 125 at 2.) The following elements must be proven for a conviction under Section 371: "(1) an agreement to accomplish an illegal objective against the United States (2) one or more overt acts in furtherance of the illegal purpose; and (3) an intent to commit the substantive offense." United States v. Cueto, 151 F.3d 620, 635 (7th Cir.1998). Gray contends that the only evidence of an agreement between herself and her co-defendant, Randy Suddoth, was the latter's uncorroborated testimony which also constituted a confession of his own guilt. (DE # 125 at 2.) She argues that the uncorroborated admissions of a coconspirator are insufficient to prove guilt beyond a reasonable doubt when there is no indicia of reliability.¹ ( Id.) Gray contends that the only evidence of her intent to submit fraudulent billing to Indiana Medicaid was Suddoth's testimony. ( Id. at 3.) She asserts that while other evidence at trial established that she submitted the billings to Medicaid, only Suddoth's uncorroborated testimony was offered to show that she intended to submit fraudulent billings. ( Id.)

In response, the government argues that the corroboration rule relied upon by Gray applies only to the admissions of a defendant, not to the confessions of a defendant's coconspirator. (DE # 136 at 2-3.) It further contends that it presented evidence apart from Suddoth's testimony to prove both agreement and intent to participate in fraudulent billing for Dovies Medicar. ( Id. at 3.) In reply, Gray argues that the basis for the corroboration rule, that defendants' confessions are suspect because of the pressure and coercion of criminal investigations, applies equally to the confessions of co-defendants. (DE # 138 at 12 (citing United States v. Dalhouse, 534 F.3d 803, 805-06 (7th Cir.2008)).)

First, the Seventh Circuit does not appear to regularly apply the corroboration rule to the testimony of co-defendants. It has found that the jury can rely on in-court admissions of a coconspirator for a finding of guilt beyond a reasonable doubt. United States v. Saunders, 973 F.2d 1354, 1360 (7th Cir.1992) (stating that the jury could rest its findings on the in-court admissions of a coconspirator, even when the coconspirator was a felon, admitted liar, and paid government informant, especially when the testimony, while not corroborated by other witnesses, was supported by additional evidence). In United States v. Kimoto, the Seventh Circuit determined that the defendant was essentially arguing that the evidence was insufficient to support a finding of intent to defraud because the testimony of two of his coconspirators should not have been believed. 588 F.3d 464, 473 (7th Cir.2010). The court rejected this argument stating that the issue of witness credibility is left to the province of the jury. Id. Further, in United States v. Washington, the Seventh Circuit affirmed a district court's denial of a Rule 29(c) motion, finding that the testimony of a cooperating coconspirator was sufficient to establish an agreement even when virtually no other evidence linked the defendant to the conspiracy and the coconspirator's testimony was found so incredible as tomerit a new trial. 184 F.3d 653, 658 (7th Cir.1999).

Second, unlike in Washington, the government has presented evidence, apart from Suddoth's admissions, upon which a jury could rest a finding beyond a reasonable doubt that the elements of agreement and intent existed in this case. In determining whether the evidence was insufficient so that no reasonable juror could find a defendant guilty beyond a reasonable doubt courts can consider both the direct and circumstantial evidence presented to the jury. Galati, 230 F.3d at 258; United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991) ("Conspiracies, like other crimes, may be proved entirely by circumstantial evidence."). For Section 347 violations, both intent and agreement "may be inferred from circumstantial evidence concerning the relationship of the parties, their overt acts, and the totality of their conduct." Cueto, 151 F.3d at 635.

The following direct and circumstantial evidence of the conspiracy was presented at trial. Co-defendant Suddoth testified that Gray was his partner in a scheme to defraud Indiana Medicaid. (Trial Tr., Suddoth, Vol. 1, 157-58, April 15, 2010.) Co-defendant Suddoth testified that many of the trips that Dovies billed for were fraudulent because they billed for services that they did not provide. (Trial Tr., Suddoth, Vol. 1, 145.) As a result, there were not records for some of the billed-for trips. (Trial Tr., Suddoth, Vol. 1, 145.) Dovies was audited by Indiana Medicaid in September 2004. (Trial Tr., Lanning, Vol. 1, 78, April 12, 2010.) To cover for the lack of trip tickets, Suddoth told the auditors for the Indiana Medicaid program that the records had been burned in a fire and he testified that he told Gray that he was going to do this. (Trial Tr., Suddoth, Vol. 1, 146.) The auditor, Linda Lanning, also testified that Gray told her that the records had burned in a fire. (Trial Tr., Lanning, Vol. 1.)

Gray testified that, at Suddoth's direction, she drafted the letter to the auditors explaining that the records had burned, signed Suddoth's name to it, and sent it to the auditors. (Trial Tr., Gray, Vol. 4, 156, April 16, 2010.) This letter stated: "Here is the fire incident report that you requested. This was my first office and also my storage space for Dovies Medi-Car Transportation." (Trial Exh., Lanning 1, 45.)

Further, Gray testified that she typed another letter to the auditors for Suddoth. (Trial Tr., Gray, Vol. 4, 158.) This letter stated:

Unfortunately we were unable to produce any more of the requested information. Because of limited space in our office we had to use an offsite biller. The biller, who has been terminated based on these findings, reported that there was a fire in her home and trip sheets were lost during the fire and after the move to another place. Going forward we will only send copies of the trips to our new biller so that the original is always in our possession.

(Trial Exh., Lanning 1, 42.)

At trial, Gray testified that Suddoth told her that there had been a fire at Janine Bettis's house and that the trip tickets were there. (Trial Tr., Gray, Vol. 4, 156.) She stated that she had no reason to believe that anything in the second letter was not true because she trusted Suddoth. ( Id. at 156-57.) However, the two letters that Gray wrote appear to contradict each other. One states that the fire was at Suddoth's first office and storage space. The other...