U.S. v. Mermelstein

• Citation: 487 F.Supp.2d 242
• Decision Date: 02 May 2007
• Docket Number: No. 05 CR 0037(SJ).,05 CR 0037(SJ).
• Parties: UNITED STATES of America v. Joseph MERMELSTEIN, Defendant.
• Court: U.S. District Court — Eastern District of New York

487 F.Supp.2d 242

UNITED STATES of America v. Joseph MERMELSTEIN, Defendant.

No. 05 CR 0037(SJ).

United States District Court, E.D. New York.

May 2, 2007.

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Roslynn R. Mauskopf, United States Attorney Eastern District of New York, by Charles S. Kleinberg, Esq., Brooklyn, NY, for the United States.

Bracewell & Giuliani LLP, by Jonathan N. Halpern, Esq., New York, NY, for the Defendant.

MEMORANDUM AND ORDER

JOHNSON, Senior District Judge.

Presently before the Court is a Report and Recommendation ("Report") prepared by Magistrate Judge Steven M, Gold.¹ Judge Gold filed the Report on March 16, 2007, and provided the parties with the requisite amount of time to file any objections. Joseph Mermelstein ("Defendant") and the government timely filed their objections to the Report on April 20, 2007. For the reasons stated herein, this Court affirms and adopts the Report in its entirety.

A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 10 days of service of the recommendation, any party may file written objections to the magistrate's report. See id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See id. The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Ani, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435(1985).

In his Report, Judge Gold made the following recommendations:

(1) Defendant's motion to dismiss the first superseding indictment ("S-1") be granted with respect to the serious bodily injury charge in Count One, and in all other respects be denied;

(2) Defendant's motion to dismiss the second superseding indictment ("S-2") be granted to the extent that;

(a) the government be precluded from proving or arguing, at trial that the injuries sustained by patients N.S., J.R., F.L. and M.S. constitute serious bodily injuries as charged in Count Two of S-2;

(b) the government be permitted to prove or argue at trial that the injury sustained by patient V.D. constitutes a serious bodily injury as charged in Count Two of S-2 only upon a proffer demonstrating that a finder could reasonably conclude that the injury satisfies the definition set forth in 18 U.S.C. § 1365(h)(3);

(c) the government's proof with respect to Count Four be limited to conduct that took place on or after July 30, 3002;

(d) the government be precluded from proving or arguing at trial that Defendant's statements and production of records to the Office of Professional Misconduct of the New York State Department of Health ("OPMC") constitute a violation of 18 U.S.C. § 1035 as charged in Count Three;

and in all other respects be denied;

(3) Defendant's motion to compel discovery about why the indictment in this case was signed by a designee of the United States Attorney and not by the United States Attorney herself be denied;

(4) Defendant's challenge to the admissibility of the statements he made and the records he produced to the OPMC be denied;

(5) Defendant's challenge to the admissibility of evidence of his affair with Josephine Crone be denied;

(6) Defendant's challenge to the admissibility of evidence of the "early" fraudulent claims and false statements be denied;

(7) Defendant's challenge to the admissibility of evidence concerning his treatment of patient Elizabeth McTigue and records relating to that treatment be granted;

(8) The government's application for a ruling that entries in Defendant's medical records be admitted for their truth be deferred until trial; and

(9) Defendant's motion to preclude the government's expert testimony be denied in its entirety.

Defendant argues in his objections to the Report that the government should not be allowed to offer Defendant's statements to OPMC as proof of a § 1035 conspiracy,² and that the government should not be allowed to offer any evidence of an alleged affair between Defendant and Josephine Crone. The government argues in its objections to the Report that a certain portion of the McTigue evidence, namely the evidence, including McTigue's first hand eyewitness testimony, showing that Defendant did not take McTigue's eye pressures ("McTigue Eye Pressure Evidence") should not be precluded.

After reviewing the Judge Gold's Report and the parties' objections, and after reviewing de novo those portions of the record to which the objections were made, the Court concludes that neither party has, raised any arguments that would convince this Court to reject Judge Gold's well-reasoned recommendations. Accordingly, the Court affirms and adopts the Report in its entirety.

Finally, to the extent that the government's argument that the Court should not preclude the McTigue Eye Pressure Evidence amounts to a separate motion in limine to admit such evidence, the government's motion is denied for substantially the same reasons Judge Gold set forth in his Report for precluding the government from introducing the broader category of McTigue evidence. Specifically, the McTigue Eye Pressure Evidence is criminal propensity evidence that does not fall within any category listed in Federal Rule of Evidence 404(b). Moreover, any probative value of admitting such evidence pales in comparison to its prejudicial value.

SO ORDERED.

REPORT AND RECOMMENDATION

GOLD, United States Magistrate Judge.

Introduction

Defendant Joseph Mermelstein is charged in Count One of a second superseding indictment with conspiring to make false statements in connection with the delivery of and payment for health care benefits in violation of 18 U.S.C. §§ 1035(a)(2) and 371; in Count Two, with executing and attempting to execute a scheme to defraud health care benefit programs in violation of 18 U.S.C. § 1347; in Count Three, with making false statements in matters involving health care benefit programs in violation of 18 U.S.C. § 1035(a)(1) and (2); and in Count Four, with destroying, altering, and falsifying records involved in an investigation and the proper administration of matters within the jurisdiction of the United Stated Department of Health and Human Services ("HHS") and the Federal Bureau of Investigation ("FBI") in violation of 18 U.S.C. § 1519. The second superseding indictment ("S-2") was filed on November 6, 2006. See Docket Entry 116. A first superseding indictment ("S-1") containing the same charges but fewer factual details was Med on November 3, 2005. See Docket Entry 55.

The charges against Mermelstein, a physician, arise from his ophthalmology practice. S-1, ¶ S-2, ¶ 1. The government alleges that Mermelstein executed a scheme to submit fraudulent claims for payment on behalf of his practice to Medicare and various non-Medicare health care benefit programs. According to the indictments, Mermelstein submitted claims for services he never provided and for services he stated were medically necessary but were not. S-1, ¶¶ 6-7; S-2, ¶¶ 5-6. The indictments further charge that Mermelstein falsified and altered medical records submitted in conjunction with the fraudulent claims for payment. These records were maintained by Mermelstein to document the treatment upon which the fraudulent claims were based. S-1, ¶ 9; S-2, ¶ 8.

Defendant Mermelstein has moved to dismiss various aspects of the charges against him and to exclude certain expert testimony the government intends to offer against him at trial. The government has filed in limine motions raising several additional evidentiary issues. During a conference held on, November 17, 2006, Senior United States District Judge Sterling Johnson, Jr., referred the parties' motions to me for report and recommendation. I heard oral argument on the motions on February 14, 2007. This report sets forth my recommendations with respect to those aspects of the parties' motions which were not resolved during the oral argument.

Defendant's Motion to Dismiss the Indictment

Defendant moves to dismiss the charges against him on several grounds. Because Mermelstein argues, among other things, that certain charges are barred by the statute of limitations, and because some of the conduct at issue took place within five years of the filing of S-1 but more than five years before S-2 was filed, I consider the validity and sufficiency of the first superseding indictment as well as the second.

A. Specificity

Defendant argues that neither S-1 nor S-2 provide sufficient detail to put him on notice of the charges against him and allow him to prepare a defense. Mermelstein further argues that the indictments are not specific enough to ensure that he will be convicted of charges actually presented to the grand jury and to protect against double jeopardy in future prosecutions. Finally, defendant argues that the shortcomings of S-1 and S-2 are not cured by the bills of particulars and other discovery provided by government. For reasons set forth below, I conclude that the allegations of both S-1 and S-2 (other than, as discussed below, the serious bodily injury allegations of S-1), particularly when considered in light of the discovery produced by the government, are sufficiently specific to withstand defendant's challenge.

An indictment need contain only "a plain, concise, and definite written statement of the essential facts." Fed R.Crim. P. 7(c). An indictment is sufficiently specific when it sets forth the elements of the charged offense and "inform[s] the defendant of the charges he must meet ... with enough detail that he may plead double jeopardy in a future prosecution based on the same set of...