U.S. v. Shteyman
| Decision Date | 23 May 2011 |
| Docket Number | 10 CR 347 (SJ) |
| Parties | UNITED STATES OF AMERICA v. DIMITRY SHTEYMAN, ALEKSEY SHTEYMAN, MAXSIM SHVEDKIN, ILYA GERSHOVICH, PELAGEYA KOTELSKY, et al. Defendants. |
| Court | U.S. District Court — Eastern District of New York |
LORETTA E. LYNCH
UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK
By: Katherine Houston
Steven J. Kim
Assistant United States Attorneys
Attorney for the Government
UNITED STATES DEPARTMENT OF JUSTICE
CRIMINAL FRAUD SECTION
By: O. Benton Curtis, III
Assistant United States Attorney
Attorney for the Government
ARNOLD NEIL KRISS, ESQ.
By: Arnold Neil Kriss
Attorney for Defendant Dmitry Shteyman
LAW OFFICE OF MARTIN J. SIEGEL
By: Martin J. Siegel
Attorney for Defendant Dmitry Shteyman
WINOGRAD & WINOGRAD, P.C.
By: Joel Winograd
Attorney for Defendant Aleksey Shteyman
ALLEN LASHLEY, ESQ.
By: Allen Lashley
Attorney for Defendant Maxsim Shvedkin
DOAR RIECK & MACK
By: John F. Kaley
Attorney for Defendant Ilya Gershkovich
KELLEY J. SHARKEY, ESQ.
By: Kelley J. Sharkey
Attorney for Defendant Pelageya Kotelsky
RICHARD E. KWASNIK, ESQ.
By: Richard E. Kwasnik
Attorney for Defendant Vladimir Rubin
The ten defendants in this action have been indicted for allegedly participating in a Medicare fraud scheme between January 2009 and April 2010. Presently before the Court are omnibus pretrial motions separately filed by certain defendants seeking bills of particulars, severances, suppression of statements, and further discovery. For the reasons set forth below, Defendants' motions are DENIED in part and GRANTED in part.
The operative indictment in this case, a second superseding indictment returned by the grand jury on November 12, 2010 (the "Indictment"), charges the ten defendants in this action with 19-counts of health care related fraud and conspiracy.1 (See ECF No. 61.) The Indictment alleges that the fraudulent scheme operated out of a Medicare-certified Brooklyn-area purported provider of physical therapy and diagnostic testing known as Dr. Jesse A. Stoff Medical, P.C. d/b/a Solstice Wellness Center ("Solstice" or "the Center"). Solstice, according to the Indictment, submittedfraudulent claims to Medicare, illegally billing Medicare for goods/services that were not medically necessary or were never even provided to beneficiaries.2
The ten defendants, as they are described in paragraphs 8 through 14 of the Indictment, may be classified as falling into three distinct categories of actors:
One category consists of defendants who managed and recruited beneficiaries into the alleged fraudulent scheme, but who are not themselves health care providers and/or Medicare beneficiaries ("Operator-Recruiter Defendants"). Three defendants fall in this category—Dmitry Shteyman ("Dmitry"), his brother Aleksey Shteyman ("Aleksey"), and Maxsim Shvedkin ("Shvedkin"). The bulk of the Indictment (Counts 1, 3-19) is directed against these defendants. It alleges that Dmitry was the Chief Operating Officer and Vice President of Solstice and managed the recruitment of Medicare beneficiaries at Solstice through the use of kickback payments to beneficiaries to induce them to allow Solstice to bill Medicare under their names for purported medical services. It further alleges that Aleksey was a consultant at Solstice and assisted in recruiting Medicare beneficiaries into the scheme, and that Shvedkin assisted in recruiting beneficiaries into the scheme. More specifically, Count 1 chargethe Operator-Recruiter Defendants with conspiracy to defraud the United States and to have submitted and caused the submission of fraudulent claims to the Medicare program, in violation of 18 U.S.C. §§ 371 and 3551 et seq. In terms of overt acts, Count 1 alleges that the three men offered and paid cash kickbacks to a John Doe ("Doe") beneficiary to induce him to both visit Solstice on his own account and to refer other Medicare beneficiaries to the Center. It lists specific dates on which these Defendants allegedly offered and made kickback payments to Doe and the dates of the services Solstice fraudulently billed to Medicare on behalf of Doe. The Indictment further charge the Operator-Recruiter Defendants with conspiracy to commit health care fraud, in violation of 18 U.S.C. §§ 1349 and 3551 et seq. (Count 3) and with health care fraud, in violation of 18 U.S.C. §§ 1347, 2 and 3551 et seq. (Counts 4-19). In terms of overt acts, the Indictment provides a table sample of allegedly fraudulent claims Solstice submitted to Medicare for 19 patients, which includes the approximate date of claim, claim amount, date of service and services billed. Finally, the Indictment contains a criminal forfeiture allegation seeking forfeiture of property obtained through the fraudulent scheme alleged in Count 1, and 3-19.
A second category consists of defendants who are Medicare beneficiaries charged with soliciting and receiving kickbacks in exchange for allowing Solstice to bill Medicare under their names as well as with recruiting other beneficiaries into the scheme (the "Beneficiary-Recruiter Defendants"). Two defendants fall in this category—Ilya Gershkovich ("Gershkovich") and Pelageya Kotelsky ("Kotelsky").Finally, the third category of defendants consists of Medicare beneficiaries who are charged only with soliciting and receiving cash kickbacks to participate in the alleged scheme ("Beneficiary Defendants"). Five defendants fall into this category, including Vladimir Rubin ("Rubin").3 Count 2 of the Indictment is the sole count that is directed at all three categories of Defendants, charging all ten with conspiracy to pay and receive healthcare kickbacks, in violation of 18 U.S.C. §§ 371 and 3551.
Four Defendants have filed omnibus pretrial motions seeking bills of particulars, various items of pre-trial discovery, severance and suppression of statements, all of which are opposed by the Government.4 Specifically:
For purposes of clarity, to the extent defendants seek common elements the Court will describe them in turn and consider them together. Requests that are unique to the moving defendant will be considered separately.5
Federal district courts have the authority to "direct the government to file a bill of particulars." Fed. R. Crim. P. 7(f). The district court has broad discretion in deciding whether to grant a motion for a bill of particulars. United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999); United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). A bill of particulars may be appropriate "where the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Walsh, 194 F.3d at 47. The purpose of a true bill of particulars is three-fold: toprovide a defendant the necessary facts that would allow him "[1] to prepare for trial, [2] to prevent surprise, and [3] to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). The defendant bears the burden of showing "the information sought is necessary," and that he will be prejudiced without it. United States v. Fruchter, 104 F.Supp. 2d 289, 312 (S.D.N.Y. 2000).
In cases involving fraud, as is alleged here, a bill of particulars may be appropriate where the indictment does not identify the specific documents and transactions the Government contends are fraudulent. See Bortnovsky, 820 F.2d at 574-75 () and United States v. Namachie, 91 F. Supp. 2d 565, 567 (S.D.N.Y. 2000), aff'd, 211 Fed. Appx 76 (2d Cir. 2007) (). However, further pre-trial disclosure may vitiate the need for a bill "where the government has made sufficient disclosures concerning its evidence and witnesses by other means." United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004) (quoting Walsh, 194 F.3d at 47); see also Bortnovsky, 820 F.2d at 574 ()
In short, a defendant is not entitled to preview, via a motion for bill of particulars, an extended trailer of the feature the Government plans to screen for the jury well in advance of the premiere. See, e.g., United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) () (quotation marks and citations omitted); United States v. Sindone, No. 01 CR. 517 (MBM), 2002 WL 48604, at *1 (S.D.N.Y. Jan. 14, 2002) (); Fruchter, 104 F. Supp. 2d at 311-12 (); United States v. Jimenez, 824 F....
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