United States v. Gelin

• Decision Date: 01 April 2013
• Docket Number: Nos. 10–2340,10–2486.,s. 10–2340
• Citation: 712 F.3d 612
• Parties: UNITED STATES of America, Appellee, v. Patrick J. GELIN, Defendant, Appellant. United States of America, Appellee, v. Micheline Lamarre, a/k/a Micheline Champagne, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

712 F.3d 612

UNITED STATES of America, Appellee,

v.Patrick J. GELIN, Defendant, Appellant.

United States of America, Appellee,

v.Micheline Lamarre, a/k/a Micheline Champagne, Defendant, Appellant.

Nos. 10–2340, 10–2486.

United States Court of Appeals, First Circuit.

April 1, 2013.

Rudolph F. Miller, for appellant Gelin.

Nathalie R. Castor, for appellant Lamarre.

Daniel Steven Goodman, Assistant United States Attorney, Criminal Division, Appellate Section, with whom Carmen M. Ortiz, United States Attorney, James E. Arnold, Assistant United States Attorney, Lanny A. Breuer, Assistant Attorney General, and John D. Buretta, Acting Deputy Assistant Attorney General, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN,^* Circuit Judges.

TORRUELLA, Circuit Judge.

Following a jury trial, Defendant–Appellants Patrick J. Gelin (“Gelin”) and Micheline Lamarre (“Lamarre”) were each convicted under 18 U.S.C. §§ 1347 and 1349 for making fraudulent claims to, and obtaining payment from, insurance companies participating in Massachusetts' no-fault automobile insurance program.¹ They appeal their convictions, arguing first that the district court erred in ruling that the defrauded insurance companies constituted “health care benefit programs” within the jurisdictional reach of § 1347. Gelin and Lamarre also argue that the district court (1) erred in concluding that their scheme affected interstate commerce as is required for a constitutionally valid application of § 1347; and (2) abridged their Fifth and Sixth Amendment rights in denying proposed voir dire questions concerning the ethnic minority group to which they belong. Finding no error by the district court, we affirm.

I. Background

Gelin was the owner of Premium Care Physical Therapy (“Premium”), a physical therapy clinic in Brockton, Massachusetts. Lamarre worked as an “on-call” physical therapist at Premium and was generally present at the clinic on Mondays and Wednesdays. The sequence of events leading up to Gelin and Lamarre's convictions follows.

In April 2002, Gelin hired Sharon Little (“Little”) as the marketing director for Premium. Little was responsible for bringing new patients to Premium and for getting the clinic into better functioning order. Eventually she also became Premium's manager and Gelin's assistant, helping him with the billing of insurance companies for treatments provided to clinic patients. While discharging those duties, Little stumbled onto patient charts indicating that Lamarre treated patients on days when Little knew Lamarre was not at the clinic. When Little asked what was going on, Gelin told her that Premium was submitting fraudulent charges to insurance companies with the help of Lamarre. According to Little's testimony, Gelin and Lamarre would submit fraudulent claims to providers of Massachusetts' no-fault automobile insurance and request payment for physical therapy that they never rendered. If the fraudulent claims were paid, Lamarre would receive up to 15% of the proceeds as a commission for her participation in the scheme, and Gelin would keep the rest.

Between 2003 and 2004, Little heard Gelin instruct Lamarre to “finish off” charts more than 20 times. She also saw Lamarre forging patient charts that Gelin had given her, and saw Gelin forging injury claim application forms on behalf of patients. When Little protested to Gelin about their need to forge charts given Premium's success, he responded that she was overreacting to “a little white-collar crime” and told her not to worry about it. Lamarre later told Little that the submission of fraudulent claims was Gelin's idea, and while she was not happy with it, she did need the extra money to pay off her student loans.

Little testified that Gelin eventually concluded that she could not be trusted to keep quiet about Premium's billing practices. He therefore hired a “general chief manager” and instructed him to keep an eye on Little. By August 2004, Little had had enough and told Gelin that she would not do “this illegal shit” anymore, walked out of the office, and “never went back.” Sometime thereafter Little informed the National Insurance Crime Bureau about the fraudulent scheme at Premium.

Gelin and Lamarre were each indicted on nine counts of health care fraud, § 1347, and one count of conspiracy to commit health care fraud, § 1349. During the voir dire, Gelin's counsel requested that the court pose the following question to the venire: “Patrick Gelin is a black Haitian–American. Do you have any feelings about black Haitian–Americans or any other minority group that might affect your ability to sit as a fair and impartial juror in this case?” Lamarre, also a Haitian–American, joined Gelin's request, advancing concerns regarding the racial overtone of evidence the government intended to introduce at trial. Specifically, Gelin and Lamarre pointed to Little's deposition testimony, where she used derogatory terms to refer to Gelin's Haitian background and made reference to voodoo and witch doctors. She also referred to Gelin as the godfather of the Haitian community.

The government did not object to the voir dire question but stated that it was unnecessary, even though it anticipated that Little would offer testimony concerning Gelin's statement that his fraudulent activity was a “white person's crime,” and that he was “not doing what [African–Americans] do, selling drugs in the street.” The government also admitted that it would introduce testimony of former employees who would state that Gelin treated African–Americans differently than people from the Haitian community.

The district court refused to pose the voir dire question, stating that it was not aware of “anything in the facts of the case that would suggest any potential for racial bias to be a prominent feature of the case.” The court also stated its view that defense counsel “vastly overstated the danger of racial bias in an average jury in 2010” and “presume[d] the existence of racial bias in jurors the way we might have 50 years ago, maybe 25 years ago.” But in present times, the court then added, “we have to acknowledge, I think, the reality of social progress. So it is-just as a general matter against a social background that there's no need to inject the issue into the case.”

Nevertheless, the court did emphasize to the venire the need for a jury “that is composed of people who are completely fair-minded and impartial as to the parties involved in the case and as to the issues presented.” It followed up with specific inquiries about whether any juror was employed by law enforcement or insurance companies, and whether any of them had been the victim of fraud or other crimes. The court also asked potential jurors whether they had “any personal belief, attitudes, experiences, potential biases that would interfere with [their] ability to be a fair-minded and impartial juror in this case.”

At trial, the government introduced 16 witnesses, including Little, several patients whose treatment charts Little had identified as containing false entries, employees from the defrauded insurance companies, several of Premium's employees, and an FBI agent. Some of the witnesses testified that Gelin and Lamarre had documented therapy sessions with car accident victims when the patients were not in Massachusetts or when Lamarre, who signed off on the treatments, was not in the clinic. For example, one of the government's witnesses testified that Premium had submitted a claim for 30 treatment days “provided” during a period of time in which he was away attending college in Iowa.² Furthermore, one of Premium's physical therapy assistants testified that the charts reflecting treatments supposedly administered by Lamarre were not consistent with the days that Lamarre actually worked at the clinic. Another of Premium's employees testified that Gelin told her about his agreement with Lamarre concerning fraudulent charts and excessive billing.

The government also presented evidence regarding Premium's transactions with the insurance companies themselves, some of which were located outside Massachusetts and did business nationally. This evidence included, for example, the testimony of insurance company representatives that their policies provided benefits for health care services rendered anywhere in the United States, not only within Massachusetts. Additionally, it included the insurance policies themselves, which confirm that they covered both in- and out-of-state accidents. The government also introduced several checks drawn on banks located in different states as evidence of payments made by insurance companies to Premium on account of fraudulent claims. Further, the government introduced evidence showing Premium's use of the UnitedStates Postal Service to mail fraudulent claims to the insurance companies.

The jury returned guilty verdicts on all but two counts. Gelin and Lamarre then moved for acquittal, arguing that the government had failed to establish that the defrauded insurance companies were “health care benefit programs” as required for a conviction under § 1347. The district court initially denied Gelin and Lamarre's motion without explanation, but following post-trial briefing, rejected their claims by agreeing with the government's arguments that the court should adopt the reasoning of a Second Circuit decision, United States v. Lucien, 347 F.3d 45, 50–52 (2d Cir.2003), which held that an automobile insurance contract that provides for the reimbursement of medical services plainly meets the statutory definition of a “health care benefit program” under § 1347. Gelin and Lamarre also raised a sufficiency of the evidence claim, arguing that the government failed to show that their fraud had affected interstate commerce as required under the statute. The district court also rejected that claim, entering the final judgments on appeal now.

II. Discussion

A. The Statutory Interpretation Challenge

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