United States v. Golding
| Decision Date | 05 June 2018 |
| Docket Number | Case No. 4:17-CR-297 AGF/PLC |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DEVON N. GOLDING, REUBEN F. GOODWIN, PHILLIP L. JONES, DWIGHT MCTIZIC, NICOLE MCTIZIC, KAZIM A. MEO, and REHAN RANA, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the motions of Defendants Devon N. Golding, Reuben F. Goodwin, Phillip L. Jones, Dwight McTizic, Nicole McTizic, Kazim A. Meo, and Rehan Rana.1 Rana and Golding move to dismiss the indictment [ECF Nos. 139 and 199, respectively]. Rana moves for a bill of particulars [ECF No. 140].2 Rana, Golding, D. McTizic, K. Meo and Jones move for early disclosure or production of Jencks Act materials [ECF Nos. 142, 200, 264, 267, and 301, respectively]. Rana, Golding, and K. Meo move to compel production of statements of non-cooperating witnesses [ECF Nos. 142, 200 and 267, respectively]. Rana, Goodwin, Golding, N. McTizic, D. McTizic, K. Meo and Jones move to sever, variously, counts and individual Defendants [ECF Nos. 141, 186, 198, 257, 263, 266 and 299]. With the exception of D. McTizic, N. McTizic, and Jones, all Defendants appeared with their attorneys and argued their motions.3
The Government charged ten Defendants in thirty-one counts with two conspiracies, four health care fraud schemes, and related substantive offenses occurring between 2009 and 2016 with respect to specimen-testing by three different medical laboratories: Allegiance Medical Services, LTD ("Allegiance"), AMS Medical Laboratory, Inc. ("AMS") and Western Slope Laboratory, LLC ("Western Slope"). The charges arise out of Defendants' alleged agreement to engage in criminal conduct and Defendants' alleged engagement in, or aiding and abetting of, criminal conduct. The Government asserted that Defendants: (1) solicited, referred, and received blood, urine, and other medical specimens through the receipt or payment of illegal kickbacks for the referral or receipt of the specimens for testing; (2) submitted claims to Medicare and Medicaid programs for reimbursements related to the testing of specimens, which claims were fraudulent in that they pertained to: (a) specimens referred or obtained unlawfully through the receipt or payment of kickbacks; (b) testing by a laboratory owned or operated by a person excluded from participation in a Medicare or Medicaid program; or (c) testing by a laboratory that did not actually perform the testing; and (3) submitted on one occasion in November 2012 false statements to the United States Department of Health and Human Services ("HHS") regarding the extent and duration of an unindicted co-conspirator's (Azeem Meo's) participation in the management and operation of Allegiance.4
More specifically, in Counts 1 - 6, the Government charged that, with respect to testing by Allegiance, from 2009 until 2012: Anthony B. Camillo,5 Golding, Rana, and K. Meo conspired to commit health care fraud and provide or receive illegal kickbacks in violation of 18 U.S.C. §§ 371 and 2 (Count 1); K. Meo submitted false statements to HHS in violation of 18U.S.C. §§ 1001 and 2 (Count 2); and Camillo, Golding, Rana, and K. Meo committed health care fraud in violation of 18 U.S.C. §§ 1347(a) and 2 (Counts 3 - 6).
In Counts 7 - 24, the Government charged that, with respect to testing by AMS between 2012 and 2016: AMS, Camillo, Goodwin, Jones, D. McTizic, N. McTizic, and Robert J. Sommerfeld6 conspired to commit health care fraud and to pay or receive kickbacks in violation of 18 U.S.C. §§ 371 and 2 (Count 7); AMS and Camillo paid illegal kickbacks to obtain medical specimens for testing by AMS in violation of 42 U.S.C. §§ 1320a-7b(b)(2)(B) and 2 (Counts 8 - 13); and AMS, Camillo, Goodwin, Jones, the McTizics, and Sommerfeld committed health care fraud in violation of 18 U.S.C. §§ 1347(1)(2) and 2 (Counts 14 - 24).
In Counts 25-31, the Government charged AMS and Camillo with engaging in two health care fraud schemes in violation of 18 U.S.C. §§ 1347(a)(2) and 2 related to testing of medical specimens by Western Slope's testing of medical specimens in 2013 and 2014.
A sufficient indictment must contain a plain, concise and definite statement of all essential elements of each offense charged; it must fairly inform each defendant of the charge against which he or she must defend; and it must allege information adequate to allow a defendant to plead a conviction or an acquittal as a bar to a future prosecution for the same offense. See U. S. Const. amends V and VI; Fed. R. Crim. P. 7(c)(1); Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001). "The test for sufficiency of the indictment is not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Awad,551 F.3d 930, 935 (9th Cir. 2009) (internal quotation marks and citation omitted). An indictment is ordinarily sufficient "unless it is so defective that [it cannot be said] by [any] reasonable construction . . . to charge the offense." United States v. Young, 618 F.2d 1281, 1286 (8th Cir. 1980) (internal quotation marks and citations omitted).
"An indictment should not be read in a hyper[-]technical fashion and should be 'deemed sufficient unless no reasonable construction can be said to charge the offense.'" United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998) (citation omitted). In addition, when a defendant challenges an indictment on a motion to dismiss, the court must accept as true the government's allegations. United States v. Birbragher, 603 F.3d 478, 481 (8th Cir. 2010) (citing United States v. Farm & Homes Sav. Ass'n, 932 F.2d 1256, 1259 n.3 (8th Cir. 1991) ().
In Count 1, the Government charged Rana and Golding (along with others) with violating 18 U.S.C. § 371 between 2009 and 2012. Section 371 provides, in pertinent part, that:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both.
18 U.S.C. § 371. "The essential elements of a section 371 conspiracy crime are that: (1) the defendants agreed with another, (2) to commit crimes against the United States or violate the laws of the United States, and (3) at least one overt act was committed in furtherance of the agreement." United States v. Hayes, 574 F.3d 460, 472 (8th Cir. 2009). With respect to a conspiracy charge, an indictment is sufficient where it:
tracks the language of the conspiracy statute, identifies the federal criminal laws that are the subjects of the conspiracy, alleges each of the essential elements ofthe crime of conspiracy, states the nature of the fraudulent scheme that was the subject of the conspiracy, specifies the approximate time period during which the conspiracy took place, states the place from which the scheme was allegedly operated, and specifies overt acts that furthered the conspiracy....
In Counts 3 - 6, the Government charges Rana and Golding (along with others) with violating 18 U.S.C. § 1347(a). Section 1347(a) penalizes health care fraud, which is committed by anyone who:
knowingly and willfully executes, or attempts to execute, a scheme or artifice - - (1) to defraud any healthcare benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items or services.
18 U.S.C. § 1347(a); United States v. Boesen, 491 F.3d 852, 856 (8th Cir. 2007). "The intent to defraud 'need not be shown by direct evidence; it may be inferred from all facts and circumstances surrounding the defendants' actions.'" Boesen, 491 F.3d at 857 (quoting United States v. Wrehe, 628 F.2d 1079, 1082 (8th Cir. 1980)).
Rana contends that the allegations of the indictment are insufficient to state an offense against him. More specifically, Rana argues that Counts 3 - 6 are defective because they lack a description of his "specific action to aid the health care scheme" and fail to allege that he had the "requisite knowledge and intent to aid the alleged scheme." Rana further argues that Count 1 fails to allege facts showing Rana's requisite knowledge to join a conspiracy to engage in a health care fraud scheme. In short, according to Rana, "the Indictment fails to state any potentially illegal conduct engaged in by Rana."
The Government contends, in response, that the indictment "tracks the statutory languageand includes all essential elements" of the charged offense. Specifically, the Government states that Counts 3 - 6 incorporate by reference paragraphs 1 - 20 of the indictment, setting out the relevant statutory and regulatory sections and, paragraphs 24 - 49, setting out the "manner and means" of Rana's violation of the statutes.
The Government further states that paragraphs 56 - 63 describe the material facts concealed from Medicare. Paragraph 64 sets out the following:
On or about the dates listed below, in the Eastern District of Missouri, Anthony B. Camillo, Devon N. Golding, M.D., Rehan Rana and Kazim A. Meo, the defendants herein, knowingly and willfully executed and attempted to execute a scheme and artifice to defraud a health care benefit program, in connection with the delivery and payment for health care benefits,...
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