United States v. Jafari, 13–CR–19 EAW.

• Decision Date: 16 January 2015
• Docket Number: No. 13–CR–19 EAW.,13–CR–19 EAW.
• Citation: 85 F.Supp.3d 679
• Parties: UNITED STATES of America, v. Nina JAFARI a/k/a Fatemeh Jafari, Defendant.
• Court: U.S. District Court — Western District of New York

85 F.Supp.3d 679

UNITED STATES of America

v.Nina JAFARI a/k/a Fatemeh Jafari, Defendant.

No. 13–CR–19 EAW.

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

Signed Jan. 16, 2015.

Michael Digiacomo, Aaron J. Mango, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Peter J. Pullano, Tully Rinckey PLLC, Rochester, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

I. INTRODUCTION

Defendant Nina Jafari (“Defendant”), charged in a five count indictment with health care fraud in violation of 18 U.S.C. § 1347 (Dkt. 1), was convicted after a jury trial on September 29, 2014, of counts 1, 2, 3 and 5, and acquitted of the charges in count 4 (Dkt. 82). On November 24, 2014, the Government moved for a preliminary order of forfeiture pursuant to Fed.R.Crim.P. 32.2(b)(1) and 18 U.S.C. § 982(a)(7). (Dkt. 97). Specifically, the Government seeks a personal money judgment of one hundred twenty-five thousand dollars ($125,000.00). (Id. at 21).

Defendant filed papers in opposition (Dkt. 100), and argument was held before the Court on December 5, 2014 (Dkt. 104).

After considering the various submissions and arguments submitted on behalf of the parties, and for the reasons set forth below, the Court grants the Government's motion for a preliminary order of forfeiture and orders that Defendant's right, title and interest in the amount of one hundred twenty-five thousand dollars ($125,000.00) shall be forfeited to the United States as gross proceeds Defendant obtained, directly or indirectly, from the scheme to defraud a health care program.

II. FACTUAL BACKGROUND

Defendant, practicing as a licensed clinical social worker, was charged on January 18, 2013, with five counts of health care fraud in violation of 18 U.S.C. § 1347.¹ The indictment alleged an overall scheme by Defendant to defraud BlueCross BlueShield of Western New York (“BCBS”) during the time period January 2006 through May 2009. (Dkt. 1 at ¶ 16). Each count in the indictment related to charges submitted by Defendant to BCBS with respect to a different family whom Defendant claimed to have treated.²

In essence, the indictment alleged that Defendant billed BCBS using a Current Procedural Terminology (“CPT”) code that resulted in inflated payments and payments for services that were never rendered. The code typically charged by Defendant was CPT code 90808, defined to be appropriate for individual psychotherapy of approximately 75 to 80 minutes face-to-face with the patient. According to the indictment, Defendant executed the fraudulent scheme in three different ways: (1) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808 when, in fact, Defendant met with the patient for less than 75 to 80 minutes; (2) Defendant met with multiple family members for group therapy sessions, but instead of billing CPT code 90847 for family psychotherapy, she charged each family member separately under CPT code 90808; and, (3) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808, when no therapy sessions occurred. (Id. at ¶¶ 17–19).

The case was tried before a jury commencing on September 22, 2014. (Dkt. 74). Among other witnesses, the Government presented testimony from five members of the families who were the subject of the counts in the indictment, representatives of BCBS, and FBI Agent Thomas W. Provost (“Agent Provost”). Voluminous documents were introduced into evidence reflecting charges submitted by Defendant to BCBS, including documents that contained forged signatures of Defendant's patients. (Tr.³ 182, 270).

Agent Provost explained that BCBS reported Defendant to the FBI for purposes of an investigation after BCBS investigators were stymied in their efforts to review Defendant's records and conduct an audit. (Tr. 332; see Tr. 224–41, 243–46 (testimony concerning efforts by BCBS to review Defendant's records and conduct an audit)). Defendant had been identified by BCBS as an “outlier” because she stood out from the rest of her field in her billings using CPT code 90808. (Tr. 210–11). BCBS had looked at the data for December 1, 2007 through November 2008, and approximately 97.5% of Defendant's bills were charged under CPT code 90808. (Tr. 211). Additionally, BCBS reviewed Defendant's billings for her patients during the time frame of January 1, 2006 through April 30, 2009, and of approximately 400 patients, there were only 10 patients for whom Defendant did not bill under CPT code 90808. (Tr. 216).

As part of the investigation, a former patient of Defendant's, Jeanette Steger, agreed to audio record conversations with Defendant. The audio recordings, which were admitted into evidence, reflected efforts by Defendant to influence Ms. Steger's response to BCBS inquiries, including Defendant telling Ms. Steger that she should deny the existence of documents concerning her family's visits with Defendant and falsify documentation that BCBS asked Ms. Steger to complete.

The jury returned a verdict of guilty with respect to four of the five counts in the indictment. The jury acquitted Defendant of the conduct charged in count 4. Count 4 alleged that Defendant committed health care fraud from October 2006 through December 2008, by submitting fraudulent claim forms for approximately 117 individual psychotherapy sessions billed under CPT code 90808 related to the Ferrucci family. The jury convicted Defendant of the remaining counts that charged as follows:

Count 1: from January 2009 through May 2009, Defendant submitted fraudulent claim forms for approximately 39 individual psychotherapy sessions billed under CPT code 90808 related to the Steger family;

Count 2: from July 2008 through February 2009, Defendant submitted fraudulent claim forms for approximately 56 individual psychotherapy sessions billed under CPT code 90808 related to the Sidoti family;

Count 3: from December 2005 through August 2008, Defendant submitted fraudulent claim forms for approximately 114 individual psychotherapy sessions billed under CPT code 90808 related to the Willis family; and,

Count 5: from September 2007 through July 2008, Defendant submitted fraudulent claim forms for approximately 42 individual psychotherapy sessions billed under CPT code 90808 related to the Kern family.

The indictment also included forfeiture allegations seeking to forfeit “[t]he sum of ONE HUNDRED TWENTY–FIVE THOUSAND DOLLARS ($125,000.00) United States currency or any other proceeds generated from the offense of each count of conviction,” as well as substitute property. (Dkt. 1 at 15).

The parties agreed prior to the commencement of the trial that any issues with respect to forfeiture should be resolved by the Court. After the jury verdict, the Government and Defendant attempted to reach a resolution of the forfeiture issues, but they were unable to do so, and the Government filed its motion for a preliminary order of forfeiture. (Dkt. 97). The Court adjourned the scheduled sentencing date of December 5, 2014, so that it could first resolve the forfeiture issues. (Dkt. 101). On December 5, 2014, the parties appeared before the Court, and agreed that a hearing was not necessary with respect to the forfeiture issues. (Dkt. 104). The Court held oral argument and reserved decision. (Id. ).

III. DISCUSSION

“Criminal forfeiture under section 982 is a form of punishment, separate and apart from any restitutive measures imposed during sentencing.” United States v. Peters, 732 F.3d 93, 98 (2d Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 2740, 189 L.Ed.2d 776 (2014). It is considered an “additional sanction” that “serves no remedial purpose” but rather is designed simply as a form of punishment. Id. (internal quotations omitted). “The amount of forfeiture ‘must bear some relationship to the gravity of the offense that it is designed to punish.’ ” Id. (quoting United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) ).

18 U.S.C. § 982(a)(7) sets forth the standard applicable to forfeiture in the context of a health care fraud conviction:

The court, in imposing sentence on a person convicted of a Federal health care offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from the gross proceeds traceable to the commission of the offense.

18 U.S.C. § 982(a)(7).

Pursuant to the express language of the statute, forfeiture is mandatory when sentencing a person convicted of health care fraud. In other words, the Court has no discretion—a procedurally proper request for forfeiture must be granted when sentencing a person convicted of health care fraud. United States v. Poulin, 690 F.Supp.2d 415, 420 (E.D.Va.2010) (“The plain language of the statute [§ 982(a)(7) ] provides that such forfeiture is mandatory.”), aff'd, 461 Fed.Appx. 272 (4th Cir.2012) ; United States v. Patel, No. 06–60006, 2009 WL 1579526, at *20 (W.D.La. June 3, 2009) (“The mandatory language of this statute [§ 982(a)(7) ] leaves the Court absolutely no discretion in imposing this portion of the sentence.”).

The government bears the burden to prove “the propriety of forfeiture by a preponderance of the evidence.” United States v. Nicolo, 597 F.Supp.2d 342, 345 (W.D.N.Y.2009) ; see also United States v. Gaskin, 364 F.3d 438, 461 (2d Cir.2004) (criminal forfeiture is part of the sentencing process and, therefore, as with other aspects of sentencing, “the government need prove facts supporting forfeiture only by a preponderance of the evidence.”). The government may meet this burden “based on evidence already in the record ... and on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable.” Fed.R.Crim.P. 32.2(b)(1)(B) ; see also United States v. Capoccia, 503 F.3d 103, 109–10 (2d Cir.2007) (forfeiture determination can be based both on evidence presented at forfeiture hearing and evidence already in the trial record).

Furthermore, the traditional rules of...