United States v. Saoud
| Decision Date | 19 December 2014 |
| Docket Number | No. 14-4288,14-4288 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALLEN G. SAOUD, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:12-cr-00113-IMK-JSK-1)
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
ARGUED: Paul J. Harris, Wheeling, West Virginia, for Appellant. Andrew R. Cogar, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF: Robert McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
Following a ten-day trial, a jury convicted Dr. Allen G. Saoud of thirteen counts of health care fraud and nine related offenses. The district court sentenced Dr. Saoud to 99 months' incarceration, imposed a $2,630,000.00 fine, and ordered him to forfeit $1,243,118.29.
Dr. Saoud argues on appeal that the district court erred by denying his motion to either sever the charges against him or continue the trial date, that insufficient evidence supported many of his convictions, that jury misconduct denied him a fair trial, that the district court erred at sentencing when calculating the financial loss Dr. Saoud intended to cause, and that the district court's forfeiture determination was erroneous. For the reasons that follow, we affirm.
Dr. Saoud founded AGS, Inc., a dermatology practice in West Virginia, in 1994. Roughly ten years later, the United States Department of Health and Human Services began investigating whether Dr. Saoud had submitted false bills to Medicare or Medicaid. In May 2005, while the investigation was ongoing, Dr. Saoud established Central West Virginia Dermatology Associates ("CWVD"), Inc., as a new dermatological practice at the samelocation as AGS. In August 2005, Dr. Saoud, without admitting liability, entered into a settlement agreement that excluded him for ten years from participating in Medicare, Medicaid, and all other federally sponsored health care programs. The agreement specifically prohibited Dr. Saoud from, among other things, billing federal health care programs "for items or services, including administrative and management services, furnished, ordered, or prescribed by Dr. Saoud during the exclusion." J.A. 147; accord Appellant's Br. at 5-6. The agreement also effectively prohibited Dr. Saoud from owning more than five percent of a medical practice that billed a federal health care program, and from exercising operational or managerial control over such a practice.
The government alleged below that Dr. Saoud committed four categories of crimes in an attempt to circumvent the terms of the agreement. First, he split his practice into two entities--AGS and CWVD--and then took various steps to hide his ownership and managerial interests in those entities. Most directly, Dr. Saoud executed a series of sham transactions appearing to transfer his interests in AGS and CWVD to various colleagues. Second, Dr. Saoud caused CWVD to use without permission another doctor's name to bill insurance companies, including a Medicare contractor, for dermatological pathology services. Third, after filing for bankruptcy on behalf of AGS in May 2009, Dr. Saoudtestified falsely at a deposition and creditors meeting by downplaying his involvement with both AGS and CWVD, and emphasizing the distinction between the two entities. Fourth, in October 2009, Dr. Saoud sent a letter to an Internal Revenue Agent in which he stated falsely that he was not an officer of AGS and had no relationship with CWVD after selling it in August 2005.
In December 2012, a federal grand jury sitting in the Northern District of West Virginia returned a twenty-three-count indictment charging Dr. Saoud with, among other offenses, five counts of health care fraud, one count of concealing a material fact in a health care matter, one count of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws, twelve counts of making a false oath or account in relation to a bankruptcy case, and one count of making a false statement to a federal agent. In May 2013, the grand jury returned a superseding indictment that charged no additional offenses.
On June 4, 2013--eight days before trial was to commence--the grand jury returned a second superseding indictment, which added eight new health care fraud charges and a related charge of aggravated identity theft. The nine new counts alleged that Dr. Saoud caused CWVD to bill insurance companies in the name ofDr. Frank Swisher, a practitioner of family medicine, for dermatological pathology services that an outside lab actually performed.
On June 6, 2013, Dr. Saoud moved to sever the nine new counts or, in the alternative, for a continuance. The next day, the district court heard oral argument. Dr. Saoud argued that having only eight days to review the new charges would prejudice his defense because he would have insufficient time to (1) review the 200,000 pages of discovery for evidence related to the new charges, or (2) determine whether Dr. Saoud wrongfully caused CWVD to use Dr. Swisher's identity. The government responded that (1) it had identified for Dr. Saoud the relevant insurance and lab invoices, and (2) it would rely on those invoices and Dr. Swisher's testimony to prove that CWVD improperly used Dr. Swisher's identity and that Dr. Saoud orchestrated the scheme. The district court denied Dr. Saoud's motion to sever or continue after finding that "no undue prejudice [would] result if [the] trial proceed[ed] as scheduled." J.A. 2442.
Dr. Saoud's trial began on June 12, 2013. On the seventh day of trial, the government and Dr. Saoud delivered their closing arguments and the district court submitted the case to the jury. On the ninth day, the district court replaced one ofthe jurors with an alternate. The following day, the court replaced that alternate juror with a different alternate. The district court then instructed the jury to "go back to the beginning to make sure that the new juror ha[d] an opportunity to be heard on every one of the[] issues that [the jury] may have resolved." J.A. 1983. The reconstituted jury retired to deliberate at 12:35 p.m.
At 2:52 p.m., the district court announced that the jury had reached a verdict. The jury convicted Dr. Saoud of thirteen counts of health care fraud, one count of aggravated identity theft, one count of concealing a material fact in a health care matter, one count of corruptly endeavoring to obstruct and impede the due administration of internal revenue laws, five counts of making a false oath or account in relation to a bankruptcy case, and one count of making a false statement to a federal agent.
On March 25, 2014, the district court sentenced Dr. Saoud to 99 months of incarceration, imposed a $2,630,000.00 fine, and ordered him to forfeit $1,243,118.29. This appeal followed.
Dr. Saoud mounts five challenges on appeal: to the denial of his motion to sever or continue; to the sufficiency of the evidence supporting the jury's verdict; to the fairness of thetrial in light of alleged jury misconduct; to the loss amount calculated at sentencing; and to the forfeiture determination. We consider each argument in turn, incorporating additional facts when necessary to our analysis.
Dr. Saoud's primary argument on appeal is that the district court erred by denying his motion to sever or continue. See Oral Arg. at 6:35-54 (). To prevail on this ground, Dr. Saoud must make two showings. First, he must demonstrate that the district court abused its discretion by denying his motion. See United States v. Copeland, 707 F.3d 522, 531 (4th Cir. 2013) (motion for continuance); United States v. Min, 704 F.3d 314, 319 (4th Cir. 2013) (motion to sever). Second, Dr. Saoud must show that the district court's erroneous decision prejudiced his defense. See United States v. Dinkins, 691 F.3d 358, 368 (4th Cir. 2012) (); United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) .
Dr. Saoud has not established reversible error because he has not shown how the denial of his motion prejudiced his defense. Dr. Saoud contends on appeal that he lacked adequate time to "prepare a defense to the [new] counts," "review the over 200,000 pages of discovery documents in this case with relation to the additional nine counts," "interview the witnesses contained in the additional nine counts," or "hire an expert related to issues surrounding the laboratory." Appellant's Br. at 17. But he does not explain, as he must, how his inability to do these things specifically prejudiced his defense. Our precedent establishes that an appellant cannot demonstrate prejudice with "a general allegation of 'we were not prepared,'" United States v. LaRouche, 896 F.2d 815, 825 (4th Cir. 1990), or "post-hoc assertions by counsel that given more time something might have turned up," id. (quoting United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir. 1980)) (internal quotation marks omitted). Even at oral argument, with the benefit of hindsight, Dr. Saoud could identify no...
To continue reading
Request your trial