United States v. Thompson, CRIMINAL ACTION NO. 13-243 SECTION "K"(3)
| Decision Date | 20 April 2016 |
| Docket Number | CRIMINAL ACTION NO. 13-243 SECTION "K"(3) |
| Parties | UNITED STATES OF AMERICA v. TRACY RICHARDSON BROWN SANDRA PARKMAN THOMPSON |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Defendant, Sandra Thompson's Motion to Dismiss Indictment on Grounds of Double Jeopardy. (Rec. Doc. 105). The indictment at issue charges Ms. Thompson with (1) conspiracy to commit health care fraud (18 U.S.C. § 1349); (2) conspiracy to pay and receive illegal remunerations (18 U.S.C. § 371); (3) five counts of health care fraud (18 U.S.C. §1347); and (4) five counts of illegal remuneration (42 U.S.C. § 1320a-7b(b)(1)(A) and (b)(2)(A)). The indictment alleges that from in or around 2005 until in or around 2009, Thompson conspired to execute and executed a scheme or artifice to defraud Medicare and to obtain by means of false and fraudulent pretenses, representations, and promises, money owned by and under the control of Medicare in connection with the delivery of and payment for health care benefits and services. Thompson is also charged with knowingly and willfully receiving illegal kickbacks in return for referring Medicare beneficiaries for the furnishing and arranging for the furnishing of items and services for which payments were made under the Medicare program. In essence, Thompson sold the Medicare numbers of Medicare beneficiaries to her co-defendant, Tracy Richardson Brown (Brown) for cash, knowing that these numbers would be used by Brown and her durable medical equipment company (DME), Psalms 23, LLC (Psalms), to bill Medicare.
The fraudulent scheme allegedly created by Brown and Thompson involved DMEs distributed by Psalms-including, inter alia, power wheelchairs (PWC), accessories for PWCs and so-called "arthritis kits." Psalms billed Medicare for providing DMEs, claiming that the DME in question was medically needed by, and provided to Medicare beneficiaries. The Government contends, however, that vast majority of this equipment was not medically necessary and, in many instances, was not provided.
Thompson was convicted in a similar scheme where the provider of DMEs was an entity called Lobdale, a DME company operating in the Baton Rouge area. The conspiracy occurred from February of 2006 to November of 2009. Lobdale payed kickbacks to Thompson. Dr. Jase was involved in the scheme for allegedly writing unneeded prescriptions as is alleged in the instant indictment. But none of the other defendants named in the Baton Rouge case are named in the instant indictment.
Thompson stands convicted of 13 counts of Health Care Fraud in contravention of 18 U.S.C. § 1347 and one count of Conspiracy to Pay and Receive Illegal Remuneration in violation of 18 U.S.C. § 371. Thompson served 18 months on those charges and was ordered to pay $1400 as an assessment and $129,300.00 in restitution.
The Government filed a "Government Notice of Intent to Use Evidence Pursuant to Federal Rule of Evidence 404b and Supporting Memorandum" (Doc. 68) in this case seeking to introduce evidence of the activities in the Lobdale matter at trial in the instant case without implicating Rule 404(b). It argued that evidence from the Lobdale case is admissible in this matter as "intrinsic" evidence; the Government indicated that this Lobdale evidence would be admissible without the rigors of Rule 404(b) because it arose out of the same transaction orseries of transactions as the charged offense, was inextricably intertwined with the evidence regarding the charged offense and was necessary to complete the story of the crime at trial.
In that filing, the Government explained Thompson's actions as follows:
Thompson often determined which DME would be prescribed. She made referrals for specific DME, whether power wheel chairs or "arthritis kits," based upon how large a kickback she would receive from the DME supplier. Sometimes, when a DME company was paying the highest kickback for all items, a Medicare beneficiary's information would be referred to that company for both a power wheelchair and an "arthritis kit." However, kickback amounts fluctuated during the time period of the scheme, and at times it was financially beneficial for Thompson to "split" the referral of the DME. Thompson submitted a beneficiary's name and medicare number to one DME supplier for a power wheelchair, and to another DME supplier for "arthritis kit" items. Thompson "split" referrals between Psalms and Lobdale a DME company operating in the Baton Rouge area. Thompson was convicted in the Middle District of Louisiana for her conduct with Lobdale.
(Rec. Doc. 68, Government Notice of Intent to Use Evidence Pursuant to Federal Rule of Evidence 404b and Supporting Memorandum at 3 of 11.)
The Government then argued:
Evidence of "splitting:" between Psalms and other companies such as Lobdale is intrinsic to the fraud scheme because it completes the story of the crime. It explains that Thompson followed the money, pursuing the highest bidder for Medicare beneficiary numbers, rather than what was practical, medically necessary, or in the best interest of the Medicare beneficiary.
(Id. at 7 of 11.)
In the United States' Consolidated Response to Defendant Sandra Parkman Thompson's Motion In Limine Relating to Federal Rule of Evidence 404(B) and Thompson's Prior Conviction, and Thompson's Motion to Dismiss (Rec. Doc. 110), the Government further opined that evidence of the conviction in the Middle District, the underlying conduct of which occurredduring the time period alleged in the indictment is intrinsic evidence of the crimes charged and admissible. (Rec. Doc. at 9 of 15). The Government stated:
Intrinsic evidence is admissible because it helps the jury "evaluate all the circumstances under which the defendant acted." United States v. Royal, 972 F.2d 642, 647 (5th Cir. 1992). If "both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged," these are considered intrinsic to the charged crime as well. Id. Such evidence "complete[s] the story of the crime by proving the immediate context of events in time and place." United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996). In this case, Thompson shopped her Medicare numbers to the highest bidder-sometimes splitting DME between Psalm and Lobdale, other times "double dipping-" with these same Medicare numbers to sign these beneficiaries up with home health care. This conduct is entirely intrinsic to the fraud scheme charged in this indictment because it completes the story of the crime and provides context to Thompson's conduct. It demonstrates her intent to commit health care fraud, showing that she followed the money, pursuing the highest bidder for Medicare beneficiary numbers rather than what was practical, medically necessary or in the best interest of the Medicare beneficiary whose protected health information she sold. Her use of the same beneficiary's Medicare number at both Psalms and Lobdale shows that she, and not a doctor, was directing what DME the beneficiary should receive. Her sale of Medicare numbers of the same beneficiaries to Lobdale and home health companies "complete[s] the story of the crime by proving the immediate context of events in time and place." Id.
(Rec. Doc. 110 at Pages 9-10 of 15).1 As a result of the Government's basis for the contention that the Lobdale evidence is admissible as intrinsic evidence as well as Thompson's counsel's trial preparation, Thompson filed the instant motion to dismiss based on double jeopardy . The Court will now turn to the issue of whether double jeopardy applies in this instance.
The test to determine whether double jeopardy attaches in a conspiracy case is articulated in United States v. Jones, 733 F.3d 574 (5th Cir. 2013) as follows:
Id. at 580-81. In the Jones case, Henry Jones ("Henry") had been charged in three separate cases with conspiracy and Medicare fraud: the Ngari case, the Jones case, and the McKenzie case. Henry, who was named in all three cases, was found guilty in the Ngari case, pleaded guilty in the Jones case and then filed a motion to dismiss in the McKenzie case which motion was denied. He appealed the district court's denials of his motions to dismiss an indictment on double jeopardy and multiplicity grounds.
Factually, in the Ngari case, Henry stood in the analogous shoes of the defendant Thompson here-a "recruiter" or "marketer". However in the Jones case and the McKenzie case, he was acting in the shoes of the DME provider. The appellate court in Jones opinion applied the five part test which the Court will now undertake. After considering all of the factors, only two-the location of the events and the statutory crimes charged-supported a finding that therewas a single conspiracy in the Jones case. The timing, the participants, the goals of the conspirators, and the nature of the conduct the Government was trying to stop, supported the Jones court's finding that there were two conspiracies.
The Court will now analyze these same factors in the context of the...
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