United States v. Weekes
| Decision Date | 17 August 2018 |
| Docket Number | CASE NO. 17-20155 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEREMIAH WEEKES and WAHEEB BUTT, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. DENISE PAGE HOOD
ORDER DENYING MOTION TO DISMISS [Dkt. No. 33]
On July 27, 2017, Defendant Jeremiah Weekes ("Weekes") and Defendant Wahab Butt ("Butt") were charged in a two-count First Superseding Indictment with: (a) health care fraud conspiracy, in violation of 18 U.S.C. § 1349; and (b) conspiracy to unlawfully distribute controlled substances, in violation of 21 U.S.C. § 846, 841(a)(1). On March 23, 2018, Weekes filed a Motion to Dismiss, arguing that both counts fail to state an offense and are improperly pled. Butt has filed a notice of joinder in Weekes' Motion to Dismiss, and the Government has filed a response.
The following "facts" are alleged in the First Superseding Indictment.
Summit Visiting Physicians Group, P.C. ("Summit") is a Michigan corporation operating as a medical clinic in Dearborn Heights, Michigan. Summit purports to provide medical services to Medicare beneficiaries both in its office and at their homes. Para. 4. Weekes is listed as the owner of Summit, and Butt operates and controls Summit. Para 4-5. As a participating provider in Medicare, Summit agreed to abide by the policies and procedures, rules, and regulations regarding reimbursement claims Summit submitted to Medicare. Para. 11.
With respect to Count I, Weekes and Butts are alleged to have, from approximately January 2016 to March 2017, submitted false and fraudulent claims to Medicare, engaged in the concealment of those false and fraudulent claims, and diverted proceeds of the fraud for personal use and benefit. Para. 16-17. The Government alleges that Weekes and Butt:
The Government alleges that Summit billed Medicare over $2 million for purportedly medically necessary services between January 2016 and March 2017. Para. 22.
During the same time period, home healthcare companies billed Medicare over $1 million for referrals from Summit based on purported certifications signed by Weekes. Para. 23.
With respect to Count II, the Government alleges that, from January 2016 through March 2017, Butt and Weekes conspired to unlawfully distribute "prescription Schedule II through V controlled substances" . . . "outside the course of professional medical practice" in exchange for cash and other remuneration for the purpose of enriching themselves. Para. 25-27. The conspiracy was accomplished by Weekes agreeing with Butt - and providing Butt with - pre-signed blank prescription pads so that Butt could issue prescriptions for Schedule II controlled substances (including oxycodone and hydrocodone) under Weekes' DEA license, even in the absence of any medical evaluation by Weekes. Para. 30. Butt and other co-conspirators allegedly found and recruited "patients," who would come to Summit and obtain the prescriptions signed by Weekes, even though most of the recruited "patients" had no medical problems warranting medical attention. Para. 31. These prescriptions were filled and sold for profit. Id. For the relevant time period, Weekes and Butt allegedly issued about 6,000 prescriptions for Schedule II through V controlled substances (totally approximately 450,000 dosage units), including OxyContin, Percocet, hydrocodone, Vicodin and Norco, alparazolam, Xanax, andcoedine cough syrup. Para. 32
In evaluating a motion to dismiss for failure to state an offense and properly plead a claim, this Court recently stated:
An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend. Second, the indictment is sufficient if it enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974). "An indictment as drafted is presumed sufficient if it tracks statutory language, cites the elements of the crimes charged, and provides approximate dates and times." United States v. Chichy, 1 F.3d 1501, 1504 n. 3 (6th Cir. 1993). A motion to dismiss is limited to the four corners of the indictment and that the allegations in the indictment are assumed to be true and viewed in the light most favorable to the Government. United States v. Keller, 2009 WL 2475454 * 4 (E.D. Mich. Aug. 11, 2009) (unpublished); United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001)(A trial court does not evaluate the evidence upon which the indictment is based in ruling on a motion to dismiss).
United States v. D'Anna, 2015 WL 1954490, at *6 (E.D. Mich. Apr. 29, 2015).
Weekes argues that Count I should be dismissed because it does not notify him of the charges against him as it fails to assert the facts that constitute the offense charged. Citing United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992); Hamling v. United States, 418 U.S. 87, 117-18 (1974). Weekes states that Sixth Circuit case law requires specific executions of a health care fraud schemeto be pled in a conspiracy charged under Section 1349, because "[c]onspiracy to commit health-care fraud requires some fraudulent act." United States v. Patel, 694 F. App'x 991, 994 (6th Cir. 2017). Weekes argues that an indictment containing only general allegations of a health care fraud's conspiracy's purpose is not sufficiently pled.
Weekes cites two cases where indictments charging violations of Section 1349 survived motions to dismiss. See United States v. Walters, 2016 U.S. Dist. LEXIS 48716, at *8 (E.D. Ky. Apr. 12, 2016) (Section 1349 case); United States v. Makki, 2007 U.S. Dist. LEXIS 17413, at *21-22 (E.D. Mich. Mar. 13, 2007) (Section 1347 case). In Walters, there were 99 separately charged health care fraud counts in addition to the conspiracy charge. In Makki, each of the two counts specifically indicated a number of claims or patients during identifiable periods of time that were less than 4 months. Weekes contends that the First Superseding Indictment only alleges that more than $3,000,000 was billed to Medicare over 14 months, with no specific fraudulent acts identified therein. Weekes asserts that specifically identifying alleged acts in the discovery materials is not sufficient to give him true notice of the crime charged or protection against subsequent prosecution. Relying on Superior Growers Supply 982 F.2d at 176 n.4.
The Government counters that Section 1349 does not have an overt actrequirement, so no particular act needs to be alleged for the indictment to be sufficient. Relying on D'Anna, 2015 WL 1954490, at *6; Hamling, 418 U.S. at 117 (1974); Chichy, 1 F.3d at 1504 n.3. The Government contends that Section 1349 provides only that: "Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The Government cites the Supreme Court's decision in United States v. Shabani, 513 U.S. 10, 15-16 (1994), where the court determined that an overt act was not an element of a drug conspiracy under 21 U.S.C. § 846. The Shabani court stated that "the plain language of the statute and settled interpretive principles reveal that proof of an overt act is not required to establish a violation of 21 U.S.C. § 846." Id. See also United States v. Dempsey, 733 F.2d 392, 396 (6th Cir. 1984).
The Government correctly contends that the language of Section 846 is "nearly identical" to the language in Section 1349, as Section 846 provides: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The Court notes that the only difference between Section 1349 and Section 846 is that Section 1349 uses the word "chapter" and Section 846 uses the word "subchapter."
As the Supreme Court has held that an overt act is not a required element when charging a person under Section 846 and Section 1349 is substantively identical to Section 846, the Court concludes that an overt act is not a required element of a charge pursuant to Section 1349. The Court finds that the First Superseding Indictment adequately notified Weekes of the charges against him when it specified that Weekes submitted bills to Medicare for services not rendered and/or that had fraudulent home health certifications and that such actions occurred through his activities at Summit between January 2016 and March 2017, all for the purpose of enriching himself. The Court concludes that, for purposes of charging Weekes with conspiracy, the Government's First Superseding Indictment is sufficiently pled. The Court denies Weekes' Motion to Dismiss with respect to Count I.
Weekes argues that there are two components necessary to convict a person of violating 21 U.S.C. § 841(a)(1) and an indictment must allege both: (1) a defendant prescribed controlled substances "outside the course of professional medical practice;" and (2) the controlled substances were prescribed for "other than a legitimate medical...
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