Module 2 provided an overview of the various torts, crimes and tort reform that effect the medical and healthcare field. Negligence, the civil or personal wrong that is unintentional commission or omission of an act that a reasonably prudent person would or would not do under the same circumstances, if probably the most common tort alleged in the healthcare industry. The elements of negligence include: duty of care, breach of the duty, injury and causation. All elements need to be met for a negligence claim. In recent years, there was a rise of medical practice claims arising from negligence of healthcare facilities and personnel. As a result, the government got involved by passing various types of tort reform that are specific to the healthcare industry. Such tort reform vehicles include but are not limited to mediation, structured awards, certificate of merits, and statute of limitations. Crimes also occur in the healthcare field. Crimes are a social harm defined and made punishable by law. The most common crimes that the healthcare industry see is healthcare fraud, falsification of records, criminal negligence, tampering with drugs and internet pharmacy.
United States Court of Appeals,Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee, v. Young MOON, Defendant-Appellant.
Decided: January 16, 2008
Before: MERRITT and CLAY, Circuit Judges; COX, District Judge. * ARGUED: T. Clifton Harviel, Jr., Harviel Law Office, Memphis, Tennessee, for Appellant. Ellen Bowden McIntyre, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: T. Clifton Harviel, Jr., Harviel Law Office, Memphis, Tennessee, for Appellant. Samuel G. Williamson, Assistant United States Attorney, Nashville, Tennessee, for Appellee.OPINION
Defendant, Dr. Young Moon, appeals from her conviction and sentence entered by the United States District Court for the Middle District of Tennessee on April 25, 2006, for three counts of health care fraud in violation of 18 U.S.C. § 1347 and one count of making false statements regarding health care matters in violation of 18 U.S.C. § 1001. Specifically, Defendant appeals 1) the district court’s denial of her motion to dismiss count four of her indictment; 2) the district court’s denial of her motion to suppress evidence; 3) the reasonableness of her sentence; and 4) the district court’s evidentiary rulings with respect to “summary evidence.” For the reasons that follow, we AFFIRM the district court’s judgment.
A. Factual Background
Defendant, Young Moon, was a medical doctor licensed by the State of Tennessee, specializing in oncology and hematology. Defendant operated a medical practice in Crossville, Tennessee where she treated patients with various forms of cancer. As part of her practice, Defendant contracted with the State of Tennessee to provide medical treatment to patients pursuant to a state and federally funded health benefit program for the uninsured known as “TennCare.” A number of providers participated in the program, including Blue Cross Blue Shield and Medicaid. Defendant routinely utilized chemotherapy medications such as Taxol, Camptosar and Procrit 1 in her treatment of cancer patients insured under the program. As a medical provider, Defendant was required to seek reimbursement for services, including medication, provided to patients under the insurance program.
In March of 2001, the Tennessee Bureau of Investigation (“TBI”) received a complaint from one of Defendant’s employees alleging that Defendant administered partial doses of chemotherapy medication while billing the insurance program for full doses. It was also alleged that the fraud was facilitated by the fact that Defendant mixed the cancer drugs she administered. The matter was referred to the Medicare Fraud Control Unit (“MFCU”) of TBI and a joint investigation was initiated between the United States Department of Health and Human Services Office of Inspector General (“HHS-OIG”) and TBI. After an initial investigation, agents from HHS-OIG and TBI conducted an “on site review” at Defendant’s office.
On January 9, 2002, 10 agents associated with TBI, HHS-OIG and Blue Cross Blue Shield conducted an on-site review at Defendant’s office. The objective of the review was to “scan TennCare, Medicaid and Medicare patient records” and secondarily to “interview Dr. Moon and all of her employees.” (J.A. at 267) Members of the on-site review team were instructed that “attire will be business professional, no raid gear. All weapons, police paraphernalia shall be concealed.” (Id.) On the morning of the review, three agents arrived, unannounced, at Defendant’s office. The agents identified themselves, informed Defendant of a general complaint against her and requested permission to “scan” particular patient records. It is unclear whether Defendant was made aware of her right to withhold permission. After asking about the nature of the allegations and being told they were confidential, Defendant told agents it would be “fine” for them to scan the requested records and that agents could “scan whatever [they] needed to.” (J.A. at 341) Defendant also provided agents with a location where they could scan the requested files.
During the on-site review, agents requested an interview with Defendant regarding her billing practices. Defendant agreed to be interviewed “as long as it did not interrupt patient care.” (J.A. at 346) At one point, Defendant left the interview to attend to a patient. During the interview, Defendant stated that she always prescribed full doses of chemotherapy medication and never instructed her staff to give partial doses of medication.
B. Procedural Background
After further interviews with employees, reviewing bills submitted to relevant health insurance programs and consultation with experts regarding Defendant’s patient charts, the government sought an indictment for three counts of health care fraud.
On June 24, 2004, a grand jury sitting in the Middle District of Tennessee indicted Defendant on three counts of health care fraud in violation of 18 U.S.C. § 1347. Subsequently, Defendant moved to dismiss the indictment, alleging that it failed to include an interstate commerce element. The district court agreed and granted Defendant’s motion to dismiss. The government returned with a superseding indictment that suffered from a similar infirmity and was also dismissed. In response, the government sought and obtained a second superseding indictment that included the three original counts as well as an additional count alleging that Defendant made false statements to government agents in violation of 18 U.S.C. § 1001. Defendant challenged the addition of the fourth count of the indictment in a motion to dismiss, alleging prosecutorial vindictiveness. The district court denied Defendant’s motion and the fourth count of the indictment proceeded to trial.
Defendant also moved to suppress evidence of the two files obtained from her office and statements she made during the TBI/HHS-OIG on-site review, alleging they were obtained during a warrantless search in violation of the Fourth Amendment. After conducting a suppression hearing, the district court denied Defendant’s motion to suppress, finding that Defendant consented to the search of her office based on her verbal assent during the on-site review. Further, the district court found that Defendant’s contractual relationship with TennCare and other insurance programs provided a basis for voluntary consent and therefore the denied the motion to suppress.
Defendant went to trial on all four counts enumerated in the superseding indictment and the government was permitted to introduce evidence obtained as a result of its warrantless search of Defendant’s office. The trial lasted just over two weeks. During the trial, the jury heard testimony from former employees who recounted that Defendant had instructed them to “short” medication to patients. The government presented evidence in the form of testimony by Dr. Mace Rothenburg, an expert witness who testified that Defendant could not have administered the amount of medication she billed as the patient side effects were too mild. The government also presented evidence in the form of records from various pharmaceutical companies regarding Defendant’s purchases of chemotherapy medication. Despite Defendant’s objection to the admission of the business records, the court ultimately ruled that the evidence was admissible under Federal Rule of Evidence 803(6). In addition, Special Agent Robert Turner with HHS-OIG testified regarding Defendant’s billing records, patient charts and drug purchases. As part of his testimony, Agent Turner prepared chart summaries of Defendant’s billing and purchasing as well as her administration of chemotherapy medication. Again, Defendant objected, but the district court found the summaries to be admissible.
At the close of the trial, Defendant was convicted of all four counts enumerated in the second superseding indictment.
After Defendant’s conviction on all four counts of the indictment, a Presentence Report (“PSR”) was prepared in anticipation of sentencing. For purposes of sentencing, the PSR recommended grouping Defendant’s convictions for health care fraud with her conviction for making a false statement. The PSR further recommended a number of sentencing enhancements, including enhancements for risk of bodily harm or death, vulnerable victims and obstruction of justice. Consequently, Defendant’s total offense level was calculated at 34. The fact that Defendant had no prior criminal history placed her in Criminal History Category I. Together, the base offense level and Criminal History Category yielded an advisory Guidelines range of 151-188 months. On April 24, 2006, the district court conducted Defendant’s sentencing hearing. During the hearing, the district court heard testimony from four family members of Defendant’s deceased patients. Defendant objected to the admission of this testimony, contending that the patients were not “victims” of the offenses for which she was convicted. The court overruled the objection, noting that the testimony was “relevant to the nature and circumstances of the offense” under 18 U.S.C. § 3553(a). (J.A. at 1516)
The court also heard testimony from government witnesses regarding the harm that resulted from Defendant’s conduct, including both economic loss and injuries to persons. Additionally, the court reviewed the PSR sentencing recommendations and heard arguments from counsel regarding objections to the PSR. The court rejected Defendant’s objections to the application of enhancements for vulnerable victims, risk of death or bodily injury, and obstruction of justice. The district court, however, granted the government’s request for an additional two level enhancement for a “large” number of vulnerable victims. The ruling increased the Guidelines range to 188 to 235 months. Defendant asked for a sentence at the lower end of the Guidelines range in consideration of mitigating evidence offered in the form of patient letters in her favor. After hearing the relevant evidence and testimony, the district court sentenced Defendant.
In sentencing Defendant, the district court acknowledged the advisory nature of the Guidelines and went on to make findings with respect to Defendant’s conduct as related to the § 3553(a) factors. In a sealed statement of reasons and before the parties, the district invoked the § 3553(a) factors in sentencing Defendant and found it unnecessary “to tailor the sentence outside of the advisory Guideline Range in this case to comply with the mandates and purposes of § 3553(a).” (J.A. at 1515-16) Thereafter, the district court sentenced Defendant to 188 months, followed by two years of supervised release. Defendant was also ordered to pay restitution in the amount of $432,000.00 and was remanded into the custody of the United States Marshals.
Defendant now timely appeals.
I. MOTION TO DISMISS COUNT FOUR OF THE INDICTMENTA. Standard of Review
This Court reviews a district court’s determination regarding the dismissal of a count in an indictment based on prosecutorial vindictiveness for abuse of discretion. United States v. Suarez, 263 F.3d 468, 476 (6th Cir.2001).
Defendant claims that the district court erred in denying her motion to dismiss the superceding indictment based on prosecutorial vindictiveness. Defendant maintains that the government had impermissible motives in seeking a second superseding indictment with an additional charge of making false statements in violation of 18 U.S.C. § 1001. We disagree.
It is well established that due process protects against prosecutorial retaliation for a defendant’s exercise of a statutory or constitutional right. United States v. Poole, 407 F.3d 767, 774 (6th Cir.2005) (citing United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). Indeed, “[t]o punish a person because he has done something the law plainly allows him to do is a due process violation of the most basic sort.” Goodwin, 457 U.S. at 372, 102 S.Ct. 2485 (internal citations omitted). However, “the Due Process Clause is not offended by all possibilities of increased punishment ․, [ ] only by those that pose a ‘realistic likelihood of vindictiveness.’ ” United States v. Roach, 502 F.3d 425, 443 (6th Cir.2007) (quoting Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)).
This Court considered the issue of prosecutorial vindictiveness in the pre-trial context in United States v. Andrews, 633 F.2d 449 (6th Cir.1980) (en banc). We held that to prove a realistic likelihood of vindictiveness, a defendant must demonstrate that “the prosecutor has some ‘stake’ in deterring the petitioner’s exercise of his rights, and that the prosecutor’s conduct was somehow unreasonable.” United States v. Anderson, 923 F.2d 450, 453-54 (6th Cir.1991) (citing Andrews, 633 F.2d at 453-455); United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003). Applying this standard, we find that the district court did not abuse its discretion by denying the motion to dismiss the second superseding indictment inasmuch as Defendant failed to demonstrate a realistic likelihood of vindictiveness.
As a threshold matter, Defendant must prove that the allegedly vindictive government action occurred following the exercise of a protected right. Defendant argues that she was punished for exercising her right to challenge the sufficiency of the indictment against her through a motion to dismiss. Certainly, raising such a challenge to an indictment is a protected right. The government concedes this point on appeal. Defendant, however, must also demonstrate that the government had a “stake” in deterring the exercise of her protected right. Anderson, 923 F.2d at 453-54.
In the instant case, Defendant’s argument rests on the prosecutor’s stake in deterring the exercise of the procedural right to put forth a motion to dismiss inasmuch as the prosecutor had to return to the grand jury on two occasions. However, the fact that the government had to return for a superseding indictment does not constitute a sufficient stake in deterring Defendant’s exercise of a protected right.
In United States v. Ewing, 1994 WL 577055, at *3 (6th Cir.1994), this Court faced a similar factual scenario. In Ewing, a defendant successfully moved to dismiss his indictment on one count of conspiracy to distribute cocaine base as a result of a violation of the Speedy Trials Act. Following the dismissal, the defendant was reindicted with the original charge as well as an additional charge for possession with intent to distribute cocaine base. Id. The defendant alleged that the additional charge resulted from prosecutorial vindictiveness. Id. On review, this Court held that “some repetition of prosecutorial efforts,” in the form of a reindictment, did not constitute a sufficient “burden” to trigger a “realistic likelihood of vindictiveness” in the pretrial context. Id.
In the instant case, as in Ewing, there was also a “repetition of prosecutorial efforts” inasmuch as the government had to refile the indictment against the Defendant to allege that the health care fraud affected interstate commerce. While the government had a greater burden than in Ewing, as it had to refile two times, it does not change the fact that this repetition of efforts is not a sufficient “stake” in the outcome such that the prosecutor would seek to deter the exercise of the procedural right involved here. See Durham v. United States, 1986 WL 16833, at *4 (6th Cir.1986) (unpublished) (finding no stake in deterring exercise of procedural right to sever trial despite repetition of prosecutorial efforts in relitigation of common issues). Indeed, as the Supreme Court has noted, motions to dismiss indictments are common as “[a] defendant before trial is expected to invoke procedural rights that inevitably impose some ‘burden’ on the prosecutor ․” including motions “to challenge the sufficiency and form of the indictment.” Goodwin, 457 U.S. at 381, 102 S.Ct. 2485.
Pressing her claim, Defendant cites United States v. Eddy, 737 F.2d 564 (6th Cir.1984), for the proposition that “where the facts indicate that an Indictment with new or additional charges would not have been brought had there been no acquittal of the defendant or dismissal of the charges, a presumption of vindictiveness is raised.” (Def. Br. at 16) This Court’s decision in Eddy, however, is inapposite. In Eddy this Court found a “realistic likelihood of vindictiveness” where the defendant was charged with perjury, post-trial, following an acquittal, not dismissal, on the initial criminal charge. Id. at 572. Here, unlike the post-trial setting, “no party is asked to ‘do over what it thought it had already done correctly.’ ” Goodwin, 457 U.S. at 383, 102 S.Ct. 2485. Consequently, there is less of a “burden” on the government at the pre-trial stage in seeking a new indictment, and thus, the government had less of a “stake” in deterring Defendant’s exercise of a procedural right.
Moreover, to raise a “realistic likelihood of vindictiveness,” Defendant must prove that the government’s conduct was unreasonable. Here, the government asserts that it did not bring the false statement charge in prior indictments because it did not want to delay the trial start date. However, upon dismissal of the superseding indictment, this was no longer an issue. Therefore, the government contends, the additional charge was put forward. The district court credited this explanation and found the government’s conduct to be reasonable. We find that the district court did not abuse its discretion in reaching this conclusion given that at the pretrial stage, “the prosecutor’s assessment of the proper extent of prosecution may not have crystallized.” Goodwin, 457 U.S. at 381, 102 S.Ct. 2485. Therefore, Defendant’s motion to dismiss was properly denied.
II. MOTION TO SUPPRESS EVIDENCE
A. Standard of Review
Next, Defendant alleges that the district court erred in denying her motion to suppress evidence gathered during a warrantless search of her office. In reviewing a district court’s suppression determination, we review findings of fact for clear error, and legal conclusions de novo. United States v. Hudson, 405 F.3d 425, 431 (6th Cir.2005). While we review the determination of the ultimate question of whether there was consent de novo, we must afford due weight to the factual inferences and credibility determinations made by the district court. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.2006). Where a district court denies a motion to suppress, “we consider the evidence in the light most favorable to the government.” United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc).
The Fourth Amendment bars the government from conducting unreasonable searches and seizures. This prohibition extends to both private homes and commercial premises. Marshall v. Barlow’s Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Additionally, searches pursuant to criminal as well as administrative investigations must comport to the strictures of the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (citing Camara v. Mun. Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Under the Fourth Amendment, searches “conducted without a warrant issued upon probable cause [are] per se unreasonable ․ subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The well-delineated exception at issue here is consent. If an officer obtains consent to search, a warrantless search does not offend the Constitution. Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Indeed, “[a]n officer with consent needs neither a warrant nor probable cause to conduct a constitutional search.” United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.1996) (citing Bustamonte, 412 U.S. at 219, 93 S.Ct. 2041). Such consent, however, must be voluntary and freely given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Consent is voluntary when it is “unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.” United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). The burden of proving that a search was voluntary is on the government, id., and “must be proved by clear and positive testimony.” United States v. Scott, 578 F.2d 1186, 1188-89 (6th Cir.1978).
“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; see also United States v. Ivy, 165 F.3d 397, 402 (6th Cir.1998) (citing United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988)). As part of this inquiry, we consider the circumstances surrounding the search for “more subtle forms of coercion that might flaw [an individual’s] judgment.” Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041.
We find that the district court’s denial of the motion to suppress was not clearly erroneous inasmuch as Defendant voluntarily consented to the search of her office. The only evidence on the question of verbal consent was provided in the form of testimony by Agent Andy Corbitt of TBI at the suppression hearing. Agent Corbitt testified that three members of the TBI investigative team entered Defendant’s office dressed in “business professional” attire, with weapons concealed. Agents identified themselves to Defendant, explained that there was an ongoing investigation and requested access to particular patient files. Defendant inquired about the nature of the investigation but was not informed of the specific nature of the allegations. Following this conversation, Defendant stated it would be “fine” for agents to access requested files and that they “could scan whatever [they] needed to.” Further, Defendant provided agents with a space where they could scan the requested files.
Defendant, however, claims that the verbal consent was not voluntary as she merely acquiesced to a claim of lawful authority. Indeed, while mere acquiescence does not suffice to establish free and voluntary consent, see, e.g., Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788, it does not appear from the record that Defendant’s statement to government officials was “an expression of futility in resistence to authority or acquiescing in the officers’ request.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999). Defendant does not allege that government agents represented that they possessed a valid warrant to search her office, nor do Defendant’s statements reflect that she felt powerless to prohibit the search. Rather, in agreeing to allow officers to scan records and conduct an interview, Defendant made it clear that she would maintain her ability to see patients. Such conduct does not speak of mere acquiescence. Based on the totality of the circumstances, we find that Defendant voluntarily consented to the search of her office and therefore the motion to suppress was properly denied. See United States v. Elkins, 300 F.3d 638, 648 (6th Cir.2002) (finding defendant’s consent to search of commercial premises to be voluntary where he replied “sure” when asked by officers to examine his office space and provided officers with ladder to assist with inspection). Because we find that Defendant verbally consented to the search of her office, we need not reach the question of whether her contract with TennCare provided a basis for consent to a warrantless search.