Sufficiency of the Evidence

Published on: February 16, 2018

Double jeopardy challenge rejected for therapists convicted of Medicare fraud

In US v Crabtree a therapist at a health care clinic in Miami was convicted along with her two therapist codefendants of conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. In this appeal they raised several issues, including a constitutional challenge under the double jeopardy clause. The underlying facts involved the operation of a mental health centers in Florida and North Carolina called the Health Care Solutions Network (HCSN) which billed Medicare for over $63 million in fraudulent claims. Crabtree and two of the co-defendants were former employees of HCSN who worked therapists.

HCSN was set up as a “partial hospitalization program” (PHP) that was purportedly designed to provide intensive psychiatric therapy to patients with “serious and acutely symptomatic mental illnesses.” These programs serve as a bridge between restrictive in patient care (psychiatric hospitalization) and routine outpatient care.

A PHP complying with federal and state law may seek Medicare reimbursement for its services. However, HCSN was not following Medicare standards and practices. From intake to discharge HCSN organized its business around Medicare fraud by editing intake information, fabricating treatment plans, and falsifying therapy and treatment notes to support Medicare claims. Therapist fabricated therapy notes for absent patients, falsified details from therapy sessions, and cloned notes by copying and pasting therapy notes from one patient’s file to another’s.

At the conclusion of the first trial the jury acquitted Crabtree and her two codefendant therapists of the false statement counts but it failed to reach a verdict on the conspiracy counts. At the first trial the court gave an instruction for Pinkerton liability with the false statement instruction. Under the Pinkerton instruction if the jury found the defendant guilty of participating in conspiracy it could find the defendant guilty of the substantive false statement crime even though the defendant did not personally participate in the false statement crime. The defendants were retried and convicted of the conspiracy count at the second trial.

Published on: February 6, 2018

Conviction for fraudulent investment scheme upheld

by The Swartz Law Firm

Lawrence Foster was charged and convicted in Miami following a federal court jury trial of conspiring to commit wire fraud and six counts of wire fraud in violation of 18 U.S.C. section 1349. He raised three challenges. First, he claimed the trial judge erred by denying his motion for judgment of acquittal. Second, he claimed the loss amount was incorrectly calculated. Third, he claimed his verdict should be set aside due to jury misconduct.

Foster was charged with defrauding investors who thought they were investing in property in the island of Rum Cay in the Bahamas. He solicited investors by offering them two investment opportunities. They could either purchase Rum Cay land or lend money to his company Paradise is Mine (PIM) in return for a security interest in the land. Foster used several marketing strategies including celebrity endorsements to promote PIM. He also represented to prospective investors that hundreds of news organizations including USA Today and the Wall Street Journal had featured articles about PIM. But PIM was a scam because it never owned the land that it claimed it owned and the newspaper reports were not legitimate. Some articles were created by Foster himself. The investors never received tit to the land.

Published on: December 29, 2017

Conviction for selling firearms on the dark web upheld

by The Swartz Law Firm

Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

Published on: December 28, 2017

Conviction for Miami drug courier upheld

by The Swartz Law Firm

Max Jeri was convicted and sentencing for importing 7.95 kilograms of cocaine into the United States after he arrived from Lima Peru at the Miami International Airport. The evidence produced at trial showed that after his arrival in the Miami Airport a Customs and Border Patrol Officer inspected his luggage and discovered cocaine secreted in various items in his luggage including children’s jackets, notebooks, purses, and pillows. He gave the officers the person for whom he was transporting the items and was a travel agent and a long time friend who offered him a free round trip ticket to Peru and in exchange she asked him to take two bags of merchandise to her sister and to return to New York with the two bags.

He said the items he took to Peru were electronic items toys and shoes. For the return flight the sister went with him to the airport where she showed him the contents of the suitcases, which he checked and boarded the flight to Miami. Following the seizure, Jeri volunteered to make controlled calls to the friend in an attempt to elicit inculpatory comments about the drugs in the suitcase, but the friend repeatedly claimed the bags were clean. The agents attempted to arrange a controlled delivery of the drugs but the person who came to pick up the packages refused to take them.

Published on: September 16, 2017

With no evidence Defendant knew he possessed drugs, the conviction is thrown out

by The Swartz Law Firm

In U.S. v. Louise, the Customs and Border Protection (CBP) was tipped off that the Ana Celia, a coastal freighter used to export goods from the United States to Haiti, was returning from Haiti to Miami carrying narcotic drugs. While the boat was docked in the Miami port, CBP agents set up surveillance of the boat. At one point the agents watched as a forklift picked up boxes from the boat and that were driven off the boat. The owner of the boat, Ernso Borgella, directed the forklift driver to place on the dock. Later a Nissan car which pulled up and Borgella told the driver to pull the car to park near the boxes. Two unidentified men loaded the boxes into the back seat of a white Nissan and Louis began to drive slowly out of the shipyard while Bogella walked alongside. After driving past the front gate of the shipyard the Nissan was stopped by law enforcement vehicles with lights and sirens. Louis exited the car and began to run. The agents found that the boxes in the back seat contained 111 bricks of cocaine.

Louis was charged with conspiracy to possess with intent to distribute cocaine and with possession of cocaine. After a two-day federal criminal trial the jury found Louis guilty on both counts and the district court denied his motion for an acquittal. In this appeal Louis challenged his conviction arguing that the court should have found the evidence was insufficient to find he conspired to distribute drugs.

Published on: May 15, 2017

Convictions for massive federal Medicare fraud upheld

by The Swartz Law Firm

In United States v. Bergman the defendants were convicted following a jury trial of conspiracy to commit health care and wire fraud, paying bribes and kickbacks in connection with a federal health care benefit program. Bergman was sentenced to 180 months and the other defendant was sentenced to 150 months.

Bergman was a licensed physician’s assistant employed by American Therapeutic Corporation that operated a Partial Hospitalization Program (PHP). A PHP serves as a bridge between inpatient and outpatient care for patients with a psychiatric condition serious enough to possibly require hospitalization. A community mental health center such as ATC administers a PHP, which offer intensive outpatient psychiatric care including individual or group psychotherapy, counseling and other mental health services. Staff at a PHP includes psychiatrists as well as nurses, physician’s assistants, occupational therapists, physical therapists and social workers.

After ATC was founded it developed into an extensive Medicare scammed billed Medicare for approximately $200 million in claims. While ATC did have some patients who needed psychiatric help and qualified for service, most did not and ATC did not provide the individualized treatment required by Medicare. Doctors that came in generally did nothing.

In this case the defendants created fake medical records and recruited patients in exchange for kickbacks. ATC paid its patient recruiters hundreds of thousands of dollars each month in cash in order to avoid any red flags or paper trail. They even kept a log of kickbacks paid.

Published on: May 28, 2016

Nude photos of a minor in her bathroom amount to images of sexually explicit conduct under the child pornography statute

by The Swartz Law Firm

In United States v Holmes the defendant appealed his conviction for production of child pornography and possession of child pornography in violation of 18 U.S.C. 2251(a) and 2252(a) (4)(B). Holmes was charged with surreptitiously videotaping his teenage stepdaughter performing her daily bathroom routine over a period of approximately five months and of being in possession of the videos and images of her in the nude. Holmes had installed concealed cameras in the stepdaughter’s bathroom and in the videos discovered on his computer the girl is seen completely naked. Plainly visible in those videos was her nude pubic area. Holmes also created a twenty-six screen captures from certain sections of the videos depicting close-up views of her pubic area. After trial, Holmes was found guilty and he appealed.
Under the statutes a defendant commits the crime of production of child pornography when he uses, persuades, entices or coerces a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The crime of possession of child pornography involves the knowing possession of a visual depiction that involves a minor engaging in sexually explicit conduct. The pornography statutory definition of sexually explicit conduct that applies here is the “lascivious exhibition of the genitals or pubic area of any person.”

Published on: May 10, 2016

Evidence sufficient to support a tax protester’s conviction for filing false federal tax returns

by The Swartz Law Firm

In United States v. Croteau, the defendant challenged the sufficiency of the evidence for his ten-count criminal conviction in federal court for making false and fictitious claims on this tax returns and for the reasonableness of his 56 month federal sentence. Croteau was a tax protester who filed false returns for three consecutive years claiming that he was entitled to refunds totaling $400,000 and to substantiate his return he submitted false 1099-OID forms reporting that financial institutions had issued interest income to Croteau and withheld the interest for federal tax purposes. Croteau’s tax returns sought refunds of the money withheld. None of the financial entities listed on Croteau’s 1099-OID forms had issued any interest income or any income to Croteau. Despite communication from the I.R.S. notifying him that he had provided the I.R.S. with frivolous tax information, Croteau repeatedly submitted amended tax returns for the same years containing fictitious and fraudulent 1099-OID information. To make matters worse, Croteau also recorded several false and fictitious liens and documents in the Lee County Clerks’ office asserting that the IRS owed him hundreds of millions of dollars. At his trial he did not contest that he had in fact filed false and fictitious tax returns and other financial documents. He raised a good-faith defense, claiming he had an honest belief that what he was doing was correct.

Published on: April 25, 2016

Sufficient evidence of forcing victim to work as a prostitute in the United States and in foreign countries

by The Swartz Law Firm

In US v. Damion St. Patrick Baston (“Baston”), the Defendant worked as a pimp and forced various women to work as prostitutes in Florida and around the world while keeping the money they earned As a result he was indicted for violating 18 U.S.C. 1593 and charged in Miami federal court for sex trafficking by force, fraud, or coercion in Florida and in the countries of Australia and United Arab Emirates. He was also charged with several counts of money laundering in violation of 18 U.S.C. 1956 based his having wired the sex-trafficking proceeds from Australian to Miami.

At his trial the government called three prostitutes that worked for him as witnesses who testified how they met Baston and how he used violence and coercion to force them into prostitution. His defense what that he never coerced the woman into prostitution and they were already prostitute when they met. He said they did it freely and voluntarily and in Australia prostitution is legal trade from which they could make money.
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Published on: April 20, 2016

Search for child pornography on home computer upheld after wife gave valid consent to the search even though the husband later refused to give consent

by The Swartz Law Firm

In USA v. Thomas the Defendant was convicted of knowingly accessing with intent to view child pornography in violation of 18 U.S.C. 2252(a)(4)(B). Prior to his federal court trial he filed a motion to suppress the incriminating images of child pornography that were seized from his desktop computer at his home in violation of the Fourth Amendment. He appealed the trial court’s denial of the motion to suppress asking the Eleventh circuit court of appeals to overturn the trial court’s decision.

These are the facts of the seizure. A police officer arrived at Thomas’s home in response to a telephone report from Thomas’s wife that there was child pornography on a computer within the home. The officer was greeted by Thomas’s wife who told the officer that she found eight to ten child pornography websites on a computer in their shared home. The wife described what appeared to be minors engaged in sexual conduct with an adult. The wife told the officer that the defendant was home but sleeping and did not give consent to view the computers, but the wife said they both use the computer though Thomas used the computers more often, and the wife gave permission to search all the electronic equipment. Other officers arrived while Thomas still slept and approached the computer screen where they saw in plain view web sites “pictures of young girls that had only their underwear on” though not engaged in any sexual activity. The officers learned from the wife that she had seen nude photos of 4 – 13 year old children in sex poses and being sexually abused but the wife mistakenly closed the web pages before the police arrived. The officer started to conduct a forensic search/scan of the hard drive of the computer and began a forensic search.
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