The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court are a number of motions filed by the Government and Defendant Gregory J. Salko. They are: (1) a motion to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b) by Defendant Salko (Doc. 39); (2) a motion for bill of particulars by Defendant Salko (Doc. 18); (3) a motion for discovery and inspection of physical evidence by Defendant Salko (Doc. 20); (4) a motion to compel the prosecution of evidence pursuant to Federal Rule of Evidence 404(b) and Brady v. Maryland, 373 U.S. 83 (1963) by Defendant Salko (Doc. 71); and (5) a motion for leave to take videotaped deposition in lieu of live testimony by the United States (Doc. 75).
For the reasons stated below, the Court will deny Defendant's motion to dismiss the indictment, but will bifurcate the trial so as to separate the sentencing portion of the trial from the case-in-chief. Second, the Government will be ordered to file a bill of particulars as to which bills were false, with the dates and amounts of the reimbursement. The motion will be denied on all other grounds. Third, the Court will order an in camera review of certain grand jury transcripts and/or witness statements for Brady statements. Fourth, the Court will deny Defendant's motion for Rule 16(a)(1) statements, and for inspection of Peggy Rogers' clothing. Fifth, the Court will order the Government to produce the names of the patients it plans to use for Rule 404(b) purposes. Sixth, the Court will deny the Defendant's motion for Dr. Kass' grand jury transcript, as it is not authorized by the Federal Rules of Criminal Procedure. Finally, the Court will deny the Government's motion for a videotaped deposition in lieu of live testimony, as the Government has failed to meet its burden in demonstrating the witness' unavailability.
On July 18, 2007, a grand jury charged Defendant Gregory Salko with two (2) counts of health care fraud in violation of 18 U.S.C. § 1347*fn1 and seventeen (17) counts of making false statements relating to health care in violation of 18 U.S.C. § 1035.*fn2 (Doc. 1.) The indictment charged that Defendant Salko, a licensed Pennsylvania physician, defrauded Medicare by billing medical services for two (2) of his patients, Peggy Rogers and Patient X, that he allegedly never performed. (Id. at 4, 11.) Both Rogers and Patient X suffered from breast cancer. (Id. at 3, 10.) Ms. Rogers ultimately died from metastatic breast cancer. (Id. at 4.)
The indictment charged that Defendant Salko "caused employees . . . to electronically submit claims to Medicare representing that [he] had provided medical services to Rogers on [nine] separate occasions [but that he] did not render the medical services he claimed to have provided." (Id. at 4-5.) Based on these electronically submitted claims, Salko received compensation from Medicare. (Id.)
The indictment further charged that "[i]n order to conceal his scheme from discovery via an audit, [Salko] caused employees . . . to prepare false Progress Notes that falsely represented that [he] had performed detailed physical examinations of Rogers," and that he caused "hard copies [of the Progress Notes] to be placed in Rogers' medical chart" and "electronic versions . . . to be retained in the computer files." (Id. at 5.) Similarly, the indictment charges Salko with submitting eight (8) claims to Medicare and creating eight (8) Progress Notes in connection with Patient X. (Id.)
On August 1, 2007, Salko pleaded not guilty to the indictment (Doc. 11), and was released on personal recognizance (Doc. 13).
The aforementioned motions are fully briefed and ripe for disposition.
I. Motion to Dismiss the Indictment (Doc. 39)
Defendant Salko's first motion is a motion to dismiss the indictment. (Doc. 39.) In this motion, Defendant Salko argues that each of the counts in the indictment fail to state an offense because the indictment does not establish that he made any misrepresentations to Medicare or in the alternative that, if he had, the misrepresentations were not material. Salko also argues that Counts I and XI, the health care fraud counts, do not include a material element of 18 U.S.C. § 1347, namely that the offense is "in connection with the delivery of or payment for health care benefits, items, or services." Salko next argues that the counts are duplicitous. Finally, Salko argues that the indictment's allegations concerning Rogers's death and Patient X's injuries should be stricken because it does not explain how any fraud "resulted in serious bodily injury or death."
Under Federal Rule of Criminal Procedure 12(b), a defendant may file a pretrial motion "alleging a defect in the indictment or information." FED. R. CRIM. P. 12(b)(3)(B).
Generally, an indictment is "deemed sufficient if it: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007) (quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989)).
A. Health Care Fraud (Counts I and XI)
Salko argues that Counts I and XI of the indictment must be dismissed because they do not contain critical elements of the 18 U.S.C. § 1347 offense charged, that they are duplicitous because they charge multiple offenses within a single count, and that the indictment's allegations are insufficient to merit consideration on whether his conduct "resulted in" the death of Rogers or the injuries to Patient X.
1. Misrepresentation and Materiality Defendant
Salko's first argument is that the indictment does not allege that Salko made affirmative misrepresentations to Medicare or Highmark Insurance. Salko contends that the indictment is internally inconsistent because it suggests at points that he "in fact conducted physical examinations of Ms. Rogers and in fact consulted with [Patient X] in her facility's lunchroom." (Def.'s Br. in Supp., Doc. 40, at 3) (citing Indictment, Doc. 1, at 3, 10). According to Salko, such inconsistencies are fatal to the indictment because "[t]he health care fraud statute . . . does not purport to criminalize instances of alleged medical malpractice and therefore has no application to the allegations of substandard medical care charged in the Indictment." (Def.'s Br. in Supp., Doc. 40, at 3-4.)
Although the indictment includes allegations that Salko "spent little time with Rogers and his physical examinations of her were often cursory and superficial" (Indictment, Doc. 1, at 3), the indictment also plainly alleges that he "did not render the medical services he claimed to have provided Rogers." (Indictment, Doc. 1, at 5) (emphasis added). The indictment charges that the differences between what Salko actually performed and what he claimed to have performed constitute the misrepresentations punishable by 18 U.S.C. § 1347. Even if Salko had provided excellent care to Rogers and Patient X, if he made affirmative material misrepresentations to Medicare about the nature of his treatment, he would still be culpable under 18 U.S.C. § 1347. Therefore, the Court finds that the indictment is adequate in that it charges Salko with making misrepresentations to Medicare and Highmark Insurance.
Salko next contends that any misrepresentations could not have been material "[b]ecause the allegedly false Progress Notes were never submitted to Medicare and payment was not conditioned on any data in the Progress Notes." (Def.'s Br. in Supp., Doc. 40, at 5.) The Government responds that although the Progress Notes may not have been submitted to Medicare, the electronic claims submitted by Salko constitute material misrepresentations because "Medicare determines what level of compensation to pay the physician by the particular code number identified in the claim." (Gov't Br. in Opp., Doc. 59, at 11.) The Court agrees with the Government that the indictment charges Salko with making misrepresentations based upon the electronically submitted claims, and that such misrepresentations are material. It is immaterial that the Progress Notes were never submitted to Medicare. The Progress Notes merely act as evidence that the representations made on the electronically submitted claims were material misrepresentations. Essentially, the Government alleges that the falsity occurs on the electronic claims submissions, and they seek to prove the falsity through use of the Progress Notes.
For the same reason, the Court finds Salko's arguments concerning the false statements counts to be without merit because the claims can constitute "materially false, fictitious, or fraudulent statements or representations."
Salko next argues that Counts I and XI of the indictment are defective because they fail to specifically allege that Salko executed a scheme "in connection with the delivery of or payment for health care benefits, items, or services." 18 U.S.C. § 1347. Salko asserts that the Government "fails to point to any specific language in the Indictment that puts Dr. Salko on notice as to whether the fraud is alleged to have occurred in connection with 'delivery' or 'payment' and fails to identify the 'benefits, items, or services' that form the basis for the charges." (Def.'s Reply Br., Doc. 66, at 12.)*fn3
The Government correctly counters that it need not include the precise statutory language in the indictment. It is settled that "[an] indictment is not insufficient merely because it fails to recite the precise language of the statute." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). Rather, the Federal Rules of Criminal Procedure require that an indictment be "a plain, concise, and definite written statement of the essential facts constituting the offense charged," FED. R. CRIM. P. 7(c)(1), and contain the elements of the offense charged. Vitillo, 490 F.3d at 321. The indictment alleges that Salko received "compensation from Medicare [he was] not entitled to receive," after he submitted, and Highmark approved, his false claims. (Indictment, Doc. 1, at 5.) In describing the scheme to defraud, the indictment alleges that Salko billed Medicare "for medical services rendered . . . that [he] did not, in fact, provide [and] obtained monies from Medicare [he was] not entitled to receive." (Id. at 4.) Although the indictment does not recite the specific statutory language that Salko executed a scheme "in connection with the delivery of or payment for health care," the indictment is sufficient in describing the acts, and therefore states an offense under 18 U.S.C. § 1347.
Salko next argues that Counts I and XI must be dismissed because they are duplicitous. As the Third Circuit Court of Appeals has explained, "[d]uplicity is the improper joining of distinct and separate offenses in a single count [which] may conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial evidentiary hearings, or endanger fair sentencing." United States v. Haddy, 134 F.3d 542, 548 (3d Cir. 1998). Salko argues that "[t]he indictment is flawed in that it fails to specify which of the 16 transactions will be used to at trial to establish execution of the alleged fraudulent scheme." (Def.'s Br. in Supp., Doc. 40, at 6.)
Although the Third Circuit Court of Appeals has not considered a duplicity challenge in a health-care fraud case, other circuit courts have considered and rejected similar arguments. See, e.g., United States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006) ("The indictment sets out an ongoing and continuous course of conduct, accomplished through three different methods, that were repeated on numerous (likely daily) occasions over several years. The indictment alleges only one crime: health care fraud. [T]he crime charged here was fairly straightforward, involved only one defendant, one victim, and one criminal statute."); see also United States v. Hickman, 331 F.3d 439, 445-46 (5th Cir. 2003) ("We hold . . . that the health care fraud statute, § 1347, punishes executions or attempted executions of schemes to defraud, and not simply acts in furtherance of the scheme. Of course, although the crime of health care fraud is complete upon the execution of a scheme, any scheme can be executed a number of times, and each execution may be charged as a separate count.").
In bank-fraud cases, which are analogous to health-care-fraud cases, the circuits generally agree "that each execution of a scheme to defraud need not give rise to a [separate] charge in the indictment." United States v. King, 200 F.3d 1207, 1213 (9th Cir. 1999) (following United States v. Hammen, 977 F.2d 379 (7th Cir. 1992) and United States v. Bruce, 89 F.3d 886 (D.C. Cir. 1996)). The Third Circuit Court of Appeals has approved of this approach in a recent unpublished opinion. See United States v. Clark, 208 Fed. App'x 137, 141 (3d Cir. 2006) ("To prove commission of the offense, the Government needed only to show that Clark executed or attempted to execute the scheme once. Under these circumstances, our sister circuits have held that it is appropriate for the Government to charge but one count of bank fraud, alleging that the defendant took part in a fraudulent scheme that was executed at least once.").
In line with the circuits that have considered the issue, the Government may - but need not - charge a single count of health-care fraud charging a defendant with executing a scheme based upon multiple executions. Here, the Government has chosen to do so, and therefore indictment should not be dismissed on these grounds.
B. "Results in Serious Bodily Injury or Death"
1. Element Versus Sentencing Enhancement Defendant
Salko first argues that the "results in serious bodily injury" language in 18 U.S.C. § 1347 constitutes a sentencing enhancement rather than an element. To that extent, Defendant Salko requests that the case be bifurcated between the case-in-chief and sentencing enhancement. In opposition, the Government argues that this language is an element to be proven in the case-in-chief.
Dicta from Justice Kennedy's dissent in the United States Supreme Court case of Jones v. United States, 526 U.S. 227 (1999) supports the proposition that the "results in serious bodily injury or death" language of Section 1347 is a sentencing enhancement, rather than an element of the crime. In the dissent, Justice Kennedy noted that "Congress does not always separate sentencing factors into separate subsections." Id. at 258. In support of that proposition, Justice Kennedy cites 18 U.S.C. § 1347, stating that the health care fraud statute includes "enhanced penalties if the violation 'results in serious bodily injury' or 'results in death.'" Id. (quoting 18 U.S.C. § 1347).
In this case, the rationale of Justice Kennedy's dissent is persuasive based on the distinguishing factors between Section 1347 and 18 U.S.C. § 2119, which was at issue in Jones. In the Jones majority, the Court found that 18 U.S.C. § 2119 set forth three elements, rather than a sentencing factor. The statute considered was a carjacking statute, which at the time read Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so shall -
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned any number of years up to life, or both.
Id. at 230 (quoting 18 U.S.C. § 2119).
At the District Court and Court of Appeals levels, the courts found that the numbered sections were not an element of the independent offense, and found that the subsections provided sentencing factors. Id. at 231-32. In considering whether the numbered subsections were sentencing factors or elements, the Supreme Court noted that at first glance, the subsections appeared to be sentencing factors. Id. However, the Court stated that in considering the subsections, not only did the subsections provide for higher penalties, but "condition[ed] them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph." Id. Therefore, "[i]t is at best questionable whether the specification of facts sufficient to increase a penalty by two-thirds, let alone from 15 years to life, was meant to carry none of the procedural safeguards that elements of an offense ...