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United States v. Palo

United States District Court, W.D. Pennsylvania

December 26, 2017

UNITED STATES OF AMERICA
v.
DAVID EDWARD PALO

          OPINION

          David Stewart Cercone Senior United States District Judge.

         On July 12, 2016, a grand jury returned a twenty-seven count indictment against David Edward Palo ("defendant") charging him at count one with Health Care Fraud, from in and around January 2008 to in and around June 2014, in violation of 18 U.S.C. § 1347 and at counts two through twenty-seven with making false statements relating to health care matters, on specified dates between January 11, 2012, and February 5, 2013, in violation of 18 U.S.C. § 1035(a)(2). Presently before the court is defendant's motion to dismiss counts 2 through 27. For the reasons set forth below, the motion will be granted in part, taken under advisement in part and denied in part.

         The indictment charges at count one that defendant was a licensed dentist practicing in the Western District of Pennsylvania who specialized in oral surgery. Indictment (Doc. No. 1) at ¶¶ 1-2. As part of his practice defendant submitted claims to certain licensed insurance companies ("Health Care Benefit Programs") for services "defendant claimed were provided to patients." Id. at ¶¶ 3-4. The claims for payment contained the required personal information of the insured as well as the standard codes for the procedures performed. Id. at ¶¶ 5-6. During the years in question the standard codes included identified procedures for "extractions" and "surgical extractions." Id. at ¶ 7-8. The insurance companies relied on "the good faith and honesty of dentists and oral surgeons to truthfully and accurately state on each claim form all of the requested information including a truthful and accurate dental diagnosis code and a truthful and accurate [Code on Dental Procedures and Nomenclature]" ("CDT").

         The indictment further charges at count one that defendant devised a scheme to defraud the Health Care Benefit Programs in connection with the delivery of and payment for dental health care benefits. Id. at ¶ 12. As part of the scheme, defendant is charged with having submitted billings for surgical extractions

13. . . . that represented that the defendant had performed a surgical extraction of a tooth, when in truth and in fact, as the defendant well knew, the procedure involved a baby tooth that did not require a surgical extraction for removal.
14. . . . that represented that the defendant had performed a surgical extraction of a tooth, when in truth and in fact, as the defendant well knew, the procedure involved a patient with bone loss such that a surgical extraction was not necessary for removal of the involved tooth.
15. . . . that the defendant had performed a surgical extraction of a tooth, when in truth and in fact, as the defendant well knew, the procedure involved a coronal remnant that did not require a surgical extraction for removal.

Id. at ¶¶ 13-15. Defendant did not routinely write notes about such procedures, leaving such tasks to his dental assistants. Defendant submitted "fraudulent bills totaling in excess of approximately $232, 674" in furtherance of this scheme. Id. at ¶ 17.

         The false statement claims charged at counts two through twenty-seven incorporate the allegations at paragraphs 1 through 17. Id. at ¶ 18. It is further charged that beginning in January of 2008 and continuing to in and around June of 2014 defendant knowingly and willfully caused materially false and fraudulent statements and representations to be made in connection with

the delivery of and payment for health care benefits and services, in that the defendant submitted and caused to be submitted dental insurance claims in connection with health care benefit programs in which he sought payment for dental services and certified that the claimed services were provided, when in fact, he knew said services actually had not been provided to patients, and did so, for example, on or about the dates and in the manner set forth below for each representative false claim, each such false claim representing a separate Count of this Indictment . . . .

Id. at ¶ 19. Each separate count identifies the date of claim, the patient's initials, and the nature of the false claim, including the CDT, the specific tooth claimed to be involved, and the condition represented to have given rise to the asserted need for the oral surgery. Id. at ¶¶2-27.

         Defendant moves to dismiss counts two through twenty-seven on the assertion that "those counts are inherently inconsistent and directly contradict the allegations in count 1, and thus violate the Constitutional due process rights of the defendant . . . ." Motion to Dismiss (Doc. No. 18) at 1. He reasons that at count one the grand jury identified various instances where defendant preformed procedures that, although performed, were not required or necessary and at counts two through twenty-seven it returned charges based on procedures that defendant "did not perform" or were not required for removal of the tooth in question. Memorandum in Support of Motion to Dismiss (Doc. No. 19) at 2. Based on this perception, defendant maintains that he seemingly has been charged with inherently inconsistent courses of conduct and has not been sufficiently apprised of what he must be prepared to meet at trial.

         The government counters that the indictment satisfies the requirements in the Federal Rules of Criminal Procedure and purportedly sets forth consistent allegations that easily satisfy the rudimentary demands of due process. It cites authority setting forth the information an indictment must contain to satisfy the basic demands of due process: to wit, an indictment must (1) set forth the elements of the offense intended to be charged, (2) sufficiently apprise the defendant of what he must be prepared to meet, and (3) allow the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. See, e.g., United States v. Huet, 665 F.3d 588, 594- 95 (3d Cir. 2012) (citing United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007)). It further references the precedent establishing that in a charging instrument "no greater specificity than the statutory language is required so long as there is sufficient factual orientation" to permit a defendant to prepare his defense and invoke double jeopardy. United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989)). And it points out that an indictment will be deemed to have satisfied these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violation allegedly has occurred. See, e.g., United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005).

         Based on these basic tenants, the government maintains that defendant's motion to dismiss must be denied because he sufficiently has been apprised of the elements of the charges and supplied with sufficient ...


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