Biloxi Physician Convicted for Role in $3 Million Compounding Pharmacy Fraud Scheme

Monday, March 5, 2018

A federal jury found a Biloxi, Mississippi physician guilty Friday for his role in an approximately $3 million compounding pharmacy fraud scheme.

Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division; U.S. Attorney D. Michael Hurst Jr. of the Southern District of Mississippi; Special Agent in Charge Christopher Freeze of the FBI’s Jackson, Mississippi, Field Division and Acting Special Agent in Charge Ted Magee of Internal Revenue Service Criminal Investigation’s (IRS-CI) New Orleans Field Office made the announcement.

Albert Diaz, M.D., 78, was convicted of one count of conspiracy to commit health care fraud and wire fraud, four counts of wire fraud, one count of conspiracy to distribute and dispense a controlled substance, four counts of distributing and dispensing a controlled substance, one count of conspiracy to falsify records in a federal investigation and five counts of falsification of records in a federal investigation following a five-day trial.  Sentencing has been scheduled for May 22, 2018 before U.S. District Judge Keith Starrett of the Southern District of Mississippi, who presided over the trial.

“Communities place extraordinary trust in medical professionals,” said Acting Assistant Attorney General Cronan.  “It is therefore particularly egregious when a physician compromises that trust, as Albert Diaz did when he played a pivotal role in causing millions of dollars in loss to our country’s health care programs.  The prosecution of Albert Diaz exemplifies the Criminal Division’s commitment to holding those involved in fraud schemes accountable for their actions.”

“When individuals defraud our military’s healthcare system TRICARE, harming the health and welfare of our men and women in uniform, they will be met with swift prosecution, severe punishment and the loss of their illicit gains,” said U.S. Attorney Hurst. “I applaud the tireless and determined work of these investigators and prosecutors in securing justice in this case.  Justice prevailed and justice will continue to roll.”

“In the past five years, health care fraud schemes have cost Mississippi taxpayers hundreds of millions of dollars,” said Special Agent in Charge Freeze.  “Today’s verdict should send a strong message that the FBI will continue to expose and investigate those who exploit our health care system at the expense of the taxpayer, and especially physicians who contribute to addiction by prescribing unnecessary controlled substances.”

“The jury found Dr. Albert Diaz guilty of conspiracy to commit healthcare fraud, which sent a message to all criminals seeking to defraud insurance companies – we’re on to you and will hold you responsible for your crimes,” said Acting Special Agent in Charge Magee.  “Dr. Diaz’s scheme to steal from TRICARE and other insurance companies not only cost the American taxpayers, but put the lives of his patients in danger.”

According to evidence presented at trial, between October 2014 and December 2015, Diaz participated in a scheme to defraud TRICARE and other insurance companies by prescribing medically unnecessary compounded medications, some of which included ketamine, a controlled substance, to individuals he had not examined.  The evidence further demonstrated that, based on the prescriptions signed by Diaz, Advantage Pharmacy in Hattiesburg, Mississippi dispensed these medically unnecessary compounded medications and sought and received reimbursement from TRICARE and other insurance companies totaling more than $3 million. The trial evidence further demonstrated that in response to a TRICARE audit, Diaz falsified patient records to make it appear as though he had examined patients before prescribing the medications.

The FBI, IRS-CI, the Defense Criminal Investigative Service, the U.S. Department of Health and Human Services Office of Inspector General, the Mississippi Bureau of Narcotics and other government agencies investigated the case.  Trial Attorneys Kate Payerle and Jared Hasten of the Criminal Division’s Fraud Section and Assistant U.S. Attorney Mary Helen Wall of the Southern District of Mississippi are prosecuting the case.

The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  The Medicare Fraud Strike Force operates in nine locations nationwide.  Since its inception in March 2007, the Medicare Fraud Strike Force has charged over 3,500 defendants who collectively have falsely billed the Medicare program for over $12.5 billion.

Transport Logistics International Inc. Agrees to Pay $2 Million Penalty to Resolve Foreign Bribery Case

Tuesday, March 13, 2018

Transport Logistics International Inc. (TLI), a Maryland-based company that provides services for the transportation of nuclear materials to customers in the United States and abroad, agreed to resolve criminal charges in connection with a scheme that involved the bribery of an official at a subsidiary of Russia’s State Atomic Energy Corporation and to pay a $2 million criminal penalty.  Three individuals have been charged for their alleged roles in the bribery scheme.

Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division, Acting U.S. Attorney Stephen M. Schenning of the District of Maryland, Principal Deputy Inspector General April G. Stephenson of the U.S. Department of Energy’s Office of Inspector General (DOE-OIG) and Assistant Director in Charge Andrew W. Vale of the FBI’s Washington, D.C. Field Office made the announcement.

TLI entered into a deferred prosecution agreement (DPA) with the Department in connection with a criminal information filed in the District of Maryland charging the company with conspiracy to violate the anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA).  In the DPA, TLI and the Department agreed that, because of the company’s financial inability to pay the penalty calculated under the U.S. Sentencing Guidelines, the appropriate criminal penalty is $2 million.  As part of the agreement, TLI also committed to cooperate fully with the Department’s ongoing investigation, and to continue to implement a compliance and ethics program designed to prevent and detect violations of the FCPA and other anti-corruption laws throughout its operations.  In reaching the resolution with the Department, TLI received full credit for its substantial cooperation with the Department’s investigation and for engaging in remedial measures, including terminating the employment of all employees engaged in the misconduct.

“Bribery of foreign officials not only distorts markets and undermines democratic institutions; it can also pervert the incentives of those who are in a position to safeguard the public, as it did in this case involving the transportation of nuclear material,” said Acting Assistant Attorney General Cronan.  “Today’s resolution, along with the related charges against the corporate executives and the Russian official in this matter, underscore the Department’s continued commitment to holding both companies and individuals accountable for their roles in corruption-related crimes and for breaching the public’s trust.”

“The Department of Energy remains committed to ensuring the integrity of our contractors and subcontractors, as well as providing the nation transparency, accountability, and security when it comes to safe and reliable transport of sensitive materials,” said Principal Deputy Inspector General Stephenson.  “We appreciate the efforts of the FBI, the Justice Department’s FCPA Unit and the U.S. Attorney’s Office in pursuing this matter and will continue to work collaboratively with them to aggressively investigate those who seek to defraud Department programs.”

“Today’s charges reflect the determination and ability of the FBI to investigate and prosecute companies that engage in foreign corrupt business practices, regardless of how sophisticated or far-flung the scheme may be,” said Assistant Director in Charge Vale.  “No entity is above the law and those that try to perpetrate a similar scheme will be pursued by the FBI.”

According to admissions and court documents, beginning in at least 2004 and continuing until at least 2014, TLI conspired with others to corruptly pay more than $1.7 million to offshore bank accounts associated with shell companies, at the direction of, and for the benefit of, Vadim Mikerin, a Russian official at JSC Techsnabexport (TENEX), a subsidiary of Russia’s State Atomic Energy Corporation.  The bribe payments were made to help TLI secure improper business advantages and obtain and retain business with TENEX.   In order to effectuate and conceal the bribe payments, TLI executives and others caused fake invoices to be prepared, purportedly from TENEX to TLI, that described services that were never provided.  TLI then wired payments for those purported services to shell companies in Latvia, Cyprus and Switzerland to further the bribery scheme.

On June 17, 2015, TLI co-president Daren Condrey pleaded guilty to conspiracy to violate the FCPA and commit wire fraud.  On Aug. 31, 2015, Mikerin pleaded guilty to conspiracy to commit money laundering involving violations of the FCPA, and Mikerin was sentenced to 48 months in prison on Dec. 15, 2015.  On Jan. 12, an 11-count indictment was unsealed against TLI co-president Mark Lambert, which charged Lambert with one count of conspiracy to violate the FCPA and to commit wire fraud, seven counts of violating the FCPA, two counts of wire fraud and one count of international promotion money laundering.  The charges in the indictment are merely allegations, and the defendant is presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The cases against TLI and Lambert are assigned to U.S. District Court Judge Theodore D. Chuang of the District of Maryland.

The case is being investigated by DOE-OIG and the FBI.  Assistant Chiefs Ephraim Wernick and Christopher J. Cestaro and Trial Attorney Derek J. Ettinger of the Criminal Division’s Fraud Section, as well as Assistant U.S. Attorneys David I. Salem and Michael T. Packard of the District of Maryland, are prosecuting the case.

The Criminal Division’s Office of International Affairs provided significant assistance in this matter.  The Department also thanks its law enforcement colleagues in Switzerland, Latvia and Cyprus for providing valuable assistance with the investigation and prosecution of the case.

The Criminal Division’s Fraud Section is responsible for investigating and prosecuting all FCPA matters.  Additional information about the Justice Department’s FCPA enforcement efforts can be found at www.justice.gov/criminal/fraud/fcpa.

Former CEO of Tennessee-Based Telemarketing Company Pleads Guilty to Misrepresenting Health Insurance Plans

Wednesday, March 7, 2018

The former owner and chief executive officer of a Nashville, Tennessee-based telemarketing company pleaded guilty this morning to overseeing a fraudulent scheme in which limited-benefit health plans were sold to consumers as traditional health insurance, and to violating a federal court order that in 2010 froze his assets and shut down the company, announced Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division and U.S. Attorney Don Cochran of the Middle District of Tennessee.

Timothy Thomas, 55, of Brentwood, Tennessee, pleaded guilty to one count of mail fraud and one count of contempt before U.S. District Judge David Lawson, sitting by designation in the Middle District of Tennessee.  He is scheduled to be sentenced by Judge Lawson on June 25.  Thomas was charged in a 15-count indictment filed in October 2014.

According to admissions made as part of his plea, Thomas operated and controlled United Benefits of America (UBA) LLC, which was known at various times as United States Benefits (USB) and Health Care America.  From at least 2007 to 2010, Thomas hired salespeople to sell over the phone so-called “association memberships” created by third-party companies such as International Association of Benefits and Consumer Driven Benefits of America.  These memberships included bundled benefits, such as limited benefit health plans, prescription drug discount cards, accidental death and dismemberment benefits and lifestyle benefits, such as rental car discounts.  Thomas targeted his sales to customers who had been denied traditional health insurance because of preexisting conditions, he admitted.  The sales script used by Thomas attempted to portray the memberships as equal in quality to traditional health insurance, omitting the fact that limited benefit health plans left customers with the vast majority of the financial risk.

Thomas admitted that salespeople working for him made even more flagrant misrepresentations and omissions and used terms such as “deductibles” and “copays” to make customers believe they were buying traditional health insurance.  Customer service employees and the Better Business Bureau routinely notified Thomas about customers complaining that they had been deceived into believing the plans were similar to traditional health insurance.  Thomas oversaw a lax compliance program that was understaffed, with usually one employee monitoring up to 60 or 70 salespeople, and levied only occasional fines to salespersons who misrepresented or omitted key details of the plans.  Despite knowing of the rampant misrepresentations and omissions, Thomas rarely fired salespeople for lying to customers, but routinely fired salespeople for low sales numbers, he admitted.  When in 2009 a local news station, WSMV, ran a critical story on UBA featuring undercover footage of salespeople discussing misleading sales tactics, Thomas did not institute any meaningful changes in business practices.  He merely changed the name of his company from UBA to USB and instructed a subordinate to sign a letter to the Better Business Bureau falsely claiming that the companies had nothing to do with each other.

When the Federal Trade Commission (FTC) filed a lawsuit against Thomas and his company in August 2010, a federal judge in the Middle District of Tennessee issued an order freezing Thomas’s assets and placing his company into receivership.  Immediately after being informed of the court’s order, Thomas violated it by withdrawing more than $100,000 from a brokerage account and convincing a friend to deposit checks totaling $528,647, constituting proceeds of the scheme, into the friend’s bank account, he admitted.

As part of his plea agreement, Thomas agreed to forfeit $1.5 million, representing the amount he personally gained through the fraudulent scheme.

The case was investigated by the FBI, the U.S. Postal Inspection Service, the Department of Labor’s Office of Inspector General and the Department of Labor’s Employee Benefits Security Administration.  The FTC and Tennessee Division of Insurance provided substantial assistance.  Trial Attorney William E. Johnston of the Criminal Division’s Fraud Section and Assistant U.S. Attorney Cecil VanDevender of the Middle District of Tennessee are prosecuting the case.

Beam Bros. Trucking Inc. and Its Principals Agree to Settle Civil False Claims Act Allegations

Monday, March 12, 2018

Beam Bros. Trucking Inc. (BBT), and its principals Gerald Beam and Garland Beam, have agreed to pay $1,025,000 to resolve allegations under the False Claims Act that BBT overcharged the U.S. Postal Service (USPS) on contracts to transport mail.  BBT is a trucking company located in Mt. Crawford, Virginia.

“The Department of Justice takes seriously its role in protecting the federal procurement process from false claims,” said Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division.  “This settlement demonstrates that we will hold accountable federal contractors engaging in fraud, and will ensure that federal funds are protected from overcharges and abuse.”

“We are gratified to have contributed to this investigation and applaud the exceptional work by the investigative team for both protecting the contracting process and overall program costs,” said Special Agent in Charge Scott Pierce of the U.S. Postal Service Office of Inspector General.  “Along with our law enforcement partners, the USPS OIG will continue to aggressively investigate those who engage in activities designed to defraud the Postal Service.”

“Contractors working for the federal government are held to the same high ethical standards as full-time employees,” U.S. Attorney for the District of New Jersey Craig Carpenito said. “This settlement will return more than $1 million to the USPS.”

USPS contracts with trucking companies, including BBT, to transport mail throughout the United States.  On some contracts, USPS had provided trucking contractors with credit cards, known as Voyager Cards, to pay for fuel.  This settlement resolves allegations that BBT misused Voyager Cards to purchase fuel on contracts that did not allow for their use, resulting in inflated charges in violation of the False Claims Act.

The settlement resolves allegations made in lawsuit filed under the whistleblower provision of the False Claims Act by Bobby Blizzard, a former BBT employee.  The False Claims Act permits private parties to file suit on behalf of the United States for false claims and obtain a portion of the government’s recovery.  Mr. Blizzard’s share of the recovery has yet to be determined.

The settlement was the result of a coordinated effort between the United States Attorney’s Office for the District of New Jersey, the Civil Division of the Department of Justice, and the USPS, Office of the Inspector General.

The lawsuit, which was filed in the District of New Jersey, is captioned United States ex rel. Doe v. Beam Bros. Trucking, Inc., Civil Action No. 10-657 (D.N.J.).  The claims resolved by this settlement are allegations only, and there has been no determination of liability.

Alabama Resident and Ringleader of Multi-Million Dollar Stolen Identity Tax Refund Fraud Schemes Sentenced to 30 Years in Prison

Thursday, March 8, 2018

Over 8,800 Identities Stolen from the U.S. Army, Alabama State Agencies and Georgia Businesses

A Phenix City, Alabama, resident was sentenced today to 30 years in prison for his role in masterminding multiple stolen identity refund fraud (SIRF) schemes, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division and U.S. Attorney Louis V. Franklin, Sr. of the Middle District of Alabama.

William Anthony Gosha III, a/k/a Boo Boo, was convicted, following a jury trial in November 2017, of one count of conspiracy, 22 counts of mail fraud, three counts of wire fraud, and 25 counts of aggravated identity theft.

According to the evidence presented at trial and sentencing, between November 2010 and December 2013, Gosha ran a large-scale identity theft ring with his co-conspirators, Tracy Mitchell, Keshia Lanier, and Tamika Floyd, who were all previously convicted and sentenced to prison.  Together they filed over 8,800 tax returns with the Internal Revenue Service (IRS) that sought more than $22 million in fraudulent refunds of which the IRS paid out approximately $9 million.

In November 2010, Gosha stole IDs of inmates from the Alabama Department of Corrections and provided the IDs to Lanier who used the information to seek fraudulent tax refunds.  Gosha and Lanier agreed to split the proceeds.  Gosha also stole employee records from a company previously located in Columbus, Georgia.  In 2012, Lanier needed an additional source of stolen IDs and approached Floyd, who worked at two Alabama state agencies in Opelika, Alabama: the Department of Public Health and the Department of Human Resources.  In both positions, Floyd had access to the personal identifying information of individuals, including teenagers.  Lanier requested that Floyd primarily provide her with identities that belonged to sixteen and seventeen year-olds.  Floyd agreed and provided thousands of names to Lanier and others at Lanier’s direction.

After receiving the additional stolen IDs, Gosha recruited Mitchell and her family to help file the fraudulent tax returns.  Mitchell worked at a hospital located at Fort Benning, Georgia, where she had access to the personal identification information of military personnel, including soldiers who were deployed to Afghanistan.  She stole soldiers’ IDs and used their information to file fraudulent returns.

In order to electronically file the fraudulent returns, Gosha, Lanier, and their co-conspirators applied for several Electronic Filing Identification Numbers (EFIN) with the IRS in the names of sham tax preparation businesses.  Gosha, Lanier, and their co-conspirators then used these EFINs to file the returns and obtain tax refund related bank products from various financial institutions, which provided them with blank check stock.  Gosha and his co-conspirators initially printed out the fraudulently obtained refund checks using the blank check stock.

However, the financial institutions halted Gosha’s and his co-conspirators’ ability to print checks.  As a result, they recruited U.S. Postal employees who provided Gosha and others with addresses on their routes to which the fraudulent refund checks could be directly mailed.  In exchange for cash, these postal employees intercepted the refund checks and provided them to Gosha, Lanier, Mitchell and others.  Gosha also directed tax refunds to prepaid debit cards and had those cards sent to addresses he controlled.

In addition, between January 2010 and December 2013, Gosha participated in a separate SIRF scheme with Pamela Smith and others, in which Gosha sold the IDs that he had stolen from the Alabama Department of Corrections to Smith and others.  Smith and others used the IDs to file returns that sought approximately $4.8 million in fraudulent refunds of which the IRS paid out approximately $1.85 million.  Smith also has been convicted and sentenced to prison for this conduct.

At Gosha’s sentencing, the government offered victim impact statements from several individuals whose identities were stolen, and from companies and governmental agencies where the identity theft breaches occurred.  An Alabama Department of Public Health representative noted, the identity theft was not only devastating financially, but it also had a chilling effect on the department’s ability to serve the residents of the State of Alabama.  A mother of a young U.S. Army soldier who was an identity theft victim described the consequences of the fraud on her and her family, stating:

While [my son] was fighting for our country and all back home[,] I received a very disturbing phone call from [an] Agent [] from the IRS that my son[,] while at Ft. Benning training to defend our country[,] the land of the free[,] had his identity stolen and fraudulent tax returns were filed with his social security number.  This news was devastating to think that my [] 19-year-old son[,] who was defending the very freedom this country stands [for] [,] was wronged by one of those people [he] was willing to die for.  My whole family could not believe what was happening.  We now had to worry about this terrible act by one of our own.  As I tried my best to keep composed and handle all of the gruesome mounds of paperwork to get this straightened out with the IRS, [my son] was then denied his tax refund [as result of this scheme].  This created a financial hardship on [him].  We were too afraid to tell [him] while he was deployed because we did not want to worry him and we wanted him to focus only on getting home alive and not have to worry about such an atrocious act by someone who did not even know [him].

In addition to the term of imprisonment, U.S. Chief District Court Judge Keith Watkins ordered Gosha to serve three years of supervised release and to pay restitution in the amount of $9,052,049.

Prior to Gosha’s sentencing, thirty of his co-conspirators have been sentenced, including Keisha Lanier who received 15 years and Tracy Mitchell who received over 13 years.

Principal Deputy Assistant Attorney General Zuckerman and U.S. Attorney Franklin commended special agents of Internal Revenue Service-Criminal Investigation and U.S. Postal Service Office of Inspector General who investigated this case and Trial Attorneys Michael C. Boteler and Gregory P. Bailey of the Tax Division and Assistant U.S. Attorney Jonathan Ross of the Middle District of Alabama, who prosecuted the case.

Additional information about the Tax Division and its enforcement efforts may be found on the division’s website.

Pennsylvania Hospital and Cardiology Group Agree to Pay $20.75 Million to Settle Allegations of Kickbacks and Improper Financial Relationships

Wednesday, March 7, 2018

UPMC Hamot (Hamot), a hospital based in Erie, Pennsylvania – and now affiliated with the University of Pittsburgh Medical Center (UPMC) – and Medicor Associates Inc. (Medicor), a regional physician cardiology practice, have agreed to pay the government $20,750,000 to settle a False Claims Act lawsuit alleging that they knowingly submitted claims to the Medicare and Medicaid programs that violated the Anti‑Kickback Statute and the Physician Self‑Referral Law, the Justice Department announced today.  Hamot became affiliated with UPMC after the conduct resolved by the settlement occurred.

The Anti-Kickback Statute prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid, and other federally funded programs.  The Physician Self-Referral Law, commonly known as the Stark Law, prohibits a hospital from billing Medicare for certain services referred by physicians with whom the hospital has an improper compensation arrangement.  Both the Anti-Kickback Statute and the Stark Law are intended to ensure that a physician’s medical judgment is not compromised by improper financial incentives and is instead based on the best interests of the patient.

The settlement resolves allegations brought in a whistleblower action filed under the False Claims Act alleging that, from 1999 to 2010, Hamot paid Medicor up to $2 million per year under twelve physician and administrative services arrangements which were created to secure Medicor patient referrals.  Hamot allegedly had no legitimate need for the services contracted for, and in some instances the services either were duplicative or were not performed.

“Financial arrangements that improperly compensate physicians for referrals encourage physicians to make decisions based on financial gain rather than patient needs,” said Acting Assistant Attorney General Chad A. Readler, head of the Justice Department’s Civil Division.  “The Department of Justice is committed to preventing illegal financial relationships that undermine the integrity of our public health programs.”

The lawsuit was filed by Dr. Tullio Emanuele, who worked for Medicor from 2001 to 2005, under the qui tam, or whistleblower, provisions of the False Claims Act.  The Act permits private parties to sue on behalf of the government when they believe that defendants submitted false claims for government funds and to share in any recovery.  The Act also allows the government to take over the case or, as in this case, the whistleblower to pursue it.  In a March 15, 2017 ruling, the U.S. District Court for the Western District of Pennsylvania held that two of Hamot’s arrangements with Medicor violated the Stark Law.  The case was set for trial when the United States helped to facilitate the settlement.  Dr. Emanuele will receive $6,017,500.

“Federal law prohibits physicians from entering into financial relationships that may affect their medical judgment and drive up health care costs,” said U.S. Attorney Scott W. Brady.  “Today’s settlement demonstrates our commitment to ensuring that health care decisions are made based exclusively on the needs of the patient, rather than the financial interests of health care providers.”

This matter was handled on behalf of the government by the U.S. Attorney’s Office for the Western District of Pennsylvania, the Justice Department’s Civil Division, and the Department of Health and Human Services Office of the Inspector General.

The case is captioned United States ex rel. Emanuele v. Medicor Associates, Inc. et al., Civil Action No. 10-cv-00245-JFC (W.D. Pa.).  The False Claims Act claims resolved by this settlement are allegations only and there has been no determination of liability.

New Orleans Woman Convicted for Role in $3.2 Million Medicare Kickback Scheme

Thursday, November 9, 2017

A federal jury found a New Orleans woman guilty today for her role in an approximately $3.2 million Medicare fraud and kickback scheme.

Acting Assistant Attorney General Kenneth A. Blanco of the Justice Department’s Criminal Division, Acting U.S. Attorney Duane A. Evans of the Eastern District of Louisiana, Acting Special Agent in Charge Daniel Evans of the FBI’s New Orleans Field Office and Special Agent in Charge C.J. Porter of the U.S. Department of Health and Human Services Office of Inspector General’s (HHS-OIG) Dallas Field Office made the announcement.

After a three-day trial, Sandra Parkman, 61, was convicted of one count of conspiracy to commit health care fraud, one count of conspiracy to pay and receive kickbacks, two counts of health care fraud and five counts of accepting kickbacks.  Sentencing is scheduled for Jan. 17, 2018, before U.S. District Judge Kurt D. Engelhardt of the Eastern District of Louisiana, who presided over the trial.

According to evidence presented at trial, from 2004 to 2009, Parkman and others engaged in a scheme to provide medically unnecessary durable medical equipment, including power wheelchairs, to Medicare beneficiaries in and around New Orleans.  The evidence showed that Parkman received kickback payments from the equipment supply company in return for providing eligible Medicare beneficiaries’ personal information to the company, as well as to obtain physican signatures on order forms.

As a result of the scheme, Parkman’s co-defendant, Tracy Richardson Brown, caused Medicare to pay over $3.2 million based on those illegally obtained referrals, the evidence showed.

Brown was previously convicted following a trial in June 2016 and was sentenced to 48 months in prison.

This case was investigated by the FBI and HHS-OIG.  Trial Attorneys Kate Payerle and Jared Hasten of the Criminal Division’s Fraud Section are prosecuting the case.

The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  The Medicare Fraud Strike Force operates in nine locations nationwide.  Since its inception in March 2007, the Medicare Fraud Strike Force has charged over 3,500 defendants who collectively have falsely billed the Medicare program for over $12.5 billion.

Owner and Manager of New York Medical Equipment Provider Charged for Their Roles in Alleged $3.5 Million Scheme to Defraud Government-Funded Health Plans

Wednesday, November 15, 2017

The owner and the manager of a purported durable medical equipment (DME) company in the Bronx, New York, were charged in an indictment unsealed today for their roles in an allegedly fraudulent scheme that involved submitting over $3.5 million in claims to private insurers, which included government-sponsored managed care organizations.

Acting Assistant Attorney General Kenneth A. Blanco of the Justice Department’s Criminal Division, Acting U.S. Attorney Bridget M. Rohde of the Eastern District of New York, Assistant Director in Charge William F. Sweeney Jr. of the FBI’s New York Field Office and Special Agent in Charge Scott Lampert of the U.S. Department of Health and Human Services Office of Inspector General’s (HHS-OIG) Office of Investigations made the announcement.

Ikechukwu Udeokoro, 41, of West New York, New Jersey, and Ayodeji Fasonu, 51, of Stamford, Connecticut, the owner and manager, respectively, of Meik Medical Equipment and Supply LLC of the Bronx, were charged with one count of health care fraud in an indictment filed in the Eastern District of New York on Nov. 13.  The indictment was unsealed upon the arrest of the defendants this morning, and the defendants are expected to be arraigned this afternoon before U.S. Magistrate Judge James Orenstein of the Eastern District of New York at the federal courthouse in Brooklyn.  The case has been assigned to U.S. District Judge Ann M. Donnelly.

According to the indictment, beginning in approximately December 2010 and continuing through at least February 2014, Udeokoro and Fasonu executed a scheme in which they submitted fraudulent claims to private insurers, including those that participated in Medicare Part C, for reimbursement for DME that was purportedly provided to the insurers’ members, many of whom were elderly or disabled and had insurance through Medicare Advantage plans or New York Medicaid Managed Care plans.  As part of the scheme, the defendants allegedly submitted claims to the private insurers for reimbursement for DME such as multi-positional patient support systems and combination sit-to-stand systems, when the defendants in fact provided the insurers’ members either nothing or a far less expensive product, such as a lift chair/recliner.

As alleged in the indictment, Meik Medical Equipment & Supply submitted more than $3.5 million in claims.

The charges in the indictment are merely allegations, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The FBI and HHS-OIG investigated the case, which was brought as part of the Medicare Fraud Strike Force, under the supervision by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Eastern District of New York.  Trial Attorney Andrew Estes of the Fraud Section is prosecuting the case.

The Fraud Section leads the Medicare Fraud Strike Force.  Since its inception in March 2007, the Medicare Fraud Strike Force, now operating in nine cities across the country, has charged nearly 3,500 defendants who have collectively billed the Medicare program for more than $12.5 billion.  In addition, the HHS Centers for Medicare & Medicaid Services, working in conjunction with HHS-OIG, are taking steps to increase accountability and decrease the presence of fraudulent providers.

CCC’s: Was Heir Locators Indictment a Hair Too Late?

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Below is a post that I wrote with a friend and former Antitrust Division colleague, Karen Sharp.  The post originally appeared in Law 360 Competition (here). I am reposting for those that don’t have access to the article.

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Was Heir Locators Indictment a Hair Too Late?

by Robert Connolly and Karen Sharp[1]

            On August 17, 2016, a Utah grand jury returned a one count Sherman Act indictment against Kemp & Associates, Inc. and Daniel J. Mannix,[2] a Kemp corporate officer.  According to the indictment, the conspiracy was an agreement to “allocate customers of Heir Location Services sold in the United States” that began as early as September 1999 and continued as late as January 29, 2014.

Heir location service companies identify heirs to estates of intestate decedents and, in exchange for a contingency fee, develop evidence and prove heirs’ claims to an inheritance in probate court.  The indictment charged that there was an allocation scheme whereby the defendants agreed with a competing heir location service company that the first company to contact an heir would be allocated certain remaining heirs to the estate and, in return, would pay the other company a portion of the collusive contingency fees collected from the heirs.

In pretrial orders issued last August, U.S. District Court Judge David Sam, 1) dismissed the indictment as time barred by the five-year statute of limitations; and 2) held that if there were a trial, the agreement would not be considered per se, but instead judged by the jury under the Rule of Reason.  The Antitrust Division is challenging both rulings on appeal in the Tenth Circuit.  In this article we discuss the court’s ruling that the indictment was time barred by the statute of limitations.

A full exposition of the facts can be found in the indictment,[3] Judge Sam’s Memorandum Decision and Order[4], the government’s opening brief in the Tenth Circuit,[5] and the defendants’ response.[6]  But in short, the relevant facts are these:

  • There was a written allocation agreement between competing heir location service companies to divide certain customers.
  • On July 30, 2008, defendant Mannix wrote to Kemp & Associates colleagues in an email: “The ‘formal’ agreement that we have had with [Blake & Blake] for the last decade is over.”
  • There were in fact no other heirs allocated after July 30, 2008.
  • Payments made by previously allocated customers, however, occurred within the Sherman Act five-year statute of limitations period preceding the indictment.

The government argues on appeal that the conspiracy did not end on July 30, 2008 when the agreement was abandoned but continued based on the “payments theory.” The payments theory is straightforward: conspirators rig bids, fix prices and/or allocate customers to reap the higher prices that come from eliminating/restraining competition.  As long as a conspirator is being paid as a result of the illegal agreement, the conspiracy continues.

The government has the weight of authority and specifically, Tenth Circuit precedent, on its side.  The government argues on appeal that Judge Sam “mistakenly concluded that the alleged conspiracy ended after the last customers were allocated, rather than continuing as long as the conspirators collected and distributed payments from the contracts with the allocated customers.”  The indictment specifically alleged that as part of the customer allocation conspiracy, the defendants “accepted payment for Heir Location Services sold to heirs in the United States at collusive and noncompetitive contingency fee rates.”  The indictment alleges that the conspiracy continued at least as late as January 29, 2014, which is the date when, according to the defendants’ motion to dismiss the indictment, “a large team of law enforcement agents and prosecutors served subpoenas on, and sought to interview, many of the Company’s employees.”

The payments theory is well accepted, including in the Tenth Circuit.  United States v. Evans & Associates Construction Co.[7] was a bid-rigging case where the contract was rigged outside the statute of limitations, but the defendant received payments for the work done on the contract within the statute period.  The Tenth Circuit in Evans concluded that “the statute did not begin to run until after the successful contractor accepted the last payment on the contract.”[8] According to the court, “the Sherman Act violation was ‘accomplished both by the submission of noncompetitive bids and by the request for and receipt of payments at anti-competitive levels.’”[9] Similarly, in the more recent case of United States v. Morgan, the Tenth Circuit held that “the distribution of the proceeds of a conspiracy is an act occurring during the pendency of the conspiracy.”[10]

Judge Sam did not agree that the indictment before him alleged a conspiracy that would properly invoke the payments theory.  He concluded that the primary purpose of the anticompetitive agreement was the allocation of customers.  According to Judge Sam, “[i]t then follows that any conspiratorial agreement ceased to exist once the allocation of customers through the [agreed-upon] Guidelines ceased.”  Judge Sam distinguished the heir locators’ agreement from the bid-rigging agreement in Evans, stating, “[T]he evidence in Evans and Morgan shows that the central purpose of the conspiracy was to obtain wrongful proceeds or money.  While the Indictment here mentions the payment of proceeds, Ind. ¶¶ 11 (h), (i), the central purpose of the conspiracy charged was not ‘economic enrichment.’” Judge Sam found, without even a hearing or trial, that the “central purpose” of the heir locators’ allocation agreement was not “economic enrichment.”  The statute of limitations, therefore, expired on July 30, 2013, five years after defendant Mannix sent an internal Kemp & Associates email abandoning the allocation agreement.

In our opinion the judge was grasping at straws to distinguish (and extinguish) this case from Evans to avoid application of the payments theory.  Payments by allocated heir locator customers seem like payments made on rigged contracts.  Since the judge also found this to be a Rule of Reason case, he apparently felt that the agreement on balance was procompetitive–and not designed to generate supra competitive profits.  The court’s logic seems to be a real-life application of the “bad facts make bad law” principle.  But, there was simply no record on which to base a finding that the payments made and accepted by defendants and their co-conspirators within the statute were merely administrative tasks that “bore no relation to customer allocation.”

A Better Way to Judge The Validity of Using a Payments Theory To Extend the Statute

  1. The Judicial Concern with Prosecutorial Delay

            Judge Sam was clearly troubled by the fact that the defendants were indicted in August 2016, several years after the five-year statute of limitations would have appeared to have run on an agreement that was abandoned in July 2008.  Moreover, since there was no fixed time when an estate distribution would be finalized, there was no telling when the statute of limitations would begin to run in this type of case. The court noted:

“Additionally, the government has identified 269 allegedly affected estates, the administration of which consisted of a series of ordinary, non-criminal events that could last many years. In contrast, Evans involved the bid for one contract which was bid, granted, completed and fully paid within the two years. [citation omitted] . . .. This arbitrariness is not consistent with the very reasons limitations periods exist in criminal cases.”

In bid-rigging cases, the outer limits of the statute of limitations is at least defined by the length of the contract.  But here, as the court noted, the payments theory could extend the statute of limitations for an unknown, and possibly very long time.

2.    The “Payments Theory” as a Due Process Violation

A more direct and fair method to address the concern that Judge Sam and other courts may have with an indefinite extension of a statute of limitations is to consider the application of the payments theory as a possible violation of due process.  Does extending the statute of limitations for an indefinite and arbitrary period deprive the defendants of due process?

The Supreme Court has recognized that prosecutorial delay may constitute a due process violation but has set an extremely high bar for a would-be successful defendant.  In United States v. Marion,[11] the Court held that in order for the Due Process Clause of the Fifth Amendment to require dismissal of an indictment the defendant must show that the pre-indictment delay:

1)         caused substantial prejudice to the defendant’s rights to a fair trial; and

2)         that the delay was an intentional device to gain tactical advantage over the accused.[12]

There is a critical difference, however, between the facts in Marion and the heir location services case.  In Marion there was a three-year delay between the commission of the crime and the charged case.  The defendants alleged this delay was a prejudicial due process violation.  But, the case was still brought within the statute of limitations.  However, where, as here, the application of a payments theory leads to an arbitrary and indefinite extension of the statutorily set limitations period, Marion can be distinguished.  We suggest it would be appropriate to apply a different/lesser test in this case.  The near-impossible-to-meet prong of showing that the prosecution intentionally engaged in delay tactics to gain an advantage should be dropped.  Instead, the defendants should be required to make the Marion showing of substantial prejudice suffered by the application of the payments theory. A showing of substantial prejudice would require for example a witness’ death or illness, loss of physical evidence, or a witness who was once available is now not available; i.e., something more than a general allegation that memories fade with time.

Another aspect of due process that can arise in payments theory cases, and may be what really troubles courts, is that an individual who is the subject or target of a criminal antitrust investigation is often without a job and can find it difficult to get one while possible legal charges hang over his or her head.  A company may also suffer negative financial consequences while a “cloud of suspicion” from a grand jury investigation lingers.  Being a subject/target of an antitrust criminal investigation is an incredibly stressful and expensive ordeal.  If this status is going to continue, perhaps indefinitely, past the traditional statute of limitations, there should be a very good reason.  Depending on the circumstance, a judge, like Judge Sam, may find that the delay in bringing a case was a due process violation of the defendants’ property rights—the right to earn a living.

We also suggest, however, that if the defendant can make a showing of substantial prejudice, the government should have the opportunity to explain why there was a need to resort to a payments theory. Was the crime or industry investigated very complex?  Did the subjects themselves stonewall the investigation and cause delays?  Did the defendants successfully conceal the conspiracy until very near the typical running of the statute?  If the government has a satisfactory explanation of why it has resorted to the payments theory, and especially if the defendant’s conduct during the investigation contributed to the delay, then the court should find no due process violation.

The due process analysis we are suggesting is, of course, a deviation from the two-step test the Supreme Court established in Marion, but it is based on a valid distinction from Marion—but for the payments theory, the heir locators’ indictment is barred.  A balancing of the prejudice to the defendant versus the government’s need to use the payments theory, is a more appropriate way for a court to decide whether a case is time-barred than by finding that the ultimate goal of a customer allocation scheme was not economic enrichment.

Some Thoughts on the Case as Former Prosecutors

            Another benefit of a due process analysis is that it would help explain why the government brought a case that is facially so far out of the statute of limitations.  One might conclude, and perhaps Judge Sam did, that the government was simply negligent, and the defendants should not bear the cost of that negligence. After all, the allocation agreement itself was in the form of written “Guidelines,” and the directive ending the “formal” agreement was in a July 2008 email.  The defendants further allege that two disgruntled former Kemp & Associates employees (and potential witnesses) first approached the Antitrust Division in 2008 or 2009.  By all appearances, this seems like a relatively easy conspiracy to “uncover” and prove, so why did the Antitrust Division wait until it had to rely on a payments theory to bring an indictment?

As former prosecutors we can speculate—and it is just speculation– as to why the case was brought using a payments theory to extend the statute.  One possibility that comes to mind is that the government believes that the conspiracy was not abandoned in July 2008.  Perhaps the government has evidence that additional customers were allocated after July 2008 and that the conspiracy in fact continued until the date the defendants received the subpoenas.  Was the Mannix email withdrawing from the conspiracy just a cover and the allocation actually continued “underground?” The government may simply have found it expedient to go with the payments theory rather than disprove the withdrawal email beyond a reasonable doubt.  This, of course, is just speculation–there may be other valid reasons why a payments theory was necessary.  But, often the public facts do not tell the entire story. The Antitrust Division brought a case that appeared to be a straightforward per se customer allocation agreement and used the well accepted payments theory to bring the case within the statute of limitations.  Without a trial or a record of any sort, there is no way to tell whether this was a sound exercise of prosecutorial discretion or not.[13]

The Tenth Circuit may reverse Judge Sam on the statute of limitations issue, in which case the rule of reason versus per se issue will take center stage. Or the appeals court may agree with Judge Sam and limit the payments theory to situations, like Evans, where there is a fixed contract performance time that limits the payments theory extension of the statute of limitations.  But, even in this situation, contracts typically have delays, so the idea of a “fixed contract time” may be somewhat illusory.  While it is not the law currently, our suggestion is that rather than have courts chip away at the legally sound payments theory based on dubious distinctions, defendants should challenge, and courts should assess the fairness of, the government’s use of the payments theory on the basis of due process; i.e., balancing the harm to the defendants against the justification offered by the government for relying on this theory to extend the statute.

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[1] Bob Connolly is a partner with GeyerGorey LLP.  He is the former chief of the Antitrust Division’s Philadelphia Field Office and served for 34 years in the Antitrust Division. He publishes a blog, Cartel Capers.

Karen Sharp is a former trial attorney with the DOJ Antitrust Division, where she investigated and prosecuted national and international antitrust matters for 25 years. She also served as a special assistant United States attorney in the Eastern District of California. Most recently she was counsel for Wilson Sonsini Goodrich & Rosati in San Francisco.  Ms. Sharp can be reached at [email protected].

[2] United States v. Kemp & Associates, Inc., et al., No. 2:16-cr-00403 (D. Utah Aug. 17, 2016) (David Sam J.)16-

[3]   The indictment can be found on the Antitrust Division’s website at https://www.justice.gov/atr/file/887761/download.

[4]  Judge Sam’s memorandum opinion is linked at Law 360, Aug. 29, 2017, Antitrust Charges Against Heir-Tracker Co. Dismissed, available at https://www.law360.com/articles/958574/doj-antitrust-charges-against-heir-tracker-co-dismissed. It can also be found here JudgeSamSOLOrderandMemorandum.

[5]   Opening Brief for the United States, (corrected) (filed January 3, 2018), available at https://www.justice.gov/atr/case-document/file/1020466/download.

[6]  The defendants’ brief is linked at Law 360, February 5, 2018, Heir-Tracking Firm Urges 10th Circ. to Refuse Antitrust Case, available at https://www.law360.com/competition/articles/1009042/heir-tracking-co-urges-10th-circ-to-refuse-antitrust-case.  It can also be found here defendants’ kemp-brief.

[7]   United States v. Evans & Associates Construction Co., 839 F.2d 656 (10th Cir. 1988).

[8]   Id. at 661.

[9]   Id. (quoting United States v. Northern Improvement Co., 814 F.2d 540 (8th Cir. 1987)).

[10]  United States v. Morgan, 748 F.3d 1024, 1036-37 (10th Cir. 2014).

[11]  United States v. Marion, 404 U.S. 307 (1971).

[12]  Id. at 324.

[13] The Antitrust Division already had a significant setback on the “payments theory” in United States v. Grimm, 738 F.3d 498 (2d Cir. 2013), a case where the jury returned guilty verdicts for fixing of municipal bonds.  The last bond fixed was outside the five-year statute of limitations, but payments on the fixed bonds could extend over the life of the bonds—up to thirty years.  The Second Circuit could not accept this extreme extension of the statute of limitations and reversed the convictions ruling that a “[criminal] conspiracy ends notwithstanding the [later] receipt of anticipated profits where the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions.” Id. at 502 (quotation marks, ellipses, and brackets omitted).

Chief Executive Officer of Armored Vehicle Company Sentenced to More Than Five Years in Prison for Role in Scheme to Defraud the United States

Tuesday, February 20, 2018

The owner and chief executive officer of an armored vehicle company was sentenced today to 70 months in prison for his role in orchestrating a scheme to defraud the United States by providing the U.S. Department of Defense with armored gun trucks that did not meet ballistic and blast protection requirements set out in the company’s contracts with the United States.

Acting Assistant Attorney General John P. Cronan of the Justice Department’s Criminal Division, U.S. Attorney Rick A. Mountcastle of the Western District of Virginia, Special Agent in Charge Adam S. Lee of the FBI’s Richmond, Virginia, Field Office and Special Agent in Charge Robert E. Craig Jr. of the Defense Criminal Investigative Service’s (DCIS) Mid-Atlantic Field Office made the announcement.

William Whyte, 72, of King City, Ontario, the owner and CEO of Armet Armored Vehicles of Danville, Virginia, was sentenced by U.S. District Judge Jackson L. Kiser of the Western District of Virginia, who also ordered Whyte to serve three years of supervised release following his prison sentence and to pay restitution in the amount of $2,019,454.36.

On Oct. 9, 2017, after a two-week trial, Whyte was found guilty of three counts of major fraud against the United States, three counts of wire fraud and three counts of criminal false claims.  Whyte was charged by an indictment in July 2012.

Evidence at trial demonstrated that Whyte executed a scheme to defraud the United States by providing armored gun trucks that were deliberately under-armored.  Armet contracted to provide armored gun trucks for use by the United States and its allies as part of the efforts to rebuild Iraq in 2005.  Despite providing armored gun trucks that did not meet contractual specifications, Whyte and his employees represented that the armored gun trucks were adequately armored in accordance with the contract, the evidence showed.  Armet was paid over $2 million over the course of the scheme, the evidence showed.

The case was investigated by the FBI and DCIS.  The case is being prosecuted by Trial Attorney Caitlin Cottingham of the Criminal Division’s Fraud Section and Assistant U.S. Attorney Heather Carlton of the Western District of Virginia.