United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
a federal criminal defendant in the United States is charged
with criminal activity by way of an indictment returned in
open court by a grand jury. Such an indictment must give a
defendant notice of the crimes charged so he or she can
adequately prepare a defense. If this charging document
suffers from certain defects that do not adequately give the
defendant notice, Federal Rule of Criminal Procedure 12(b)
allows for the dismissal of the indictment prior to trial.
The Defendant in this case, Ezekiel O. Akande, M.D., seeks
relief from the Court under this Rule. Dr. Akande has moved
the Court for dismissal of Count 4 of the Indictment returned
against him on the ground that Count 4-which charges Dr.
Akande with health care fraud-fails to allege a violation of
law. Because the Court finds the Indictment complies with the
requirements of the United States Constitution, Dr.
Akande's Motion to Dismiss [R. 47] will be
February 23, 2017, a Federal Grand Jury returned an
Indictment against Ezekiel O. Akande, M.D. [R. 1.] This
Indictment charged Dr. Akande with eight separate counts of
criminal activity: unlawful distribution and dispensation of
Schedule II controlled substances, unlawful distribution and
dispensation of Schedule III controlled substances, operating
premises involved in drug activity, health care fraud, and
four counts of engaging in monetary transactions in
criminally derived property over $10, 000. Id. Here,
Dr. Akande only challenges Count 4: Health Care Fraud in
violation of 18 U.S.C. §§ 1347 and 1349. [R. 47.]
The Government contends that, from March 2012 through May
2016, Dr. Akande did “knowingly and willfully, with the
intent to further the objects of the conspiracy, combine,
conspire, confederate, and agree with others” in order
to “knowingly and willfully execute a scheme and
artifice to defraud” Medicare and Medicaid. [R. 1 at
10.] Allegedly, Dr. Akande did so in order “to obtain,
by means of materially false and fraudulent pretenses,
representations, and promises, money and property” of
Medicare and Medicaid “in connection with the delivery
of and payment for health care benefits, items, and
grand jury indictments have a purpose. As the Supreme Court
explained in Russell v. United States, our use of
the indictment today is rooted in the guarantees set forth in
the Fifth and Sixth Amendments to the United States
Constitution. See 369 U.S. 749, 760-61 (1962). The
Fifth Amendment provides that “No person shall be held
to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury . . . .”
U.S. Const. amend. V. And according to the Sixth Amendment,
“In all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the
accusation . . . .” U.S. Const. amend. VI. Out of this
constitutional framework comes two criteria for federal
indictments: First, an indictment must set forth the elements
of the offense charged, thereby giving notice to a defendant
of the accusations he or she must face. Second, an indictment
must be sufficiently specific so that a defendant may plead
double jeopardy, if charged in a subsequent proceeding with
the same crime based on the same facts. See Russell,
369 U.S. at 763-64; United States v. Martinez, 981
F.2d 867, 872 (6th Cir. 1992). With these requirements in
mind, the Court considers whether the Indictment returned
against Dr. Akande passes constitutional muster.
Akande's central challenge to Count 4 is that medical
necessity is a matter of opinion, not fact, and therefore
cannot be the basis of a fraud claim. [R. 47-1 at 1.]
Additionally, he states that 18 U.S.C. §§ 1347 and
1349 unconstitutionally vague, and thus, the application
these sections would violate Due Process. Id. at 6.
These two separate arguments will be addressed in turn.
first Constitutional requirement is satisfied because Count 4
of the Indictment adequately informs Dr. Akande of the
criminal charges brought against him. See Russell v. United
States, 369 U.S. 749, 763 (1962). The Indictment
specifically states Dr. Akande committed health care fraud
and outlines the precise way the Government alleges that he
did so within a reasonable date range: from March 2012
through May 2016, Dr. Akande “submitted and caused to
be submitted to Medicare and Medicaid claims for urine drug
screens that were not medically necessary;” he
“submitted or caused to be submitted to Medicare and
Medicaid claims for services that were not medically
necessary, in that the patients had no legitimate medical
need for treatment, but rather sought access to controlled
services;” and finally, Dr. Akande “submitted and
caused to be submitted to Medicare and Medicaid claims for
medical services, despite evidence that the beneficiaries
were not seeking medical treatment, but instead were
diverting the controlled substances.” [R. 1 at 11-12.]
He allegedly did this in order to defraud Medicare and
Medicaid. Id. at 10. The Indictment clearly and
adequately informs Dr. Akande of the crimes with which he is
charged, such that he and counsel can prepare a defense to
the Government's allegations.
the Indictment satisfies the second Constitutional
requirement, as it is sufficiently specific to allow Dr.
Akande to plead double jeopardy in a future proceeding.
Russell, 369 U.S. at 764. The Indictment sets forth
the dates of the health care fraud (on or about March 1,
2012, through on or about May 1, 2016) and where the crime
occurred (in Pulaski County, Kentucky). [R. 1 at 10.] Based
on this charging document, Dr. Akande should be able to raise
a double jeopardy defense should he be charged with a similar
crime at any future point in time.
Akande relies heavily on United States v. Paulus,
No. CR 15-15-DLB-EBA, 2017 WL 908409 (E.D. Ky. Mar. 7, 2017),
and several other cases outside this circuit. In
Paulus, the jury found a cardiologist guilty of
health care fraud for billing for unnecessary cardiac
procedures. Following a lengthy trial, the district court
judge determined there was insufficient evidence to sustain
the verdict and granted the defendant's Rule 29 motion.
Recognizing that the Sixth Circuit has deemed it
“fundamental that a false statement is a factual
assertion, ” the Paulus court found that the
Government failed to prove Dr. Paulus made any false
statements worthy of the jury's fraud conviction.
See 2017 WL 908409 at *5. Specifically, the
Paulus court considered whether the degree of
stenosis present in Dr. Paulus's patients-a measurement
used to justify the allegedly unnecessary cardiac procedures
he performed-was “an objective fact, which can
be false, or a subjective opinion, which is not
subject to proof or disproof.” Id. at *6
(emphasis in original). Considering this, the court went on
to conclude the Government had failed to prove beyond a
reasonable doubt that Dr. Paulus “knowingly and
willfully exaggerated the extent of his patients'
stenosis in their medical records, for the purpose of
defrauding a health care benefit program.” Id.
The trial evidence showed that estimating the degree of
stenosis is a very imprecise exercise for health care
providers, and expert witnesses varied significantly in their
observations and assessments of the appropriate treatment
under the circumstances. Id. at *7-*9. Accordingly,
the court concluded that the expert testimony and angiogram
evidence did not permit a rational jury to convict Dr. Paulus
of making a false statement, and the court further determined
the other circumstantial evidence introduced at trial was,
alone, insufficient to sustain the conviction. Id.
at *9-*16. As Paulus notes, “the statutes
targeting health care fraud do not criminalize subjective
medical opinions where there is room for disagreement between
doctors. Instead, criminal liability only attaches . . . if
the Government proved, beyond a reasonable doubt, that [the
Defendant] knowingly and willfully exaggerated the extent of
his patients' stenosis in their medical records, for the
purpose of defrauding a health care benefit program.”
Id. at *6.
the district court decided Paulus, the Sixth Circuit
resolved United States v. Persaud. 866 F.3d 371 (6th
Cir. 2017). In Persaud, Dr. Harold Persaud was
accused of ordering unnecessary tests for his cardiology
patients, systematically overestimating the stenosis detected
in those patients, and “upcoding” medical bills
in order to increase his reimbursement amount from insurers.
Id. at 373-74. The jury found him guilty of health
care fraud, thirteen counts of making false statements
relating to health care, and money laundering. Id.
Dr. Persaud appealed his conviction, arguing that the
government presented insufficient evidence. Id. at
379. The Sixth Circuit rejected this argument, stating,
“The jury, not this court, is intended to weigh the
import of expert testimony and balance it against the weight
of the defense's evidence.” Id. at 383.
Dr. Akande filed his motion to dismiss, Persaud had
been determined, but Paulus was still pending appeal
at the Sixth Circuit. Now, however, the Sixth Circuit has
overruled the district court in Paulus, finding that
in circumstances of health care fraud, “it is up to the
jury- not the court-to decide whether the government's
proof is worthy of belief.” United States v.
Paulus, No. 17-5410, 2018 WL 3097952, at *9 (6th Cir.
June 25, 2018) (citing Persaud, 866 F.3d at 383).
Counter to what Drs. Paulus and Persaud claimed, and what Dr.
Akande now asserts, “The degree of stenosis is
a fact capable of proof or disproof.” Paulus,