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United States v. Chavez

United States District Court, W.D. Kentucky, Louisville Division

November 29, 2018

UNITED STATES OF AMERICA Plaintiff
v.
LEDINSON CHAVEZ Defendant

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, District Judge United States District Court.

         On August 30, 2018, a jury convicted Defendant, Ledinson Chavez, of conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 1347 and 1349 (Count 1), health care fraud in violation of 18 U.S.C. §§ 1347 and 2 (Count 2), aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1), 1028A(c)5, and 2 (Count 13), and conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i) (Count 16). [DE 399, Jury Verdict; DE 207, Indictment]. Chavez now moves for an order compelling the United States to produce documents cataloguing the items in Sergio Betancourt's possession at the time of each of his arrests. [DE 398]. The United States filed a Response [DE 411], and Chavez did not file a reply. Chavez also moves for judgment of acquittal on Count 13 under Federal Rule of Criminal Procedure 29 [DE 410] and judgment of acquittal on Count 16 under Rule 29 or, in the alternative, a new trial on Count 16 under Rule 33 [DE 451]. The United States filed Responses [DE 419; DE 455], and Chavez filed Replies [DE 438; DE 460]. These matters are ripe for adjudication.

         Having considered the parties' filings and the applicable law, the Court DENIES Chavez's Motion for Documents Reflecting Inventory of Items in the Possession of Sergio Betancourt on Each Date of His Arrest [DE 398]; DENIES Chavez's Motion for Judgment of Acquittal on Count 13 [DE 410]; and DENIES Chavez's Motion for Judgment of Acquittal or for a New Trial on Count 16 [DE 451].

         DISCUSSION

         A. Motion for Documents Reflecting Inventory of Items in the Possession of Sergio Betancourt on Each Date of His Arrest

         Chavez has filed a Motion seeking “inventories of items seized from Sergio Betancourt at the time of his arrest in June 2015 as well as during his arrest in 2017.” [DE 398 at 2891]. Chavez argues these documents are “material to preparing the defense.” Id. The United States has filed a Response, arguing that Rule 16 does not require it to produce documents at this stage of the proceedings-i.e., after a jury has already found Chavez guilty. [DE 411 at 3001-02]. The United States also asserts that even if Rule 16 did require disclosure at this stage, the documents requested are not material to preparing Chavez's defense. Id. at 3003. Regardless, the United States claims that the documents sought do not exist, and Rule 16 does not require the whole cloth creation of such documents. Id. at 3002-04. Finally, the United States claims that Chavez may obtain any existing documents by contacting the Deputy Marshals involved in coordinating Sergio Betancourt's 2015 and 2017 arrests. Id.

         Rule 16 requires the United States to “permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places” in the United States' “possession, custody, or control” that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i). Thus, by its own terms, Rule 16 is limited to documents that are “within the government's possession, custody, or control.” Further, Rule 16 only applies to documents that already exist, and the United States is not required to create new documents for discovery purposes. See, e.g., United States v. Amaya-Manzanares, 377 F.3d 39, 42-43 (1st Cir. 2004) (“Rule 16(a)(1)(E) did not apply to a the document until it was created.”); United States v. Kahl, 583 F.2d 1351, 1354 (5th Cir. 1978) (upholding a district court's refusal to grant discovery of government statistical compilations because such compilations did not exist); United States v. Schembari, 484 F.2d 931, 935 (4th Cir. 1973) (“[T]he government cannot disclose what it does not have … ”); United States v. Harper, 432 F.2d 100, 102 (5th Cir. 1970) (holding that “the failure to produce non-required records when they do not exist” does not violate the Jencks Act).

         Here, the United States affirmatively represents that no inventory records exist. [DE 411 at 3003-04]. If the documents do not exist, the United States is not required to manufacture them. Further, the United States has provided Chavez with the opportunity to conduct further discovery on this point by contacting the Deputy Marshals involved in the arrests of Sergio Betancourt. Id. at 3004. This will allow Chavez to discover information regarding what was in Betancourt's possession at the time of his arrests. Accordingly, the Court denies Chavez's Motion.

         B. Motions for Judgment of Acquittal Under Rule 29

         1. Legal Standard

         Chavez moves for judgment of acquittal under Rule 29 for Counts 13 [DE 410] and 16 [DE 451]. A court should grant a motion for judgment of acquittal under Rule 29 only when the evidence admitted at trial, viewed in the light most favorable to the United States, was insufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt. United States v. Connery, 867 F.2d 929, 930 (6th Cir. 1989) (citations omitted). Grant of a motion of acquittal is “confined to cases where the prosecution's failure is clear.” Id. (citing Burks v. United States, 437 U.S. 1, 17 (1978)). In evaluating challenges to sufficiency of evidence, courts must not “weigh the evidence presented, consider the credibility of witnesses, or substitute [its] judgment for that of the jury.” United States v. Siemaszko, 612 F.3d 450, 462 (6th Cir. 2010) (citations and quotation omitted). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not ‘remove every reasonable hypothesis except that of guilt.'” United States v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004) (quoting United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989) (citation and quotation omitted)).

         2. Count 13-Aggravated Identity Theft

         Chavez argues that the United States failed to present sufficient evidence upon which a reasonable jury could find Chavez guilty of aggravated identity theft under 18 U.S.C. § 1028A. [DE 410 at 2995]. 18 U.S.C. § 1028A “imposes a two-year sentence for anyone who, [i] during and in relation to any felony violation enumerated in subsection (c), [ii] knowingly transfers, possesses, or uses, [iii] without lawful authority, [iv] a means of identification of another person.” United States v. Michael, 882 F.3d 624 (6th Cir. 2018). Health care fraud is a predicate felony for aggravated identity theft. 18 U.S.C. §§ 1028A(c)(5), 1347; United States v. Abdur-Rahman, 708 F.3d 98, 100-01 (2d Cir. 2013). And anyone who “aids, abets, counsels, commands, induces or procures” the commission of a felony is punishable as a principal. 18 U.S.C. § 2. Aiding and abetting requires an “affirmative act in furtherance of the offense, with the intent of facilitating the offense's commission.” United States v. Carbins, 882 F.3d 557, 563 (5th Cir. 2018).

         In this case, chiropractor Todd Black testified that his license, social security card, and chiropractor license were used to credential Ledic Therapy Group Corp. (“Ledic Therapy”) without Black's consent. [DE 429, Aug. 17, 2018 Tr. Vol. 5, 4082:15-25, 4083:1-16]. Black had originally supplied this information to Betancourt and Oskel Lezcano to credential Med Center Chiropractic & Rehab, LLC. [DE 429, Aug. 17, 2018 Tr. Vol. 5, 3958:11-17]. Black did not consent to the use of his information to credential any other clinic. Id. Indeed, it is undisputed that Black's driver's license, social security number, and chiropractor license are “means of identification” that were used to credential Ledic Therapy without lawful authority under 18 U.S.C. § 1028A. But Chavez argues that the United States failed to show Chavez personally “transferred, possessed, or used” Black's identity in credentialing the clinic. [DE 410 at 2995].

         While Chavez is correct that the United States offered no direct evidence at trial that Chavez personally transmitted Black's documents to credential Ledic Therapy, there was ample circumstantial evidence upon which a reasonable jury could find Chavez guilty of aggravated identity theft. Chavez's name appears as the incorporator of Ledic Therapy with the Kentucky of Secretary of State. [DE 307 at 1679-80]. Chavez's driver's license and social security number were in the credentialing documents transmitted to United Health Care along with Black's driver's license, social security number, and chiropractor license. [DE 428, Aug. 15, 2018 Tr. Vol. 3, 3881:7-21]. Chavez managed the Klondike Lane clinic where Black was a chiropractor. [DE 385, Aug. 21, 2018 Tr. Vol. II, 2704:2-5]. And, when Betancourt asked Chavez about a clinic Lezcano had set up for Betancourt, Chavez said, “it was fine ‘cause [Chavez] had his own-like, his own office - his own clinic.” Id. at 2703:25, 2704:1. The United States asked Betancourt, “Was that the Ledic Therapy?” Id. at 2704:4. Betancourt answered, “Yes.” Id. at 2704:5. A jury could reasonably rely on these facts to infer that Chavez, as head of Ledic Therapy, knowingly transmitted Black's means of identification to credential Ledic Therapy without Black's consent.

         Chavez nonetheless argues that the credentialing documents cannot be considered because the United States did not prove that Chavez signed the letter contained within the credentialing documents transmitted to United Health Care. [DE 410 at 2995]. As both parties note, this issue was discussed extensively at trial. [DE 410 at 2995; DE 419 at 3163]. The Court admitted the Secretary of State records under Federal Rule of Evidence 803(6) but instructed the jury not to consider documents for any other purpose than notice that such document was filed and processed, and not for the truth of the matter asserted or validity of Chavez's signature, which was hearsay within hearsay not subject to any exception. [DE 429, Aug. 17, 2018 Tr. Vol. V, 3974:14-23]. The Court admitted the ...


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